Complainant

Respondent

Parties

Laurence  Mooney

Embecta – amended by consent

Representatives

Jason Meagher BL instructed by Murphys Solicitors

Ibec

Act

Complaint Reference No.

Date of Receipt

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

CA-00054260-001

22/12/2022

The Complainant was diagnosed with Motor Neuron Disease in December 2021.  The Complainant contends that the Respondent’s refusal to permit him return to work, despite being fit to do so, is discriminatory on the disability ground contrary to the provisions of the Employment Equality Acts, 1998 – 2021 (the Act).

The Respondent rejects the complaint.

The Complainant has been employed by the Respondent for over 40 years and has an impeccable work record.

Following on from his diagnosis of Motor Neuron Disease in December 2021, the Complainant was placed on sick leave by his consultant to permit him to assess the gravity of the situation given his diagnosis. Since that time, the Respondent has refused to permit the Complainant to return to full-time work and ceased making payments of his full wages in or around August 2022. 

By letter dated 30 June 2022, the Respondent wrote to the Complainant indicating he had reached his 13th week of absence, and that sick pay would cease from 8 August 2022. By report dated 11 August 2022, the Respondent’s occupational health doctor indicated that she had concerns regarding the Complainant’s ability to perform safely in his role due to his medical condition and mobility difficulties, and that in her view, he was unfit for his role. However, it is the Complainant’s position that no actual assessment took place and that by correspondence dated 8 September 2022, his GP certified that he was fit to return to work.

The Complainant further submits that the Respondent has failed to permit him to return to work despite being certified fit to do so by his medical consultant. The Complainant submits that no reasonable accommodation has been offered to him.

The Law

The Complainant brings his claim on the grounds of disability and the failure of the Respondent to permit him to return to his full-time duties. No reasonable accommodation has been afforded to the Complainant despite the Respondent maintaining that he is not fit to work due to his disability. It is submitted that the Respondent has directly discriminated against the Complainant. If it is the position of the Respondent that the Complainant is not fit to work due to his disability, reasonable accommodations should be made.

The definition of disability pursuant to the Act is extremely broad 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.”  It is not disputed that the Complainant was diagnosed with motor neuron disease. 

Subsection 6(2)(g) of the Act provides that one employee shall not be treated in a less favourable manner than another in circumstances where “one is a person with a disability and the other either is not or is a person with a different disability”.  It is submitted that the Complainant has been directly discriminated against by the Respondent. Without prejudice thereto, it is further submitted he suffered indirect discrimination as a result of his disability.

Failure to Provide Reasonable Accommodation

Whilst it is accepted that the Act do not create a legal obligation on an employer to retain an employee who cannot perform his functions, if the Respondent seeks to rely on section 16(1) of the Act, the reliance is contingent on the positive obligations of reasonable accommodation being adhered to in full by the Respondent. If it is the position that the Complainant could not work due to his disability, the Respondent ought to have provided reasonable accommodation. 

Section 16 of the Act sets out the nature and extent of employer’s obligations in certain cases of disability.

Subsection (3) of section 16 provides that:

“(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.”

Subsection 16(4) of the Act set out the type of accommodations which could be made by an employer and these measures are referred to as appropriate measures which are defined as:

“(a) means effective and practical measures, where needed in a particular case, to adapt theemployer’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;”

The Complainant acknowledges that subsections 16(3)(b) and (c) mean that reasonable accommodation is not absolute, and the measures required to enable a person to access employment are capped at a disproportionate burden. 

The Complainant submits that the Respondent has yet to embark on a proper exercise to determine the reasonable accommodation to be provided to the Complainant. There is no mention whatsoever in the various letters sent by the Respondent to the provision of reasonable accommodation.

The Complainant relies on the Supreme Court case of Nano Nagle School v Daly where McMenamin J, in commenting on the obligation on the employer, stated that:

“Again, I think this conclusion did not have sufficient regard to the fact that the terms of the section 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 show, objectively, that the employer has, in fact, given the question of redistribution full consideration.”

