Complainant

Respondent

Parties

Cian O Sullivan

Kilkenny County Council

Complainant

Respondent

Anonymised Parties

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Representatives

Ger Malone SIPTU

 Eamonn Hunt LGMA

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-00047389-001

29/11/2021

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

CA-00049129-001

11/03/2022

The Complainant commenced employment with the Respondent on 6/6/2002. His position is General Operative. The background to the complaints to the WRC was the Complainant’s assertion that he was suffering from a disability and that the Respondent discriminated against him, failed to provide him with reasonable accommodation and victimised him, resulting in financial loss, hardship and stress. The Respondent disputed and denied the complaints.

CA-00047389-001

The Complainant outlined his medical history and stated that he was certified unfit for work on 12 November 2019. The Complainant stated that at the Respondent’s request, he attended an appointment with the Respondent’s GP on 30 July 2020 on foot of which the GP stated:

“…..It is clear on assessment today that he [Complainant] would be fit to return to work and to perform the majority of his duties as a general operative…… on a full-time basis. I would have concerns however regarding the duties specifically relating to the cleaning of sand filter as this lateral movement with shovelling or scraping sand would have an adverse effect on several of his medical issues. I wonder if he could be facilitated in some way in this regard. If this is an ongoing essential part of his job description with no flexibility this would mean he is unfit for return to work for the foreseeable future….”

The Complainant stated that on the 25th of August 2020 he received a letter from the Respondent which stated:

“It is the Council’s position that the specific concerns from the GP regarding lateralmovements are unavoidable in your General Operative duties presently and there is no scope for further accommodation or redesigning of duties to avoid such movement. The outcome of this is that in accordance with medical advice you are unfit to return to work in your current role.”

The Complainant stated that at the time he was most anxious to return to work. He then attended his own GP who referred him to a Consultant Orthopaedic Surgeon. The Consultant referred him for an MRI and recommended a “less strenuous form of employment without as much physical exertion”. The Complainant sent this report to the Respondent in late December 2020.

The Complainant engaged his union SIPTU to make representations for reasonable accommodation. At a meeting with the Respondent in March 2021 the Complainant stated that he was advised that because he couldn’t work on the sand filters this impacted on all his work and that there was no other suitable work available. In a further meeting on 22 April 2021, the Complainant again explained that only two of his weekly five days work was spent cleaning the sand filters and he requested to be facilitated with different duties on those two days or other adjustments to facilitate his return to full-time work. The Complainant stated that the Respondent did not engage with any of his proposals and instead offered 1.5 days/week to carry out seasonal work of grass cutting on a “take it or leave it” basis. The Complainant stated that the Respondent had indicated that this arrangement was to be reviewed after four weeks which did not happen. The Complainant stated that he had no option but to accept this offer as he was anxious to return to work – which he did on 3 June 2021. After a couple of weeks the Complainant sought to increase his hours but to no avail. In October 2021, the Complainant stated that he was informed by the Respondent that the seasonal work was finishing and that there was still no other work for him. He then took accrued annual leave on the basis of one and half days/week for approximately four months which brought him up to 22/2/2022.

On 20 December 2021, the Respondent requested the Complainant to attend an Occupational Health Assessment with Medmark which he did – via telephone consultation - on 5 January 2022. The Medmark report found no reason why the Complainant “should be deemed unfit for duties as general Operative” and also stated “However I do need to complete a face-to-face examination and with the benefit of a copy of his MRI report”. 

The Complainant attended his Consultant Orthopaedic Surgeon again on 9 February 2022 who stated in her letter “His GP has already written a letter of support of his return to full duties. I have advised him that this is perfectly reasonable…..As such, I have recommended he can return to full duties”. The Complainant union and his partner informed the Respondent of the Consultant Orthopaedic Surgeon’s report and advised that he would be returning to his full-time position on 22 February 2022.

