ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043898
| Complainant | Respondent |
Anonymised Parties | A Clerical Officer | A Health Care Service Provider |
Representatives | Michelle Connaughton, Forsa Trade Union | Kevin Little, HR Advisor to Respondent |
Complaint(s):
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-00054307-002 | 28/12/2022 |
Date of Adjudication Hearing: 18/3/2024; 3/9/2024; 18/11/2024; 19/11/2024
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
CA-00054307-002 There are two limbs to this Equality complaint.
First, that the Complainant claims that she was discriminated against, for the failure to reasonably accommodate her eye-sight disability and second, that she was dismissed because of her eyesight disability.
The Respondent’s acknowledges that they were on notice that the Complainant had an eye-sight impairment but was not made aware that it was a disability or that it impaired her ability to do her job as a clerical officer with the Respondent, until five months into her probation during her third (and what proved to be her final) probation meeting. She was dismissed two days later for poor work performance. |
Summary of Complainant’s Case:
The Complainant gave evidence under oath/affirmation as follows: 1. In 2021 the Complainant applied for and was placed on a Grade III clerical officer panel with the Respondent. 2. She received an expression of interest in respect of the post of clerical officer Grade III in the Estates Department based in the Letterkenny office, and she commenced employment on 10 January 2022 subject to a 12-month probation period. 3. The Complainant has a visual impairment condition. She declared this on her pre-employment questionnaire (19.7.2021) by ticking the impairment/ disability box and identified her condition as being optic nerve hypoplasia. She did not however tick the box on this form which asked if this eye condition might affect her ability to undertake the duties of the position or the box indicating that she might need special adjustments to accommodate her eye condition. So, while the Complainant declared to the Respondent that she had an eye condition, in her expressed view (before she commenced the job) was that her eye condition would not impact on her ability to do the job, albeit she had not yet started the job and did not know what tasks the job would entail. 4. In a subsequent pre-employment telephone conversation with a Respondent Occupational Health Nurse, the Complainant again raised her eye condition but again did not raise any concern that she may not be able to do the job or would require special accommodation. 5. On commencing her position on 10 January 2022, she again reported to her line manager that she had an eye condition and because she needed to bring her laptop close to her direct line of vision, her line manager, KC, referred the Complainant to the Respondent’s Occupational Health Department stating the Complainant “is a new employee to the department and has an eyesight condition. A review of [her] workstation and space is required.” 6. An Occupational Health Assessment of the Complainant (and her workstation) was carried out on 3 February 2022 and the Occupational Health Manager noted in her recommendation (of the same date) that the Complainant was reluctant to use magnification appliances to read hard copy material. She recommended that a larger VDU screen be provided with a docking station and keyboard. 7. This equipment was not provided to the Complainant until 8 March 2022. Between the start of her job in January and 8 March 2022 the Complainant used the magnification feature on the original standard laptop that she had been provided with and after 8 March 2022 she used the magnification feature on the larger VDU screen which had a mechanical arm to allow her to move the VDU screen closer to her line of vision. 8. A month later, in April 2022 the Complainant had her first probation review meeting. The Complainant was upset by what happened at this meeting as the criticism that were levelled against her and her work performance by her line managers, was heavy and detailed. The Complainant felt overwhelmed given that she was trying to get to grips with an entirely new IT system. It was a data processing system SAP (Systems, Applications and Products.) She needed to learn how to input Purchase Orders (POs), Good received Notifications (GRNs) and operate several other features of the SAP system. She also was required to do the more typical administrative duties of a clerical officer, email, recording post, giving telephone messages and ordering stationary. Given that she only had received the larger screen a month before her first probation meeting, she found the level of criticism was unfair. But her response was to try to get along with it and improve her work performance. 9. But from then on, the Complainant became more defensive about her work. She felt unsupported and criticised. She had never had to use SAP software before, and she was trying her best. It took her longer to do but she felt under pressure to get it done quickly. She found the suggestions by her line managers about using a hard-copy prompt system (ticking tasks in the order that they needed to be done) was unhelpful given that she needed to get used to operating the software, not revert to ticking hard copy paper prompt lists. 10. The Complainant contends that it is false for the Respondent witnesses to suggest that her line management were unaware of her eyesight disability given that from January until March 2022 she used a magnification on her laptop and from March onwards, having been referred to Occupational Health (OH) she used the magnification feature on the larger (27 inch instead of the standard 22 inch) VDU screen. To her it was obvious to everybody that her slower than usual uptake of the tasks were due to her eye condition. 11. The Complainant states it was busy job. The input of data was into expansive spreadsheets where the rows and columns ran off her VDU screen. The larger VDU screen was better, but it just gave an increase in magnification, it did not allow all the data to be retained on one screen. This caused her difficulty because her vision is confined, tunnelled to that which is directly and closely in front of her. She is unable to work with wider spread sheets if rows/columns go off the screen. 12. Her previous job had been an administrative role of answering the phone, writing emails, dealing with smaller spreadsheets, using Word, ordering stationary on the phone. Her new role was more figures based (financial) than she was used to. She was more used to operating within Word in her previous jobs. 13. The tasks in her new role were not only much more complex but combined with the other responsibilities she did not have enough time. She found that if she had sufficient time, she was able to concentrate intensively on the input of data then the data would be accurate, but that would prove tiring and then she might not have enough time to do other aspects of the role accurately. This was why she left sometimes left data entry jobs uncompleted close to the end of the day. 14. There was no attempt by management to understand or appreciate that the tasks were more difficult or straining for her than for other clerical officer staff who did not have an eye-condition. No manager ever asked her to explain “What effect does your eye condition have? What can you see? Explain what tasks are difficult for you to manage.” If a manager had asked her openly like that, she could have explained but they did not. 15. That being said, in the first few months of her probation she believed that because she had a 12-month probation to prove herself, she was hopeful that once she learned and became proficient in the SAP system, the data entry inaccuracies would abate. It was a matter of time and practice. 16. The problem with the equipment that was provided to her in March was that she needed a wider screen not just a larger screen. A wider screen might stop the columns running off the page. She didn’t realise this at the time however and thought that after her OH assessment that she had been provided with the best equipment that was available. She also needed a larger than standard keyboard. She did not know at the time precisely what she needed but despite making every effort that she could, while she was happy that the new equipment had been given to her. She couldn’t understand why it was not assisting her in the way that she had hoped it would. Sometimes when using new software, it takes a while to figure out if there is a problem or if it is just that a longer period of learning is required. 17. Having been provided with the equipment in March given the negative atmosphere toward her by management she did not feel free to say that the equipment wasn’t helping. She just thought that if she worked hard, she would improve within time. And she now thinks that if she had been given more time, she would have got there. 18. She felt that the attitude of management after March 2022 reflected their view that they had tried to help her and now it was up to her to improve. 19. She accepts that she did not speak up about this, but she felt underconfident in the atmosphere of criticism that she was facing. 20. In addition, as this was during Covid restrictions a lot of time was the Complainant working at home and in an isolated way from her colleagues which added to her sense of not being supported.
21. The first Probation meeting was on 7.4.2022. It was held by CB, her line manager and KB - CB’s line manager.) The Complainant was presented with a progress tacker list of inaccurate data inputs and other problems. They suggested that she use a hard copy check list which the Complainant refused because she knew that she needed to get used to operating the software system, not rely on hard copy check lists. 22. They seemed to think that she was being inattentive as opposed to not being able to read the software system the way others could. 23. Particularly after this meeting, she did not feel comfortable opening to the line managers about her suspicion then that her eyesight was the cause because she was still getting used to the tasks, the software and the new equipment. She was spoken to as if it was her fault and that her work performance was unacceptable. 24. A person with a disability wants to be like every able-bodied person. The work atmosphere was negative. There was an assumption within management that she was prone to making errors. Her line managers were not happy, and they were not constructive towards her. She was told that there would be another probation meeting and that improvement would need to be seen. She was told that she would be reviewed again in six weeks, ie in May 2022. 25. No manager ever suggested a performance improvement plan. No one asked her what she thought might help her work to improve. Had that been asked she might have asked for a review of her equipment or asked to go back to Occupational Health. 26. She accepts that she did not raise eyesight or request any specific help at this meeting. She just wanted to get on with the job and improve. She thought that she had the time to do this. She was not told that the probation meetings had been brought forward or that her 12-month contractual probation period might be reduced.
27. The second Probation meeting (23 May 2022) was again attended by the Complainant, CB and KB. 28. Her line managers were again very critical of her work performance. A list of inaccurate data entries into SAP was again raised with her. A log was being kept of her performance. She felt highly scrutinised. She was also asked about finishing work early and she explained that she only finished work early if she started early. She was told that the hours of 9-5 were non-negotiable which she accepted. 29. The Complainant asked could she attend a 3-day clerical officer training course which CB and KC advised would be considered. She never was advised about that again. 30. At that stage the Complainant still had not made a connection between her visual impairment and the mistakes that she was making. She just felt overwhelmed and unsupported by her line management, who were very critical and negative about her to her. She was determined to get better and tried harder to concentrate when she did the tasks, as she was advised to do. She needed more time but accepts that she did not say this. 31. She was advised that her next Probation meeting would be approximately one month later. 32. No one told her that it might be her last.
33. The third Probation meeting was on 20 June 2022. This was again attended by the Complainant, CB and KC. 34. During this meeting the line managers again identified problems in her work and detailed under performance in the role. By the point the Complainant had reached the realisation that is must be her eyesight that was causing the inaccuracies in her work, and she said this to her line managers. But they appeared to ignore what she said. They repeated that improvement was needed, and that the probation report would be copied to management to review. 35. The Complainant was never told either in advance of the third Probation meeting that it would be her last. She understood that she was on a full 12-month probation period.
