Complainant

Respondent

Parties

Anne-Marie  Kenneally

Cork County Council

Complainant

Respondent

Anonymised Parties

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Representatives

Liz Fay, Forsa Trade Union

 Niall O’Keeffe, HR Executive Officer.

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-00061090-001

19/01/2024

The Respondent has 25 library branches and 4 mobile libraries across County Cork. The Complainant  began working as a Library Assistant in 1991, was promoted to Senior Library Assistant in 2000, and Executive Librarian in 2019.  The Complainant has a disability, Ehlers -Danlos syndrome, which she described as having symptoms of  joint laxity and a dislocation of joints.  She submits she  suffers from  regular bouts of  chronic fatigue as a result. There is common case that the Complainant has a disability. The Complainant claims that the Respondent has failed to provide reasonable accommodation. The Complainant took early retirement on health grounds in April 2024, but I informed the parties that I can only investigate issues that arose prior to 19 January 2024, the date of submission of complaint to the Workplace Relations Commission (WRC).

The Respondent  denies the claim, contending that it made reasonable accommodations for the Complainant’s  needs, including adjusting work hours and duties, and providing extended paid sick leave.

The Complainant gave evidence under affirmation. She described her experience and the different roles she had in the library service, including transferring between branches in the East Cork area. She was involved in various projects attached to the library service as well as supervising five staff members and having responsibilities for the building as well as the day to day running of the Midleton branch.  She described her disability and how it affected her, including the need to take  long periods of sick leave. Before her diagnosis in 2022, she had been on a job-sharing arrangement, but had to revert back to full time working for financial reasons in 2023 .

The Complainant sought to have her attendance on-site hours reduced so applied for the Blended Working Policy of the Respondent, but she was not satisfied with the Respondent’s position in reducing her working hours

Complainant’s argument:

The Complainant has at all times acted in good faith in her dealings with the Respondent and advised them of her medical diagnoses when she became aware of them. The Complainant regularly completed the Council's annual survey of staff, wherein disabilities are notified to the HR Department.

The Complainant made several attempts to reach agreement locally. She engaged with line management in relation to exploring potential accommodations for her medical conditions. Her application for Hybrid Working was initially refused as it could not be used in lieu of sick leave.

Her subsequent application for the Blended Working arrangement was granted to allow the Complainant   to work remotely one day per month, which was not sufficient to accommodate the Complainant’s medical needs. The Complainant had temporarily reduced her working hours, prior to diagnosis in 2022, by way of the shorter working year/workshare scheme. The Complainant made an application to alter her shorter working day, which was refused.

The Complainant  submits that while it is understood that an employer is not obliged to implement a reasonable accommodation that is not congruent with their service provision , it is the Complainant's position that an employer is obliged to engage in a meaningful manner with an employee who makes a disclosure of a medical condition that impacts their future employment and to explore any viable options that could retain that person in employment without being overly burdensome on the employer.

The Respondent did not engage with the Complainant in good faith nor in good time to progress her application for reasonable accommodations relevant to her disclosed medical conditions.

The Complainant cites An Executive v A University [2020) ADJ - 00022851 where the Adjudication Officer referred to the Supreme Court decision of  Nano Nagle School v Daly [2019) IESC 63  where the Court said an employer should take appropriate measures to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden. Such measures may include patterns of working time.  The Complainant asserts that the Respondent did not set out an assessment of the financial and other costs involved in an application for reasonable accommodations, nor did they identity the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance to apply a reasonable accommodation. The Complainant refers to the payment of Critical Illness Protocol (CIP) and accepts that while it may have been a managerial discretion application it is not considered a reasonable accommodation as this scheme is open to any public servant.  

Summary of Evidence of Rachel Burke, Senior Executive Librarian.

The witness gave evidence under affirmation and described the Complainant’s role as requiring a professional qualification. She testified that the Complainant needed to be on-site  because the duties included day-to-day  responsibilities and supervision of staff, rosters, budget and space management in the Midleton branch. She described the application of the Respondent’s Blended Working Policy as being limited, due to the fact that the Library service “ is the most customer facing role in Cork County Council” and therefore a non-standard role had to be adopted by the library service.

The witness gave evidence that the Complainant was facilitated with a job-sharing arrangement, which the Complainant terminated at her own wish. On the Blended Working Policy, she explained that the Complainant wanted a Friday as a remote day, but that, operationally, Friday would not be suitable  for the role of the Complainant, due to the necessity for her being on-site, and neither would a 60% attendance in person arrangement be a workable model for the Respondent’s obligation of service to the public.   

Summary of the Evidence of Emer O’Brien, County Librarian.

The witness gave evidence under affirmation and provided an account of a meeting she had with the Complainant regarding her application for flexible working. She cancelled the job-sharing arrangement with the Complainant, at the behest of the Complainant. The Complainant informed  her of a busy home-life and how she was feeling fatigued.

Summary of the Evidence of Niall O’Keeffe, Senior Executive HR Department

The witness gave evidence under affirmation. He said that the Complainant was on extended  sick leave and in July 2023 applied for the Critical Illness Protocol (CIP). Professor Gallagher of Cognate was of the opinion that the Complainant was unlikely to meet the threshold for such a payment. However, the witness stated that the Respondent exercised managerial discretion and extended the sick pay arrangement.

