Complainant

Respondent

Anonymised Parties

Customer Service Agent

Online sales company

Representatives

 Self

Mason Hayes & Curran LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00052251-001

15/08/2022

The Complainant alleges that she was discriminated against on the ground of disability by not being reasonably accommodated with her disability. She alleged that she was treated less favourably to other employees with a different disability or no disability who were accommodated with flexible working and reduced hours. She also alleges that she was discriminated against relating to her educational assistance support ceasing based on receiving a verbal warning for absenteeism.

The Complainant worked as a Customer Service Agent with the Respondent and at the date of lodging the complaint was with the Company for 5 years. She had ambitions to becoming a supervisor and to advance into a leadership role with the Company. In 2019 she applied for educational assistance and was successful with that application. She soon after commenced part-time study for a business degree. The Complainant successfully passed her exams for year 1 and 2 of the degree programme.

However, arising from the Covid Public Health restrictions, the pressure of work and studying for her final exams the Complainant experienced anxiety and required medical assistance. The Complainant contacted her manager and requested for a period of 9 months reduced working hours as other colleagues had been accommodated in the past. This request was denied.

The Complainant experienced a high level of absence from work, the longest period commencing in late November and running until 25th of January 2022.

The Company operates a strict absenteeism policy applied universally and fairly.

The Complainant stated in her form that:

·       That she sought reduced working hours for 9 months

·       That her absences included Covid related illness and Mental Health illness.

·       That absences relating to Covid should not have been included as the basis to sanction her.

·       Covid was confirmed using the HSE testing facility.

·       The Complainant was diagnosed with acute anxiety and prescribed antidepressants.

·       During her time off she also developed Covid and arising from both illnesses her absence extended from 22nd November 2021 until the 25th of January 2022.

·       The Complainant was informed that as she initially was certified sick arising from anxiety and subsequently caught Covid during this period of absence it would count as an instance of absence under the absence/disciplinary policy.

·       On the 13th of February 2022 she attended a phone consultation with the Company Doctor.

The Company Doctor in a report dated 17th of January 2022 stated the following:

“T is presenting with acute mental health symptoms which likely relate to feeling overwhelmed due to the challenges of combining work and studies.

T advised me that she is planning a return to work from next week. T is hopeful that she can use her accumulated annual leave to allow her to work slightly shorter weeks over the next few months as she approaches her final exams in May. T had also applied for some reduced hours as a temporary accommodation during this period. It is certainly reasonable to consider all these options to support T in a challenging time.”

The Respondent has stated, and in  evidence provided by the HR Manager that:

·       The Respondent supported the Claimant throughout her studies by providing additional paid time off for study and to sit exams and she was paid full sick pay for her absences during 2021 and 2022.

·       The Complainant received a verbal warning following 3 absences for completely different reasons, this policy is applied to all work colleagues and received a verbal warning as per the policy.

·       The Educational Assistance Programme is discretionary, and the policy is clear in stating that an employee subject to disciplinary sanction is not entitled to benefit from the programme.

·       The Company was willing to accommodate the Complaint with a different shift roster; however, it was not considered appropriate to accommodate with reduced hours, having regard to the fact that it is personal choice to study for a degree and work. The Company required the employee to work her full rostered hours.

Given the size and customer nature of the Respondent’s business, efficiency is key to its operation. The Attendance policy is applied fairly and the reason for the absence or the nature of the illness is only considered in very exceptional circumstances.

It is worth noting that the Complainant was fit to sit an exam notwithstanding that she was on paid sick leave.

It is submitted that it was the Claimant’s sole decision to undertake a degree while working full time, and it was not the Respondent’s responsibility to reduce the Complainant’s hours or give her time off to study for that degree.

The Claimant simply was not discriminated against due to a disability.

Respondent’s Position:

The Respondent supported the Claimant throughout her studies by providing additional paid time off for study and to sit exams and she was paid full sick pay for her absences during 2021 and 2022.

The Complainant received a verbal warning following 3 absences for completely different reasons, this policy is applied to all work colleagues and received a verbal warning.

The Educational Assistance Programme is discretionary, and the policy is clear in stating that an employee subject to disciplinary sanction is not entitled to benefit from the programme.

The Company was willing to accommodate the Complaint with a different shift roster; however, it was not considered appropriate to accommodate with reduced hours, having regard to the fact that it is a personal choice to study for a degree and work at the same time. The Company required the employee to work her full rostered hours.