Importantly for this case, the Supreme Court held that it was necessary to read subsection 16(1) in the context of subsection 16(3) and, in turn accordingly, subsection 16(4). McMenamin J stated:

“But I am forced to agree with counsel for the appellant; he is correct in saying the Court of Appeal “read in” works and intent to s.16 which are simply not found here. Thus, when Ryan P observed that the fundamental proviso of s16(1) “must be respected” (para. 54), this was, to my mind, to misunderstand the section. Neither the Act, nor the Directive, (where 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 section (1) [of s.16] is rendered ineffective. I differ from this view: to the contrary, full compliance is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures. It is necessary to resort to the judgment of the CJEU in Ring, or the Framework Directive, though all of these support the interpretation. But the analysis can be confined to the words of the section. The words of s.16(3) provide that a person will be seen as fully competent if they would be fully competent on reasonable accommodation. Those terms, too, have meaning. They must be seen as being included in the legislative intention that what is contained in s.16(1) can only be seen or understood in the context of what is provided for in s.16(3) of the Act. Section 16(30 is not peripheral – it is fundamental to the understanding of the section. This conclusion, based on the works of the section alone, as it happens, accords with any interpretation of the section by reference to the reasoning of the CJEU in Ring. But this does not mean that s.16(1) is irrelevant.”

In short, the Supreme Court has clearly stated that there is a mandatory onus on an employer to provide reasonable accommodation to an employee, such that with the reasonable accommodation the employee is then competent to undertake their duty. In this case, there was no issue whatsoever with the Complainant’s work performance prior to him acquiring a disability. The only material change was his diagnosis. No facilitation has occurred, and it appears that the Respondent has no intention of either providing reasonable accommodation or permitting the Complainant to return to his full-time duties, despite him being declared to be fit to do so by his doctor.  

The Complainant submits that since he was first out of work on sick leave, the Respondent has failed to provide reasonable accommodation. No steps whatsoever have been taken by the Respondent to facilitate his return to work. No objective basis for such a refusal has been provided, and the Respondent continues to ignore the Complainant’s reports as to his fitness to work.

Complainant’s Direct Evidence

The Complainant said that he worked as a SAP material handler.  He works on the factory floor and his job entails driving a motorised horse. 

The Complainant submits that he was diagnosed with Motor Neuron Disease on 13 January 2022 but that the disease had no real impact on him and that he was not shown any deterioration since January 2022. 

The Complainant was first assessed by the Respondent’s occupational health doctor in February 2022 who said he needed time to come to terms with his diagnosis.  The Complainant asserts that he felt no different in February 2022 than he did before his diagnosis. 

The Complainant asserts that if he was fit to work in September 2022, then he was fit to work earlier and he should have been permitted to return to work after four weeks.  The Complainant submits that as of the date of the adjudication hearing, he was carrying on the same role as he had been prior to his diagnosis and that he was well able for the role.

The Complainant asserted that his GP provided him with sick certs so that he would continue to get paid but, despite what was written on the certs, it did not mean that he was unfit for work.

The Complainant submits that the only support he got from the Respondent while he was out on sick leave was financial support.

The Complainant asserts that he was certified fit to work but was not allowed to return to work.  The Complainant asserts that he wanted to get back to work from March 2022 and that since May 2022, he had been seeking an independent assessment of his fitness to return to work.

Cross-examination of the Complainant

In response to a question about the medical evidence he had provided to show that he was fit to return to work, the Complainant exhibited a letter from his GP dated 1 September 2022 in which his GP wrote that, in his opinion, the Complainant was “fit to return to work at present despite his ongoing medical issues”.  The Complainant asserts that he gave this letter to occupational health.

The Respondent’s representative pointed out that despite his GP’s letter attesting to his fitness to return to work, the Complainant continued to submit certs from his GP which stated that he was unfit for work.

The Complainant was asked about a risk assessment which the Respondent’s occupational health doctor undertook in July 2022 in relation to the Complainant’s fitness to undertake his role.  The Complainant replied that he knew nothing about the risk assessment and that he had not been involved in the process.

The Complainant exhibited a letter from his consultant dated 24 February 2022 in which the consultant opined that he remained safe to drive.

The Complainant then exhibited a letter from his consultant dated 22 September 2022, which he asserted, certified him fit to work.  The Respondent’s representative disputed this and said that the consultant’s letter contained a caveat regarding the Complainant’s fitness to return to work.  The Complainant responded that they appeared to have a difference of opinion.

In response to the Respondent’s representative, the Complainant accepted that a letter from the consultant’s neurology registrar, which was exhibited at the hearing, was not a clean bill of health as it urged a “practical assessment”.

The Complainant submitted that when the Respondent’s occupational health doctor told him to take four or five weeks off work in February 2022, he believed that he would be returning to work after that. 

In response to a statement from the Respondent’s representative that the Respondent was obliged to act on specialist medical advice, the Complainant said that he felt that the WRC referral prompted his return to work and that nothing happened prior to him engaging a solicitor.

