Complainant

Respondent

Parties

Brigid  Walsh

Riu Plaza The Gresham Dublin Hotel

Representatives

SIPTU

 IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055187-001

20/02/2023

The complainant, Brigid Walsh commenced her employment with the respondent on June 2nd, 1998. as an Accommodation Assistant and worked thirty-nine hours per week. Her rate of pay was €718 per week gross.

This complaint under Section 77 of the Employment Equality Acts against the Riu Plaza Gresham Hotel is that she was discriminated against on the grounds of disability due to its failure to provide her with reasonable accommodation and for dismissing her on discriminatory grounds

Discrimination is less favourable treatment, on any of the nine grounds. The treatment of the complainant is directly linked to her health issues and from this the inference of discrimination can be drawn. She contends that she was treated less favourably than a person who did not have a disability in the workplace would have been treated.

In March 2021 Ms. Walsh had to have a shoulder replacement. The hotel was closed during this period due to Covid restrictions and following the ending of Covid Restrictions, she was out of work from June 2nd, 2021.  She was requested to attend an Occupational Health (OH) assessment by the Respondent on August 3rd, 2021.

The first OH report recommended that she return to work on the basis of ‘light duties’ only. She was then invited to attend a meeting with Ms. Sharon Coleman, HR Manager and Andrew Walsh on August 18th to discuss the OH report.

The purpose of the meeting was to discuss options based on the recommendations of the Occupational Health report which had recommended possible lighter duties or other suitable roles. The meeting took place on September 7th, 2021, and Ms. Walsh was represented by SIPTU. It was agreed at the meeting to have a further meeting on 14th September 2021.

Following the meeting, she received a letter dated September 8th, 2021, terminating her employment  due to incapability. The respondent said they had explored other options for suitable work but there were none.

As of September 8th, 2021, Ms. Walsh had been out of work for only three months, and had only had the surgery in March 2021, less than six months from the decision to terminate her employment. The decision to terminate Ms. Walsh was taken one day after the meeting took place.

She appealed the decision to the Hotel Manager, Paul McCracken on  September 10th, 2021. An appeal hearing took place on October 6th. On  November 16th Mr. McCracken advised that Ms. Walsh would be referred to a second OH appointment and she was notified of this on November 30th.

On  December20th Mr. McCracken emailed Ms. Walsh to advise he was waiting on further information from the OH doctor and that due to the festive period an update might not be provided until the New Year.

The complainant  sent a letter on January 17th  2022 to Mr. McCracken seeking the appeal outcome and the Occupational health report which had been sent to the respondent on December 7th, 2021. And this was sent on January 17th.

It  recommended that ‘the decision for her fitness to return to work be reviewed in the next 6-12 months when sufficient time has been given for rehabilitation and healing for her shoulder condition.”

SIPTU wrote to Mr. McCracken on 20th January seeking the outcome of the appeal and this was issued on  January 27th and included the following

“IhighlighthoweverthattheadviceprovidedbyDr.Ibrahimwillbefollowed andafurther review will be arranged for 6 months from 30/11/2021, the appointment will be confirmed to you in writing 2 weeks before hand.”

On  March 7th, 2022, Ms., Walsh wrote to Mr. McCracken attaching an updated medical report from the Orthopaedic Surgeon and asking whether lighter duties would be possible. He responded on March 14th  to say that there would be a follow up appointment in June  but that no light duties were available.

On  June 20th, Ms. Walsh was requested to attend a follow up OH Appointment on  July 5th and on July 26th the complainant  was told that a meeting to discuss matters would be delayed.

On  October 25th Mr. McCracken wrote to Ms. Walsh asking her to attend a meeting on November 16th, 2022, at which she was told that based on the OH report and medical evidence, her  employment was being terminated on the grounds of incapacity.

Following the meeting of November 16th, Mr. McCracken wrote to Ms. Walsh on  November 21st to confirm that her employment was being terminated on ground of incapability, as per the original decision.  The respondent advised that there were no suitable roles available and that all roles were of a physical nature.

Legal submissions were made on the applicable law, Section 2.1 of the Employment Equality Acts :

Both the Labour Court and Equality Tribunal have held that disabilities which are of a temporary nature can come within the ambit of protection of the Acts.

