ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040270
Parties:
| Complainant | Respondent |
Parties | Carla Gahan | Pobal |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Maurice Osborne BL instructed by Neil Deery ,Hennessy & Perrozzi Solicitors | Tina Ochelle Deasy IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00051473-001 | 01/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00051473-002 | 01/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00051473-003 | 01/07/2022 |
Date of Adjudication Hearing: 07/06/2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant is employed by the Respondent as a Contact Adviser. Employment commenced on 12th May 2014. This complaint was received by the Workplace Relations Commission on 1st July 2022. |
Summary of Complainant’s Case:
BACKGROUND 1. By way of letter dated 7 May 2014 having interviewed for the role, the Complainant was offered the position of Support Officer (G1) in the Respondent’s Finance Directorate on a fixed term contract. A contract of employment for this position was attached to the said letter and this was signed by the Complainant on 8 May 2014. The Complainant commenced her role with the Respondent on 12 May 2014. 2. By way of letter dated 8 September 2014, the Complainant was offered an extension to her fixed term contract of 8 May 2014 in the Respondent’s Finance Directorate. 3. On 1 December 2014, the Complainant was notified that she had successfully completed her probationary period. 4. In November 2017 the Complainant returned to work on a part-time basis. 5. On her return to work in November 2017 the Complainant met with Trevor Finnegan and John Byrne of the Respondent. It was agreed that the Complainant would work a 3-day week in her role assisting with the Early Childhood Care and Education Programme. 6. The Complainant was on sick leave from February 2019 to September 2019. 7. The Complainant returned to work in September 2019 assisting with the Community Childcare Subvention Plus Saver Programme. The Complainant worked Monday to Friday 10.00am – 2.00pm in this role. 8. On 12 March 2020 the Complainant went on sick leave. 9. On 15 March 2020 the Complainant was admitted to the Mater Hospital. The Complainant was diagnosed with pneumonia. 10. The Complainant received treatment in the Mater Hospital until 21 March 2020 when she was discharged. 11. In May 2020, the Respondent’s doctor, Dr McDermott, confirmed that the Complainant was fit to return to work. 12. In May 2020, the Complainant returned to work. The Complainant was working remotely as a result of the Covid-19 pandemic. 13. In January 2021 the Complainant was diagnosed with Covid-19 and admitted to the Mater Hospital. As a result of same, the Complainant went on sick leave. 14. On 6 September 2021 the Complainant attended the Respondent’s doctor, Dr John McDermott, for an occupational health assessment. During this meeting, the Complainant informed Dr McDermott that she was “targeting” a return to work that month. Dr McDermott recommended a “phased” return to work whereby she would gradually return to her normal shift pattern of 20 hours per week. 15. In October 2021 the Complainant met with Trevor Finnegan and Celeste McCloskey to discuss her return to work. At this meeting, Mr Finnegan informed the Complainant that she could not continue working on a part-time basis and that her only option was that she returns to work on a full-time basis. The Complainant responded by stating that she would not accept this offer. 16. On 29 October 2021 the Complainant received an email from Celeste McCloskey informing her that she would be required to return to full-time work from January 2022. 17. On 15 December 2021 the Complainant received a letter from Celeste McCloskey stating that they were unable to continue to facilitate the part-time arrangement of 20 hours per week and that she would be required to return to work on a full-time basis from January 2022. The letter further outlined the Respondent required the Complainant to attend the Respondent’s doctor for an assessment as to the Complainant’s ability to return to full-time work in January 2022. In the same letter, the Respondent acknowledged that the Complainant’s sick leave certificate dated 7 December 2021, which had been prepared by the Respondent’s doctor, had stated that the Complainant was not fit to return to full-time work. 18. On 17 December 2021 the Complainant emailed Ms McCloskey requesting that an appointment be scheduled for her to visit the Respondent’s doctor. 19. On 6 January 2022 the Complainant sent an email confirming her availability to attend a meeting with the Respondent’s doctor on 11 January 2022. 