36. Two days later 22 June 2022 after the third probation meeting the Complainant received a letter of dismissal from KG, Assistant Estate Manager. The reason that he cited for the dismissal was poor work performance. The main issues of concern were listed as: comprehension of assignments; processing of data and attention to detail. 37. This took the Complainant entirely by surprise. If she had been told that dismissal was even being considered she would have asked for Occupational Health to reassess her workstation and assess her ability for the role to see if there was perhaps other work or different duties that she could do. 38. In the letter of dismissal, the Complainant was offered the right to an appeal, and she requested an appeal. The appeals officer was JH the Assistant National Director of Estates. From the date of her dismissal until the hearing of her appeal she was not paid a salary. 39. JH advised her Forsa representative by letter that her termination date was 22 June 2022 and to pay her after that date would presuppose that her dismissal was incorrect or should not have occurred. He advised her representative that if her appeal was successful, she would be repaid any lost income.
40. The appeal took place and within the appeal hearing the Complainant asked JH to set the dismissal decision aside. Her representative argued that Occupational Health should engage with the Complainant to see what accommodations could be made. She said that the Respondent Equality Officer could be asked for their input in terms of treatment of staff with a disability and asked that Vision Ireland be engaged to advise on what assistive equipment the Complainant might be able to use to improve her work performance. Her representative asked that alternatively that she be placed within the Respondent in a different clerical officer role, one that is not as software/financial spreadsheet based. None of these options were agreed to by JH. 41. The appeal decision of JH issued on 3 October 2022 and JH upheld the original dismissal decision. Under cross examination the Complainant stated as follows: 1. In the jobs that the Complainant had done prior to the role with the Respondent she did not use data bases much. 2. She accepts that in her job application she stated to have experience creating databases and spread sheets, but she said that was more in respect of names and contact details, rather than operating a financial software package. She said that she had not before had to create multiple purchase orders and/or goods received notes on Excel. She said that she preferred using Word documents and only had used Excel to a small extent in previous jobs. 3. She accepts that in her pre-employment questionnaire while she identified her eye condition, she said that she did not need any visual aids for VDU work. That was because in previous roles she had not needed visual aids. 4. She accepts that when in February 2022 her line manager, KC referred her to Occupational Health that she discussed with the OH nurse that the small font on the purchase order was difficult for her to read, both on screen and on paper. She accepts that she declined the offer of a magnification aid for hard copy data because the replacement larger VDU had a magnification feature, which she wanted to get used to. She said that there was little point in relying on hard copies of documentation when the job required her to input the data into an Excel spread sheet. That would not likely lead to an improvement in her accuracy. 5. She accepts that the OH report in February 2022 stated, “that if/when she experiences any issues in the future as she settles into her new role, to make contact with the OH Dept and her environment can be reassessed.” 6. She concedes that she did not contact OH after March 2022 before she was dismissed. 7. She accepts that the Estates Management clerical officer job is primarily based around inputting financial data into a SAP system as well as more general office work. 8. When asked had she not been asked on multiple occasions if she needed help to which she always said no? She said that the reason she declined help was because she hoped that time and experience would allow her time to improve. But after the first probation meeting, in which the atmosphere was so negative, she did not feel inclined to seek help from her line managers because they had been so critical of her. 9. She accepts that she did not ask to return to OH before she was dismissed even though in the time between the second and third probation meeting, she began to wonder if she might need further help and that her eyesight was causing her problems with the work. 10. When it was put to her that it was only, she who could say that her eyesight was disabling her ability to do the job, she said that she thought that in time and given the chance, she would improve. 11. She accepted that her input of data into the SAP system needed to be complete and accurate and she accepted that it was not always so. 12. She accepted that the probation meetings were held in order that work issues could be highlighted to her so that she would have a target of improvement, she said that it did not feel like a constructive exchange to her. 13. She accepts that the work of the entire Estates Department hinges on all the staff being able to access accurate information on the SAP system. 14. She accepts that in that way, the clerical officer data inputting role was a centrally important role for the operation of the entire department. 15. She accepts that in the first, second probation meeting when she was asked if there was anything that she needed she said that there was not and that at the second probation meeting she told her line managers that she was happy with her workstation equipment and did not need anything further. 16. In respect of the third probation meeting, she says that, in response to a question of why the inaccurate data problem was persisting, she said that her eyesight could be the cause of her inaccurate work, but she accepts that she did not clarify that she was unable to manage Excel spread sheets because the information went off the screen or that she couldn’t read the flow of the rows and then made data input errors. She accepts that this was said during the Adjudication hearing for the first time. 17. She accepted that CB advised her to tab over the rows when using Excel instead of dragging a cell over, because that in CB’s opinion, that was causing her errors, but that the Complainant said that she wouldn’t do that. She accepts that she also refused to follow a hard copy check list that CB created and gave to her. The reason that she rejected this advice was because these solutions did not solve the problem, the problem was that she needed to learn how to input the financial data correctly and into the correct cell. She hoped that with time and practice that she would improve. However, she accepts that she didn’t say this at the probation meetings. 18. She accepts that she never suggested that her eyesight might be the problem until the third Probation meeting, in June 2022, but she did not know that this would be her last probation meeting. She thought that she still had six more months to improve. If she had been warned of the risk that she might be dismissed at that stage, she would have been clearer about everything. 19. However, she did say at the third probation meeting that her eyesight was a possible cause for inaccuracies in her work. She contends that this disclosure identified her disability to management (if they were unaware of it until then, which she doesn’t accept) and this disclosure should have alerted management for the need to refer her back to OH who then could have considered what and if reasonable accommodation could be provided to her. 20. The Complainant concedes that she is unable to point to a specific type of equipment that could have helped her because she did not know, but if Vision Ireland or the Respondent Equality Officer or Occupational Health had been asked, they (unlike anyone in line management) were qualified to advise on this and would have been able to provide information to management. But no one asked the experts even when they were specifically asked to do at the appeal hearing when the Complainant asked the dismissal decision to be set aside. 21. Until she had worked in this job, ordinary screen magnification had always been sufficient to meet her ability. 22. She was asked if the problems that were identified on the Progress tracker were put to her during the Probation meetings and she said yes. 23. The Complainant states that she only received the equipment in March 2022 having struggled (and maybe made a bad impression) between January and March 2022. She then only had three months to improve using the new equipment before she was dismissed. This was not enough time for her to get used to the work and the new equipment, or to realise if the new equipment was not working. This situation should have been monitored more. A review to OH should have taken place, before she was dismissed. 24. The whole process was rushed to get her out. Judgement against her was made quickly and made negatively. If her contractual 12-month probation had been allowed to run its course, she could have been referred to OH and she could herself have researched what customised software was available to help her. 25. She thought that what OH had provided her was all that was available. That is why she did not return to them. But it also took time to realise what she was incapable of doing do, to know what to ask OH. That only happened at the end of five months of trying and trying and despite hoping that things would become better, they did not. 26. After her dismissal on 2 June 2022 on foot of efforts made by the Complainant’s mother an OH appointment was made, which the Complainant did not attend. A subsequent appointment was made and again she did not attend. When it was put to her that if she had attended these appointments that whatever accommodation that might have been available might have allowed her to remain in her post, she said that she wanted an appointment with her Ophthalmologist first who then could have liaised with Occupational Health to see what was needed and what could be provided. She was not sure what to ask OH about without talking to him first. She accepts that she did not say this at the time. 27. When asked if she thought that that was a good reason not to attend not one but two appointments the Complainant said that she had already been dismissed by then so she did not believe that OH could have helped her then anyway. If she had been referred to OH before being dismissed, she would have gone. 28. When it was put to her that her work performance issues went far beyond those that could be said to be eyesight related; failing to give other staff telephone messages, failing to email staff that post was to be collected, failing to keep stationary stores stocked, turning off her computer system early (before 5pm) even though her hours were 9am-5pm, she replied that most of these were early on, before the first probation meeting. 29. She accepted that she occasionally left a task started - but incomplete - at the end of a day but only when she was too tired to start a new data entry task, which might take much longer to do than time that she had before 5pm. This only ever happened if insufficient time might cause her to make another mistake. Despite what the Respondent’s think after the first probation meeting, inaccuracy reduction became her priority. 30. When asked does she remember an occasion that a data entry was returned to her 7 times before she remedied it, she accepted that Excel spreadsheets were a problem for her. 31. When it was put to her that not all her work performance problems were related to data entry and did she recall not being able to change the date on the Office stamp, or forgetting to give messages to staff or to email them to collect post, she said that 90% of her work was data entry and while other matters arose, that was more at the start of the job. And when it occurred later it was sporadic and usually because she was worried about insufficient time to do the SAP work. 32. When asked did she accept that, 59 of the 80 inputs that she did on one report were inaccurate, she accepted that. 33. When asked did she accept that when the detail of her work under performance (not only data input inaccuracy) was put to her during the probation meetings that this gave her an opportunity to say – “my eyesight is the cause of this, I need help withit” – but she did not, the Complainant responded that her line managers did not want to hear any explanations and she saw it as her job to get better at the job over time to improve. But she wasn’t given the time. 34. When asked why, if she knew as far back as February 2022 that she was having difficulties reading purchase order details on paper and on screen (as recorded by the OH notes) how can she now say that she not aware that it was her eyesight that was causing inaccuracies with her data inputting and why then did she keep denying that there was a problem when asked by management? She did not reply. 