Extension of time:

I note in Regan 2nd Ed Employment Law (Bloomsbury 2017) at Anthony Kerr SC states at 28.24:

“The case law of the Labour Court demonstrates that, with the exception of employment equality cases, a complainant must not only show that ‘reasonable cause’ was present but also that it prevented or inhibited the timely presentation of the complaint.

I also note that:

“Section 77(5)(b) of the 1998 Act does not require that the reasonable cause prevented the claim from being lodged within the initial period.”

I also note that at 28.23:

“s 77(5)(b) of the Employment Equality Act 1998 empowers the Adjudication Officer, for reasonable cause, to direct that a period not exceeding 12 months be substituted for the six-month period  stipulated in para (a).

S 77 (5) states:

“(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.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, 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.”

Cementation Skanska v Caroll DWT1017/2013 is the leading case cited relating to the threshold that the Complainant must meet when relying on reasonable cause to explain the delay.

“…there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he [or she] would have initiated the claim in time.”

There is an argument to make in this case that discrimination continued where no accommodation was provided to facilitate the Complainant relating to shorter working hours. I am also mindful that the disability accepted by the employer relates to anxiety and mental health. It is not disputed that the Complainant at the time of the appeal had a disability. The discrimination is not the verbal warning  sanction per se, rather the failure to provide reasonable accommodation relating to more flexible working time based on her disability. On that basis I am satisfied that the matter before me is not out of time. I am also satisfied that the facts of this case do provide for an extension of time as provided for under the Employment Equality Act; however, as the case is not just about a sanction and is also about  the alleged failure to accommodate and that continued, the necessity to extend time does not arise.

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude,[this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

At section 16(3) of the Employment Equality Act 1998 as amended (The Act) it states:

(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.

(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.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) such a person who is a member of or is seeking membership of the regulatory body.

At the hearing the Complainant accepted that the Respondent had a disability. In any event the evidence does show that the Employer was on notice that the Complainant had a disability by virtue of her application for sick pay benefit and her attendance with the Company Doctor.

The Complainant stated that she was treated less favourably than another comparator who had no disability or a different disability in how she was treated who were accommodated with more flexible working patterns. The Respondent strongly contested that in fact any relevant comparator had been identified. However, it is also clear from the Act that it is possible having regard to the right circumstances to identify a hypothetical comparator. The decision of the Labour Court in Togher Developments v Edgars Grods EDA 105 was considered with reference to hypothetical comparators. It was found that the complainant had failed to adduce evidence that a hypothetical comparator would have been treated differently in similar circumstances. The complaint was rejected. I note in the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings, A focus on Belgium, France and Ireland by Julie Ringheim that:

The definition of direct discrimination allows for the use of a hypothetical comparator. Courts have also accepted that a presumption of discrimination can be inferred from other types of facts that raise the suspicion that the adverse treatment was determined by a prohibited ground. Thus, Irish courts have recognised in some cases that this causal link could be inferred from the fact that the respondent’s conduct diverged from standard practice in relation to the service in question. (seeMelbury)

In Regan Employment Law 2nd Ed chapter 17, the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

Terms and Conditions Educational Assistance Scheme:

The Complainant has not presented facts that establish a Prima Facie Case of discrimination relating to how the Educational Assistance scheme was operated. The evidence of the HR Manager given at the hearing is credible that the Educational Policy is discretionary and once a work colleague receives a sanction under the disciplinary policy that colleague becomes ineligible for that discretionary benefit. It is not a contractual term. The Complainant did receive her benefit as per the policy during the cognisable period when eligible.  While the Complainant has a disability (even when compared to a hypothetical comparator, and in this complaint a direct comparator would be required and that has not been met) she has not shown that in fact she was treated less favourably than others who are covered under the scheme. She suffered no detriment as she in fact received her entitlements as set out under the plan when she was eligible to do so. The Complainant has not shown that a causal linked existed between her ineligibility for the educational assistance benefit and  and her disability. She became ineligible due to having 3 absences over the relevant period ad detailed in the policy. As she has not established a prima facie case of discrimination, I determine that she was not discriminated against on the ground of disability in how the educational assistance plan  was applied to her during the cognisable period.