 In Customer Perception v Leydon where it was held that reduced movement in the shoulder, back, and neck were found to constitute a disability amounting to ‘a malfunction…of a part of a person’s body’ within the meaning of Section 2 of the Acts.

In Sophie Harrington V Natus Nicolet Ireland Limited the Court stated.

“Moreover,inprovidingthatthetermcomprehendsadisability whichexistedbut nolongerexists,it is clear that a temporary malfunction comes within the statutory definition. For all of the foregoing reasons, the Court has no doubt that the complainant's condition amounted to a disability within the meaning of the Act. In applying the foregoing reasoning of the Labour Court, I find that the complainant’s operation and post-operative recovery constituted a temporary disability within the meaning of the Acts. “

Section 16(3) of the EEA imposes the obligation of reasonable accommodation on employers for employees and prospective employees.

Section 16(4) of the Acts then sets out the type of accommodations which could be made by an employer and these measures are referred to as appropriate measures. Such appropriate measures include adaption of premises or equipment, patterns of working time, distribution of tasks and the provision of training.

Under the fourth indent of Article 2 of the UN Convention, '“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

In HK Danmark, acting on behalf of Ring the CJEU pointed out that Article 5 of Directive 2000/78/EC, which deals with the provision of reasonable accommodation for workers with a disability, must be interpreted and applied in harmony with the requirements of the UN Convention. The Court said, at paragraph 53: -

“Inaccordancewiththesecond paragraph of Article 2 of the UN Convention, 'reasonable accommodation' is 'necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms'. It follows that that provision prescribes a broad definition of the concept of 'reasonable accommodation’.

Article 26 of the Charter of Fundamental Rights of the European Union, which, since the entry into force of the Lisbon Treaty, has the same legal standing as the Treaty. Article 26 of the Charter provides: -

“TheUnionrecognisesandrespectstherightofpersonswithdisabilitiestobenefitfrom measures designedtoensure their independence,socialand occupationalintegrationandparticipationinthe life of the community”.

The Irish Human Rights and Equality Commission explain reasonable accommodation as:

‘appropriatemeasuresmeaneffectiveandpractical changes that the employer puts in place to enable employees with a disability to carry out their work on an equal footing with other including ‘assigning an employee certain tasks and substituting others for equivalent duties in consultation with the employee”

In A Health Club v A Worker, the Labour Court said

“At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.”

In Dunnes Stores V Mary Doyle Guidera (2018) the Court found that that respondent failed to adequately discharge the duties imposed upon it by the Act at Section 16. The Court therefore found that the Complainant was discriminated against on the grounds of disability contrary to the Act.

The complainant relies on Marie Daly v Nano Nagle School (Court of Appeal, January 31st, 2018) where it states.

‘Thepointisasimpleone;thestatutory obligation is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation ….’

The court confirmed the decision of an Equality Officer saying.

‘ThegeneralprinciplesetoutinHumphriesvWestwoodFitnessClubrequiredanemployertomakea bonafideandinformeddecisionregardingdisabledemployee’scapabilities before concluding that he or she is unable to perform the duties of their employment….

Ataminimum,itrequiresthe employertofullyandproperlyassessalloftheavailablemedical evidenceand,wherenecessary,toobtainfurthermedicaladvicewheretheavailableevidenceisnot conclusive.

In Stephen Dunne V Sky Handling Partner Ltd the WRC Adjudicator said

“Iamcognisantfrom thedocumentationsubmitted thatnoexpertevidence wasobtained inrelation tothecomplainantastoduties/tasks which hecould/couldnotundertake. Ifindthat therespondent didnotmakeadequateenquiriesregardingtheimpactofthecomplainant’sconditiononhisabilityto do the job. It was not in possession of all the material facts. I am satisfied that the respondent did not consider reasonable accommodation in respect of the complainant.”