35. When asked why during the probation meetings when she was asked was there anything that she needed, why did she not say “This work is difficult for me because of my eyesight” or why did she not refer herself to Occupational Health as she had been invited to do before June 2022? Why did the Complainant allow the Respondent to know about her eyesight but not clearly say that it was disabling for her? The Complainant said she did tell them on 20 June 2024. Under re-examination the Complainant stated as follows: 1. It was difficult to settle into a new job and learn the skills when the job was home based (at the start.) 2. The Complainant could not recall that it was her job to email someone if post was delivered to them. 3. The Complainant had many jobs to do and did not have enough time because the data entry took up most of her time. 4. 90% of her work was working on screen, inputting purchase orders, goods received orders onto the SAP system. Other issues of poor performance were not emphasised during the Probation meetings and importantly were not cited in the dismissal letter as being the reasons for her dismissal. 5. The Complainant did not know and was not advised that the standard quarterly probation periods were being brought forward to test her more intensively over a shorter period. She was not told that her probationary period was changed unilaterally from 12 months to 6 months. The time that she thought was available to her to improve was reduced by half and she was never told this. The dismissal letter came entirely out of the blue. 6. If she had known that there was a risk that she would be dismissed after the halfway through her probation, she certainly would have asked OH to reassess her. It was unfair to not advise her that a dismissal might occur without giving her the chance to see what other reasonable accommodation might be made. The following Submissions were made on behalf of the Complainant 1. The Complainant’s line managers both knew that she had an eye condition which was disabling. She identified it to them in her pre-employment questionnaire (answering yes to the question “Do you have an impairment/disability?”). 2. She identified it again during her pre-employment interview and again when she started the job. 3. The reason that a referral was made to OH in February 2022 was to assess how her visual impairment affected her work, following which she was given a larger VDU screen and desktop equipment in March 2022. 4. Her line managers saw and knew that the data entry work took her much longer than other staff. 5. For the Respondent to now suggest that they were unaware that her eyesight did not have a disabling effect on the Complainant’s work is disingenuous. 6. Probation meetings are usually held quarterly, through-out the 12 months of probation. The Complainant’s probation meetings instead were front loaded into the first 6 months, but she was not told that this was happening nor was she told why. She assumed that management was reviewing her more frequently, but she was never told that hers would be a shortened probation. She always believed and was not told otherwise that she had 12 months to prove ability, not 6 months. 7. If the Complainant was made aware that there was a risk that she could be dismissed after the 3rd probation meeting 5months and 20 days into the job, she would have immediately asked to go back to OH to see what additional equipment could be provided to her. The Respondent had no objective reason to not warn her that the 12-month probation was being shortened, other than to ambush her/ get her out. 8. Even if the Respondent is correct to say that she was too passive about expressing her needs and did not associate her inaccurate work with her eye condition until the end of her employment (even though she could not have known then that it was the end) at the 3rd probation meeting on 20 June 2022 she could not have been clearer with her line mangers. When asked for an explanation of her poor work performance, she informed them that she believed that “her eye condition possibly the cause of the inaccuracies.” This was a clear and disclosure that her disability should be considered as the cause of her work problems. This is not a case where constructive notice of disability needs to be applied because the Complainant put the Respondent on actual notice. That disclosure should not have been ignored by the Respondent. 9. The Complainant argues that she should have been referred to OH to ascertain if assistive technology was available. Or she should have been considered for other roles within the Respondent organisation (as the Supreme Court decided in Daly v. Nano Nagle [2019] IESC 63 as applied in the WRC decision of Adj 38938.) 10. The Supreme Court in Nano Nagle case made clear section 16 of the EEA requires an Employer to make reasonable accommodation which includes a consideration of “all appropriate measures” (including a redistribution of duties) as long as this does not put a disproportionate burden on the Employer. It is insufficient for the Respondent to not make any consideration of any alternatives before deciding that the person with the disability was unable to perform the functions of the job. The ability of an employee to perform a role can only be assessed after reasonable accommodation has been made, not before. 11. The level of investigation that was carried out by the Respondent after her disability disclosure during the 3rd probation meeting was not insufficient, it was zero. 12. Following her disclosure on 20 June the Respondent should have paused and reflected on whether an accommodation could be made, to allow her to remain in her job. That is the obligation that arises under section 16 of the EEA. At the very least management should have referred her back to OH, even if she herself could have done this from March until 20 June 2022 and did not. This duty lies on the Employer to exercise. The decision by her line manager CB to disbelieve this as being the explanation for the Complainant’s work problems was not a decision that CB was qualified to make. 13. On the 20 June when she made the disclosure, expressly admitting that her ongoing work problems were possibly due to her poor eyesight, at that point the responsibility to act became not only the Complainant’s but it was shared with the Respondent. The sharing of this information was the pivot point that they chose to ignore. 14. Thereafter the Respondent failed to take any action relying on an implausible explanation that they were unaware of her disability. The following Authorities were relied upon by the Complainant: 1. Nano Nagle School v. Daly [2019] IESC63 2. HR Rail C-485/20 CJEU 10 February 2022 3. A Procurement Officer v. Service Provider WRC Adj 28733 |
Summary of Respondent’s Case:
The sworn evidence of the Respondent was as follows: CB a manager in the Estates Department and the Complainant’s direct line manager gave the following evidence under Oath: 1. CB was on leave when the Complainant commenced her role in January 2022. CB’s line manager, KC inducted the Complainant over a two-week period and then handed over the line management of the Complainant to CB when she returned from leave. 2. As the Complainant’s line manager CB kept a progress tracker of the Complainant’s work performance. 3. The problems with the Complainant’s work ultimately were consistent in that in a stop start fashion she was unable to competently manage operation of the SAP system but was inconsistent in that sometimes she got it right but the next day she would get exactly the same task, wrong. She did not improve over time. Her work was unreliable and needing, as it did, to be checked and double checked became impossible for CB manage. CB had her own job to do. 4. The Complainant also underperformed on clerical jobs that were entirely unconnected to her eyesight. However, the main thing was the Complainant was asked on multiple occasions if there was any help that she needed, to which she always said no. 5. A person may have an eye condition, or indeed any health condition but if they do not identify it as being a problem or a hinderance to work being done, a line manager cannot assume that the condition is disabling or is a disability. If the Complainant had told anyone, her line management or had accepted the invitation to return to OH and said that she was unable to do the work because of her eye condition, accommodation would have been considered. But she did not. She always rejected any attempt to help her. 6. The progress tracker is proof of the Complainant’s poor performance in the role. 7. The Respondent Estates Department manages property and buildings owned by the Respondent. These includes acute hospitals, primary care centres, mental health and disability centres, community nursing homes, office accommodation laboratories, warehouses etc. The effective functioning and maintenance of these buildings is vital to the proper functioning of the health care system. 8. The Estates Department liaises with multiple personnel, architects, engineers, project managers, maintenance managers, suppliers, contractors, internal staff and many more. 9. The accurate and timely data input of Purchase orders (POs) and Goods Received Notifications (GRNs) is vital to the operation of the department. The SAP system - is a record system by which any member of staff can assess what stage the work on a property is at and what needs to happen next - what has been ordered, what has been paid for, what has been delivered etc. The detail on the SAP system needs to be accurate and accessible as steps are taken. 10. POs and GRNs are the only way that a manager can ascertain the state of progress of any work in progress and who has been paid, who needs to be paid and what is to happen next. 11. The mistakes that were made by the Complainant were manifest. She did not complete tasks and left folders open incomplete at the end of the day. She made repeated data entry errors. POs were put in the wrong row/ column or were only partially inputted. Contact details were incorrectly inputted. The deficiencies did not improve when she was provided with a larger VDU screen in March and did not improve over the months that followed. By June 2022 the mistakes that she was making at the start were still being made. These were made when she was working in the office or working at home. 12. Her under performance that had nothing to do with her eyesight condition were that hard copy post was not date stamped; the Complainant clocked out early and when advised on 21 February 2021 that her hours were 9am-5pm and that she was required to work until 5pm every evening she still clocked out 5 minutes early that very evening. And that happened repeatedly after that in March, although it ceased after the first probation meeting on 7 April 2022. 13. From the first probation meeting onwards her poor performance related more to improper and inaccurate use of the SAP system although she also failed to log post received, failed to notify staff about post received, failed to keep stationary store equipped, failing to send emails, inputting incorrect email addresses, emailing without attachments, leaving PO sheets in a printer, failing to follow a hard copy check list - created by CB for the Complainant on 28.2.2022 - to ensure accuracy about data input. 14. In CB’s opinion the Complainant’s problems were mainly with the use of Excel spread sheets as well as the operation of the SAP system. CB accepts that this was 90% of the Complainant’s work. 15. A clerical officer needs to be able to accurately use Excel spread sheets. This is a basic requirement of a clerical officer post within the Respondent. 16. It was the inconsistency that was the problem. The Complainant might do 30-40 construction notifications correctly and then do one wrongly. Her work could not be relied upon to be accurate. 17. There was one issue that arose in respect of an insurance file. It was to do with elevator maintenance work. The insurance cover was conditional on the maintenance work being completed. Of 80 lines (to record the work that was done) inputted by the Complainant 59, were either inaccurate or incomplete. That was in April 2022. CB gave the Complainant a Word document which precisely stepped out the process for the Insurance file. The Complainant wasn’t interested in using it. 18. On 19 May 2022 despite the provision of a check list the Complainant failed to follow the instructions provided and failed to upload the insurance file onto a shared folder, which meant that it could not be accessed by the maintenance managers who needed to view it. 19. This was a few days before her second probation meeting on 23 May 2022. 20. After the second probation meeting CB sat down to help her with her workload. This was an opportunity for the Complainant to tell CB if she was having difficulties. But she did not. She didn’t seem to like being offered help. 21. At each of the two probation meetings on 7.4.22 and 23.5. 