Disciplinary Sanction:

There is no evidence presented that raises an inference of discrimination regarding how the Complainant was treated under the Company absenteeism policy. It would appear that 3 incidences of absence in a relevant period are the determining factor. That criterion is impersonal and universally applied. I do not find that the verbal sanction was discriminatory.

Terms and Conditions Flexible Working/Reasonable Accommodation:

It is accepted that the Complainant has a disability.

The Complainant is a lay litigant. This complaint while it relates to shorter working hours, the request and  its purpose is to alleviate the pressure on the Complainant arising from her disability while attending work on  full time hours while also studying. She has not ticked the box where it states specifically that reasonable accommodation is an issue for her. However, the narrative of her complaint and the medical assessment completed by the company doctor clearly relate to reasonable accommodation. The  context of this request for reasonable accommodation must be seen in the wider context of a pandemic and the tipping point that did occur for this employee relating to her mental health; no differently to an employee who developed a debilitating physical illness.

It is clear based on the medical evidence opened at the hearing that this is exactly what the Complainant was looking for (reasonable accommodation) based on the medical report of the Company Doctor dated 17th January 2022:

“T advised me that she is planning a return to work from next week. T is hopeful that she can use her accumulated annual leave to allow her to work slightly shorter weeks over the next few months as she approaches her final exams in May. T had also applied for some reduced hours as a temporary accommodation during this period. It is certainly reasonable to consider all these options to support T in a challenging time.”

This is further confirmed  in the narrative of the complaint form where:

“However, my final year, the transition to work from home and the Covid pandemic has had a significant effect on my mental healthand wellbeing. In September 2022 ( 2021) prior tostarting my final year of my degree I had contacted my manager Katie D to let her know I was struggling  with coping and finding balance with work life and college balance and in advance requested to see if possible, for 9 months of the remainder of my degree was there an opportunity to reduce working hours as this has been granted to other members..”

A Complainant is not obligated to use the technical legal term reasonable accommodation especially when they are a lay litigant. I am satisfied that the narrative of the complaint form and the medical assessment completed by the Company Doctor is self evidently a request for reasonable accommodation.

I note that in Nano Nagle School v Daly [2019] IESC 63 in McMenamin’s J judgement, he stated:

29. Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 CRPD, reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’

The Respondent has stated, and in  evidence provided by the HR Manager that:

·       The Respondent supported the Claimant throughout her studies by providing additional paid time off for study and to sit exams and she was paid full sick pay for her absences during 2021 and 2022.

·       The Complainant received a verbal warning following 3 absences for completely different reasons, this policy is applied to all work colleagues and received a verbal warning as per the policy.

·       The Educational Assistance Programme is discretionary, and the policy is clear in stating that an employee subject to disciplinary sanction is not entitled to benefit from the programme.

·       The Company was willing to accommodate the Complaint with a different shift roster; however, it was not considered appropriate to accommodate with reduced hours, having regard to the fact that it is personal choice to study for a degree and work. The Company required the employee to work her full rostered hours.

The fact is the Employer was on notice of her disability which is her mental health and that she requires temporary accommodation to work shorter hours for medical reasons relating to her mental health.

The test to be applied by a tribunal is set out at paragraphs 89 and 90 of the Judgement:

Limitation

89. The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to redesignate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.

90. But I am forced to agree with counsel for the appellant: he is correct in saying the Court of Appeal “read-in” words and intent to s.16, which are simply not to be found there. Thus, when Ryan P. observed that the fundamental proviso in s.16(1) “must be respected …” (para. 54), this was, to my mind, to misunderstand the section. Neither the Act, nor the Directive, (were it necessary to refer to it), requires full competence, seen in isolation. Ryan P. was of the view that s.16 required that there be full competence as to the tasks that are the essence of the position, otherwise subsection (1) [of s.16], is rendered ineffective. I differ from this view: to the contrary, full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures.”

The minimum requirement in this case was to assess the needs of the Complainant having regard to her mental disability like a physical disability  and adequately consider the supporting company medical report that supported her request for more flexibility.

The Complainant clearly did not use the technical language of the statute; however, she is not required to do so. On the facts what I am asked to determine was the Complainant asking her employer to be reasonably accommodating and to facilitate reduced working hours so that she could participate and also advance in the workplace.

What was required was for the Respondent to assess if the Complainant could be reasonably accommodated on the facts of her case, so that she could have access, participate and advance in her employment. The Employer pleads and having regard to the factual matrix of this case that they were entirely reasonable and accommodating. However, they never formally considered her request to accommodate her based on her mental health disability and the company medical report that supported that request.