The Complainant outlined his dealings with the Respondent in relation to his attempts to return to work including that when he went to his workplace on 22 February and 1 March 2022 he was not admitted and was advised that approval from Occupational Health was required.  In this regard the Respondent arranged  for another Occupational Health Assessment with Medmark on 7 March 2022 the report of which stated as follows: 

“[Complainant] attended today for physical examination….He brought with him a letter from his treating consultant dated 09.2.22 advising that in her opinion [Complainant] is medically fit to resume full duties. He also brought a report of his…MRI…….In my opinion [Complainant] is medically fit to resume full duties of his role with immediate effect”.

The Complainant returned to full-time duties on 8 March 2022.

The Complainant was cross examined on his evidence. In response to a question about his duties the Complainant accepted that the number of days required to clean the sand filters had previously been reduced from four to two and he accepted this constituted reasonable accommodation. It was put to him that he was not certified medically fit to return to full time duties until February 2022 which he accepted and he also accepted that it was reasonable for the Respondent to review the medical reports of his Consultant Orthopaedic Surgeon. Under re-direct the Complainant stated that he had not been furnished with any relevant policy relating to his situation.

It is the position of the Complainant that the Respondent failed to engage with him in relation to his disability and work capacity in terms of the duties he could undertake and failed to provide him with reasonable accommodation contrary to the Employment Equality Act [1998-2022]. As a consequence of the Respondent’s failure the Complainant stated that he suffered stress and financial hardship moving from his weekly wage to payment for only one and half days/week and that he was not put on the critical illness payment scheme. The Complainant provided details of his financial losses and stated he was seeking to recover these together with 104 weeks compensation and restoration of 30 days annual leave.

CA-00049129-001

The Complainant stated that he was victimised as a consequence of his complaint to the WRC of 29 November 2021, in response to which, on 20 December 2021 the Respondent referred him for an Occupational Health assessment on 5 January 2022. The Complainant stated that this was an attempt by the Respondent to show that he was not fit to carry out his full duties and did not have to be reasonably accommodated. The Complainant stated that the Respondent continued to victimise him by requiring him to arrange an MRI, by preventing him from returning to work on 22 February 2022, by prolonging his return to work and by requiring him to attend a further Occupational Health assessment in Dublin on 7 March 2022. The Complainant stated he was seeking 104 weeks compensation for the victimisation incurred.

The Respondent stated that the Complainant’s primary duties “had been the cleaning/skimming of the sand filter…” which task was originally four days but reduced to two in 2019 to facilitate reasonable accommodation. The Respondent outlined the Complainant’s duties on the other three days which included cutting grass and trimming hedges. The Respondent stated that in response to the Complainant’s GP letter of February 2020 it referred the Complainant for assessment by its own Occupational Physician whose report issued on 5 August 2020. The Respondent explained that the delay was due to Covid-19. The Respondent stated that in response to the report of 5 August 2020, it undertook a review of the roles of all General Operatives and that following same, the Complainant “was advised that there was no more scope for accommodating him either in another role or redesigning of his existing duties to completely avoid the lateral type of movement detailed in the consultant’s report or the medical limitations identified in the report”.

The Respondent referred to its various engagements with the Complainant including receipt of the latter’s Consultant Orthopaedic report in January 2021 and the meetings of March and April 2021. The Respondent stated that it “could identify no further scope for accommodating [the Complainant] within a full-time role”. It stated that its Senior Engineers had reviewed options for a General Operative across the organisation “taking into account the medical advice re [the Complainant’s] limited ability in his movements” and the intrinsic physical nature of the work after which the Complainant was offered seasonal grass cutting work. The Respondent stated that the need for grass cutting ended in November 2021. The Respondent outlined its arrangements for grass cutting including in-house and external contractual arrangements. In relation to inhouse arrangements, the Respondent stated these were staffed at a higher pay grade as they required driver licences to drive lorries and tractors which the Complainant was not qualified to do and that in respect of external crews, it could not break contractual arrangements already entered into. The Respondent stated that it conducted further reviews of options but that “no alternative work could be identified based on the medical assessment and [the Complainant’s] own assessment of the limitations of the work he could undertake”.

The Respondent outlined its dealings with the Complainant in relation to obtaining his further medical reports and occupational health assessment reports from Medmark. It stated that it paid for the Complainant’s MRI and that his Line Manager was in regular contact with him.

