Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Childcare Provider

Representatives

Ms Andrea Cleere of  SIPTU

Mr B O’Mahony BL instructed by  ARAG Legal Protection Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050917-001

30/05/2022

The Complaint is one of alleged Discrimination against a Child Care Worker by a Child Care Provider, under the Employment Equality Act,1998. The grounds alleged were Disability, Victimisation, Failure to provide Reasonable Accommodation and Discrimination in Conditions of Employment.

The employment began on the 13th November 2005 and at the date of the Hearing continued.

The rate of pay was stated to have been €412.00 for a 35 Hour week.

The Complainant gave an Oral testimony supported by a written Submission. She was assisted by Ms Cleere of SIPTU.

By way of background, she stated that had a Cerebral Palsy condition since childhood. She had always managed it very successfully. In 2016 she began experiencing some movement difficulties in squatting on her knees and climbing up and down stairs. She was referred to Medmark in 2016 and was diagnosed with a “permanent neurological disorder”. It was recommended that she care for older children and avoid the need to squat with babies etc. This accommodation was put in place and all was well until July 2021 when she returned from leave to discover that her “Room” -effectively her Work Station and routines had been changed. She was put back on “Break Cover” – a duty which involves a lot of movements about the Premises, up and down stairs etc. This duty had been taken from her in 2016 as part of the then accommodation. In addition, in July 2021 she was also assigned Cleaning Duties -completely   unsuitable for someone with her diagnosis. Her health began to suffer and she had a fall in August 2021. In October 2021 the Complainant raised her issues with the Director of Services, (DoS)Ms D. During November the Complainant asked the DoS to allow her to use a Walking Aid/ Stick throughout the day to assist her with her movements. The Employer only allowed her to bring the Aid to and From the Premises but not use during the day. This gave rise to a lot of physical pain for the Complainant. Her GP wrote to the Employer on the 8th December recommending the 24/7 use of the Walking Stick. The GP stated that the Complainant was absolutely fully fit but needed to use the Walking Stick. The employer did not seem to accept this and the Complainat continued working unaided.

On the 18th January the Complainant had to take sick leave. SIPTU had begun writing to the Employer seeking an accommodation for the Complainant. On the 19th January the Employer indicated that an external Consultant was now engaged to carry out an assessment of the Complainant and the use of a Walking Aid/Stick. A meeting with the External Consultant took place on the 28th January. The Consultant recommended that the Walking Aid be used immediately by the Complainant for all her times at work.

However, the Complainant had, to again, take Sick leave on the 28th of January 2022 and had not returned to work by the date of the Hearing.

As a matter of record the Complainant maintained that she had never been formally advised by the Respondent of the outcome of the Consultant Report and whether or not the Respondent was accepting the findings.

The Complainant felt unable to return to work and continued on sick absence. It was noted that the Respondent did not engage in any follow up Sick Absence Medical referrals which would be in keeping with normal HR practices concerning long term absences.

 SIPTU, in support, stated that the full and total use of the Walking Stick/Aid was a very Reasonable Accommodation.  The initial refusal coupled with the changes to her work portfolio since mid-2021 , which was the effective Management negation of the previous favourable work arrangement in place since 2016,  amounted to a situation of grievous Discrimination. The case for Victimisation was also clear - the Respondent Manager had treated the Complainant with little respect and subjected her to totally unwarranted risk assessment procedures.

In cross examination from Mr O’Mahony BL it was discernible that the Complainant and Ms D had not developed a close working relationship following Ms D’s appointment in early 2021. The changes to the Complainant’s duties especially going back on Breaks Cover and the alleged cleaning of the stairs were in effect tantamount to harassment of the Complainant. The Complainant had always loved the job and the work atmosphere but since Ms D had arrived this had changed for the worse.

Case law cited was A Care Worker v A Disability Support Service Adj 25513, Nano Nagle School v Daly [2018] IECA 11 and Marie O’Shea v HSE Adj 24740

The Respondent gave oral testimony from Managers, Ms C, Ms D and Ms McG, supported by a written Submission. Mr O’Mahony BL was the chief spokesperson.

The Respondent was not aware of any Cerebral Palsy issue with the Complainant before December 2021. In December 2021, Ms D, the DoS, had been approached by the Complainant with a request to use a Walking Stick while at work. Ms D had replied that this would need to be supported by a GP letter and the Employer would require a Risk Assessment carried out. The GP letter was supportive and Ms D had consulted Ms C, Secretary of the Board. As the Childcare Facility is under the TUSLA Regulatory framework a Risk Assessment is required on all H & S issues. The Respondent took all possible actions to secure an early Risk Assessment but due to Christmas and Covid, delays were inevitable. A conversation between the Complainant and Ms D took place on the 7th January 2022 where the Risk Assessment delays were explained. Eventually a risk Assessment by Mr Shane Dunphy of Sensible Safety. The Consultant confirmed that the Complainant required the Walking Aid/ Stick and that there were no work issues subject to some minor constraints regarding lifting and cleaning on the stairs.

It was important to note that Mr O’Brien, an Official from SIPTU accompanied the Complainant during the Risk Assessment and was copied with the Consultant’s conclusions.

However, on the afternoon of the 28th January 2022, following the Risk Assessment process, the Complainant went to the Centre Office and informed the Assistant Manager (Ms McG) that “she was going to see her Doctor” and would not be in work. Ms McG gave Oral testimony on this point. An initial Medical Certificate for three months was received. The Complainant remained on sick leave and was on sick leave at the date of the Hearing.

The Respondent stated that they had carried out all required TUSLA procedures regarding Risk Assessments.  There was absolutely no Discrimination on Ground of Disability, Victimisation, Failure to provide Reasonable Accommodation and Discrimination in Conditions of Employment. The Complainant had worked very successfully at the Facility since 2005 and the Respondent was happy to have the employment continue once the Risk Assessment requirement was completed satisfactorily.