20. On 11 January 2022 the Complainant attended the Respondent’s doctor, Dr John McDermott, for an occupational health assessment. The Complainant informed Dr McDermott at this meeting that she continued to attend the “long COVID” Specialist clinic in the Mater Hospital. The Complainant reported persisting symptoms including reoccurring fatigue, dizziness and being lightheaded. The Complainant informed Dr McDermott that she intended to return to work on reduced hours and that both her Specialist in the Mater Hospital and her GP had endorsed the proposal that she return to work on a part-time basis. The Complainant stated that she wanted to retain the option of returning to full-time hours once she was medically fit to do so. Dr McDermott suggested that the Complainant work on a part-time basis for 12 weeks at which point she could be reassessed to consider whether she would be fit to return to full-time work. Dr McDermott said: - “In my opinion, Ms Carla Gahan is medically fit to work reduced (part-time) hours for the next 12 weeks at which stage her progress might be reviewed again.” 21. On 10 January 2022 the Complainant received an email from Ms McCloskey stating as follows: - Further to your email below. I refer you to the letter dated 15th December 2021, in which it clearly states that we will not be in a position to facilitate reduced working hours. And as you have submitted a doctor’s letter stating that you are medically not able to work full time, you will not be able to return to work until you are able to work the full 37.5 hours as required for the position that you hold. I’ve attached the letter for your reference and convenience. You therefore cannot return to work and will have to stay out on sick leave. Please note that as you have exhausted your paid sick leave you will not be paid. 22. On 20 January 2022 the Complainant received a letter from Celeste McCloskey stating as follows: - We have now received the report form the Company Doctor (see attached) who confirm that you are not currently fit to return to full time work. As stated to you on several occasions, the role you occupy is a full-time role. The reduced working hours arrangement and various phased return to work arrangements we have previously afforded you were always understood to be temporary arrangements/accommodations to you, and this has been clearly communicated to you on a number of occasions. We confirmed to you in October 2021 and again in a letter on 15th December 2021 that we cannot continue to facilitate reduced working hours and that you will be required to resume your full-time hours from January 2022. Since the Company Doctor has clearly determined, you are not fit to return to full time role, there is no alternative but for you to remain on sick leave. 23. On 14 March 2022 the Complainant attended the Respondent’s doctor, Dr McDermott, for an occupational health assessment. 24. On 6 April 2022 the Complainant received an email from Joyce Barrett, of the Respondent, attaching the report of Dr John McDermott relating to the Complainant’s assessment of 14 March 2022. 25. In Dr McDermott’s report he stated as follows: - “Ms Carla Gahan is continuing to struggle with post-COVID-19 (‘long Covid’) symptoms. Carla remains under the care of a Specialist in Infectious Diseases with whom she has a further appointment on 1st April. I am satisfied that (at best) Carla would still only be capable of/for part-time hours at this juncture. I will be happy to review Carla in 6-8 weeks’ time at your discretion.” 26. On 12 May 2022, the Complainant email Ms Barrett confirming her desire to return to work on part-time hours, in line with what the Respondent’s doctor, Dr McDermott, had suggested.
27. On 17 May 2022, the Complainant was notified again that the Respondent was refusing to allow her return to work on a part-time basis. 28. On 19 September 2022, the Complainant attended the Respondent’s doctor, Dr McDermott who again confirmed that the Complainant was not to return to full-time work as a result of her long Covid diagnosis. 29. On 11 January 2023 the Complainant emailed Mr Trevor Finnegan, of the Respondent. The Complainant requested that Mr Finnegan invoke a grievance on the Complainant’s behalf as a result of the discriminatory treatment she had been subjected to. 30. On 1 March 2023, the Complainant attended the Respondent’s doctor, Dr McDermott who suggested a phased return to work. 31. The Complainant’s pay was removed by the Respondent in January 2022 as she had no further entitlements to sick pay. The Respondent failed to inform the Complainant of her potential eligibility for critical illness payments despite having been on notice of her disability for in excess of 6 months.