Insummary,thecaselawexpectsthatanemployerisproactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment).There is a duty on an employer to make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before making a decision which may be to the employee’s detriment. This principle was first established in Humphreys v. Westwood Fitness Club [2004] ELR 296 in respect of decisions to dismiss a disabled employee on the grounds of incapacity. However, this principle was extended to all decisions that may detrimentally affect a disabled employee in A Worker (Mr. O) v. An Employer (No. 2) [2005] ELR113. The practical effects of this requirement, is that it requires an employer to take into account all relevant evidence to determine the duration and extent of a disability. Once completed, the onus is then on the employer to consider the appropriate measures or special treatment or facilities in order to allow the employee to be capable of performing his employment. This necessarily involves an examination of the costs and obligations as an employer would not be expected to be over- burdened. In Kennedy v. Stresslite Tanks Limited Dec-E2009-078 it was held that failure to consider appropriate measures will lead to a finding of discrimination even where the employee was allowed to participate in the process.

Bolger M., Bruton C., and Kimber C. Employment Equality Law (Dublin 2012), para 7-112

Section 85A of the EE Act imports the burden of proof requirement to be established by both the complainant and the respondent. The section shifts the burden of proof to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her  and submissions were made on the “Mitchell” test. It provides:

1)     Itisforthecomplainanttoprovetheprimaryfactsuponwhichhe/she reliesinseekingtoraisea presumption of discrimination.

2)     Iftheprimaryfactsrelieduponareproved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of significance to raise a presumption of discrimination.

3)     Ifthefactsprovenareconsideredof sufficientsignificancetoraiseapresumptionof discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent. (Mitchell v Southern Health Board [2001] ELR 201.)

Ms. Walsh suffered from a right shoulder injury caused by arthritis and the absence of cartilage in her right shoulder socket. Ms. Walsh had to have a shoulder replacement in March 2021, as recommended by the Consultant Orthopaedic surgeons Dr O Shea and post operative rehabilitative physiotherapy.

Ms. Walsh had a disability within the definition in Section 2.1 c of the Employment Equality Act.

Ms. Walsh was absent from work from March 2021, but the Hotel was closed due to Covid lockdown, so her period of absence commenced in June 2021 when the Hotel reopened.

Ms. Walsh attended all of the required Occupational Health appointments during her absence, continued to have physio treatment and engaged with the Respondent regarding a possible return to work in line with the Occupational Health recommendations and medical advice.

The Respondent initially took a decision to terminate Ms. Walsh’s employment, after only three months of sick leave in September 2021. This was eventually overturned on appeal, and it was agreed by the Respondent that another Occupational Health appointment would be organised in June 2022.

 Following this assessment Ms. Walsh was called to a meeting on 16th November 2022 where she was advised her employment was being terminated on the grounds of incapability.

Section 16 of the Employment Equality Acts requires an employer to take appropriate measures to facilitate persons with disabilities in accessing and participating in employment unless those measures would impose a disproportionate burden on the employer.

In Ms. Walsh’s case, the respondent did not provide evidence of its efforts to provide reasonable accommodation. It argued that there were no suitable roles available or no lighter duties available for Ms. Walsh.

However, it did not provide a list of roles that has been risk assessed by the respondent, it did not provide evidence that it has assessed Ms. Walsh’s role of Accommodation Assistant to determine if appropriate measures could have been put in place to assist her with her role, even on a temporary basis subject to review, it did not provide training to her for other roles.

The Occupational Health evidence recommended that Ms. Walsh would be fit for a role with lighter duties, or a sedentary or semi sedentary role within the organisation. There was no detailed evidence provided by the Respondent that any roles have been assessed to determine if they were suitable for her.

As in the decision in Dunne V Sky Handling Partner in the documentation submitted it is clear that no expert evidence was obtained in relation to the complainant as to duties/tasks which she could/could not undertake.

“Ifindthattherespondentdidnotmakeadequateenquiriesregardingtheimpactofthe complainant’sconditiononhisabilitytodothejob.Itwasnotinpossessionofallthematerialfacts.I amsatisfiedthattherespondentdidnotconsiderreasonableaccommodationinrespectofthe complainant.”

It is Ms. Walsh’s contention that she has been discriminated against on the grounds of her disability and that the respondent failed to provide her with reasonable accommodation and that the decision to terminate her employment on the grounds of capability was discriminatory and directly linked to her disability.