22 the Complainant was asked was there anything stopping her being able to do the job, to which she said no. 22. At the first probation meeting on 7.4.22 the underperformance that was identified to the Complainant related to clock-in times; completing Excel and PO notifications accurately, and Post. The specifics issues were put to her, as they needed to be, and she was not happy about that. Targets were set, she was told that improvement was necessary, and her next probation meeting was brought forward to May. 23. At the second probation meeting on 23.5.22, the specific problems of underperformance put to her were: POs and GRN process. She was asked to follow the hard copy check list to ensure that tasks were not left incomplete. The incompleteness of her tasks could not be explained by poor eyesight. And in the absence of being told that her eyesight was the cause, CB considered it to be inattention to detail. In terms of inaccuracy CB suggested that the Complainant tab cells across columns when using Excel because she was aware that the Complainant was cutting/copying dragging cells, which was likely to increase inaccuracy, but the Complainant was not inclined to do that and did not change her practice after the meeting. 24. CB did not think that her eyesight was a problem, not only because the Complainant never reported it as being a problem (despite having multiple opportunities to do so) but because sometimes she could do the tasks accurately which made CB think that she was able to do it, just not consistently. Also, the Complainant could read texts off her phone and use her watch. The reality was that CB, and the other managers were never informed that her eyesight was the issue, and as other evidence suggested that it was not the explanation for all her problems. CB believed that it more likely that inattention to detail rather than an inability to see that was the problem. 25. In terms of the Complainant alleging that she felt unsupported by her line managers, CB did not accept that. CB offered to sit with her to show her how to use the system, but the Complainant declined. 26. At the probation meetings CB offered her help with SAP and when the Complainant declined, she told her that she was to ask for help if and when she needed. The Complainant never asked. 27. CB said that had the Complainant ever told her that she could not read an Excel spread sheet if the rows/columns ran off the screen, (a) she would have helped her and (b) if that did not work, she would have sent her to OH. 28. After the end of the probation meeting CB and KC reported the case to KC’s line manager (MMCG) to review. Neither CB nor KC were aware that the Complainant might be dismissed. As far as they were concerned, her probation would continue, and the Complainant’s work performance would continue to be assessed. 29. CB denies treating the Complainant less favourably than any other worker who reported to her and she denied knowing that the Complainant had a disability or needed further accommodated. Had she been made aware; CB would have contacted OH. CB was cross examined and stated the following: 1. 90% of the Complainant’s work was using SAP and using Excel spread sheets. 2. The main problem in terms of inaccuracies was in respect of using software. 3. The work of the Estate Department is reliant on use of software systems. 4. The work for a clerical officer is not more complicated than a clerical officer in other departments within the Respondent, but because the use of the financial software is a central part of the operation of the department, and data inputting to the software is the main part of a clerical officer job in this department, the work is more structured, more prescribed that another department of the Respondent. 5. The work is repetitive. In that respect while the software system is complex because the input of data is repetitive, it is easy to learn and easy to be accurate, usually. 6. CB did not accept that the problem with the Insurance share file system occurred on before the large VDU was provided. It happened in late May and again in mid-June. 7. When it was put to CB that she clearly knew that the Complainant had an eyesight problem, and that was why in February, OH had been contacted and a larger VDU ordered, CB accepted that she knew and everyone knew that the Complainant had an eye condition but she did not know that was contributing to the Complainant’s poor work performance. That is not an assumption that could be made, particularly given that that the Complainant didn’t say that when asked and kept declining offers of help. 8. CB does not accept that the Complainant was not provided with a performance improvement plan. At each probation meeting, her work performance was reviewed, and targets were set. That was a performance improvement plan. 9. The advice that CB gave to the Complainant verbally at the meetings were more expansive than the Probation meeting reports indicate. 10. At the last probation meeting on 20.6.2022 (although CB accepts that neither she nor the Complainant knew at the time that it would be the last meeting) the Complainant did state “her eyesight impairment may make accuracy more difficult to achieve” 11. CB did not consider this explanation to be likely because the Complainant was accurate one day but not the next, so it was not as if she was incapable of doing the job accurately. Eyesight did not seem to be an explanation for the ongoing problems. Until the 3rd meeting, she had never raised it as a problem and if it had been a problem, she would have known that from the start and could have just said it. When she said it at the third probation meeting it seemed more of a throw away/ possible explanation rather than a real belief that eyesight was the cause. Much less a request for alternative accommodation. She never asked to return to OH. She did not ask for anything at that meeting. No accommodation was requested. 12. CB thought the more likely explanation was that the Complainant had an inability to concentrate to ensure that the data was consistently accurate. But there was also a lax approach to her work which did not help. She left jobs half completed at the end of the day, leaving files open. That approach could not be said to be eyesight related. It seemed to CB that the problem was that the Complainant was inattentive albeit inconsistently. But CB had her own job to do. She did not have the time to keep scrutinising every piece of the Complainant’s work. 13. On 22.6.2022 under instruction the Complainant was handed her a letter of termination by a senior staff officer in the Estates Department. 14. CB did not have anything to do with the decision to dismiss the Complainant, although she was not surprised when it was taken. The situation had not improved. The Complainant had not outlined a remedy herself and was refusing offers of help. 15. In CB’s opinion the Complainant was not specific about what accommodation she needed. She was the only person who could have said what was the problem and what she needed. If her line managers unaware of that fact that her eyesight was disabling, no issue of reasonable accommodation can arise. 16. If the Complainant had spoken up or taken up the open offer to return to OH, the outcome might well have been different. The Complainant said at each probation meeting that she was happy with the equipment that OH had provided and that she did not need any further help. CB accepted this at face value and relied on it. She had no basis to dispute it. KC Staff Officer in the Estates Department and line manager to CB gave the following evidence under Oath: 1. KC did the induction 2-week training with the Complainant when she commenced on 10 January 2022. 2. During the induction training the Complainant seemed to understand the system and the training. Some of the training was online and the Complainant passed that without difficulty. 3. KC was aware that the Complainant had an eye condition from the pre-employment documents, but she was also aware that the Complainant claiming to not need any assistance in respect of her work. There was no basis for anyone in management to treat the Complainant as having a disability. 4. When KC saw that the Complainant needed to bring the standard laptop very close to her face, her line of vision, to use it KC became concerned about the appropriateness of the workstation for the Complainant. The Complainant needed to lean over close to the screen and this could not be maintained from a poor posture point of view, so KC made a referral to OH. The Complainant was reluctant to do this, so they did it as a joint referral. 5. An OH Nurse attended the Complainant’s workstation in early February 2022. In the meantime, the Complainant was using the standard equipment that would be provided to staff commencing a clerical officer role in Estates. 6. The accuracy of evidence within the performance tracker that CB created and updated as the Complainant’s job continued, was corroborated by KC. 7. Early on in her employment the Complainant’s email footer was incorrect. That was an attention to detail issue. Nothing to do with SAP or an Excel spread sheet. 8. Prior to the first probation meeting there was an issue about the Complainant leaving work. On one occasion KC rang the office at 4.51pm looking for a vendor number and the Complainant told her that she had already clocked out and suggested that she contact another worker. 9. The problem of late clocking out issue ended in March 2022. 10. The other problems with the Complainant not being able to operate the system of creating POs and GRNs persisted. Even though the Complainant had been fully inducted on this and had completed the training. In March 2022, when the Complainant had been working for two months KC had to re-explain to the Complainant the whole process again because the Complainant did not know how to check if a PO had money available to it in an GRN. KC was surprised at this because it was basic. This showed that while the Complainant appeared to understand the system after her training and was able to process POs and GRNs accurately (albeit inconsistently) two months later the basics needed to be explained again and yet after that the same problems continued (again inconsistently.) 11. Incorrect VAT codes were applied, tracker was not completed, inaccuracies were identified and re identified and re identified and still the Complainant was unable to get it right. 12. KC regularly asked the Complainant if she needed help, but she always declined. She didn’t appear to like being asked. 13. She would improve and then disimprove again. Without any other explanation I just thought it was general inability or a lack of concentration. KC said that she didn’t understand why the Complainant could get it right and then get it completely wrong, when it was the same system. 14. The Complainant initially said no to KC’s OH referral suggestion. It was only when KC suggested it as a joint referral that the Complainant agreed to do it. 15. After the bigger VDU screen arrived in March 2022 the Complainant said it “was a great job” because it had an extendable arm to allow easy movement closer to her face. 16. The other problems (post, not passing on phone messages, not date stamping post, not ordering stationary) were deficiencies that had nothing to do with her eyesight. 17. At each probation meeting she was asked if she needed help and she said no. 18. It was only at the 3rd meeting that she said in a passing comment that “her eyesight may make accuracy more difficult to achieve” but that was not said by way of a request for any intervention. It was more of an observation of possible cause. 19. If she had asked to return to OH, KC would have done that. 20. After the 3rd Probation Meeting on 20 June 2022 KC was not aware what would happen. She thought that the Complainant would be reviewed in four weeks from then. 21. It is standard for the probation report to be sent to the KC’s line manager and that is what happened. KC was cross examined and stated as follows: 1. In response to the question of whether it is reasonable to believe, given that it is apparent - even on meeting the Complainant - that she has an eye impairment condition, that her eye condition did not have a bearing on her ability to do the work, KC said that she knew that the Complainant had an eye condition but she also knew that the Complainant was very clear – that her eye condition did not affect her functionality or ability to do the job and that she was happy with the equipment that was provided to her and that she did not want any help or intervention. 2. It was up to the Complainant to return to OH if she felt that she needed it. It was not up to KC to suggest to the Complainant to refer herself to OH, particularly given that she said that she didn’t need anything. 3. When asked – after the 3rd probation meeting – after the disclosure of incapacity based on eyesight was made by the Complainant who decided what happened next, KC said that she understands that CB discussed it with the senior staff officer and a decision to dismiss was taken by the Estates Manager KG on foot of legal advice received by KL (HR advisor and representative of the Respondent.) 4. At the 3rd meeting we, as in she and CB did expect that given the time that had passed and the help that was offered and in the main declined, that the Complainant would have been able to complete the tasks satisfactorily. There was no good reason why she couldn’t, and the impact of her poor performance was affecting the operation of the Department.