SUBSTANTIVE LEGAL SUBMISSION-EMPLOYMENT EQUALITY ACT 1998 Discrimination
Section 6 (1)(b) of the Employment Equality Act (as amended) (“the 1998 Act”) provides that: “(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)” Definition of “disability” Section 2(1) of the 1998 Act defines “disability” in the following terms: - “(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;” Section 6(1)(a) of the 1998 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) (in this Act referred to as the ‘discriminatory grounds’) which — i. exists ii. existed but no longer exists, iii. exists in the future, or iv. is imputed to the person concerned, Burden of proof · Section 85A (1) of the 1998 Act addresses the burden of proof and provides:- “where in any proceedings facts are established by or on behalf of a claimant 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.” · In Mitchell v Southern Health Board [2001] 12 ELR 201 the court set out the following three-part test as regards the onus that is on a Complainant to discharge the burden of proof: - “(1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so, he or she cannot succeed. 2.) If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination. 3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”. Duty on an employer to reasonably accommodate · Section 16 (1) of the 1998 Act provides that nothing in the 1998 Act is to be: “construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual – a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.” · Section 16(1) of the 1998 Act imposes a clear obligation on employers to reasonably accommodate an employee where they have been diagnosed with a disability pursuant to section 2(1) of the 1998 Act: - “(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, o (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.” · In the Supreme Court decision of Nano Nagle School v Daly [2019] IESC 63 the Court noted that there is a very high burden on an employer to reasonably accommodate an employee with a disability. The Court held that once there is not a “disproportionate burden” on the employer they must endeavour to accommodate an employee with a disability. · The Court also noted that an employer should consult with an employee with regards appropriate accommodations that can be made. At para. 105, the Court held: “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”. · The Court of Justice of the European Union, in the case of HR Rail SA (C-485/20) ruled that the concept of “reasonable accommodation” includes the reassignment of a worker to a different position once the reassignment does not impose a disproportionate burden on the employer. This was also held by the Irish Supreme Court in Nano Nagle. · In HR Rail SA, the Court of Justice held that the Framework Directive provides that “appropriate measures” are: “effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources” (emphasis added). · However, the Court of Justice confirmed that the above is a “non-exhaustive list” of appropriate measures, which may be physical, organisational, and/or education and the Framework Directive prescribes a broad definition of the concept of “reasonable accommodation”. APPLICATION TO THE COMPLAINANT · In January 2021, the Complainant was diagnosed with Covid-19. The Complainant was admitted to the Mater Hospital and treated for pneumonia. · In October 2021, the Complainant sought to return to work. Dating back to January 2021,Professor Lambert diagnosed the Complainant with long Covid. 6656fThis diagnosis is a clear definition of a disability as set out in section 2(1) of the 1998 Act. · The Respondent failed to take any steps to accommodate the Complainant despite their own doctor clearly stating in multiple reports that the Complainant was not fit to return to full time work. This was a flagrant breach of section 16(1) of the 1998 Act.
· Having initially accommodated the Complainant by coming to an agreement that she would work for the Respondent on a part-time basis, the Respondent withdrew this arrangement for no apparent reason. The Respondent failed to consult with the Complainant despite their own doctor finding that the Complainant was not fit to return to work full-time. · Further, as a result of the Respondent refusing to reasonably accommodate the Complainant, she has incurred financial loss of €30,143.38 (Being 17 months loss of wages as of 1st June 2023) Conclusion · As a result of the Respondent’s conduct, the Complainant seeks the appropriate redress pursuant to the 1998 Act. · The Complainant reserves the right to adduce further evidence and submissions at the hearing of the action. |
Summary of Respondent’s Case:
Notwithstanding the Respondent’s rejection of the allegation which will be detailed later, the Respondent submits that the Complainant has not disclosed a prima facie case under the Employment Equality Acts 1998 to 2015 as is required. In particular, the Complainant has not identified any comparator in relation to whom they were less favourably treated. Furthermore, no supporting or corroborative evidence in the statement provided to the Adjudication Officer has been submitted. In light of the above, the complaint in this case is manifestly frivolous or misconceived within the meaning of section 77(1)(A) of the Employment Equality Acts 1998 to 2008. Accordingly, the Respondent respectfully asks that the claim be dismissed. The second claim is referred under the Terms of Employment Act, 1994, it concerns a claim by the Complainant against her employer the Respondent, alleging “I was not notified in writing of a change to my terms of employment”. It is always the Respondent’s position that, the Respondent’s treatment of the Complainant was fair and appropriate, having regard to all of the circumstances and as provided for under statute. Background to the Respondent Company The Respondent works on behalf of the Irish Government in conjunction with communities and local agencies, to support social inclusion and local community development. The Respondent manages funding and provides support for 38 Government funded programmes in the areas