Questions from the Adjudication Officer

The Complainant asserted that he gave his consultant’s letter of 24 February 2022 certifying his safety to drive to the Respondent’s occupational health doctor.  He asserted that he also gave the occupational health doctor his GP’s letter of 1 September 2022 certifying his fitness to work.

The Complainant confirmed that he was not involved in the risk assessment which had been conducted by the Respondent’s occupational health doctor, he was not aware that it had been carried out and he was not informed of the outcome. 

Re-direct

The Complainant asserted that the Respondent had not carried out an assessment of his fitness to return to work on foot of his GP’s letter of 8 September 2022 certifying his fitness to work.

The Complainant asserts that the Respondent cannot explain the huge delay in having him assessed. 

The Complainant submits that no reasonable accommodation was made available to him.

The Complainant asserts that the Respondent ignored his consultant’s certification that he was fit to work. 

Conclusion

The Complainant submits that two letters from his consultants and one from his GP certifying his fitness to return to work were sent to the Respondent.  The Respondent ignored this correspondence and delayed in carrying out a practical assessment of the Complainant’s fitness to return to work.  The Complainant submits that he should not have been out of work for so long. The Complainant submits that he was ultimately found fit to return to work with no changes in his role. 

In conclusion, it is submitted that the Complainant was discriminated against pursuant to the Act. Further, the Respondent clearly failed in its duty to provide the Complainant with any reasonable accommodation. 

The Complainant has been employed by the Respondent since 1981. He is employed as a Process Quality Setter and earns a weekly wage of €1,018.75 per week. The Complainant was diagnosed with Motor Neurone Disease in January 2022 and alleges that that he had been certified fit to work by his own consultant but that the employer would not allow him to return to work. The most recent date of discrimination is alleged to have been 30 November 2022. The allegations are refuted. 

The Respondent ensured that the Complainant had regular reviews with the occupational health doctor throughout his absence from work. The Respondent fully supported the Complainant at all times both with occupational health support and by extending his sick pay entitlement by 63 weeks. The Respondent would have welcomed the Complainant back to work at the earliest opportunity, however, throughout his entire absence from work (8 November 2021 to 9 May 2023) the Complainant’s GP continued to certify him as being ‘unable to work’.

It was the Respondent’s continued efforts to engage with the Complainant’s consultants that led to the appointment of an external assessor who completed a functional capacity evaluation resulting in the Complainant being deemed fit to return following re-training, on a phased basis on 9 May 2023. 

Chronology of Events

The Complainant commenced a period of protracted sick leave on 8 November 2021 which resulted him being out of work up until 9 May 2023. Throughout this period the Respondent engaged with the Complainant in a meaningful way to support his return to work. The Complainant attended numerous meetings with the Respondent’s occupational health advisor to assess his fitness for work and to ascertain what measures could be put in place to accommodate him in the workplace. 

Having been certified as being ‘unable to attend work’ by his GP, the Complainant attended the Respondent’s occupational health department on 2 December 2021 where he informed them that he was awaiting tests results. On 19 January 2022 the Complainant telephoned occupational health and confirmed a diagnosis of Motor Neurone Disease.

On 10 February 2022 the Complainant had a telephone meeting with occupational health where he informed them that he was waiting to see a specialist and that he was still unfit for work. At another telephone meeting with occupational health on 3 March 2022 the Complainant was still deemed unfit for work, but it was agreed that occupational health would review his role and follow up after his consultant’s appointment in two months’ time.

The Complainant exhausted his entitlement to sick leave under the Respondent’s sick leave policy on 13 February 2022.  However, to provide support to the Complainant while he was awaiting specialist appointments, the Respondent agreed to maintain his sick pay with full shift premium.  The information provided at that time, was that the Complainant would be reviewed again in two months following the specialist appointment, so the Respondent understood that the Complainant would return to work shortly after that time.

Given that the Complainant still had not provided a return-to-work date confirmed by either his consultant or his GP, the Respondent had to advise the Complainant that it wasn’t in a position to continue to pay sick pay at the full shift rate.  On 30 June 2022, the Respondent corresponded with the Complainant reminding him that he had exhausted his 13-week sick pay entitlement on 13 February 2022 but that the Respondent would continue to support him on discretionary sick pay at the operator day rate until 8 August 2022. 

In an attempt to facilitate the Complainant’s return to work, and in the absence of any supporting information from the Complainant’s GP or consultant, the Respondent’s occupational health doctor advised the Respondent to do a risk assessment to assess the Complainant’s fitness to carry out his role. 