KG the Estates Manager under oath gave the following evidence: 1. KG has overall responsibility for Estates in the region 2. The Office Manager (MMcG) kept me abreast of the Complainant’s probationary period. 3. Each probation report was discussed with him. 4. KG was aware of the work performance issues with respect to the Complainant. 5. While there were other issued, the Complainant’s work problems were mainly about POs and GRNs and keeping the files accurately up to date. 6. This was having a significant impact on the operation of the department. It could not continue. 7. KG signs off on all POs and GRNs. Before a payment is made, he needed to be able to access the system and check that everything supports it being made. Often when an emergency arises (such as when the Hospital flooded and during Covid) the need to access accurate information from the software system is immediate. Inaccuracies cannot be tolerated on an ongoing basis because of the impact that it has on operation of the department. 8. After the 3rd probation report was issued, the office manager, MMcG, who received the report from CB contacted him. 9. MMcG advised him that after each probation meeting the work performance problems remained. 10. KG said that in discussion with the MMcG he formed the opinion that it was unlikely that the Complainant’s performance would improve. 11. The Complainant’s remark during the 3rd probation meeting- that her eyesight might be causing the inaccuracies - did not change the position which was that she wasn’t asking for any intervention. 12. KG accepted that everyone knew that the Complainant had an eye condition, but everyone also knew that she had been provided with accommodation already in terms of a larger VDU screen and that she had not asked to be reassessed by OH. 13. KG did not consider that the Complainant had a disability. Under cross examination KG gave the following evidence: 1. KG was unaware of what clerical officers’ responsibilities are in departments of the Respondent other than Estates. 2. He said that 5 months and 20 days was enough time to learn and become proficient in the job. 3. The Complainant’s mistakes were consistent in that she continually made mistakes but inconsistent in that sometimes she seemed able to do the data input correctly and other times not. A continuation of that was not sustainable for the department. 4. He accepted that he did not contact the Complainant prior to dismissing her to ask her specifically what was causing her to make mistakes or what could the Respondent do to help her but that was because he knew that she was given many opportunities to tell her line managers but chose not to. 5. It was a matter for the Complainant to contact OH if she felt that the equipment was inadequate to help her. Only she could have known that and done that. 6. Before the decision to dismiss the Complainant KG considered the 3 probation reports and the Progress tracker report. 7. KG said that his concern was her work performance. His main priority was to eliminate problems with the operation of the department. The Complainant’s poor work was causing a lot of problems. 8. KG did not consider a return referral to OH because that was a matter for the Complainant to ascertain and to self-refer if necessary. She cannot be silent and then complain that nobody did anything about her disability. 9. OH had already assessed her in March. She did receive accommodation to allow her to do the job then. 10. KG and MMcG brought forward the probation periods to front load them because the levels of mistakes were so apparent after OH provided her with the equipment in March. 11. As an architect KG is aware of the obligation to make provision for staff with disability. 12. Even though the Complainant would not accept that she had a disability until her 3rd probation meeting, she never requested any specific accommodation. 13. It was up the Complainant to voice her needs. It is not up to an employer to imagine what they might be. 14. If the Complainant’s case is - that she should have been referred back to OH in order for possible further accommodation to be assessed - it is relevant that she refused to attend not one but two OH appointments that were arranged after her dismissal in June and her appeal hearing in August. JH the Assistant National Director for Capital and Estates, gave evidence under oath as follows: 1. JH was KG’s line manager. 2. Following her dismissal, the Complainant requested an appeal in respect the decision. The appeal took place on 10.8.2022. 3. In advance of the appeal hearing JH advised that the Complainant would not be paid pending the appeal but that if the dismissal was not upheld, she would be paid any wage losses sustained in the interim. 4. JH issued his appeal decision on 3.10.2022. 5. During the appeal hearing the Complainant Forsa representative contended that there were deficiencies in the probation process. She contended that the Complainant’s line managers had not made sufficient effort to ask the Complainant if she needed help. The representative also requested JH to liaise with Occupational Health, the Respondent Equality Officer and with Vision Ireland to advise him on what equipment might be provided to the Complainant to allow her to remain in her job. She also requested that the Complainant be offered an alternative clerical officer role within the Respondent. 6. Based on his investigation JH was satisfied that the Complainant had received multiple offers of help during her 5 plus months in Estates and that she had declined help at every turn. He said that this continued refusal to accept help had to be viewed in the context of a pre-employment questionnaire in which she indicated that she did not need any visual aids. It was KC who suggested a referral to OH. The Complainant did not want a referral to be made then and only agreed to it as a joint referral. The reality was that the Complainant eschewed all offers of help, and the Respondent cannot be responsible for not being told what the problem was. 7. The Complainant refused to use a hard copy tick box check list to ensure that a job was properly completed. IF she had done the problems would have been reduced or maybe eliminated. Her refusal seemed like a refusal to apply a diligence system. It was not only her mistakes. It was her refusal to take instruction on how to improve. 8. When she was offered the job, she could have found out what the job involved before taking the post. 9. JH found that OH had intervened and assessed the Complainant and despite an open offer being made to her to return if she had further problems, that she had not reverted to them to advise that the equipment was not adequate. 10. JH was satisfied that OH had provided her with reasonable accommodation and the Complainant did not self-refer to OH or ask management to go back to them. He said that post-dismissal it was significant that she did not avail of two appointments to attend OH where she could have explained what her problems were. 11. It was reasonable for management to expect a person to explain what their needs are, but the Complainant did not. 12. Having been referred by management to OH, the duty then falls to the employee to self-refer to OH if the need arises. 13. Her decision to not self-refer to OH and her general reluctance to report any difficulty whatsoever during her 5 months of employment resulted in the Respondent not knowing that she had a problem. They were entitled to assess her work performance based on her probation period as they would have done to any worker, without a disability. 14. Even during the appeal hearing it was not clear what reasonable accommodation the Complainant was seeking. 15. If the case for reasonable accommodation is based on the Respondent not referring her back to OH, JH said that the obligation for that lay with the Complainant to exercise and after the dismissal she still refused to engage with OH. If it’s that she did not receive help from her line managers, the evidence that she receive offers of help not only during her probation meetings but whenever her line managers dealt with her was not denied by the Complainant. 16. The situation facing her line managers on 20 June 2022 was that her continued employment was not sustainable going forward. 17. JH did not investigate what additional supports were available because he was assessing the correctness of the dismissal decision taken on 22 June 2024 and at that stage the Complainant had not asked for any additional supports. If she had, it could have been explored. 18. There is no facility to transfer an employee during a probation period to another department. Recruitment is from panels. That is the agreed system with the unions. Once an employee comes off the panel, they are employed by a particular department which carried out a probationary period with the employee. If you pass probation one can apply to transfer to a different department or can seek promotion, but until the probationary period is completed by the recruiting department no transfers to another department are possible. There is no facility to return to the panel either once recruited. Once off the panel the others on the panel are treated in order of merit. An employee is not permitted to come off and back onto a panel. That is the system that is agreed and is necessary to allow the recruitment from panels arrangement to function. JH was cross examined and stated as follows: 19. The gateway to obtaining accommodative equipment - if this was the reasonable accommodation that was required (albeit not requested) - is a referral to OH. 20. OH, is the department which assess and decide what equipment might assist and whether such equipment is available. The Complainant having already been assessed by OH had the responsibility of requesting any further assessment. That responsibility did not lie with the Respondent. 21. JH considered the fact that she did not return to OH and the fact that following the dismissal she also refused to attend the OH appointments that were arranged by her mother. The reference that she made to her eye condition at the meeting of 20 June was not a request to see OH again. 22. JH asked OH before making his decision and OH emailed him that it was regrettable that the Complainant had chosen not to go back to them. 23. At the appeal hearing the Complainant still did not appear to understand what was going wrong with the job. She was defensive about how her line managers had treated her, but she was passive and silent about the impact that her condition had on her work and refuted the assertion that her line managers were obliged to tell her where she was going wrong, that being the purpose of a probationary period. 24. When asked why she was not told at the 3rd probation meeting that she might be dismissed, because if she had known that would have paused her determined approach of keep trying/ not complaining and made her admit that she needed further help, JH said the contract is clear, the probation period is up to 12 months. It can be ended without notice prior the conclusion of the 12 months if the work performance is not improving. The Complainant knew this or should have known this from a reading of the contract. 25. At the appeal hearing it was accepted by the Complainant representative that the job as it was, was not for the Complainant, that it was too financial software based. When JH heard that this confirmed the original dismissal decision and his own opinion that the job was not right for the Complainant and that it was correct for her probation to be ended. 26. Hers was the only clerical post job in Estates and the Complainant was unable to do it. That is what led to her being dismissed. 27. Before her employment began it was not understood that the Complainant had a disability. Reasonable Accommodation was provided by OH and she did not refer to OH nor ask to be referred before she was dismissed. The following Submissions were made on behalf of the Respondent 1. A visual impairment may or may not be a disability. If the person with the visual impairment does not declare it to be a disability it is reasonable for an Employer to treat it as not being a disability. 2. It was only at the appeal hearing that the Complainant’s representative described the Complainant’s visual impairment as a disability. 3. She declared in her pre-employment questionnaire that she did not require any visual aids 4. Despite this her line manager asked OH to assess her and having assessed her she was provided with equipment to assist her. 5. OH, advised her to return to them if she ever needed to. 6. She was asked on multiple occasions by management if she needed anything. She did not dispute this in her evidence. She always declined help. She never asked for any help. She never asked for any additional accommodation. 7. An employer cannot second guess an employee’s own description and knowledge of their medical condition. If she did not describe it as a disability. If she did not seek further accommodation to assist her. If she did not take up the OH offer to return if she needed further help, it is not for an Employer to assume that she needs help. 8. Even after she was dismissed, she had the opportunity not once but twice to attend an OH appointment. To be re assessed by OH is a central plank of the Complainant’s case for reasonable accommodation and yet when she had the opportunity to be reassessed before her appeal, she chose not to attend the appointments. 9. The Complainant still has not explained exactly how her eyesight caused her data inputting to be so inaccurate. She still has not advised what accommodation or what equipment might have helped her. The Respondent remains in the dark about this still. 10. It also remained unclear why the Complainant said nothing, sought nothing, refused offers of help between January and June 2022. Only she could have advised line management what the problem was and yet she did not. 11. Section 16(3)(a) requires proof that with reasonable accommodation she would have been able to do the job. The Nano Nagle Supreme Court decision upholds this. There is no obligation to keep a person employed if they are unable to do the job. The Complainant was not only unable to do data inputting correctly, but her failures were also with ordinary clerical officer tasks. 12. The decision to dismiss the Complainant for the failure to pass her probation period was reasonable. 13. The comment that she made during her 3rd probation meeting was raised as a possibility. It was a comment said in passing. It was not a request and even at that meeting when asked if she needed help, she said that she did not. 14. There was no alternative clerical role that she could be parachuted into to complete her probation period. The Complainant’s argument that she should have been given another role within the organisation denies the whole agreed process of appointment within the Respondent; namely, application – empanelment – expressions of interest – acceptance of a position within a department – contracts signed – probation period within the department. 15. The Respondent was not made aware that the Complainant had a disability. No reasonable accommodation was ever requested.