This decision was based on the fact that Ms. Walsh would not have been able to return to her substantive post following the final medical assessment. However, the respondent did not provide a proper assessment of other possible roles, and instead decided to terminate Ms. Walsh’s employment, after 24 years’ service.

Ms. Walsh has a prima facie case of discrimination on the grounds of disability and is seeking compensation as her preferred form of redress for the failure of the respondent to provide her with reasonable accommodation, and secondly for the decision to terminate her employment on discriminatory grounds.

Evidence of Brigid Walsh on affirmation.

The complainant confirmed the details of her employment, and that she had been working with the respondent since 1998 as an accommodation assistant.

In 2020 she began to have difficulties with her shoulder, and she was scheduled to have a shoulder replacement on March 3rd, 2021. Throughout this she kept the respondent notified of progress on her condition. At the meeting on March 9th, 2021, she was told of possible roles, but she was only told what they were and not given any details.

She was also told that there would be another meeting.

However, the following day she got a letter terminating her employment and she immediately appealed to the manager. There was no reference of this meeting to the possibility of light or duties. She described her various consultations with the occupational health doctors which resulted in a recommendation that she return to work on the basis of light duties.

The complainant said she thought that insufficient effort was made to find alternative work. In cross-examination of the complainant was asked whether she had fully communicated to the occupational health doctor the precise nature of a job and she replied that she had.

The complainant  was asked whether she was interested in a package to leave the hotel and she stated that no suggestion of a return of the work had been put to her. The opinion of Dr Ibrahim arising from her consultation on July 1, 2022, was put to her and his considered opinion she was not fit to return, and it was unlikely that a condition would improve sufficiently to allow her to return.

The complainant did not respond. This concluded her evidence.

In summarising its case the complainant’s union representative submitted that disability was not in dispute (and the respondent confirmed its agreement to this) and specifically relied on the cases (cited above).

The respondent initially terminated the complainant’s employment after only three months of sick leave, although this was overturned on appeal.

The respondent did not provide evidence of its efforts to provide reasonable accommodation or that it had assessed the complainant’s role to determine if appropriate measures could have been placed to assist her with her role even on a temporary basis.

(The respondent set out a detailed narrative which largely coincides with that set out above, and which it is not necessary to repeat.)

In accordance with s6(4)(a) the Unfair Dismissals Act 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the capability of the employee:

“Withoutprejudicetothegeneralityofsubsection(1)ofthissection,thedismissalof an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)thecapability,competence, orqualificationsoftheemployeeforperformingwork

ofthe kindwhichhewasemployedbytheemployertodo […]”

It is along-established principle of the jurisprudence that persistent absence from work, whether certified or not, may render an employee incapable of doing his/her job and as such justifies dismissal.

One of the earliest cases to address this was the case of ReardonvSt.Vincent’s Hospital UD74/79 (Appendix 20),and the principle has stood since. In that instant case, the Claimant had a number of prolonged absences over a period of time, all of which were medically certified. The tribunal found the dismissal not to be unfair on the grounds that he was not capable under section 6(4) of the Unfair Dismissals Act 1977 of carrying out the job for which he was employed.

Moreover, in Behan v An Post, UD 320/2006 (Appendix 21) for example, this position was reaffirmed where in the case of an employee with a prolonged absence record, the Tribunal determined:

“[T]he claimant had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment. […] In the circumstances because of the claimant's incapacity to fulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fair in all the circumstances”.

The same principle applies to the current case. The complainant’s absence, coupled with medical advice from the OH reports stating that she was not fit to return to her substantive role for the foreseeable future, rendered her incapable of performing the job for which she was employed to complete. Therefore, her dismissal was fair in light of the principles as established through the case law of the Tribunal.

Bolger v Showerings (Ireland) Limited, ELR 184, outlines four key requirements needed for a dismissal on the grounds of incapability to be fair:

(i)                                    ill health mustbethereason forthedismissal.

(ii)                                  thismustbeasubstantialreason.

(iii)                                 the employee must have received fair notice that the question of dismissal for reason ofincapacitywasbeingconsidered

(iv)                                theemployeemustbegiventheopportunityofbeingheard.