Evidence of Senior Executive Engineer (SEE):

The SEE gave evidence and was cross examined in relation to his meetings with the Complainant and the latter’s duties. He stated that in his opinion some of the work suggested by the Complainant would have involved lateral movement which was against the medical advice and that he could not see “how someone could perform [the] tasks without lateral movement”. In response to a question the SEE stated that the Complainant’s medical report said there would be an adverse impact on the Complainant arising from lateral movement. He accepted under cross examination he was not a qualified medical practitioner and that he was not aware of the Complainant’s qualifications. The SEE also referred to the various medical certificates which did not certify the Complainant as fit to return to full time duties.

Evidence of Senior Executive Officer (SEO):

The SEO gave evidence and was cross examined in relation to his dealings with the Complainant and/or his union. He stated that he was supportive of the Complainant’s return to work. In relation to his letter to the Complainant of 25 August 2020 he accepted that he was not a medical expert but stated that he had to make a difficult decision and decided “to error on side of caution” given the Respondent’s duty of care for the Complainant and health and safety. The SEO stated that he “conducted an analysis” and as a result “couldn’t identify a role that didn’t have lateral movement” and that the General Operative role in the Respondent was “highly labour intensive” and “primarily a manual role”. It was put to the SEO that the Complainant was doing other work for three days/week which could have continued but the SEO stated this would have been in conflict with his medical evidence in relation to the lateral movement and he cited the Complainant’s Consultant’s report which sought an MRI for which the Respondent was willing to pay – though this may not have been communicated to the Complainant. The SEO accepted that the Complainant wished to work more than the 1.5 days grass cutting. In relation to the proposed months review of the grass cutting arrangement, the SEO stated there may not have been a formal response regarding a review but that there was ongoing engagement. The SEO confirmed that the Complainant was a permanent full time employee and in that regard, he accepted that prior to his medical difficulties the Complainant’s work was not seasonally based and that when the grass cutting season ended in November 2021 he did not provide other work for the Complainant for the 1.5 days. In relation to the referrals to Medmark, the SEO said these were consistent with the Respondent’s policy and he rejected any suggestion of victimisation.  

The Respondent denied that it victimised or discriminated against the Complainant or failed to provide him with reasonable accommodation. In relation to victimisation, the Respondent maintained that there was no basis for this complaint as the Respondent referral to the independent Occupational Health Provider Medmark was in accordance with its policy. In relation to the matter of reasonable accommodation, the Respondent’s stated that an employer “is not required to provide employment for an individual in a position that the individual is not fully competent and available to undertake”. In this regard, the Respondent stated that the provision of reasonable accommodation “must be ascribed a broad ambit” – the test being that of reasonableness and proportionality from an objective perspective. The Respondent stated that after full consideration of the medical reports including the Complainant’s own medical advice and on the basis of the duties the Complainant himself advised he would be capable of performing, it created “a short term standalone role at his request, which of its nature was not sustainable in the medium to longer term”. The Respondent stated that it had to balance its duty of care as an employer and the Complainant’s desire to return to work on a full time basis. The Respondent stated that it was not possible to create “a new unique role based on [the Complainant’s] personal requirements…..as no such role involving any type of limited activity existed or was available”.  Accordingly, the Respondent maintained that it was not obliged to provide the Complainant with duties he was capable of performing on a full time basis or pay him for work which was not available or maintain his previous level of earnings. 

Section 77 of the Employment Equality Act [1998-2022] provides as follows in relation to the time limit for making a complaint to the WRC. A similar provision is contained in Section 41(6) of the Workplace Relations Act [2015 - 2021].

“77. A person who claims—

(a)   to have been discriminated against or subjected to victimisation……

(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(5)(b) On application by a complainant Director General of the Workplace Relations Commission……may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”.

The Complainant’s first Complaint Form was received by the WRC on 29/11/2021. His second Complaint Form was received by the WRC on 11/3/2022. The second complaint form restated the complaints of discrimination, unlawful treatment and failure to provide reasonable accommodation and also included victimisation. In the circumstances I am satisfied that the cognisable period for the purpose of the timeframe is 30/5/2021 to 11/3/2022.