of Social Inclusion and Equality (SI&E), Inclusive Employment and Enterprise (IEE) and Early Learning and Care (ELC), allocating €901 million to local and national community-based organisations in 2022. Background to the Complainant The Complainant commenced employment with the Respondent on 12th May 2014 as a Contact Advisor further to the contract of employment, signed and dated by the Complainant on the 8th of May 2014 confirming having read, understood, and accepted the provisions of that contract. The Complainant is paid in line with this contract of employment, remuneration consist of gross monthly pay of €3,165 which equates to €37,980 per annum. The Complainant also received the Staff Handbook. Background to the Claim · 2016 In 2016, the Complainant was on Maternity Leave for most of the year. On the 30th of December 2016, a medical certificate was issued by the Complainants GP stating that she was unfit to attend work due to depression. • 2017 The Complainant was away on Certified Sick Leave for most of the year. She was sent to the company’s Occupational Health professional for a medical assessment as provided for under the company’s sick leave scheme. The Company Doctor’s report of 21st August 2018 indicated that the Complainant’s health had improved, with the Complainant’s targeted return date of the first week of October. The report further recommended that on the Complainant’s return, she might work two half days and one full day on the first week, increasing to two full days from week three of her return. Temporary working arrangement 2018 • In 2018, following company doctor consultations and discussions with the Complainant, she returned to work in mid-January on a three-day week and to reduce her accrued annual leave, the Respondent and Complainant agreed she would take every Tuesday and Thursday as annual leave from January – June inclusive. • The Complainant was absent for 27 days on 14 separate occasions during this period and frequently late. Following discussions with the Complainant and HR at the Complainant’s request the Respondent agreed to facilitate a change to her original full-time work pattern and a move to the Complainant working 3 days per week from July. • The Complainant attended the company doctor on 7th June 2018 and the report supported a reduced working week due to a variety of issues – childcare and personal. This was a temporary arrangement for 6 months as reflected in a letter dated 26th July 2018. • The Complainant worked for the remainder of 2018 on this work pattern with 14 days absent and again a high frequency of lateness. Sick leave and further change in work pattern 2019 • The Complainant was away on Certified sick leave from 15th February – 23rd September 2019. The report stated that the Complainant had a combination of chest infections and depression. • Prior to the Complainants return to work in September 2019, HR & Line Management engaged and agreed to facilitate a change in work pattern and the Complainant was moved to 5 mornings per week (10am -2pm) to support her childcare arrangements. The Complainant attended the company doctor on 4th July 2019 which supported a reduced working week due to a variety of issues – childcare and personal. · The Complainant was 3 days absent and again had a high frequency of lateness. Investigation and Disciplinary process 2020 • The Complainant was on certified sick leave from 9th March – 19th May 2020.The certificate stated that the Complainant had Respiratory Infections. • Following an investigation and disciplinary process, the Complainant received a verbal warning for excessive absenteeism and lateness. Letter dated 25th June 2020 • On her return to work in September 2019, the Complainant had been absent for 41 days on 4 separate occasions. There were also 29 separate instances where she was late for work from January - March 2020 • Subsequently the Complainant was required to work from home due to the COVID 19 lockdown from 19th May for the remainder of the year with no recorded absences. Request to Return to full-time role 2021. • The Complainant was on certified sick leave from 1st January – 3rd November 2021. The certificate stated that the Complainant had a condition of Long Covid. • The Complainant was absent from work from 26th November 2021. She was subsequently on Annual Leave from 29th November 2021 – 31st December 2021. The Complainant returned to work on 4th November 2021, which was her first day working that year. HR had liaised with the Complainant during September 2021 and following discussions with her GP, Consultants and a company doctor referral, the medical advice was that she was fit to return to work on a phased basis from the end of October 2021. Her working arrangement was a temporary one of 20 hours per week. (Ref - letter confirming this dated 26th July 2018). The Complainant had accrued a number of annual leave days while on sick leave, the Respondent agreed that she could take 25 days annual leave for the period of 29th November – 31st December 2021. • The Respondent communicated to the Complainant via email on 29th October 2021 and in subsequent letters reiterating that her role remains a full-time role and confirmed they were unable to continue to facilitate the temporary part time arrangement of 20 hours per week and will require her to return to full time working of 37 hours per week from January 2022. • On the 29th of October 2021, a follow-up email was sent to the Complainant from Celeste McCloskey, HR/OD Business Partner. This was sent after the Complainant hung up the phone during a phone conversation. The email stated the Complainant’s work schedule for the 1st of November 2021 – 31st December 2021.As discussed, the Complainant was to note that her role is a full-time role, and a temporary reduced week can remain in place until the end of the year. Hence the Complainant will be required to return to her full-time role of 37 hours per week from January 2022. Ongoing Sick Leave & FORSA Representation 2022 • The Complainant was away on certified sick leave from 1st January – 31st December 2022. The certificate stated that