Complainant

Respondent

Parties

Karen  Rice

Tesco Ireland Limited

Representatives

Setanta Landers Setanta Solicitors

Niamh Ní Cheallaigh, IBEC

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-00055486-001

09/03/2023

The Complainant commenced her employment on 12 November 2007 as a General Assistant at the Respondent’s Ballyfermot store. Her salary when she went on sick leave in June 2020, because of her disability, was €416.75 per week. She stated that she was not subsequently afforded reasonable accommodation in respect of her disability.

In or around June 2020, the Complainant’s vision became blurred while working. She informed her manager that she needed to step away from her duties to get a drink of water. Her manager walked away from her while she was explaining her symptoms. The Complainant was forced to continue her duties until another colleague switched duties with her. The Complainant attended several medical appointments. She was diagnosed with having suffered an aneurysm. It significantly affected her vision. She received a formal diagnosis on 30 July 2021. The Complainant went on long term sick leave due to visual impairment but wanted to return to work.

Solicitors for the Complainant wrote to the Respondent on several occasions including a letter of 13 November 2020. They requested that the Respondent meaningfully engage with the Complainant. They requested that the Complainant be facilitated with a referral to occupational health to assess her capacity to return to work. The Respondent responded by letter of 9 December 2020. They claimed that they had offered the Complainant a welfare meeting and a prospective OH appointment in January 2021. The Complainant’s solicitors replied by letter of 14 December 2020. That correspondence noted that there had been no such offer to the Complainant and requested evidence of same. Nonetheless the Complainant accepted the referral then offered. The Complainant requested that any meeting take place after January 2021. The Respondent failed to respond to this.

The Complainant’s solicitors wrote to the Respondent by letter of 5 February 2021 seeking an update. The Respondent replied by letter of 11 February 2021 agreeing to a meeting for 23 February 2021. The Complainant had not been provided with a date for an assessment. Solicitors for the Complainant wrote to the Respondent on 29 March 2021 seeking an appointment. The letter specifically requested assessment of reasonable accommodations. An independent medical report was completed on 15 April 2021. The report stated that it was unlikely that the Complainant would return to work duties because of “long term visual impairment”. It was not adequate because it did not examine the possibility of return with reasonable accommodations.

The Respondent wrote to the Complainant by letter of 7 May 2021. It referred to the report of 15 April 2021. It informed the Complainant that her position was now under review and invited her to a meeting on 13 May 2021. The Complainant’s solicitors responded by letter of 12 May 2021. They inquired if any investigation of reasonable accommodation had taken place. They also requested a copy of the Respondent’s retirement policy on ill health grounds. The Respondent replied by letter of 18 May 2021 but not substantively but noted the meeting of 13 May 2021 between the Complainant and the Store Manager was being rescheduled.

The Respondent wrote to the Complainant by letter of 24 June 2021. The letter stated that the Respondent sought further clarifications on reasonable accommodations. The response reaffirmed the original finding. It recommended a referral for a consultant ophthalmologist before assigning her to any role. This was not a review of accommodations but a recommendation to engage appropriate professionals to investigate them. A welfare meeting took place on 1 July 2021. The Complainant’s solicitors wrote to the Respondent on 29 July 2021 to inform them the Complainant was meeting her consultant on 30 July 2021.

On 24 August 2021, the Complainant opened a grievance based on three grounds. One ground was failure by the Respondent to provide a safe place of work. Grievance meetings were held on 31 August, 23 September 2021 and 6 January 2022. The grievance was ultimately deemed unfounded in an outcome issued on 14 February 2022. The matter was appealed. The appeal hearing took place on 28 February 2022. An appeal outcome issued on 21 April 2022. The Respondent found one appeal ground was partially founded. The rest were deemed unfounded.

On 27 April 2022, solicitors for the Complainant wrote to the Respondent. They notified the Respondent that the Complainant was fit to discuss a return to work. The letter noted that the most recent occupational health report was nearly a year old and did not assess her fitness to return to work. The Respondent was put on notice that it was their duty to assess potential accommodations. 

On 16 May 2022, the Respondent wrote to the Complainant’s solicitor stating that they would be engaging with the Complainant directly. The Complainant did not receive any communication from the Respondent. The Complainant’s Solicitors emailed the Colleague Relations Partner, on 29 September 2022. They sought an update on the Complainant’s file.  The Colleague Relations Partner replied on 12 October 2022. She stated that the query had been passed to the Respondent’s legal team who would be in touch. The Complainant’s solicitors received no further response. They wrote to the Respondent on 24 January 2023 seeking clarification on the Complainant’s employment status. The Respondent failed to respond to this correspondence and she subsequently referred a complaint to the WRC in respect of the Respondent’s failure to reasonably accommodate her.

