Complainant

Respondent

Anonymised Parties

Warehouse Floor Leader

Logistics Firm

Representatives

Self-Represented

Mr. William Wall, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00053329-001

18/10/2022

The Complainant commenced employment on 26th September 2017. The Complainant remains a permanent, full-time member of staff, in receipt of an average weekly payment of €645.94. At all relevant times, the Complainant’s position was described as that of warehouse “floor leader”.

On 18th October 2022, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had failed to make reasonable accommodation so as to allow him to return to work. In contesting this allegation, the Respondent submitted that the Complainant had been invited to various medical appointments to determine his fitness for employment but had failed to attend the same.

A hearing in relation to this matter was convened for, and finalised on, 10th November 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Both parties issued extensive submissions in advance of the hearing, with these submissions being expanded upon by oral argument. The Complainant gave evidence in support of the complaint, while an Operations Manager and a Director gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.  

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. In circumstances whereby the Complainant’s medical history is discussed in the decision below, I have exercised my discretion to anonymise the decision in its published form.

The Complainant submitted that he commenced employment in 2017. At this time, he was engaged as a “warehouse operative”, however for the relevant period for the purposes of the present complaint, he was promoted to the position of “floor leader”.

On 23rd August 2022, the Complainant was forced to go home due to a pain in his back. Thereafter the Complainant was absent for a period of three days whilst certain medical investigation were being undertaken. On 2nd September, while in work, the Complainant received the results of this scan, which indicated that he had suffered an injury to a disk in his back. On receipt of this information, the Complainant mentioned these results to management. Thereafter, on Wednesday 21st September, the Complainant was asked to attend a meeting with his manager and the Respondent’s health and safety officer. During this meeting, the health and safety officer enquired as to the Complainant’s fitness to complete his duties. By response, the Complainant indicated that he could continue with the management functions of his role which, in his view, constituted the majority of his duties. The Complainant further advised that he remained fit to complete some light duties, such a forklift driving. By response, the health and safety officer advised that the Complainant would have to receive certificate confirming his fitness to work from his GP. On 27th September, the Complainant received a certificate from his GP advising that the Complainant was fit for light duties and forklift driving. In the Complainant’s view this rendered him fit for almost all aspects of his role and he expected that the same would satisfy the Respondent. On forwarding this certification to the health and safety officer for the Respondent, the Complainant was informed that he would have to go home as the Respondent could not properly confirm what constituted “light duties” for these purposes. On foot of the same, the Respondent issued the Complainant with a list of his duties, and asked that he request an updated report on foot of the same. The list of duties issued by the Respondent at this time, included many matters that were not within the Complainant’s normal duties, which consisted mainly or organisation, planning and issuing reports.

On Monday 3rd October, the Complainant attended a doctor’s appointment organised by the Respondent. In this respect, the Complainant stated that this appointment was with a GP as opposed to any form of health specialist. While this doctor did state that the Complainant was not fit for work, the certificate was based on the Complainant being engaged as a “warehouse operative” as opposed to a “floor leader”. While this was corrected thereafter, the Respondent continued to abide by the outcome of the initial, mistaken report and refused to allow him to return to work.

By submission, the Complainant stated that the Respondent refused to make a relatively simple accommodation for this injury to allow him to attend work. He stated that while his doctor confirmed that he could engage in “light duties”, his employer made no effort to investigate or facilitate the same. In circumstances whereby most of his duties consisted of managerial tasks, he submitted that he was at all times fit for work. In support of this position, the Complainant noted that the Respondent permitted him to work for a period of one month following his injury without raising an issue in respect to the same.

From the outset, the Respondent denied that Complainant’s allegations on a substantive and legal basis.

The Respondent agreed with the timeline presented by the Complainant regarding the furnishing of his illness certificates. In this regard, they submitted that once they became aware that his MRI results had returned, and it was apparent that the Complainant had suffered a significant back injury, they sent him home on full pay so as to allow for a comprehensive assessment of the situation. The first action taken by the Respondent in this regard was to request an updated report from the Complainant’s own GP in light of the results of the MRI. By response, the Complainant’s GP indicated that he would be in a position to engaged in certain light duties and driving. Whilst this was ongoing, the Respondent arranged for the Complainant to visit a company doctor to acertain his fitness to work. By report dated 5th October 2022, the company doctor indicated that the Complainant was not fit for work of any description. In circumstances whereby the Complainant’s injury has not improved in the interim, he remained on illness absence to the date of the hearing.