the Complainant had Long Covid • Subsequently, several medical certificates and reports were sent confirming that the Complainant was fit for part-time work and only on a phased return. • Following her annual leave, the Complainant contacted the Respondent on 6th January 2022 by email requesting confirmation on whether she could return to work on 11th January 2022, in a part time capacity. The Respondent reiterated to the Complainant in an email dated 20th January 2022, that as per the letter she received on 15th Dec 2021, outlining the position, that she was required to return to a full-time working schedule of 37 hours per week from January 2022 and if unable to do so would need to remain on unpaid sick leave until fit to return to full - time. • The Complainant attended the company doctor again on 11th January 2022 which again confirmed she was fit for part time hours only. Following this the Complainant emailed the Respondent to confirm she had referred the recent correspondence to her from the Respondent to Denis Keane in FORSA. The Complainant had a further medical review with the company doctor in March 2022, which reiterated she was fit for part time hours only. The Respondent sent another letter to the Complainant explaining the company’s position on the issue. • Denis Keane from FORSA contacted the Respondent on behalf of the Complainant and there were several phone conversations where the situation was discussed and remained unresolved up to the time when Mr Keane moved sections within FORSA in summer 2022. • The Respondent received a medical report from the company doctor, dated 19th Sept 2022. The report confirmed that the Complainant had ongoing symptoms which have been attributed to (repeated) Covid-19 infection and recommended that the Complainant should be medically fit to resume her work role in a gradual manner (e.g., 4 hours per day initially) and review after 6-8 weeks at the Respondents discretion. Complainants Formal Grievance 2023 • The Complainant raised a formal grievance on 12th January 2023, following attendance at Mediation at the Workplace Relations Commission that day. This Grievance was heard on 9th February under stage 2 of 4 of the company’s grievance procedure. The Complainant was represented by a FORSA trade union representative at the meeting. No matters raised were upheld and this was confirmed by letter on 16th February. The Complainant raised the formal grievance in relation to her request to continue with her part -time role. This was via email to Trevor Finnegan, HR Operations Manager... • On the 16th of February 2023 Liz Coyne, HR Business partner reached out to the Complainant via email informing the Complainant of the outcome of the grievance meeting held on the 9th of February 2023. The Complainant’s grievance was not upheld. The reasons for the Respondent’s decision were clearly stated and the Complainant was reminded that she could appeal this decision in line with the organizations grievance policy. • On the 16th of February 2023 - 25th April 2023, Enda Doherty, HR Employee Relations & Policies Manager, shared correspondence with the Complainant in relation to a proposal from the Respondent, for the Complainant to return to work on a gradual basis over 8weeks to full-time. The Respondent requested to have a one-to-one meeting with Liz Coyne, HR Business Partner and Barry Harte, Head of Early Years Operations. The Complainant refused this proposal stating that the Respondent was going against the Doctors recommendations. The Complainant subsequently appealed the Respondents decision on her grievance. • The Complainant attended the Company Doctor on 28th February 2023. The report advised that the Complainant “remains ‘partially fit’ for work and could attempt a phased return on reduced hours (e.g., 4 hours per day initially) with a view to increasing to her normal hours after a 6-8 week period all going well”. • The Company Doctor subsequently wrote to the Complainant on 8th May 2023 to ask if she wished to submit any additional medical evidence from her GP/Specialist in relation to her fitness for work. • The Complainant confirmed that she had provided consent to the Respondent’s Company Doctor to contact her GP. She proposed that she return to work on 20 hours per week indefinitely until an updated report from the Company Doctor including input from the Complainant GP/Specialist is received. The Complainant, however, continues to submit medical certificates to the Respondent from her GP stating that she is “unable to attend at work”. • On the 10th -23rd May 2023, the Respondent shared more emails with the Complainant regarding a follow-up meeting on the grievance outcome and the Respondent’s proposal. The Complainant’s request to be accompanied by a Union Representative, Ruari Creaney- FORSA Trade Union, was reasonably accommodated even though the representation was not required at this stage in line with the grievance policy. Prima Facie Case of Discrimination It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”. In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed. Respondent’s arguments The Complainant alleges that she was discriminated against by the e Respondent on the grounds of disability. Furthermore, the Complainant has alleged discrimination, and failure to provide reasonable accommodation. The Respondent refutes this claim in its entirety as the Complainant was treated no less favourably than any other employee under the grounds cited. The Complainant has failed to elect a comparator to demonstrate how she believes she has been treated less favourably under the grounds cited. The Complainant was treated no less favourably in this regard and has failed to demonstrate how any actions taken by the Respondent are related to her disability. Reasonable Accommodation It is the Respondent’s position that the Complainant was not fully fit to perform the duties associated with her role. The Complainant submitted a medical certificate on 19th September 2022, which placed restrictions on the Complainant’s fitness to return to work such that the Complainant would not have been able to