The Respondent referred Section 85 A – Burden of Proof - of the Employment Equality Act,1998 in support of the view that the basic evidential requirements as required were not achieved by the Complainant. The Mitchell v Southern Health Board [2001] I ELR 201 landmark case was cited in support as was the Valpeters v Melbury Developments case. EDA0917

As regards Reasonable Accommodation the Respondent had always allowed the Complainant to work, albeit without her walking stick prior to 2022 and once requested and Risk Assessed, with the walking stick. The Nano Nagle case [ 2019] 30ELR 221 and the Supreme Court’s view on proper consultations were noted in support of the Respondent case. All proper required consultations had been carried out.

Any suggestions of Victimisation were resolutely denied.

In cross examination from Ms Cleere of SIPTU the issue of the handling of the Dunphy/Sensible Safety Report was raised. Ms Cleere alleged that the Respondent had never formally communicated the result to the Complainant. In addition, Ms Cleere examined Ms D and Ms C on the various unwelcome job moves that had been required of the Complainant since 2021.  The Respondent Manager, Ms D, was very forthright in her assertion to Ms Cleere that she (Ms D) had never been aware of any previous Medmark report (specifically the 2016 report) and was unaware of any special arrangements that had allegedly been put in place by a SIPTU predecessor (Mr D Courtney) of Ms Cleere. During Covid and Post Covid it had been necessary to move staff round the Facility to manage staff shortages. There was nothing special about the treatment of the Complainant in comparison with her colleagues.

In summary Mr O’Mahony summed up the Respondent case as one where no Discrimination occurred and the Risk Assessment process had been normal and indeed required by TUSLA regulations. The Complainant was always welcome to come back to work.

3:1       The Law– The Employment Equality Act,1998

Discrimination complaints on the grounds of Disability, Victimisation, Failure to provide Reasonable Accommodation and Discrimination in Conditions of Employment. The Burden of Proof requirements.

In this case it is necessary as an opening matter to consider the Burden of Proof arguments.

Section 85 A of the Employment Equality Act ,1998 refers.

Taking these in order – Disability

3:1:1          Disability

The first requirement in a Disability Discrimination complaint is for the Complainant to establish whether or not they have Disability as defined by Section 2 (1) of the 1998 Act.

It was not contested that the Complainant, at the time of the alleged incidents, had a diagnosis of Cerebral Palsy – a qualifying disability. The Respondent queried an earlier medical report from 2016 but by 2021 it was accepted that the diagnosis existed.

3:1:2        The Burden of Proof Section 85 A of the 1998 EE Act

Accepting that a Disability existed the next stage in a Complaint is to satisfy Section 85 A -the Burden of Proof. Relevant Section quoted below.

Burden of proof.

85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In plain English what this is taken to mean in all Legal commentaries and significant case Law precedents (the headline case being Southern Health Board v Mitchell [2001] 1 ELR 20) is that a Complainant must establish, on the first face, a reasonable presumption of Discrimination. Absolute proof is not required but sufficient evidence or “Inference” to move the Burden of Proof ,to justify actions, from the Employee to the Respondent Employer.

It is called in legal parlance establishing prima facie case.

The facts of this case as presented are that the Complainant alleged that she was moved from her previous “accommodation” portfolio (agreed with Mr. Courtney of SIPTU in 2016/2017) to a more physically demanding role by Ms. D in early 2021. This involved more Room Cover/Relief duties and physical cleaning of stairs etc.

In Oral testimony it was not overtly suggested that this in itself was Discriminatory while very unhelpful. The real issue began when the Complainant requested (on or about the 3rd  of December 2021) to use her Walking Stick on a full-time basis at work.

Respondent Oral Testimony and Written statements suggested that the request was referred to Ms. C, the Board Secretary, by Ms. D. It was decided to have a Risk Assessment caried out as all Health and Safety matters were governed by extensive TUSLA Regulatory requirements.

Allowing for the Covid lock down situation and the Christmas season the Risk assessment was carried out on the 25th January 2022. An earlier appointment was deferred as the Complainant was unwell in early January.

The Risk Assessment was attended by the SIPTU Representative. The Walking Aid /Stick was passed as suitable and necessary for the Complainant. The Complainant was rostered for continuing work without any major Respondent Employer reservations.

The Complainant has referred Disability, Victimisation, Failure to provide Reasonable Accommodation and Discrimination in Conditions of Employment complaints under the Employment Equality Act,1998.

The Burden of Proof issue is now central.

The starting point in an Adjudication process would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

The Complainant maintained that Ms D had a very negative view of her, “wanted rid of her” and by realigning duties/work room relief effectively cancelled the earlier Des Courtney SIPTU “Accommodation”.   Even allied to the Walking Stick situation, to base a complaint of Disability, Victimisation, Failure to provide Reasonable Accommodation and Discrimination in Conditions of Employment complaints on this basis is very difficult.

Taking these very serious complaints carefully and having listed to the Oral Testimony of all the Parties the Adjudication view has to be that not enough solid facts were presented to establish a sound case of Discrimination. In Legal parlance a strong enough prima facie case was not made.

The unusual conversation between the Complainant and Ms McG on the afternoon of the Assessment (in Ms McG’s Oral testimony under Oath) as to the Complainant going to her doctor to get a medical certificate instead of returning to work raised questions that were not satisfactorily addressed as to her motivations regarding her continued employment.

3:2       Adjudication summary

Having considered all the materials and the Oral testimony of the Parties, all under sworn oath, the Adjudication view is that a strong enough prima facie case was not made to support a discrimination complaint.

Equality, Disability, Reasonable Accommodation.