This risk assessment was completed and submitted to occupational health in July 2022.  Upon reviewing the risk assessment, which details the nature of the Complainant’s role, the physicality of the role and the tasks required over a 12-hour shift during a 4-shift schedule, the occupational health doctor deemed the Complainant ‘unfit for work in a role that requires prolonged standing and walking’. However, it was further advised that he was fit for a sedentary role with duties that did not require prolonged standing or walking. When the Complainant attended a face-to-face meeting that same day, 21 July 2022, he was advised of the outcome of the assessment. He disagreed with the findings stating that his consultant had deemed him fit to return to work. However, he did not provide anything in writing from his consultant to this effect. The Complainant provided a medical certificate on 26 July advising that he was “unable to attend work”. Consequently, on 11 August 2023 occupational health corresponded with the Complainant’s consultant seeking clarification on the matter. 

As the initial correspondence of 11 August 2022 to the consultant was unanswered, another letter to the consultant was issued on 1 September 2022. During this time, the Respondent’s Operations Manager advised the Complainant that the input of his consultant was essential and that perhaps he could request his consultant to issue a response to the correspondence issued by the Respondent’s occupational health department. Matters were delayed as the consultant was on annual leave at the time.

On 22 September 2022 the Complainant called in to the Respondent’s occupational health department and informed them that his consultant would issue a response shortly thereafter.

The Respondent made several attempts to get fitness to work information from the Complainant’s consultant.  On 3 October 2002 the Respondent received correspondence from the consultant’s neurology registrar, indicating that the Complainant was fit to work but recommending that a practical assessment be carried out to confirm same. 

Further correspondence was received on 5 October 2022 from the consultant stating that they would defer the risk to the Respondent’s occupational health doctor as this was not their area of expertise.

Given that the Complainant’s own consultant advised that a practical assessment was required and the Complainant’s own GP continued to certify him unfit for work, the Respondent’s occupational health doctor was not in a position to certify the Complainant fit to return to work, until a practical assessment was completed.

On 19 October 2022 occupational health again deemed the Complainant unfit for a role that required prolonged standing, walking or lifting. The Complainant disagreed. 

The issues raised were discussed at subsequent meetings and a further assessment was carried out on 29 November 2022. This assessment was for another area of the business in the quality control laboratory. It was believed at the time that the role may entail less standing and walking. The occupational health doctor reviewed the role but deemed it unsuitable for the Complainant.

The Complainant was apprised of the findings on 7 December 2022. On 13 December 2022 he was advised that the Respondent was reviewing the next steps regarding his potential return to work. As the Christmas shutdown was imminent, the Respondent maintained the Complainant’s level of sick pay (the full daily rate) informing him that it would be extended until the end of January 2023.

Sick Pay

Ordinarily the Complainant would be entitled to 13 weeks’ sick pay in any 12-month period under the Respondent’s Attendance & Sick Pay Policy. However, in light of the serious nature of the Complainant’s illness, and in an effort to offer him every support, the Respondent maintained his basic pay and shift premium throughout the period from 15 February 2022 to 7 August 2022 (an additional 25 weeks) and maintained his basic pay between 8 August 2022 and 9 May 2023 (an additional 38 weeks) when the Complainant was not entitled to any pay under the policy. His period of illness commenced in November 2021. At all times he was in receipt of at least his full basic pay.

Reasonable Accommodation

Section 16 (3) of the Employment Equality Act 1998, as amended (the Act), provides, inter alia, 

 (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.

The Respondent submits that when considering the Complainant’s evidence, it must first be established whether he has established a prima facie (upon initial examination) case pursuant to Section 85A of the Act. The Labour Court has held that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the Respondent. 

In this regard, the Respondent relies on Southern Health Board v Mitchell, DEE011, [2001] ELR 201.

The Respondent submits that it acted reasonably at all times when assessing the feasibility of facilitating the Complainant in the workplace. Assessments were carried out and expert opinion sought before decisions were made. This is evidenced in the numerous occupational health meetings, role assessments and the detailed functional capacity evaluation arranged by the Respondent that resulted in the Complainant returning to work. 

The Respondent further relies on Mr. L versus A Medical Technology Enterprise EE/2011/670 wherein it was noted that the seminal case regarding reasonable accommodation is A Health Club and A Worker where it was found that:

‘This Section, on which the Respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the Complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity’.

It continues,

‘In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently’.