fulfil her contractual duties. At no time did the Respondent state or indicate that the Complainant’s employment with the company had been terminated. In response to the claim that the Respondent failed to reasonably accommodate the Complainant, it is the Respondent’s position that given the restrictions imposed on the Complainant, the Respondent was not in a position to allow the Complainant return to work. No reasonable accommodation could be made to the duties associated with the Complainant’s role which would satisfy these restrictions. The Respondent has a duty of care to all its employees to ensure their health, safety and welfare at work and not permitting the employee to return to work before she was fully fit cannot be seen to amount to discrimination. The Respondent acknowledged that the Complainant had a long-term disability. On this note the Respondent sent a letter informing the Complainant that she had been referred for the Permanent Health Insurance Scheme (Permanent Health Insurance) which the Respondent has in place for staff who are on sick leave for a continuous period of 6 months or longer. Based on the medical evidence received from the Respondents Occupational Health doctor, the Complainant did not qualify for the scheme. The Complainant was also reminded of the EAP available to her for additional support. The Respondent made the Complainant aware that for the year 2022 the Respondent had additional requirements for the Early Years Provider Centre (EYPC), with a new transition on funding, the core funding and NCS changes. Key to the EYPC is its fulltime advisors who support multiple programmes and offer various support and transactional services to ELC/SAC providers. It would require staff to have business hours of Monday to Friday 9:00am to 5:00pm. There is the need for all staff on board to work full time in conjunction with the new roles budgeted for EYC for 2022. Letter dated 15th December 2021. Position of the Law Duties of an employer Section 16 of the Employment Equality Acts requires an employer to take appropriate measures to facilitate persons with disabilities in accessing and participating in employment unless those measures would impose a disproportionate burden on the employer. The Act provides non-exhaustive examples of “appropriate measures” which include the adaptation of premises and equipment, patterns of working time, the distribution of tasks or the provision of training. The Respondent refers to the Supreme Court decision in Nano Nagle School v Daly [2019] IESC 63 at paragraph 84 where it confirms: - “But 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 employers place of business, including the premises, equipment, patterns of working time, and distribution of tasks or the provision of training 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 in Nano Nagle School v Daly [2019] IESC 63, held that employers were obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation and to demonstrate, if no such measures were taken, that this was only because those measures would be disproportionate or unduly burdensome. The Supreme 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. The Complainant has failed to cite any comparators within the Respondent company against whom it could be established that she has been treated less favourably. In the case of Arturs Valpeters v Melbury Developments, EDA0917, [2010] 21 ELR 64, the Labour Court highlighted that: “Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Court cannot engage in speculation as to how a person of a different nationality to the Complainant would have been treated in a comparable situation nor can it decide the case on the basis of conjecture as to the factual criterion for the treatment complained of.” In the instant case, the Complainant has alleged discrimination on the grounds of disability and failing to provide reasonable accommodation for a disability but has hitherto produced not a shred of evidence to support this allegation. Section 6 of the Act states: “(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where— (a) 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) (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, The Respondent contends that the Complainant has failed to establish a prima facie case of discrimination in that she has not provided any evidence to demonstrate that she was treated less favourably than any other employee on the grounds specified. Furthermore, the Complainant has failed to provide details of any comparator on which she wishes to rely. Conclusion The burden of proof rests with the Complainant to show that she has been treated less favourably on the grounds specified. It is the Respondent’s position that the Complainant has failed to provide facts from which it may inferred that discrimination has occurred and has therefore failed to establish a prima facie case of discrimination. The Respondent respectfully submits that the claim must fail. Respondent’s position – Under the Terms of Employment (Information) Act, 1994 Section 5 of the Terms of Employment (information) Act, 1994 provides for notification of changes: “Whenever a change is made or occurs in any of the particulars of the statement by an employer under section 3, 4 or 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than – (a) 1 month after the change takes effect or (b) Where the change is consequent on the employee being required to work outside the state for a period of than 1 month, the time of the employee’s departure. • It is the Respondent’s position that the Complainant was provided with written confirmation of all terms & Conditions of employment prior to commencing employment with the company. The Respondent refutes this claim in its entirety. · The Respondent notified the Complainant about the proposed change in the terms and conditions of her temporary working arrangement. The Complainant’s role was always full-time prior to her long-term disability. The Respondent Maintains that the Complainant was given notice well in advance via emails dated 29th October 2021, 15th December 2021, and 20th January 2022.