By analogy if an employee requested accommodation arising from a physical disability a formal assessment should take place to see how that request could be accommodated and then if that accommodation was proportionate and not too much of a cost burden. In this case on the facts the employer determined that a different full-time shift pattern and the dropping by the employee of her studies would ease the stress and allow her to meet her contractual obligations.

 An individual who broke her leg may require accommodation for a period of time until her fracture healed and the assessment would consider if such accommodation could be made. However, there is no assessment in this case,  why the option as determined by their own company doctor could not be reasonably accommodated. It would appear what in fact the employer did was to choose what option best suited them. That is not what is required. The starting point is to assess how the employer can accommodate the individual with the disability.

On the facts the Complainant was discriminated against on the ground of disability by treating the Complainant less favourably than a person with no disability or a different disability by their failure to assess how the Respondent could reasonably be accommodated based on her specific mental health  disability particularly in the light of their own Company Doctor’s observation that:

T advised me that she is planning a return to work from next week. T is hopeful that she can use her accumulated annual leave to allow her to work slightly shorter weeks over the next few months as she approaches her final exams in May. T had also applied for some reduced hours as a temporary accommodation during this period. It is certainly reasonable to consider all these options to support T in a challenging time.”

There is no evidence presented at this tribunal that the Respondent did in fact consider all the options set out in this medical report and these options were reasonable.

I note that in Nano Nagle School v Daly [2019] IESC 63 in McMenamin’s J judgement he stated:

29. Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 CRPD, reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’

As the Respondent failed to  adequately consider the requests made by the Complainant that were deemed to be reasonable by the Company Doctor in the light of her disability so that the Complainant could have access to, participate in or advance in employment, I find that the Respondent did discriminate against the Complainant.

While I note that the Complainant has now left her employer; I must have regard to all the circumstances of this case. The fact is this employer has a high level of absenteeism and the policy applied to the Complainant relating to her verbal warning was not discriminatory. They did not discriminate against her relating to promoting her as ticked in the complaint form. I have only found for the Complainant relating to disability and reasonable accommodation and the request for shorter working hours.  A mitigating factor is that a degree of  accommodation did occur regarding a more accommodating full time shift roster. I have found for the Complainant, solely based on the absence of a formal assessment and the medical opinion that supported the Complainant’s request for a temporary period of accommodation and greater flexibility for several months. This was deemed reasonable by the medical practitioner based on the Complainant’s mental health  disability. There is no evidence before me of a formal assessment having regard to the Complainant’s disability and the medical report of the 17th of January 2022 that was supportive of the Complainant’s request for greater shift and time flexibility.

 I assess damages for the effects of discrimination at the lower range and based on a gross monthly salary of €3027 award the Complainant 4 months compensation which is €12100  for the effects of discrimination an amount that is proportionate and effective based on the facts of this case.

I determine that the Complainant was discriminated against on the ground of disability; by  her employer failing to assess her specific needs based on her disability and their own doctors medical report, that concluded that the options/accommodations detailed by the Complainant were reasonable in order to make accommodation for her specific disability so that she could participate and advance in the workforce.

 While the employer is not bound by that recommendation, they are obligated to give serious consideration to it so that the Complainant could fully participate and advance in the workforce.  An individual who broke her leg may require accommodation for a period of time until her fracture healed and the assessment would consider if such accommodation could be made. However, there is no assessment why the option as determined by their own company doctor could not be reasonably accommodated. It would appear what in fact the employer did was to choose what option best suited them. That is not what is required. The starting point is to assess how the employer can accommodate the individual with  the disability.

The factual matrix of this case does not show that the employer gave any reasonable consideration to their obligation to provide a reasonable accommodation based on the Complainant’s specific needs and disability and the recommendation of their own doctor.  While the employer did accommodate the Complainant with a different shift roster it responded as if she did not have a disability. The requirement was to respond based on her disability. The employer did not provide a reason why the options as detailed in the company medical report could not be reasonably accommodated for a temporary period.

 I assess damages for the effects of discrimination at the lower range and based on a gross monthly salary of €3027, award the Complainant 4 months compensation which is €12100  for the effects of discrimination an amount that is proportionate and effective based on the facts of this case.

Reasonable Accommodation-Mental Health-Assessment