ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030808
Parties:
| Complainant | Respondent |
Anonymised Parties | Guard | A Detention Facility |
Representatives | Cathal McGreal BL, Thomasina Connell, Thomasina Connell & Co. Solicitors | Emma Cassidy BL, Stephen O’Sullivan BL, Claire Cummins BL. Karen MacNamara Solr., Chief State Solicitor's Office. |
Complaint:
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-00041129-001 | 18/11/2020 |
Date of Adjudication Hearing: 16/02/2022 and 24/05/2022 and 15/02/2023 and 13/02/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the sworn oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).
In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated the 18th of November 2020) seeks both direction from the Adjudicator and redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his disability (as detailed in Section 6 of the 1998 Act (as amended)). The unlawful behaviour complained of includes failing to give reasonable accommodation for a disability.
The Operative Section is Section 6 of the Employment Equality Act 1998 where: -
Sub Section (1) For the purpose of this Act…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) (referred to as the “discriminatory grounds”) …
Sub Section (2) As between any 2 persons, the discriminatory grounds ...are…
(g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …
The nature and extent of the Employer’s obligations, including the employer’s obligation to provide reasonable accommodation for an employee with a disability is governed by Section 16 of the Employment Equality Act 1998 (the “1998 Act”)
Sections 16(1), (2) and (3) provide as follows:
16.- Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake (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.
(2) In relation to—
(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,
subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.
(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 —
to have access to employment,
to participate or advance in employment, or
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 —
the financial and other costs entailed,
the scale and financial resources of the employer’s business, and
the possibility of obtaining public funding or other assistance.
(4) In subsection (3)—
‘appropriate measures’, in relation to a person with a disability —
(a) means effective and practical measures, where needed in a particular case, to adapt the employer’ s place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.
In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act), which can include re-instatement or re-engagement.
Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the Complainant herself must establish facts which show that he suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the Respondent to rebut any inference of discrimination that has been raised. The inference must be such that the Complainant has established a Prima Facie case that he has been treated less favourably than another person is, has been or would have been treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “disability ground”.
Prima Facie evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.
Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. It took four separate hearing days to hear the evidence herein. The said remote hearings were set up and hosted by appointed members of the WRC administrative staff. I am grateful for their services. I am satisfied that no party was prejudiced by having this hearing to have been conducted remotely over the four days. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. It is noted that no member of the public availed of this right. I had additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in circumstances where there was the possibility of a conflict in the evidence presented by the parties herein, then an oath or affirmation would be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. The specific details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 18th of November 2020. The hearing was conducted in Public. However, given the private and personal nature of the Complainant’s disability and ongoing medical condition an application has been made to have the decision herein anonymised. I am satisfied that due to the existence of the special circumstances as outlined, the decision herein should be anonymised. I am further satisfied that the workplace is unique and readily identifiable with a close community and network of employees. As the claim also concerns a challenge to a system of seniority, I accept that if I interfere with or digress from said system of seniority this may well disrupt harmonious industrial relations. Both parties are therefore anonymised. In these circumstances, a fully anonymised version of the decision may be uploaded onto the WRC website. |
Summary of Complainant’s Case:
The Complainant was fully represented by both Counsel and Solicitor. Before giving his evidence, the Complainant made an affirmation. I was provided with a comprehensive submission dated the 15th day of February 2023 outlining the Complainant’s case and providing me with relevant legal submissions. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was being discriminated against in his place of work by reason of the failure of his Employer to take ongoing appropriate measures to accommodate the Complainant in the workplace in circumstances where the Complainant had a disability which made it difficult for the Complainant to work the nightshift. The Complainant had been previously accommodated at a different Respondent-operated site. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent also had full legal representation at this hearing. The Respondent entity was represented by a number of witnesses. The Respondent provided me with two written submissions dated February 2022 and February 2023. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All witness evidence was heard following an Affirmation. The Respondent witnesses were challenged as appropriate by the by the Complainant Counsel. The Respondent rejected the assertion that it has discriminated against the Complainant. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence adduced herein and have also taken on board an agreement reached between the parties. The Complainant sought Adjudication under section 77 of the Employment Equality Act 1998. It was alleged by the Complainant that he had been discriminated against by his employer upon moving his work location by reason of his disability and that there had been a removal of or failure to provide reasonable accommodation. The Complainant made the case that at a previous facility owned by the Respondent in which the Complainant had worked, his disability had been appropriately accommodated allowing the Complainant to function at a high level. There is no doubt that the Complainant was seeking a a reasonable accommodation of a recognised medical condition. The medical condition was exacerbated when working night duty. The Complainant was not required to work nights in one location but upon moving to a different location the Complainant was liable to work night-duty. The Complainant submitted that reasonable accommodation had been removed at the second location. The Respondent disputed this narrative. The Respondent submitted that reasonable accommodation had been offered and remained available at the Complainant’s new location. However, the Complainant argued that the hours offered represented a drastic drop in earnings for him. Both parties preparted substantial submissions and evidence was heard from the Complainant and witnesses on behalf of the Respondent over multiple days. In addition to the issues of reasonable accommodation, the Respondent outlined a preliminary issue relating to the statute of limitations in the bringing of the complaint to the WRC by the Complainant. It is noted that as the hearing of this case took longer than anticipated with long gaps between the hearing days, the Respondent stepped up and undertook to suspend the Complainant’ night-duty liabilities on an interim basis. By the last day of hearing, I understand that the Complainant had not worked a night shift for a considerable period of time and, because of this, he says his medical issue was a non-issue in the performance of his duties. Post hearing, I was informed by the Legal Representative for the Complainant that the matter had been compromised and that it was agreed between the parties that, subject to the Adjudicator consenting, a compromise agreement would be specified by the Adjudicator as part of the decision made.I take particular note of Section 82 which reads: Section 82.—(1) Subject to this section, the types of redress for which a decision ….under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case: (e) an order that a person or persons specified in the order take a course of action which is so specified; The parties have requested therefore that I direct that the Respondent does maintain the undertaking previously given by the Respondent in the course of the litigation and which allowed the Complainant to work a particular work pattern which was singular to him and a bespoke arrangement. I understand that the undertaking had originally been given on the 24th of May 2022, and has operated up to the date of the last day of hearing and beyond. Therefore, based on the consensus as articulated by the parties and the agreement between the parties that a fully reasoned decision is not required, I order that the undertaking given by the Respondent on 24 May 2022, that the Complainant is not required to work night duties, be maintained until the Complainant attains and is eligible for the no-nights roster, to which he has applied and is currently on the waiting list, in the established course. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00041129-001 – The Complainant has a disability. I direct that a specific course of action be taken such that the Complainant is henceforth not required to work any night duties and continues to work the pattern of hours allowed under an undertaking given by the Respondent on the 24th of May 2022. I additionally direct that the Complainant maintains his position on the waiting list for the no-nights roster and progresses up the list in the usual way. |
Dated: 1st May 2024.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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