It is clear from the facts of this case that the Respondent can show all of the above:

(i)                                    The reason for termination of employment was on the grounds of incapability based on current occupational health reports. This was clearly stated throughout the process.

(ii)                                  There were no other grounds for dismissal.

(iii)                                 The complainant was informed throughout the process and in writing that her employment may have to be terminated on the grounds of incapability.

(iv)                                The complainant was given every opportunity to make representations on her behalf and throughout the process. Furthermore, the complainant was provided with the right to appeal which she availed of. During the appeal process, the suggestion made by her representative to attend a second occupational health provider was adopted.

The decision of the Respondent to dismiss the employee was not taken lightly. At the time of dismissal, the hotel had re-opened and was actively recruiting to fill positions in the hotel and had increased its number of recruitment slots on the recruitment portal, www.jobs.ie from 6 to 12 to recruit more staff .

During the meeting with HR, the available roles were discussed in detail with the complainant. The roles were noted as being physical in nature and there were no sedentary or semi- sedentary roles available at the time. We conducted risk assessments for the four positions Kitchen Porter, Day and Night Porters, Experienced Hotel Receptionist and Bar and Lounge Manager by the respondent’s then Health and Safety Officer.

All assessments identified a high risk and the physically demanding nature of the work.

The Respondent would gladly have retained the complainant if there was a position available that would have accommodated her injury. Considering that there was active recruitment in the hotel at the time, this would have been their preferred position. However, given the fact that the available roles were of a physical nature and that there were no sedentary or semi- sedentary roles available at the time, the Respondent regrettably was no left with no alternative other than to terminate the contract of employment due to incapability based on current medical evidence.

The basis on which the employment relationship exists is based on mutuality of obligation,  i.e., the employer provides employment for a consideration of wages; the employee undertakes to provide that work in return for consideration. It is an inherent factor in any working relationship that the employee attends work thus fulfilling their part of the contract. By not attending work on a regular basis, an employee is not fulfilling their contractual obligations. Absences from work cannot continue on an indefinite basis. If an employee is unable to fulfil their contract of employment due to illness, then the employer may be left with no option other than to terminate employment, based on available professional advice.

Procedurally, there was a fair process and in relation to the procedures used to implement this termination of employment, the complainant was afforded all benefits of fair procedure, in line with the respondent’s established policy and the universal principles of natural justice.

All the evidence in its entirety was considered, including the complainant’s representations, before any decision was made, or action taken. Indeed, the suggestion of a second medical opinion as suggested by her representative at the appeal hearing was adopted by the organisation which gave additional time to the complainant and the organisation. So much so, the respondent even requested that an Orthopaedic Specialist from Medwise to conduct the assessment with the complainant.

The complainant was afforded the right to appeal. Considering the above, the Respondent believes it to be clear that her dismissal was procedurally fair in all respects.

It is the view of the respondent that no breach of the Acts has occurred, and the Respondent treated the Complainant fairly and in a non-discriminatory manner throughout her employment.

In light of the above facts and case law, the Respondent respectively requests that the Adjudication Officer find that the decision to terminate the complainant’s employment on capability grounds was justified and that, accordingly, the claim for unfair dismissal should fail.

Ms. Sharon Coleman, HR Manager gave evidence on affirmation.

She has been HR manager at the hotel for 20 years and has responsibility for approximately 300 staff employees. May 10, 2021, she got a call from the complainant asking to be put on sick leave as opposed to Covid related absence.

On July 9 she had a long discussion on alternative positions in the hotel and they reviewed at great length position such as house painter night porter et cetera which are all very physical positions. For each of these positions they were well-defined qualifications which the complainant did not possess

Nonetheless the meeting was amicable.

The witness accepted that no risk assessments were done but the complainant had expressed no interest in any of the positions. So has she done so then they would’ve been risk assessed. Spoke to the sales manager to check if there’s any possibility of positions coming in that area. She expressed her regret for sending the letter the following day terminating the complainant’s employment but the decision to do so was based exclusively on the medical reports she had received.

The witness stressed that the respondent has a very high commitment to equality and diversity is and has policies to address these issues. For example, the hotel employs 34 different nationalities, and each national day is recognised in some way.