The Respondent submits that it engaged with the Complainant, conducted assessments, sought the advice of occupational health and examined all options to facilitate the Complainant’s return to work. Whilst the Complainant indicated that his consultant had deemed him fit to return to work, no written certification to this effect was initially put forward and when correspondence was eventually received from the Complainant’s consultant and her neurology registrar, it was clearly stipulated that the decision on his ability to use machinery was to be deferred to occupational health and a practical assessment should be carried out. Throughout this time, the Complainant’s own GP certified him as being ‘unable to attend work’.

Direct Evidence of Ms Becky Dawson, HR Generalist

Ms Dawson said that the occupational health doctor went through the Complainant’s file in her presence, without revealing any personal information to her, and confirmed that the Respondent had only received one letter from the Complainant’s consultant dated 22 September 2022. 

Ms Dawson outlined the extensive engagement that the Complainant had with occupational health during his absence from work. 

Cross-examination of Ms Dawson

Ms Dawson asserted that occupational health had to chase the letters from the Complainant’s consultant and the consultant’s registrar – the letter from the consultant was received on 5 October 2022 and the letter from the registrar was received on 3 October 2022.  Both letters were reviewed by the Respondent’s occupational health doctor on 6 October 2022.

Ms Dawson did not agree that the letter from the registrar was a clear-cut indication that the Complainant was fit to return to work.

In response to a question as to why there was no practical assessment carried out on foot of the letters, Ms Dawson referred to a letter dated 19 October 2022, exhibited at the hearing, from the Respondent’s occupational health doctor to HR in which it was noted that:

“In my view Mr Mooney is unfit for a role that requires prolonged standing, walking or lifting.  Mr Mooney differs with my opinion; he is of the view that he can resume work in his normal role and wishes to do a practical assessment – you may wish to consider this.”

Ms Dawson also referred to a letter dated 13 December 2022, from the Respondent’s HR Manager to the Complainant, which was exhibited at the hearing, in which the HR Manager wrote:

“Following on from your review with [the Respondent’s occupational health doctor] last Wednesday – please be advised of the following update:

We are currently reviewing next steps regarding your potential fitness to return to work.

Given it is less than two weeks to the Christmas shutdown, it is unlikely that we will have an update prior to shut down.  Therefore, we will extend your current level of sick pay until end of January 2023.

We will be in touch in the new year to update you on next steps.”

Ms Dawson was asked why it had taken so long for the Complainant to be physically assessed.  She responded that the occupational health doctor’s review had been forwarded to HR on 19 October 2022 and that it was going to take a bit of time to action. 

Ms Dawson was asked if there was any evidence to show that the Complainant’s ability had changed due to his diagnosis.  She responded that the Complainant did not engage with occupational health early on in his absence and that the first time there was any indication that he disagreed with occupational health’s view that he was unfit for work was on 21 June 2022.  Ms Dawson asserted that the Complainant did not provide any medical certification to support his position.

Ms Dawson asserted that she had not seen the Complainants’ GP’s letter of 1 September 2022 in which he certified the Complainant as fit for work and that she understood from occupational health that it was not on file.

Questions from the Adjudication Officer

Ms Dawson submitted that the original risk assessment which was carried out by the Respondent’s occupational health doctor was conducted prior to there being any indication that the Complainant had a contrary opinion to occupational health as to his fitness to work.

Direct Evidence of Mr Niall Murphy, Plant Director

Mr Murphy said that he held a weekly meeting with occupational health, HR and the Operations Manager to review all sick leave absences.

Mr Murphy said that the Respondent took it upon itself to carry out the first assessment as to the Complainant’s suitability to return to his former position.

On 21 July 2022, the Respondent’s occupational health doctor had advised the Complainant that, in her opinion, he was not fit to return to work.  The occupational health doctor undertook to seek the opinion of the Complainant’s consultant.  She wrote to the consultant on 11 August and 28 August 2022.

On 12 August 2022, Mr Murphy phoned the Complainant to say that he understood the Complainant’s desire to return to work.  He emphasised that the Respondent was prepared to support him but was awaiting a response from the Complainant’s consultant.

On 14 September 2022, Mr Murphy contacted the Complainant and told him about the letters to the consultant.  He suggested that it might be helpful if the Complainant also contacted the consultant.

On 22 September 2022, occupational health gave the Complainant a copy of their letter to the consultant.

Mr Murphy said that when occupational health received a response from the Complainant’s consultant, it did not provide an assessment of his fitness to return to work.

On 19 October 2022, the Complainant had an appointment with occupational health.  Following the appointment, occupational health wrote to HR suggesting that it may wish to consider the Complainant’s request for a practical assessment of his ability to resume his previous role.