· For completeness, the respondent refers to TE248/2009 wherein the EAT noted ‘that the legislation is to be approached on a basis to ensure compliance and not to extract an award. …. In awarding compensation, it is relevant to consider whether there was any loss’.
As noted in Section 7(2)(d) the Adjudicator can award an ‘amount (if any) as is just and equitable having regard to all the circumstances. It is the position of the Respondent that were the Adjudicator to find any such breach (in any case denied) that no loss or damage has been caused to the Complainant. Secondly, in relation to his claim that that there has been a breach of the Terms of Employment (Information) Act (in any case denied), in relation to his duties having changed from 7am to 8am that no loss or damage has been suffered by the Complainant, but to the contrary, he has been facilitated in being allowed to remain on his early shift start time. It is therefore the Respondent’s position that it has complied fully with Section 5 of the Terms of Employment (Information) Act 1994 in that the Complainant was provided with written notice of the provisions of the Contract under which she is an employee of the Respondent’s, and accordingly the Complainant cannot establish a breach of the Terms of Employment (Information) Act 1994. |
Findings and Conclusions:
I have given careful consideration to the submissions and to the evidence adduced at hearing by the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
CA-00051473-001. ‘The Employment Equality Act 1998 (introduced on 18th June 1998) is an Act to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies; to make further provision in connection with Council Directive No. 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and Council Directive No 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions ; to make further provision with respect to harassment in employment and in the workplace ; to change the name and the constitution of the Employment Equality Agency and to provide for the administration by that body of various matters pertaining to this Act ; to establish procedures for the investigation and remedying of various matters arising under this Act; to repeal the Anti-Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977, and to provide for related matters’. Section 77 of the Employment Equality Act 1998 at section (5) reads as follows: (5) Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates. In the instant case the complaint was received by the Workplace Relations Commission on 1st July 2022, this results in a cognisable period starting on 1st January 2022 and ending on 30th June 2022. Throughout this entire period the Complainant was absent from work, during this period of absence the Complainant submitted monthly certificates from her GP who stated that the Complainant was ‘unfit for work’ due to ‘Long Covid’. On 6th January 2022 the Complainant confirmed that she was willing to attend a meeting with the Respondent’s doctor on 11th January 2022. On 11 January 2022 the Complainant attended the Respondent’s doctor, Dr John McDermott, for an occupational health assessment. The Complainant informed Dr McDermott at this meeting that she continued to attend the “long COVID” Specialist clinic in the Mater Hospital. The Complainant reported persisting symptoms including reoccurring fatigue, dizziness and being lightheaded. The Complainant informed Dr McDermott that she intended to return to work on reduced hours and that both her Specialist in the Mater Hospital and her GP had endorsed the proposal that she return to work on a part-time basis. The Complainant stated that she wanted to retain the option of returning to full-time hours once she was medically fit to do so. The doctor suggested that that the Complainant work on a part-time basis for 12 weeks at which point she could be re-assessed to consider whether she would be fit to return to full time work. The Complainant cannot return to work until such time that she is fit to return on a full-time basis. The Representative for the Complainant has made the following points that must be considered: · In the Supreme Court decision of Nano Nagle School v Daly [2019] IESC 63 the Court noted that there is a very high burden on an employer to reasonably accommodate an employee with a disability. The Court held that once there is not a “disproportionate burden” on the employer they must endeavour to accommodate an employee with a disability. · The Court also noted that an employer should consult with an employee with regards appropriate accommodations that can be made. At para. 105, the Court held: “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”. · The Court of Justice of the European Union, in the case of HR Rail SA (C-485/20) ruled that the concept of “reasonable accommodation” includes the reassignment of a worker to a different position once the reassignment does not impose a disproportionate burden on the employer. This was also held by the Irish Supreme Court in Nano Nagle. · In HR Rail SA, the Court of Justice held that the Framework Directive provides that “appropriate measures” are: “effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources” (emphasis added). · However, the Court of Justice confirmed that the above is a “non-exhaustive list” of appropriate measures, which may be physical, organisational, and/or education and the Framework Directive prescribes a broad definition of the concept of “reasonable accommodation”. APPLICATION TO THE COMPLAINANT · In January 2021, the Complainant was diagnosed with Covid-19. The Complainant was admitted to the Mater Hospital and treated for pneumonia. · In October 2021, the Complainant sought to return to work. Dating back to January 2021,Professor Lambert diagnosed the Complainant with long Covid. 6656fThis diagnosis is a clear definition of a disability as set out in section 2(1) of the 1998 Act. · The Respondent failed to take any steps to accommodate the Complainant despite their own doctor clearly stating in multiple reports that the Complainant was not fit to return to full time work. This was a flagrant breach of section 16(1) of the 1998 Act.