Respondent Argument:

The Complainant requested a four-day work week in April 2022, which was approved. Additional staffing was provided to support the Midleton branch. She was also fully facilitated in a job-sharing arrangement.  The Complainant  requested and was granted a reduction in duties. However, her request for flexitime hours was denied due to branch operational requirements. The Complainant  did not request a transfer to Library HQ, which would have allowed flexitime, without any drop  in salary or grade. This arrangement would have been facilitated by the Respondent. Subsequently, the Complainant  requested to cancel her reduced hours and return to full-time work, which was approved. Shortly after, she went on sick leave and remained on sick leave up to the time of the submission of the complaint.   The Respondent  later accommodated her request to reduce working days but could not agree to a three-day week due to operational constraints.

The Respondent opened Nano Nagle School v Daly [2019) IESC 63  where the Supreme Court said, amongst other things, that an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee as this would almost inevitability  impose a disproportionate burden on the employer.

In conclusion, the Respondent asserts that it made reasonable accommodations for her needs, including adjusting work hours and duties, and providing extended paid sick leave.

The Complainant submits she was not afforded reasonable accommodation when she applied for enhanced flexitime  in her position as manager of the Midleton Branch of the Respondent’s library Service. The Respondent claims that it provided reasonable accommodations for her needs, such as adjusting work hours and duties, and offering extended paid sick leave and, moreover, that  the granting of flexitime as requested by the Complainant was not operationally feasible.  

In deciding whether the Complainant was discriminated against on the grounds of her disability, I must examine the request for a shorter attendance requirement onsite  and whether the refusal of  such a request was an unlawful  refusal of  reasonable accommodation for the Complainant’s disability  under the Employment Equality Acts (EEA).

APPLICABLE LAW:

Reasonable accommodation on the grounds of disability is provided for under 16 (3) of the EEA where it states:

(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.

31. The term ‘appropriate measures’ is then defined in section 16(4) as follows:

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;

Therefore, the primary obligation of the Respondent  in relation to the Complainant is to take appropriate measures, where required in a particular case, to enable the employee to, inter alia, continue in employment. Importantly, there must be an obvious  nexus between the accommodation requested and the enablement requirement of the Complainant for her specific disability to continue the job she is doing.   

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

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

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

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

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

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

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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 they be of sufficient significance to raise a presumption of discrimination. However, they 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”  

 When  considering the primary facts adduced by the Complainant I must  take into consideration any contrary  evidence of the Respondent, when determining whether the burden of proof should shift . In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

Both sides referred to  the Nano Nagle Supreme Court case. At para 84 of his judgment, McMenamin J identified the interpretation issue before the Court in the following terms: -

“Reduced to its essentials, the interpretation issue as applied here could, at one level, be characterised as to whether s.16(1) is to be seen as subject to s.16(3), or vice versa? The terms of the section have been set out earlier. Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance.”

The Court further went on to indicate that the duty includes an obligation to consider relieving the disabled employee of such duties as he or she cannot perform.  Whilst the Complainant in this instant case  gave no evidence that she was incapable of carrying out specific tasks, nonetheless evidence was given by the Respondent that she was relieved of certain duties  when she reported that she had bouts of chronic fatigue. The Supreme Court concluded that an employee with disability must be fully capable of performing the duties of the position, after it is modified by the application of reasonable accommodation.

Evidence was given in this case that the application for reasonable accommodation included a request to change library opening times and/or to adjust the daily starting and finishing time of the Complainant, and ultimately a request for a three-day week attendance on site. It is clear to me that such requests are disproportionate given the duties and responsibilities of the Complainant in her day to day, hands-on roll.  More significantly, the Complainant gave no evidence, medical or otherwise, when queried on her requests  as to how such alterations accommodated her specific disability. The uncontested evidence was that even if the 60% flexitime arrangement had been granted, it would not have allowed  her to carry out her role. Moreover, the Complainant had an opportunity to transfer to the Library HQ  where such a degree of flexibility could be accommodated but chose not to do so.  Furthermore, the Complainant  withdrew voluntarily from a job-sharing  role where there was a significant reduction in working hours and reverted to a full-time role, albeit for financial reasons.

In Dyflin   the Labour Court indicated that there  should be an  evaluation of  the main facts presented by the complainant within their appropriate context. Additionally, when determining whether the burden of proof shifts, the Court should consider any evidence provided by the respondent that, when properly contextualised, to see if all the  facts support the complainant's inferred conclusions. There is a context provided by the Respondent’s actions that has to be considered which  suggests that  accommodations were made. These  included adjusting work hours and duties, affording the opportunity to transfer to another location without loss of pay or grade and the  provision of  extended paid sick leave, at the Respondent’s  own discretion when medical advice suggested the Critical Illness Policy (CIP) was not warranted . Moreover, I am satisfied that the Respondent  convincingly  showed in evidence that the flexi-time requests were disproportionate.   

I need to assess whether the Complainant has sufficiently demonstrated, based on the  evidence, the primary  facts necessary to claim potential discrimination by denial of reasonable accommodation on the grounds of disability. I am satisfied that the Complainant did not establish, on the balance of probabilities these primary facts by showing that the request for a shorter attendance requirement  on-site  was directly linked to her disability. Furthermore, and significantly,  she did not satisfy the test  of post modification capability as perNano Nagle,  in that she did not  show that if  the reduced on-site attendance requirement  had  been afforded to her, she would  be fully capable of performing the duties of the position; the evidence showed the opposite to be the case.

For the reasons outlined above, I  find that the Complainant has not established a prima facie case of discrimination under section 85A of the Acts.

For the reasons outlined above, I find that the Complainant did not establish a prima facie case of discrimination as required under section 85A of the Acts and I decide that the Respondent did not discriminate against her on the grounds of disability.

Employment Equality Acts 2000-2015, Disability, Reasonable Accommodation.