The Respondent relied upon the following Authorities: A Complainant v. A Community Development Project EE/2008/410 Nano Nagle School v. Daly [2019] IESC63 A Hospital Clerical Employee v. A Hospital WRC Adj 13564 A Complainant v. A Community Development Project EE/2011/146 A Nurse Graduate v. A Hospital WRC Adj 30693 Mangan v. The Courts Service WRC Adj 34918 Specialist Staff Nurse v. Health Care Provider WRC Adj 20984 Swan O’Sullivan Accountants and Ors v. Counihan Labour Court Adj 2140 Melbury Developments Ltd v. Valpeters Labour Court EDA 917
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Findings and Conclusions:
Introduction I would like to thank the representatives of the parties and to thank the witnesses who attended this four-day Adjudication hearing. I commend the representatives for the quality of their advocacy and well researched submissions. Before I set out this decision, I wish to acknowledge that when considering the evidence of the witnesses in this Adjudication I was drawn to the merits of both sides, finding myself sympathetic to and critical of both parties in near equal measure. The challenge for WRC adjudicators is that section 16 of the EEA does not define what reasonable accommodation or appropriate measures is. This is necessary to allow flexibility given the need for Member States to interpret in compliance with Directive 2000/78/EC and an interpretive approach has been adopted by the Superior Courts in a line of cases from 2006 to date aimed at securing such compliance. Clarification was ultimately provided by the Supreme Court in the case of Daly v. Nano Nagle [2019] IESC 63 which interpreted section 16 and held that the obligation on employers to reasonably accommodate disability needs to be proactive. I have set out my reasons for this decision and I have also sought to clarify the responsibilities that both the Complainant and the Respondent is obliged to discharge. I hope that this may be of assistance to the parties in the future. Special Circumstances As this decision identifies details of the Complainant’s disability which may impact her privacy and employability in the future I am satisfied, in applying section 79 (2) of the Employment Equality Act 1998, that there are special circumstances which allow me to determine that the parties should not be identified in this decision. Overview of Decision I am satisfied that there was an obligation on the Respondent to not to dismiss the Complainant on 22 June 2022 after she made the disclosure of disability at her third probation meeting on 20 June 2022. I find that the Respondent’s failure to inquire into what supports, options or assistive technology might have been available to allow her to remain in her post was a failure to take appropriate measures to make reasonable accommodation for her disclosed disability. I find that the decision to dismiss her two days after she made the disclosure (that despite previous denials by her that she had any problem) was rushed. While I accept that her poor work gave rise to operational difficulties, I find that there was still time, given that the Complainant still had over 6 months left in a 12-month probation period, to ascertain if assistive equipment, supports or redistributed tasks could have enabled her to perform her job satisfactorily. Given the size of the organisation and the supports and external expertise (OH, Vision Ireland and its own equality department) that it had at its disposal I find that there was an obligation to take steps to identify if further accommodation could be made and if it could, to assess her capacity to do the job with the benefit of that further accommodation.
Findings and Reasons I consider that the key questions that I am required to answer within this decision are: A. Was the Complainant’s eye condition a disability within the meaning of the Employment Equality Act (EEA)? B. Was the Respondent obliged to make reasonable accommodation prior to 20 June 2022? C. Was the Respondent aware that the Complainant’s eye condition was a disability after 20 June 2022? D. Does the fact that the dismissal occurred during the Complainant’s probationary period preclude a complaint of discriminatory dismissal and or failure to provide reasonable accommodation? E. In light of the Supreme Court decision in Nano Nagle v. Daly [2019] IESC 63 was the Respondent obliged to provide the Complainant with such reasonable accommodation to allow her to do the job that she was employed to do? If so, was such accommodation considered or provided? F. In light of the Supreme Court decision in Nano Nagle v. Daly [2019] IESC 63 was the Complainant dismissed by the Respondent because of her disability? G. If the Complainant was discriminated against by being dismissed and for failure to provide her with reasonable accommodation, did the appeal in October 2022 remedy this? H. Following the Supreme Court case of Nano Nagle v Daly [2019] IESC 63 was the Respondent obliged to consider her for alternative roles within its organisation prior to dismissing her?
A. Was the Complainant’s eye condition a disability within the meaning of the Employment Equality Act (EEA)?
1. The Complainant has optic nerve hypoplasia. It is not disputed that this condition comes within the definition of a disability within the meaning of section 2 of the Employment Equality Acts set out here: 2. ““disability” means— (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, 3. and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person;” 4. What is in dispute is whether the severity of her condition and specifically if her condition impacted her ability to do the work, within the knowledge of Respondent management. 5. Based on the uncontroverted evidence of the Respondent witnesses, most particularly that of CB and KC, both of whom I found to be credible and candid witnesses, it is clear that while the Complainant disclosed her eye condition to the Respondent before she started the job and that her managers knew about it, from the pre employment questionnaire and interviews and when she started (evidenced by the fact that she was provided with a larger VDU screen) neither during the five months of her employment nor during the first and second probation meetings did she disclose to management that the reason that she was having work challenges due to her eye sight condition. 6. I agree with the Respondent’s submission that they could only have known if the Complainant’s medical condition was impacting her work performance if she admitted that was the case. I have sympathy with the Complainant’s managers who were trying to do their own jobs, manage the Complainant’s probation and she was not admitting that she had any problems and denied that she needed help. 7. I can understand the Complainant’s personal reluctance to admit defeat and I admire her tenacity of repeatedly trying, in the hope that she might improve in sufficient time to pass her probation, but in the meantime the work of the Estates Department was being undermined by her poor work. The Department needed to function and the mistakes of the Complainant if allowed to continue was untenable from an operations point of view. It stands to reason that the input of data onto the software system, needed to be accurate and after 5 months plus it still was not. 8. The Complainant’s line manager KC was proactive in contacting OH to assess the complainant. Reasonable accommodation in terms of assistive equipment was provided to the Complainant in March 2022. 9. There is no duty on an employer to keep asking an employee if they need help if the employee repeatedly rejects offers of help. If the provision of a larger screen and modified equipment to in March 2022 did not help her the Complainant was under an onus to go back to OH to try to identify what the problem was. An open invitation by the OH Nurse was given to her in March 2022 and the Complainant failed to respond to that offer. In this regard I am satisfied that the Complainant’s silence about her condition contributed to her line managers belief that she did not have a disability.
10. The criticisms of the Complainant’s work during her 5 months of employment were not disputed. The mistakes on the Progress Tracker were not denied. Not only was it correct for these matters to be raised with the Complainant, as uncomfortable as I expect it was for her to hear, but Employers are obliged, particularly during a probation period to be very clear about work performance issues and very clear about what standard is required instead. If the line managers were less clear, then a contrary argument could be raised by an Employee that they were not informed of what the problems were. Probation periods only work if there is a free and frank exchange of information by line managers to employees about mistakes that are being made and what is expected in terms of work performance.
11. Based on the above, if the evidence in this case ended the day before the 3rd Probation meeting, I would have no hesitation in finding that because the disabling nature of her eye condition (insofar as it impacted her ability to do the work) was not disclosed to the Respondent. I am satisfied that no obligation to provide reasonable accommodation arose under section 16 of the Employment Equality Act (EEA) arose at that time. 12. For the above reasons, I answer key questions A and B as follows: A. Was the Complainant’s eye condition a disability? Yes B. Was the Respondent obliged to make reasonable accommodation prior to 20 June 2022? I find that the Respondent discharged this onus by way of the provision of equipment in March 2022, and because the Complainant did not disclose that her eyesight was causing any problems until 20 June 2022, the Respondent was led to believe, in my view reasonably that other reasons must be causing her poor work performance. No duty to provide further reasonable accommodation arose at that time.