In reply to questions from the containers representative she said that the final decision to terminate claimant was taken on September 8. She was asked whether any consideration was given to flexible working options, and she replied that the complainant wasn’t medically fit to do any jobs even on a part-time basis. She also said that risk assessments were done at the speed of the appeal stage.

Paul McCracken, Hotel Manager gave evidence on affirmation.

Mr. McCracken said that he had the manager of the hotel for thirty years and in this case on hearing the appeal and October 2021 he agreed to get another occupational health assessment.

At that hearing various roles that the complainant might undertake were discussed including reception, waiting at table, portering or in the kitchen.

In respect of any role such as this, all hotel employees are fully trained.

He said there had been a risk assessment undertaken by the health and safety manager and this was fully discussed at the meeting. At that point the complainant had declined all of these options in the food and beverage area partly because they involved late shifts which did not suit her.

 The fact is also that all jobs in the hotel require lifting. He also heard the second appeal on November 21st, 2022, which resulted in the final letter terminating the complainant’s employment.

That concluded his evidence

In summarising the respondent relied on the expert medical evidence which indicated that the complainant was unlikely to ever be sufficiently recovered to return to her former role. All that obligations under section 16.3 were fulfilled and there are no grounds for a complaint of discrimination.

In referring to the Dunne v Skyhandling case  the respondent says that the exact opposite happened in this particular case. Likewise, the respondent is relying on the decision in the Nano Nagle case.

While it is accepted that risk assessments were not provided to the complainant these were carried out by the health and safety manager. The reason they were not made available to the complainant was that she had expressed no interest rejected all of the options that were available.

The complaint under the Unfair Dismissals Act was withdrawn.

The narrative of events was set out by both parties and largely agreed. However, it will provide helpful preliminary context to the Decision to set out the key events briefly.

The clock starts ticking with the complainant’s shoulder surgery in March 2021. This was during a period of Covid restrictions, and the hotel had been closed since January of that year and did not re-open until June 2nd.

The complainant had asked on May 10th to be placed on sick leave as opposed to the pandemic payment and this was done. She remained on sick leave until August 3rd.

On that day she had an Occupational Health (OH) assessment which found that she was medically unfit to return to her previous role and this was the subject of an online meeting between the parties on September 7th. The complainant expressed a desire to return to work and a discussion took place on possible options. According to the respondent the complainant raised the possibility of a severance payment, but no scheme existed to facilitate this.

They agreed to meet on September 14th but, in the meantime, the following day a letter issued terminating her employment on the grounds of incapacity. The HR Manager apologised at the hearing for having done so given the commitment to meet again, and indeed it demonstrated  a regrettable lack of sensitivity.

The complainant appealed and while it took some time to get to a conclusion her appeal was successful, and this phase ran from around the middle of October to the middle of November 2021 before it was concluded.

It is important to record that the complainant was still not fit to return to work and the appeal included quite some discussions on the options for alternative employment. Part of the outcome was that the complainant would consult OH again and she did so on November 30th. Essentially a decision on the appeal was deferred for further medical reports.

The consultant concluded that, while there were still ‘prospects for recovery’ she remained unfit for work and set a timeframe for review of the ‘next six to twelve months’.

In communicating the outcome of the OH assessment the respondent put her on notice that her employment was at risk if the situation remained unchanged.

Her next consultation was on July 5th and on this occasion the prognosis about a return to her old position was bleak. The consultant concluded she would not be fit to do so ‘for the foreseeable future’. In his view the options were a ‘sedentary or semi-sedentary role, if these were available or, failing this that she met the criteria for retirement on ill-health grounds.

Again, there were delays (partly due to a serious injury to a member of the management team) and the follow up meeting did not take place until November 16th.

Following this a decision was taken to terminate the complainant’s employment on the grounds of capability.

The complainant has accurately set out the tests to be applied in considering a complaint of discriminatory termination of employment on the disability grounds. They all arise from the general obligation placed on an employer to apply the principles of fair procedure to the termination.

The first is obviously that there be a disability. This was not in dispute and was accepted by the respondent.

The second relates to an obligation to fully establish all of the relevant facts, initially in relation to the complainant’s illness, prospects for recovery and a return to work, and also in relation to the search for alternative employment, the provision of reasonable accommodation etc.