The Complainant commenced sick leave on 22 June 2020 and her absence was managed by way of regular welfare meetings and appointments with the Respondent’s occupational health provider in line with the Respondent’s Sickness Policy.

On 13 November 2020, the Respondent received a solicitor’s letter on behalf of the Complainant. The letter outlined that:

• The Complainant was allegedly bullied and victimised by colleagues following her crossing of the picket line on 14 February 2017.

• The Complainant allegedly raised her concerns with the management team, but no action was taken.

• The Complainant allegedly had no choice but to reduce her working hours from 35 to 25 hours per week to avoid the alleged behaviour.

• An incident that allegedly occurred in June 2020, relating to the Complainant’s medical issue, which was not diagnosed at that time whereby the Complainant worked the remainder of her shift.

The Complainant’s solicitor requested on her behalf that an occupational health assessment be organised as well as a formal grievance investigation of the alleged historical bullying issues and that a copy of her personnel file be sent. On 9 December 2020, the Respondent replied to the correspondence of 13 November 2020 and outlined their surprise to hear that the Complainant was allegedly subject to bullying and victimisation as she had never raised it internally before. They highlighted that the Complainant had been offered the opportunity to attend a welfare meeting with the Store Manager, however it was agreed that the store would allow her some time to process her illness and a welfare meeting would be arranged following an occupational assessment in January 2021. The Respondent confirmed that they would be in a position to open a formal investigation into the Complainant’s grievance, however, due to personnel changes, and the obvious passage of time, investigating back to 2017 might be difficult. They also confirmed that the Data Protection team were currently processing the Complainant’s request of her personnel file.

On 5 February 2021, the Respondent received further correspondence from the Complainant’s solicitor requesting that the Complainant receive a referral to occupational health, that her grievance be progressed and that a copy of her personnel file be sent. After being advised that the Complainant was not available to be contacted in January 2021, on 11 February 2021, the Respondent invited the Complainant to a welfare meeting on 23 February 2021 to discuss her health and any support the Respondent may offer her. This was rescheduled to 9 March 2021 as the Complainant didn’t attend the initial meeting. The Store Manager conducted the meeting and inquired about the Complainant's welfare. The Complainant advised she could not see out of one eye and was experiencing blurriness in the other and that she was continuing to receive injections.  The Store Manager confirmed that an occupational health assessment would be arranged for the Complainant and that an investigation officer had been appointed to hear her grievance.

On 11 March 2021, the Respondent wrote to the Complainant to advise that she was requested to attend a grievance investigation meeting on 25 March 2021. On 29 March 2021, the Respondent received a letter from the Complainant’s solicitor stating that no health assessment had been organised to date, the Complainant was issued ‘barely legible’ documents requesting her to attend a grievance investigation meeting and that she was unable to attend the meeting on 25 March 2021 due to medical reasons and notified the Respondent of same. The Complainant requested an occupational health assessment to be organised before she attended a grievance hearing.

On 29 March 2021, the Respondent wrote to the Complainant to confirm that they would postpone the grievance hearing investigation, as per the Complainant’s request and an occupational health assessment would be organised.

On 7 May 2021, the Respondent wrote to the Complainant following her occupational health assessment on 15 April 2021. The Respondent noted that the occupational health report outlined that it was the doctor’s view that the Complainant would not be fit to resume normal duties in the foreseeable future. In light of this review, the Respondent requested the Complainant to attend a meeting on 13 May 2021 to review the Complainant’s position as the Respondent could not continue to hold her position open indefinitely. The Complainant was advised if she had received an alternate view from her own doctor, who indicated that she would be fully fit in the near future, to bring supporting evidence to the meeting.

Following the meeting, the Store Manager wrote to the Occupational Health provider to enquire as to whether there were any reasonable accommodations that could be made to the Complainant’s role that would facilitate her being able to return to work. On 16 June 2021, the Respondent received an email from the doctor stating that the Complainant was deemed unfit to work based on her poor vision and mental health. The doctor advised that a consult ophthalmologist review would be appreciated before assigning the Complainant a role

On 24 June 2021, the Respondent wrote to the Complainant. The letter outlined that the Respondent held the Complainant’s role open with the expectation the Complainant would achieve a level of fitness in the near future to return to full and normal working. As the Respondent received further clarification from the company doctor in relation to reasonable accommodations that could be organised to support a return to work, the Respondent requested the Complainant to attend a welfare review on 1 July 2021 with the view to understanding her position as to what reasonable accommodations could be considered.