C. Was the Respondent aware that the Complainant’s eye condition was a disability after 20 June 2022?
13. At the 3rd probation meeting on 20 June 2022, I find that the situation changed. This was because the Complainant clearly spoke about her eye condition and identified to her managers that she believed that her eyesight impairment may be making “accuracy more difficult to achieve.” This is recorded in the Respondent’s third probation appraisal report of the Complainant and CB and KB both accept that she said this. 14. This was the first time that the Complainant admitted that her eye condition was disabling and may be preventing her from achieving the accuracy in her work that was required. 15. So, while the issue of reasonable accommodation could not have arisen before she made this disclosure, after she raised this during the 3rd probation meeting, it is incorrect for the Respondent witnesses to assert that they were not aware that she had a disability or that her work performance was not being affected by her eye condition. Just because the word “disability” was not used, does not mean that a disability was not disclosed to them. 16. The cases in which the WRC and Labour Court have decided that no duty to make reasonable accommodation arises are when no disclosure of disability has been made unless the employer is deemed to be on constructive notice because of the circumstances that prevailed. 17. But this is not a case of constructive notice because the Respondent concedes that everyone knew that she had an eye condition. This was obvious to any bystander given that she required to move the screen directly and close to her line of vision to work. Also, she was referred to OH for this very reason in February 2022. So, the background knowledge as to her eyesight difficulties was known. But the Respondent’s defence that they were not aware that her eyesight was disabling was corrected by her at the 3rd probation meeting. This was when she put the Respondent on actual notice of her disability. And if the Respondent was in any way unclear on this, I am satisfied that the Respondent was obliged to make further inquiries as opposed to ignoring the disclosure and move to a dismissal. The High Court judgment in Somers -v- W (1979) IR 94 in which Henchy J outlined the following test: “When the facts at his command beckoned him to look and enquire further, and he refrained from doing so, equity will fix him with constructive notice of what he should have ascertained if he had pursued the further investigation which a person with reasonable care and skill would have felt proper to make in the circumstances.” The Supreme Court in Nano Nagle also suggests consultation with the person affected is good employment law practice, rather than making assumptions about a condition or what someone can or cannot do. For the above reasons I answer the following key question C as follows: Was the Respondent aware that the Complainant’s eye condition was a disability after 20 June 2022? Yes, because the Complainant disclosed this at the meeting.
D. Does the fact that the dismissal occurred during the Complainant’s probationary period preclude a complaint of discriminatory dismissal and/or failure to provide reasonable accommodation?
1. The Respondent submitted that that based on aspects of her poor work performance alone, which were unconnected to her eye condition, the Respondent was within its right to dismiss the complaint on the basis of an unsuccessful probation and that a probation is one within which the suitability of an employee may be considered, and no fair procedures are required for a failed probation dismissal which are two separate points. 2. The Respondent replies on the recent line of Superior Court authorities including the Court of Appeal decision in Donal Donovan v. Over C Technology Ltd and Over C Ltd [2021] IECA 37 in which the Court held:
i. “During a period of probation both parties are free – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is for whatever reason not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of ana employee’s performance by an employer (other that for misconduct which does not arise here) during the probationary period as this would negate the whole purpose of a probationary period.”
3. The above common law authority deals with whether pre-dismissal fair procedures are required during a probation period for under par performance, which I accept. However Donovan does not deal the statutory duty to provide reasonable accommodation for a disability during a probation period, and for this reason it is distinguishable. 4. In this investigation I am not concerned with whether there were other reasons unconnected to the Complainant’s eye condition that would have justified the ending of the Complainant’s employment during her probationary period. 5. My inquiry is directed at the reasons that were cited by the Respondent as being the reasons for the Complainants dismissal to decide if during her time as an employee she was or was not provided with reasonable accommodation. 6. Section 16 of the EEA places a positive duty on employers to place people with disabilities on an equal footing with their able-bodied colleagues. It is not a material consideration when applying section 16 if an employee is under probation. Indeed, a case of reasonable accommodation may be brought in respect of access to employment. 7. The Respondent witnesses all gave evidence that it was not only the inaccuracy in her SAP/ Excel work but also other matters that led to her dismissal however I must consider only the reasons that were cited in the dismissal letter dated 22 June which are described as: comprehension of detail; processing of data and attention to detail – all of which might reasonably have been caused by poor eyesight. None of the ancillary criticisms of her work; leaving work early, post not being stamped, not telling staff about post arriving, not giving staff telephone messages, not ordering stationary were cited in the letter as being the reasons why she was dismissed. 8. KG’s evidence which was corroborated by the Complainant and CB was that 90% of her work was data input into SAP software. If she was not making software errors, it is probable that her probation would have continued. 9. The reason that her probationary period was expedited was mainly, although not exclusively, because of her software errors. I am not satisfied that the reason that her probation was ended was due to issues other than those related to her eyesight. Her letter of dismissal supports this. 10. I am satisfied that the fact that the dismissal occurred during the Complainant’s probationary period does not preclude a complaint of discriminatory dismissal and I am satisfied that her probation would not have ended when it did for reasons other than connected to her eyesight.
E. In light of the Supreme Court decision in Daly v. Nano Nagle was the Respondent obliged from 20 June 2022 to provide the Complainant with such reasonable accommodation to allow her to do the job that she was employed to do? If so, was such accommodation considered or provided?
1. The Respondent’s defence to this question is firstly that while they were aware of her eye condition, they were unaware that this was a disability which required further reasonable accommodation, which (in respect of post 20 June 2022) I reject for the reasons set out under Question C above. 2. The second defence that they raise is that while they were aware that she claimed to have a disabling eye condition in her 3rd probation meeting on 20 June 2022 she did not before, during or after that meeting, ask for any specific reasonable accommodation to be made. Moreover, she did not even clarify in what way her eye condition affected her ability to do the work which left the Respondent unable to provide reasonable accommodation because they were unaware of what she needed or even what her difficulty was. 3. This is the strongest argument in the Respondent’s case, and it hinges on a premise that an employee is obliged to request specific reasonable accommodation or else at least be very clear on what precisely what her disability is, in order that accommodation might be then considered. 4. This is where the issue of timing becomes relevant. 5. The Complainant was on a 12-month probation period within which the Respondent were entitled to decide at any point that she did not pass and could be dismissed. On the 20 June 2022 she declared, having not done so before, during what she regards as a 3rd probation meeting (but was not told that it was her final probation meeting) that her eyesight might be the reason why she was not doing the work accurately. 6. The question is, that arising from this information (even if it had not been provided thus far) was an obligation created for the Respondent with the knowledge that they then had, to take steps to ascertain the extent of her disability and/or refer her back to OH to see if other assistive equipment could be provided so that her capacity to do the work could be assessed then to allow her to remain in the job. 7. Instead, what happened was within two days of her disclosure she was dismissed for not comprehending assignments; processing of data and inattention to detail, all of which were probably caused or at least impacted by her poor eyesight. 8. It is unavoidable to conclude that the disclosure of disability at the 3rd probation meeting was either ignored or not believed by management. 9. CB was candid about this. She did not accept that her eyesight explained the Complainant’s poor work. Because the Complainant’s work was sometimes accurate and sometimes not. She believed the problem was inattention rather than eyesight. The evidence of KC was that her disclosure was said in passing at the meeting and was not really considered thereafter. And it is clear, that the disclosure played no part in KC’s considerations when he decided to dismiss the Complainant. 10. I do not consider that her line managers were correct to disbelieve or to ignore her explanation that her eye condition was the cause of her poor work. While I accept that for months the Complainant had denied it, but on 20 June 2022 she said that her eyesight could be the cause of the inaccuracies in her work. From that disclosure it is not credible for the Respondent management to say that they were unaware that her eye condition was disabling. She starkly admitted it was a problem and could be the reason for her inaccurate data entry work, which was 90% of her work. 11. The wording of Section 16 of the EEA requires an employer to be proactive in ascertaining if employment with accommodation is possible. 12. I am satisfied that the decision to essentially ignore or sidestep the fact that she - albeit late in the day – disclosed her disability to management was a failure to take stock and consider what reasonable accommodation might be help her. 13. If a referral had even been made to OH at that point instead of her being dismissed the ball of statutory obligation would have started rolling. 14. OH, who were qualified to assess her again, establish exactly what her problem was and then decide if accommodation was possible - or not if a disproportionate burden was created. 15. But by essentially ignoring it, treating that disclosure as if it was irrelevant or to be disbelieved, avoided the Respondent’s obligation to inquire into whether additional accommodation was possible. There was a failure to inquire into the possibility of reasonable accommodation which denied her being considered for reasonable accommodation. 16. I do not accept the Respondent’s submission that a person with a disability is required to state precisely what form of reasonable accommodation is required. The provision of reasonable accommodation includes a consideration of what options might be available. Once she disclosed her disability, the obligation to investigate further arose. The Respondent has an Occupational Health Department, the Complainant had doctors. Between the two what was needed and if accommodation could have allowed her to continue her work could have been identified. 17. Once the disclosure of disability was made it is my view that alarm bells should have gone off in the minds of the Respondent. When she made that disclosure, the process of assessing her poor work performances should have been paused and a moment taken to consider if a fresh solution could be found. The failure to react to her disclosure of disability was insufficiently proactive and failed to take “appropriate measures” as section 16 requires, to facilitate a person with a disability participating in the employment. That obligation within section 16 brings with it the duty to inquire into whether accommodation could be provided. That duty was not observed by the Respondent. The 20 June disclosure created a pivot point from which the Respondent was obliged to be more proactive than it was. On this basis I am satisfied, that while there was no failure to provide her with accommodation prior to the 20 June, from meeting on 20 June onwards, a duty arose, and that duty was not undertaken by the Respondent. 