Occupational health indicated that the Complainant “should be fit to work in a sedentary role where no lifting or prolonged walking/standing is required.  I would suggest to explore if this option is available.  A practical assessment would be recommended.”

On foot of occupational health’s correspondence, Mr Murphy asked the manager responsible for the QC lab to carry out a risk assessment.  The assessment concluded that the QC role would require 5.2 hours of walking per shift.  The occupational health doctor did not think that this was suitable for the Complainant, so the Respondent decided to carry out a practical assessment on his previous role.

On 12 December 2022, Mr Murphy met with an ergonomic consultant who agreed to consider the Respondent’s request to carry out a practical assessment.

Mr Murphy said that the Respondent’s assessment of the Complainant’s fitness to work commenced in July 2022 when it became aware that the Complainant had a different perspective to the occupational health doctor.  Mr Murphy stressed that at all times, the Respondent was guided by medical advice. Its guiding principle is to act on medical advice.

Mr Murphy said that the Complainant’s case was considered regularly in the context of occupational health.  The purpose of occupational health was to return staff to work.

Cross-examination of Mr Murphy

The Complainant’s counsel asked why the Respondent’s risk assessments were not carried out in conjunction with the Complainant.  Mr Murphy responded that the request came from the occupational health doctor.  The Respondent communicated with the Complainant to inform him that the occupational health doctor did not believe that he was fit to return to work.  The purpose of the assessments was to inform the occupational health doctor. 

The Complainant’s counsel asked why nothing had happened after the letter from the Complainant’s consultant certifying his fitness to return to work.  Mr Murphy responded that the Complainant’s consultant did not say that he was fit for work – the consultant deferred to occupational health.

Mr Murphy said that at the start of December 2022, the Respondent started looking for a suitable independent assessor.

Mr Muphy was asked if he accepted that the Complainant was fit to return to work.  Mr Murphy disagreed that the Complainant’s consultant had certified him as fit to return to work. 

Conclusion

The Complainant has alleged that the Respondent did not allow him to return to work after he was allegedly certified fit to work by his consultant. The Respondent submits that, whilst the Complainant was certified fit, the consultant’s neurology registrar indicated that a practical assessment should be carried out. Further correspondence received from the Complainant’s consultant deferred the decision on the Complainant’s ability to work with machinery to occupational health. 

The Respondent asserts that the second assessment was indicative of its efforts to try to facilitate the Complainant in a sedentary role.  However, the occupational health doctor deemed the Complainant to be unsuitable for the role. 

The Respondent submits that it was not legally obliged to consult with the Complainant when he was not fit to return to work but that at all times it engaged with him and kept him appraised of developments. 

The Respondent submits that, the evidence presented, clearly shows that matters were ongoing. 

The Respondent submits that it engaged meaningfully with the Complainant and subsequently facilitated his return to the workplace. Throughout this time assessments of roles were made and the Complainant’s basic pay, and for a protracted time his shift premium, were maintained contrary to the terms of the Respondent’s sick policy. While the Complainant was on sick leave, the Respondent paid him €50,000 in excess of what it was required to pay him.

The Respondent submits that any belief it came to was arrived at in consultation with occupational health.  All decisions in relation to the Complainant’s fitness to return to work were based on medical evidence.  The Respondent was not in receipt of any evidence certifying the Complainant’s fitness to return to work before October 2022 from either the Complainant’s GP or consultant.

The Respondent submits that it acted reasonably at all times and did not, at any time, discriminate against the Complainant. 

Before I set out my findings and conclusions, I would again remind the parties that, as explained elsewhere in this decision, in accordance with section 77 of the Employment Equality Acts, my jurisdiction in relation to this complaint does not extend beyond the date on which the complaint referral form was received by the WRC which is 22 December 2022. Accordingly, I have confined my investigation to events which occurred prior to the receipt date of the complaint referral form as I am precluded from considering any evidence in relation to matters that occurred after that date.

Section 85A of the Employment Equality Act 1998, as amended (the Act) sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie (upon initial examination) case is established and the burden of proof shifts to the Respondent.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.  It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination. However it must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. 

Subsection 6(1) of the Act provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ….”. Subsection 6(2)(g) of the Act defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability". 

It was not in dispute between the parties that the Complainant is a person with a disability within the meaning of subsection 2(1) of the Act and that the Respondent was notified of same.

Accordingly, the first issue for decision in this case is whether, as a person with a disability within the meaning of section 2 of the Acts, the Respondent has discriminated against the Complainant by refusing to let him return to work despite his consultant certifying him as fit to do so.  I must also decide if the Respondent has discriminated against the Complainant by failing to provide him with reasonable accommodation for a disability.