“Disability" is defined in section 2 of the Employment Equality Act [1998-2022] as meaning:

“(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 disfigurementof 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, 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.”

Section 6 of the Employment Equality Act [1998-2022] defines discrimination as follows:

“6(1)(a)…..discrimination shall be taken to occur where…a person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds specified…..

6(2) As between any 2 persons, the discriminatory grounds….are –

6(2)(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),”

The Complainant stated that his medical condition constituted a disability within the meaning and contemplation of the foregoing section 6. This is not disputed by the Respondent. From the medical evidence submitted by the Complainant and in light of the various medical reports, I accept that at the relevant time, the Complainant was suffering from a disability.

The issue that falls to be considered therefore is whether the Respondent discriminated against the Complainant arising from his disability and/or whether it failed to provide him with reasonable accommodation and/or victimised him.

Section 16 of the Employment Equality Act [1998-2022] states as follows in relation to reasonable accommodation:

“(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual – (a) will not undertake …..the duties attached to the position or will not accept…..the conditions under which those duties are, or may be required to be, performed, or - (b) is not….fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. ...

(3)(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

3(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer”.

The scope of the duty on an employer is therefore determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case. The leading authority on the obligation of an employer to provide reasonable accommodation is the decision of the Supreme Court in Nano Nagle School V Daly [2019 IESC 63] which has been repeatedly cited by the Labour Court and in Adjudication decisions. In summary the Supreme Court clarified the law as follows:  

-        The primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where required in a particular case, to enable the employee to, inter alia, continue in employment;

-        That duty includes an obligation to consider relieving the employee with a disability of such duties as they cannot perform;

-        No distinction should be drawn for that purpose between duties and tasks or between core duties or essential duties;

-        The duty to provide reasonable accommodation does not extend to an obligation to create an entirely new job;

-        A reorganised job is not necessarily a new job. It is a matter of degree to be decided on the facts of the case;

-        A wise employer will consult with the employee with a disability before making decisions about their future employment. However, a failure to consult does not amount to discrimination for the purposes of the Act;

-        The employee with a disability must be fully capable of performing the duties of the position, after it is modified by the application of reasonable accommodation, which can include relieving the employee of the requirement to perform certain duties which they cannot perform.

In the Supreme Court judgement,  MacMenamin J. commented on the obligation on the employer as follows:

“….. the terms of the section [Section 16 of the Employment Equality Act [1998-2022]] are mandatory. They place a duty on the employer to show that, if they have not carried out such a process, then it is only because the reorganisation necessary would be disproportionate or unduly burdensome. What is essential is that it be shown, objectively, that the employer has, in fact, given the question of redistribution full consideration…… an employing entity may have to ask itself the ultimate question whether……the position…. is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one…..If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.”

In EDA0413 A Worker V An Employer, the Labour Court held that:

“The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee.”.

In practical terms, this will normally require a two-stage enquiry - firstly considering the employee’s disability, its likely duration and the medical evidence and secondly, considering any special treatment or facilities which may be available by which the employee can become fully capable. In An Employer and A Worker [EDA 0413] the Labour Court stated that “The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.” 

Section 85A of the Employment Equality Act [1998-2022] provides that a complainant must set out a prima facie case of discrimination – ie he/she must establish facts from which discrimination may be inferred. Where a complainant discharges this burden, the onus is then shifted to the Respondent to prove to the contrary. The Labour Court considered the extent of the evidential burden that a complainant must discharge before a prima facie case of discrimination can be made out in Southern Health Board v Mitchell [DEE011 [2001] ELR 201]. In that case it was held that the first requirement is that the complainant must establish on the balance of probabilities, the primary facts from which it may be presumed that the principle of equal treatment has not been applied to them. In Melbury Developments Ltd v Valpeters [2010] ELR 64 it was held that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