In relation to the first of these a decision was taken on September 8th, 2021, to terminate the complainant’s employment on the basis of her condition at that stage and the respondent’s review of the possibility of alternative employment. This followed a medical opinion on August 3rd that she was ‘physically unable to carry out the duties of her role’ and reviewed at an online meeting between the parties the day before. This review included consideration of possible alternative roles in the hotel, none of which were suitable.

The HR Manager undertook to explore other possibilities (while warning that the complainant’s job was at risk if there were not), and in an apparent sudden acceleration of the process issued the termination notice the following day.

Nonetheless, it did appear that none of the alternatives discussed could be adapted to bring them within the complainant’s range of skills and ability, but this was done without a formal risk assessment at that time.

This does not necessarily invalidate the conclusion. All parties were intimately familiar with the operational demands of the jobs in question and whether they were suitable, and some acknowledgement of this reality is represented by the complainant’s inquiry about the possibility of a severance arrangement.

In any event the complainant appealed, and nothing was done to implement the termination for just over another year.

One of the reasons for the deferral of the termination was the decision of the appeal hearer to get further medical opinion.

Two further consultations took place with Dr Ibrahim on November 30th, 2021, and July 5th, 2022, and these are referred to above. On this point I find that the respondent fully discharged its responsibility to undertake due investigation as set out in the authorities relied on by the complainant.

The complainant relied on A Health Club v A Worker in which the Labour Court said that

At a minimum however an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered employee must be alive and opportunity to influence the employers decision.

Insofar as the three elements set out there are concerned, I find that the respondent complied with these requirements. All of the medical opinion was to the effect that she continued to be unfit for her previous role, to the point where Dr Ibrahim opined that if there was no alternative role that she would be qualified to retire on the grounds on ill health (and indeed this had been raised by herself and her union in September and November 2021).

That brings the discussion to that other element to be considered; viz whether the respondent met its obligation to provide the complainant with either alternative employment or such reasonable accommodation as might permit her to do either her own previous job, or some other position within the hotel.

It is clear from the narratives set out in the submissions that this was discussed between the parties on a number of occasions, commencing in September 2020, in the course of the appeal process and again in November 2022 at the final (or more accurately reconvened) stage of the process.

It was also fully ventilated in the course of the hearing. The complainant submitted that no evidence of a risk analysis having been conducted was ever given to the complainant. There were two responses to this, first that in the early stages the complainant had not expressed any interest in the alternatives being discussed, but that ultimately one was carried out.

It was clear from the evidence at the hearing that there was no prospect that any of the positions which were under discussion between the parties could be carried out by the complainant as long as the assessment that she required a ‘sedentary or semi-sedentary’ role.

The complainant herself and the two key players on the respondent side all had in excess of twenty years’ service in the hotel and the suggestion that in the course of their conversations they were not fully aware of the requirements of the various positions, and the complainant’s capacity to discharge them, even with some accommodation is somewhat fanciful.

The requirements of  a selection of the alternatives were discussed and it was as clear at the hearing as it must have been at the time that none of them could be discharged by the complainant on the basis of any reasonable accommodation that might have been practical, given the ‘sedentary/semi-sedentary’ requirement. This reality  is further supported by the occasional raising of the possibility of retirement on some sort of voluntary severance basis

While I accept that she should have been shown the outcome of any formal analysis this is not a sufficient deficit in the process to overturn the persuasive position set out by the respondent as to how it acted once the matter reached the appeal stage.

The complainant’s employment was eventually terminated on November 21st, 2022,  by means of concluding the appeal that had been commenced in November 2021.

This was some twenty months after her original procedure and based on consistent occupational health assessments of the complainant’s condition.

I find that the respondent made reasonable inquiries as to the possibility of alternative employment within the hotel and none could be identified that was compatible with the medical assessment of the complainant’s condition, nor that could be made so with reasonable accommodation.

Accordingly, they met the tests for a fair termination of the complainant’s employment on the grounds of her incapacity.

For the reasons set out above complaint CA-00055187-001 is not well founded.

Equality, discrimination, disability.