Subsection 16(1)(b) of the Act provides an employer with a complete defence to claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the section, of performing the duties for which the Complainant has been employed.  However, subsection 16(3)(b) of the Act provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if they could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.

In the case of Nano Nagle School -v- Daly [2019] IESC 63 the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of section 16 of the Acts. In this judgment MacMenamin J. held at paragraph 84 that: “… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, orthe provision oftraining or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even on the provision of all reasonable accommodation, then there is no discrimination at issue.

MacMenamin J. returned to this point at par 107 of the judgment where he said:

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), 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 there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. 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 setting out this test, the Court did accept that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

In EDA0413 A Worker (complainant) v An Employer (appellant/respondent), 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. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.

…

In this case, the respondent realised that the complainant could not fulfil the full range of duties attaching to his occupation. The respondent's response was to relieve the complainant, at least on a temporary basis, from the obligation to perform those tasks which he could not perform or had difficulty in performing. This included the requirement to drive an official vehicle. As far as the respondent was concerned, it was thus affording the complainant special treatment which allowed him to continue in his employment. The complainant did not demur from what he had been told nor did he make known to the respondent his concerns at not being able to drive in the course of his employment.”

Discrimination on the Disability Ground

Section 6(1) of the Act provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..”.  Section 6(2)(g) of the Act defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The Complainant contends that he was subjected to discrimination by the Respondent on the grounds of his disability when he was prevented from returning to work even though he had been certified fit to do so.  In order to make out a claim of direct discrimination under the Acts, the Complainant must show that the treatment complained of was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon.

Fitness to Return to Work

I note that the Complainant asserts that his consultant certified him safe to drive on 24 February 2022 which, in the Complainant’s opinion, means that he was fit to return to work. A copy of the consultant’s correspondence was exhibited at the hearing.  The Complainant maintains that he forwarded the consultant’s correspondence to the Respondent.  The Respondent asserts that it never received this correspondence.  I note from the consultant’s correspondence of 24 February 2022 that the Complainant was certified safe to drive but no mention was made of his fitness to return to work.  I am of view that, although his consultant certified that the Complainant was safe to drive, no inference cannot be drawn from this that he was fit to return to work.  Accordingly, I find that the consultant’s correspondence is not determinative of the complainant’s fitness to return to work and, therefore, requires no further consideration.

I further note that the Complainant referenced a letter from is GP dated 1 September 2022 attesting to the Complainant’s fitness to return to work which was exhibited at the hearing.  The Complainant asserts that he forwarded this correspondence to the Respondent.  The Respondent contends that it did not receive the correspondence.  Both sides are in agreement, however, that the Complainant’s GP continued to issue regular medical certification attesting to the Complainant’s lack of fitness to return to work after the date of his letter attesting otherwise.   I am of the view that the GP’s letter of 1 September 2022 is fatally undermined by the GP’s continuing certification of the Complainant as unfit to return to work after that date and, therefore, is not of assistance in determining the date on which the Complainant was certified fit to return to work.

I note that the Respondent’s occupational health doctor wrote to the Complainant’s consultant on 11 August 2022.  In the letter to the consultant, the occupational health doctor first outlined the Complainant’s role in the Respondent organisation.  The occupational health doctor then proceeded to express “some concerns regarding Mr Mooney’s current ability to perform safely in this role due to his medical condition and mobility difficulties.  In my view, he is unfit for his current role, and I believe a sedentary role will be in his best interest due to health and safety concerns.  Therefore, I would appreciate if you can send me information regarding his current diagnosis, treatment, findings on his physical condition and prognosis for his condition.  Any opinion regarding his fitness for work will be much appreciated.”

Both sides are in agreement that the Complainant’s consultant and the consultant’s registrar responded to the Respondent’s occupational health doctor attesting to the Complainant’s fitness to return to work although the two sides differ as to their understanding of this correspondence.  The Respondent is of the view that the correspondence from the consultant and registrar was qualified by the recommendation that input from occupational health was required in order to determine the complete picture regarding the Complainant’s fitness to return to work.  When probed by the Respondent’s representative the Complainant, however, would not accept that the medical advice from the consultant and registrar was qualified.  He was adamant that both correspondents certified him as fit to return to work and that no input in that regard was required from occupational health.  Copies of the correspondence from the consultant and the registrar were exhibited at the hearing. 

The correspondence from registrar was dictated on 8 September 2022. According to the Respondent, it was received on 3 October 2022.  In the correspondence, the registrar wrote as follows:

“… On examination today we feel that this gentleman is fit to go back to work and we strongly urge a practical assessment to confirm our observations.”