CA-00047389-001

In light of the foregoing, I must first consider whether or not the Complainant has established a prima facie case of discrimination and failure to provide reasonable accommodation. Having considered all the evidence, submissions and case law cited I have come to the following conclusions:

·        The medical evidence furnished by the Complainant, by the Respondent’s own GP on 5/8/2020 and by the independent Occupational Health Provider Medmark in January 2022 was not given adequate consideration by the Respondent from the perspective of assessing its responsibilities with regard to reasonable accommodation. I am of the view that the Respondent’s decision to err on the side of caution and decide that practically all of the Complainant’s duties required lateral movement was contrary to the written medical advice which in addition to stating the Complainant’s physical challenges and the medical advisors reservations in that regard, at the same time recognised his ability to perform duties – even the majority of his duties.  Irrespective of the intention, however bona fide, I am of the view that the Respondent’s view of the medical evidence was unnecessarily restrictive and that it was open to the Respondent at any stage to seek further clarity from the medical advisors;

·        The Respondent’s position that it was not obliged to create an entirely new full time job for the Complainant based on duties he was capable of performing thereby maintaining his previous level of earnings, was not inconsistent with its obligations to provide reasonable accommodation;

·        The Respondent’s only offer of 1.5 days seasonal grass cutting work at the meeting on 22 April 2021 – which work the Complainant commenced on 3 June 2021 – constituted a failure on the Respondent’s part to provide reasonable accommodation. From the evidence and submissions I am satisfied that in making this sole offer, the Respondent did not undertake the necessary assessment of the Complainant’s duties and capabilities as prescribed by Section 16 of the Employment Equality Act [1998-2022] and envisaged by the Supreme Court in the Nano Nagle case.  In particular I am satisfied that the Respondent did not provide adequate evidence that it considered the Complainant’s capability to continue to perform his duties on the three other days of his working week – even leaving out the two days he worked on the filters;

·        That the Respondent did not engage in any or any adequate review of the grass cutting option which would have entailed further discussions with the Complainant and probably the medical advisors. Had this occurred it may have obviated the need for the Complainant to avail of annual leave from November 2022 when the grass cutting season ended. Further, I am not satisfied that the Respondent fairly reassessed the Complainant’s capabilities to perform duties after the grass cutting season ended when in fact he was left in the precarious position of having no duties at all;

·        That the Respondent was entitled to refer the Complainant for an independent Occupational Health assessment on 21 February 2022 – which assessment occurred on 7 March 2022 – prior to his return to work.

In light of the foregoing, I am satisfied on the balance of probability, that the Complainant has established a prima facie case of discrimination and unlawful treatment on the disability ground and that the Respondent has failed to rebut that presumption.

CA-00049129-001

Section 74(2) of the Employment Equality Act [1998-2022] states:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of Section 74(2). The Complainant stated that he was victimised as a consequence of his complaint to the WRC of 29 November 2021, in response to which the Respondent referred him for independent Occupational Health assessments on 5 January 2022 and 7 March 2022, required him to have an MRI  and prevented him from returning to work on 22 February 2022. I have already decided that the Respondent was entitled to refer the Complainant for an Occupational Health assessment prior to his return to work. I note that the Complainant’s Terms and Conditions of Employment stated that the Respondent “reserves the right to have you examined by an independent Medical Advisor” and similarly that its 2011 Attendance Management Policy & Procedure states that the Respondent “reserves the right to seek independent medical advice as appropriate during the entire employment relationship”. In circumstances where I am satisfied the Respondent was following policy with regard to its referrals of the Complainant for occupational health – which policy I do not consider unusual - I do not accept that the Complainant was adversely treated or victimised as a consequence of his complaint to the WRC of 29/11/2021. 

CA-00047389-001

For the reasons given this complaint is well founded.  I find the Complainant was discriminated against on the grounds of disability and that the Respondent failed to reasonably accommodate him in the workplace thereby causing him undue stress and financial hardship. In all the circumstances I am awarding the Complainant compensation in the sum of €15,000 subject to such statutory deductions as may apply. 

CA-00049129-001

For the reasons given this complaint is not well founded.

Reasonable Accommodation, Victimisation