In evidence, the Health and Safety Manager of the Respondent stated that on receipt of the Complainant’s initial doctor’s certificate, they searched for alternative duties he could complete. Unfortunately, the nature of the Respondent’s business is that all roles involve certain amount of work that could not be considered “light”. In this regard, the Health and Safety Manager denied that Complainant’s assessment of his own duties. He stated that while the Complainant was engaged as “floor leader” and that he did have some management responsibilities, the majority of his workload was similar to that of a warehouse operative. In this regard, he stated that the Complainant would be obliged to wash and sort various pallets, use a manual pallet truck, pallet and cardboard assembly, lifting boxes onto pallets and shrink-wrapping pallets. He stated that all of these duties involved, at a minimum, bending over and reaching to complete the duties. He further submitted that while the Complainant may have received clearance to drive a fork-lift, he was concerned that given the nature of the Complainant’s injury, he could be injured entering or exiting the raised seat in the vehicle. He stated that the seconds doctor’s report confirmed this position. He further stated that prior to this report being secured, the Respondent put the doctor on notice of the nature of the Complainant’s role and the duties related to the same.

In evidence, the Managing Director of the Respondent stated that he also examined the business to determine whether they could accommodate the Complainant’s injury. In this regard, he stated that apart from some support roles, that required specific experience and qualification, the Respondent had no role that did not involve either driving a fork-lift or engaging in some kind of strenuous physical activity. He submitted that there was no prospect of re-organising the Complainant’s activities so as to allow managerial duties only. In this respect, he agreed with the Health and Safety manager that the majority of the Complainant’s duties involved physical work, with his role necessitating a certain amount of supervisory and report based duties.

Section 16(3)(b) of the Employment Equality Act provides that,

“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.”

Section 16(3)(b) provides that,

“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.”

Section 2 of the Employment Equality Acts define “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”

Regarding the instant complaint, the parties are agreed that the Complainant suffered from a disability in accordance with the definition above. Notwithstanding the same, the Complainant has alleged that the Respondent failed to take appropriate “measures” i.e. placing the Complainant on light duties only, to facilitate his return to work. In denying this allegation, the Respondent submitted that given the nature of their activities, and the nature of the Complainant’s role, they could not facilitate such light duties. They further submitted that a second medical professional, in receipt of all relevant facts, determined that he Complainant was not fit for work of any description.

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows,

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, 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.”

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held that,

“Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity”.

The first point of contention between the parties related to their respective reliance on separate doctors’ reports. In this regard, the initial doctors’ report, received from the Complainant’s GP on 21st September 2022, advised that he was “well and fit for light duties / driving”. In this regard, the Health and Safety Officer for the Respondent was rightly concerned that the Complainant’s injury could be exacerbated by a return to work and sought a more comprehensive report. In this regard, the Respondent opened correspondence dated 23rd September 2022, advising a medical practioner appointed by the Respondent of the nature of the Complainant’s daily duties and enquiring as to whether the Complainant would be medically fit to complete the same. In this regard, the Complainant raised issue with the description of his duties, stating that the same were more in keeping with that of his former role of warehouse operative, rather than his current role of floor leader. Notwithstanding the foregoing, both parties agreed that the Complainant’s daily duties involved a certain element of the tasks referred to in the referral correspondence, with the conflict arising as to the proportion of his daily duties that related to the same as opposed to other managerial tasks. Some weeks later, the medical professionals appointed by the Respondent issued a brief report outlining that the Complainant was not fit for work. In this regard, it is noted that the report is silent as to the Complainant’s fitness for light duties, with the obvious implication being that the Complainant is not fit for any such duties. In this regard, I further note the evidence of the Health and Safety Officer for the Respondent to the effect that at the time of the receipt of the second report, the Complainant had been referred for further investigations by a consultant. In this regard, he stated that he viewed the best course of action as waiting until the same issued prior to making any further decisions in relation to the Complainant’s return to work. Thereafter, it is common case that the Complainant’s consultant agreed that the Complainant was not fit to return, and the Complainant remained absent on certified sick leave for some time thereafter.

Having regard to the foregoing sequence of events, it is apparent that the Respondent acted reasonably in refusing to allow to the Complainant to return to work following his injury. In this regard, it is noted that while the initial doctor’s report stated that he could return on certain light duties, the subsequent report confirmed that he could not return at all, a position that was affirmed by the Complainant’s consultant thereafter. In this regard, the Complainant has submitted that the Respondent did not make sufficient efforts to investigate what light duties were available to him, a position the Respondent denied in their submissions and evidence. Notwithstanding the same, the Respondent has a duty to prevent the Complainant from exacerbating an injury by allowing him back to work when it is unsafe to do so. In this regard, the Respondent acted on medical advice to the effect that the best course of action was for the Complainant to remain out of work of any description until such a time as he fully recovered, a position subsequently confirmed by the Complainant’s own medical team. Having regard to the foregoing I find that the Respondent did not fail to take appropriate measures to allow the Complainant to return to work following his injury. In such circumstances, I find that the Complainant was not discriminated against, and his complaint is not well-founded. 

I find that the Complainant was not discriminated against, and his complaint is not well-founded. 

Reasonable Accommodation, Doctor’s Report, Second Opinion