The correspondence from the consultant was dictated on 22 September 2022. According to the Respondent, it was received on 5 October 2022.  In the correspondence, the consultant wrote as follows:

“… You requested our opinion as to whether he as safe to drive.  From our perspective we do not perceive a contraindication in this regard.  However we would defer to your knowledge with regard to the risks from an occupational health perspective with respect to his disability.

…

As to his suitability for operating machinery, this is outside of my sphere of expertise other than to confirm his clinical and neurological examination as noted.”

I find that the two pieces of correspondence referred to above, do not represent unequivocal endorsements of the Complainant’s fitness to return to work.  Rather, they are both qualified endorsements which suggested further assessment was required to determine the Complainant’s fitness to return to work.

According to the Respondent, its occupational health doctor reviewed the above correspondence on 6 October 2022.  The occupational health doctor subsequently reviewed the Complainant.

Opinion of Occupational Health

On 19 October 2022 the Respondent’s occupational health doctor wrote to HR as follows:

“… In my view, Mr Mooney is unfit for a role that requires prolonged standing, walking or lifting.  Mr Mooney differs with my opinion; he is of the view that he can resume work in his normal role and wishes to do a practical assessment – you may wish to consider this.

Mr Mooney should be fit for work in a sedentary role where no lifting or prolonged walking/standing is required.  I would suggest to explore if this option is available.  A practical assessment would be recommended.”

Suitability Assessment

On 29 November 2022, a suitability assessment was carried out in the quality control laboratory to assessment its suitability as a workplace for the Complainant.  The occupational health doctor deemed the role to be unsuitable for the Complainant. 

Update from HR to Complainant

The Respondent’s HR Manager wrote to the Complainant on 13 December 2022 to update him as follows:

“… We are currently reviewing next steps regarding your potential fitness to return to work.

Given it is less than two weeks to the Christmas shutdown, it is unlikely that we will have an update prior to shut down.  Therefore, we will extend your current level of sick pay until end of January 2023.

We will be in touch in the new year to update you on next steps …”

In considering this matter, I note the Respondent had engaged in a process of consultation and assessment with relevant medical personnel, both internal and external, from the time it was informed of the Complainant’s diagnosis of a disability in January 2022.  I am satisfied that the Respondent was guided by its own occupational health doctor in order to fully establish the facts in relation to the Complainant’s disability and the impact it had on his ability to carry out the full range of duties associated with his role.  The occupation health doctor, in turn, sought guidance from the Complainant’ consultant as to the Complainant’s fitness to return to work.

I am further satisfied that as of 22 December 2022, the date on which this complaint was submitted to the WRC, the Respondent was still engaged in that process.  In this regard, I note that on 13 December 2022, the Respondent had informed the Complainant that its process in relation to his return to work was ongoing and reassured him that the process would continue into the new year.  While I’m sure that the Complainant would have liked the process to be finalised in a speedy fashion, this is not always possible given the onus on an employer to conduct such a process in a robust and sound manner.

Having regard to the foregoing, I am satisfied that I have not been presented with any evidence to support a claim of direct discrimination on the grounds of the Complainant’s disability. Therefore, I am satisfied that there is no evidence of the Complainant being treated less favourably by the Respondent on the grounds of his disability. Accordingly, I find that the Complainant has failed to establish a prima facie (upon initial examination) case of discriminatory treatment on the grounds of disability.

Reasonable Accommodation

The next element of the Complainant’s complaint that I must consider relates to the claim that the Respondent failed to provide him with reasonable accommodation in accordance with its obligations under Section 16 of the Acts.

Section 16(3) of the Act provides:

“(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. “

Subsection (4) provides:

“(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;”

Section 16(3) of the Act sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Act but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking his/her duties.

In cases such as this, where an employee acquires a disability and is on certified sick leave as a result, reasonable accommodation comes into play when the employee is certified fit to return to work provided that appropriate measures are put in place. 

Given that the Complainant had not been certified as fit to return to work as of the date of referral of this dispute, I am satisfied that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts.

Having considered the submissions of both parties and the evidence put forward at the hearing of this complaint, I find that the Complainant has failed to raise a prima facie (upon initial examination) case of discrimination on the grounds of disability contrary to the Acts.

Accordingly, I find that the Respondent did not discriminate against the Complainant on the grounds of disability.

I further find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of subsection 16(3) of the Act.

Direct discrimination on the disability ground. Reasonable accommodation.