· Having initially accommodated the Complainant by coming to an agreement that she would work for the Respondent on a part-time basis, the Respondent withdrew this arrangement for no apparent reason. The Respondent failed to consult with the Complainant despite their own doctor finding that the Complainant was not fit to return to work full-time. · Further, as a result of the Respondent refusing to reasonably accommodate the Complainant, she has incurred financial loss of €30,143.38 (Being 17 months loss of wages as of 1st June 2023) Conclusion · As a result of the Respondent’s conduct, the Complainant seeks the appropriate redress pursuant to the 1998 Act. Section 16 of the Act was the subject of comprehensive judicial analysis by the Supreme Court in Nano Nagle v. Marie Daly [2019] 30 ELR 221. Charlton J unequivocally and unambiguously pointed out at paragraph 10 of his judgment in Nano Nagle that section 16 of the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired where he held as follows: The requirement to redeploy does not arise under the 1998 Act in this jurisdiction……... McMenamin J in paragraph 89 of his judgment in Nano Nagle v. Daly,after extensive discussion of the obligations of employers arising pursuant to section 16 of the 1998 Act, summarised by stating that section 16(3) of the Act placed a “mandatory primary duty” on an employer to provide reasonable accommodation, unless this would impose a disproportionate burden on an employer and held as follows: “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. 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 is an entirely different job.” In the instant case the Complainant made no reference to the burden that accommodating the complainant with ongoing reasonable accommodation may result in. I also find that it may be argued that it was not a failure to provide reasonable accommodation to the Complainant but rather the withdrawal of reasonable accommodation that was already in place without a clear-cut explanation why they were adopting such a course of action. The Respondent has the services of an Occupational Health Specialist which they utilised and then failed to accept his professional recommendations / advice. The wording of section 6 “would be treated” allows for the use of hypothetical comparators in appropriate circumstances of discriminatory treatment, other than in relation to equal pay where an actual comparator is required. In cases involving less favourable treatment, a comparator can be actual or hypothetical and in this I am guided by Henry Denny v. Rohan [EDA1310] where the Labour Court followed the decision of the House of Lords to that effect in Shamoon v. Chief Constable of the RUC [2003] IRLR 258. Where the treatment complained of is because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic. An appropriate comparator could be a person in a similar role who does not have a disability or a person who has a different disability. In the within case no named comparator with a different disability was put forward for consideration and, therefore, it follows that the appropriate comparator in this case is a person in a similar role who does not have a disability. CA-00051473-002 - Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994. It is the Respondent’s position that the Complainant was provided with written confirmation of all the terms and conditions of employment prior to commencing employment with the Respondent. Any temporary changes made were documented and issued to the Complainant. I am unable to disagree with the Respondent on this point. CA-00051473-003. I believe all aspects of any alleged discrimination have been dealt with in CA-00051473-001.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00051473-001. I conclude that the Complainant has been the victim of discrimination and now order the Respondent to pay compensation to the Complainant. I note that the Respondent has provided a figure of €30,143.38 as a loss of earnings for a period of 17 months ending on 1st June 2023. I cannot accept that figure. The complaint was received by the Workplace Relations Commission on 1st July 2022, and I cannot award compensation after this date. I now order the Respondent to pay compensation €10,638.84 to the Complainant. Such compensation should be paid to the Complainant within 42 days from the date of this decision. CA-00051473-002. This complaint is not well founded. CA-00051473-003. I believe all aspects of any alleged discrimination have been dealt with in CA-00051473-001. |
Dated: 8th of March 2024
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Employment Equality Act, 1998; Reasonable Accommodation. |