18. Why the rush? During the hearing I asked if the legislative changes under the EU Transparent and Predictable Working Conditions Regulations 2022 (6 months maximum for probation periods) played a part in dismissing her before 6 months had passed because the implementation day for the Regulations was not until December 2022. I was told that they did not play a part. When she was dismissed, the Respondent still had excess of 6 months to run on the Complainant’s probation period, so it is unclear to me, other than her work problems were continuing to impact the Department, why the probation ended when it did. 19. Arguments about disproportionate burden were never even entered into because she was dismissed without notice two days after her disclosure to her line managers. She was cut off at the pass, so to speak. I find that the obligation on the Respondent to inquire into whether a solution could be found was avoided. The Complainant’s disclosure was treated as a non-event and there was a rush to dismiss her. The Respondent had time to consider if assistive technology or other supports were available and to assess her work performance with the benefits of such supports. The Respondent being one of the largest employers within the State has these options, smaller employers do not. 20. At the hearing the Complainant explained that her difficulty was that her vision has a limited aperture and working with Excel spread sheets where rows and columns run off the page makes it difficult for her to follow and operate with. I accept that she did not say this to the Respondent before the Adjudication hearing. A solution could have been as simple as a wider VDU, to allow the spreadsheet be magnified, but still on one page. This may or may not have been the solution and, I am not qualified to say what could have helped her. But the failure to embark on any investigation of what might help her and if it could be provided was, in my view, insufficiently proactive given the occupational health expertise and supports that were available to the Respondent. 21. I am satisfied that this obligation to take appropriate measures included at the very least referring the Complainant back to the OH team before she was dismissed. 22. The Respondent witnesses’ evidence that reasonable accommodation had already was provided to her in March 2023 misunderstands that the Respondent’s obligation is an ongoing one. Management was expected to again respond to when her eye condition was described as the cause of her mistakes. And even if CB is correct and that the Complainant repeated a denial for help at this 3rd meeting, once the Complainant stated that her eye condition could be the problem, an onus on the Respondent rose to investigate this further and should not have been ignored or disbelieved. I am satisfied of this obligation even without relying on expansive test for “appropriate measures” as set out in Nano Nagle. 23. The decision of the Supreme Court in Nano Nagle has one other implication for this case, which is whether her ancillary tasks such as postdating post, ordering stationary, notifying staff of post received etc (as opposed to 90% of her role as working with SAP and Excel) could have been redistributed to others within the team. I have no evidence to suggest that this was considered by Respondent management between the disclosure of her disability and her dismissal 2 days later. Again, if it had been considered and found not to be practical or possible is one thing. But not being considered at all is another. This might have freed up the Complainant to concentrate on the SAP tasks with the benefit of assistive equipment unless that proved to be a disproportionate burden. 24. The reasonable accommodation might even have been more time. More time for her to practice use of the software in a focussed way. 25. The point is we will never know because her disclosure was not reacted to, and no further options were considered. 26. In light of the Supreme Court decision in Daly v. Nano Nagle I am satisfied the Respondent was obliged from 20 June 2022 on, to consider if reasonable accommodation could be provided to the Complainant and to assess her ability with the assistance of that accommodation and that this was not done.
F. In light of the Supreme Court decision in Daly v. Nano Nagle was the Complainant dismissed by the Respondent because of her disability?
1. I am satisfied that there was an obligation to “do more” to accommodate the Complainant’s needs following 20 June meeting and before she was dismissed, and I am satisfied that the Respondent did not do that and proceeded to dismiss her. 2. In some respects, separating what constituted a failure to make reasonable accommodation as distinct from whether the dismissal was discriminatory becomes an artificial exercise because the second action flowed from the first failure to act. 3. I am satisfied that the Complainant’s dismissal resulted from a failure by the Respondent to properly consider if reasonable accommodation could be made to allow her remain, in the job. On this basis her dismissal was discriminatory because it ignored her disability and was a continuation of their failure to provide her with reasonable accommodation.
G. If the Complainant was discriminated against for failure to provide her with reasonable accommodation, did the appeal process in October 2022 remedy this?
1. As I am satisfied that the Respondent failed to reasonably accommodate the Complainant and that the Complainant was dismissed for reasons of disability the question that arises is whether this discriminatory conduct was remedied by what happened between her dismissal and before her appeal in October 2022. 2. One of the failures to accommodate the Complainant was that the Respondent did not refer her back to Occupational Health after her disclosure of disability. 3. After her dismissal but before her appeal hearing in October 2022 the Complainant’s mother made an appointment with the Respondent’s OH department, which the Complainant chose not attend. She did not attend a follow up meeting either. 4. I am at a loss as to why the Complainant did not attend the OH appointments in the same way I am at a loss as to why the Complainant did not speak up about her disability before she did. If she had, a solution to allow her to remain in her post might have been found. 5. But I am satisfied that the Respondent’s obligation to refer her back to OH or to find if she could be accommodated lay on the Respondent before they decided to dismiss her. 6. JH gave evidence, that the Complainant did not remain on pay after her dismissal while her appeal was pending because to do otherwise would have undermined the dismissal decision. 7. I am satisfied that the duty on the Respondent to provide reasonable accommodation to the Complainant should have taken place before she was dismissed. 8. The obligation to make reasonable accommodation only arises where there is an employment contract in place. Once the employment ended the duty fell aside. 9. The fact that her mother took steps to get the Respondent to row-back from their decision and the fact that OH agreed to meet with the Complainant does not displace the obligation that was on the Respondent before she was dismissed. 10. I am satisfied that the actions of the Respondent post dismissal and pre appeal and the appeal itself was not capable of remedying the failure to provide the Complainant with reasonable accommodation prior to her dismissal.
H. Following the Supreme Court case of Daly v. Nano Nagle was the Respondent obliged to consider her for alternative roles within its organisation prior to dismissing her?
1. KG and JH evidence on behalf of the Respondent was not contested in that the process of recruitment to the Respondent is done by way of the appointment of a panel from which expressions of interest then are issued by departments to those on the panel. 2. Once a position is accepted an employee is employed by the Respondent but is assigned to a particular department. It is within an assigned department that an employee completes their probation period. Once an employee passes their probation and becomes permanent then they can apply for other posts or request a transfer within the service but if they are dismissed for failing to pass their probation requirements, they are dismissed from the Respondent. There is no facility to allow a person who has not passed their probation to be transferred to complete their probation in a different department. 3. This is an agreed process. I accept that there is good reason for this process and during the Adjudication hearing, Forsa did not seek to contend otherwise. 4. I have not been provided with any evidence to show that the Respondent may transfer a employee mid-probation to a different department to either complete or to restart their probation, so I do not accept the Complainant’s argument that the Respondent failed to provide reasonable accommodation by transferring the Complainant to a different, unidentified clerical officer role somewhere else in the wider organisation. 5. I have found that the Respondent should have taken steps to identify if an accommodation could be made to allow the Complainant remain in her role but based on the undisputed evidence of the Respondent do not find that the duty to provide reasonable accommodation includes the transfer of the Complainant to a different clerical officer role, if a vacancy indeed existed, which has not been evidenced to allow her to complete her probation or to restart her probation again. I do not consider that the failure to transfer her was a failure to make reasonable accommodation. This aspect of the Complainant’s case remains unproven and based on an assumption that a clerical officer vacancy existed elsewhere at that time in the local organisation. 6. I am satisfied that the Respondent was not obliged to transfer the Complainant to complete her probation in a different department, which would amount to a change of its recruitment practices for the clerical officer entry grade applicant particularly where no evidence of a clerical officer vacancy in another department having been established. 7. The above does not dilute the obligation which is already noted that a redistribution of her ancillary tasks within the Estates Department should have been considered if it would have allowed the Complainant to remain in her post unless that would have created a disproportionate burden on the Respondent.
Conclusion 1. I am satisfied that the Complainant has established that she was entitled to be considered for reasonable accommodation by the Respondent from 20 June 2022 onward by referring her to OH or by way of another process, whereby her capacity to do the work that was required of a clerical officer in the Estates Department could have been properly assessed and reasonable accommodation be provided. 2. I do not consider that where evidence of disability exists or is revealed during a probation period that the probation can be ended without a consideration if additional accommodation may be made. 3. I do not consider it a defence for an Employer to contend that an employee has not been sufficiently clear about what appropriate measures she needs if having disclosed her disability no time is taken by the Employer to see what her needs might be and if they can be accommodated. 4. I am satisfied that the failure of the Respondent to “do more” and by dismissing her as quickly as they did, failed to consider if reasonable accommodation could have been provided to her to allow her remain in post. I am satisfied that this breached their obligations under section 16 of the EEA as clarified by the Supreme Court decision in Daly v. Nano Nagle.
5. The complaint that the Respondent failed to provide reasonable accommodation to the Complainant is well founded.
6. The complaint that the Complainant’s dismissal was discriminatory in that it resulted from a failure to provide her with reasonable accommodation is well founded.
7. When considering the appropriate level of award I am obliged to reflect the CJEU jurisprudence that awards are at a level to “be effective and to have a deterrent effect” [paragraph 28 of the judgment in Von Colson and Kamann v. Land Nordhein-Westfalen ECR 1984-01891] and while I have found the Respondent to have acted in breach of section 16 EEA, I accept that the breach was not egregious particularly where the Complainant denied that her disability was causing her work difficulties until five months into her probation. I do not consider that a strong deterrent is required in respect of the breach in this case. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I am satisfied that the complaint that (a) the Respondent failed to provide reasonable accommodation to the Complainant and (b) that her dismissal was discriminatory in that it resulted from a failure to provide her with reasonable accommodation, is well founded. I award the Complainant €15,000.00. |
Dated: 09/12/2024.
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Discrimination – Failure to make reasonable accommodation during probationary period - failure to disclose disability |
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