On 25 July 2021, the Respondent wrote to the Complainant. The letter referred to the welfare meeting of 1 July 2021 which was arranged to discuss the occupational health report and further clarifications received from the company doctor in relation to the Complainant’s absence. The Respondent advised they would like to schedule a follow-up meeting on 10 August 2021. The Respondent also advised they would like to consider if there was any further support the Respondent could offer that may support the Complainant’s return to work.

On 10 August 2021, the Complainant attended a welfare meeting. This meeting was conducted by the Store Manager. The Respondent asked the Complainant if there was an update on a potential return to work date. The Complainant stated that that it was up to the Respondent to determine however and further stated that she wouldn’t be able to operate a checkout.

On 23 November 2021, the Respondent wrote to the Complainant to request her to attend a welfare meeting to discuss any reasonable accommodations the NCBI (who the Complainant was liaising with herself) may have suggested in order to support the Complainant’s return to work. In parallel to the ongoing welfare process, the Complainant’s grievance was investigated by the Colleague Relations Partner, in accordance with the Respondent’s grievance policy. Following a thorough investigation, on 14 February 2022, the investigation manager issued a grievance outcome to the Complainant. The Complainant was provided with right to appeal the outcome.

On 28 February 2022, the Respondent received a letter from the Complainant’s solicitor appealing the findings of the grievance investigation. The appeal hearing was conducted by a different Store Manager. On 21 April 2022, the Respondent issued the appeal outcome to the Complainant.

On 4 April 2022, the Respondent wrote to the Complainant outlining that they would like to meet with the Complainant with regards to her health but she was not fit to do so. The Respondent outlined they had previously requested the Complainant to provide a report from her doctor or consultant ophthalmologist in relation to her position or reasonable accommodations. The letter further stated that whilst the Complainant provided a letter from a consultant with an update on her medical condition, that the letter did not detail recommendations to facilitate the Complainant’s return to work.

 On 16 May 2022, the Respondent wrote to the Complainant requesting a medical opinion on the Complainant's fitness to work to assist the company doctor. Over the course of the next 12 months, regular welfare meetings took place with the Complainant and the Store Manager.

The Law:

Section 16 sets out that

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(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.

Findings:

Section 16 of the Act above sets out the obligation to provide appropriate measures, so long as these are not disproportionate burdens. The Act sets out criteria by which this might be assessed. As such, the first action any employer must take in fulfilling their obligations under section 16 is to engage with the disabled employee and determine what needs to be done to facilitate their return to the workplace.

The Supreme Court also set out the steps that employers must take in order to meet the terms of section 16 regarding the reasonable accommodation of employees with a disability and the requirements in determining if these have been met.

Specifically, in the judgment of the Supreme Court in Nano Nagle v. Marie Daly (2019) E.L.R. 221,McMenamin J., noted as follows;

‘Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one.’

It is clear from this extract that there is a requirement on employers to explore alternative modes of accommodation to establish if the position held by a disabled employee is capable of adaptation to accommodate that employee. Despite this clear requirement however, and although the Complainant had been off work on sick leave since 22 June 2020, she was not seen by either any occupational health practitioner or the company doctor until 15 April 2021.

While I also noted that following this medical examination the company doctor stated “in view of her poor vision and mental health issues, in my opinion she is not fit for work”, he also subsequently informed the Respondent on 16 June 2021 that “A consultant ophthalmologist review would be appreciated before to assign (sic) her for any job”. Crucially and inexplicably, no such referral was made.

I also consider it scarcely credible that, as well as failing to refer her to the consultant ophthalmologist as recommended, the Complainant was not referred to either the company doctor or any other occupational health specialist at any stage after her appointment in April 2021 and before this complaint was referred to the WRC on 9 March 2023 to see what adaptations if any could be made to her role.

While I noted that regular welfare meetings were held with the Complainant over the course of the second half of 2022 as well as in the first two months of 2023, and sporadically prior to this, no evidence was provided to indicate that any discussions took place during these meetings regarding potential adjustments to her role that the Respondent was considering to facilitate her return to work.

While I noted that the Respondent wrote to the Complainant on 16 May 2022 requesting a medical opinion from her own doctor on her fitness to work to assist the company doctor and the Complainant failed to make suggestions or present any medical evidence herself to suggest what accommodations could have been made to facilitate her return to work, either in the period prior to 15 April 2021 or at any stage after this, it is clear from the Supreme Court decision cited above that the onus is on the Respondent to explore the appropriate accommodations and that there is no requirement to even consult with the employee surrounding the accommodations, only a suggestion that it would be prudent to do so.

While I also noted that the Complainant’s concerns regarding her disability were raised alongside another complaint that she had been bullied by her colleagues in the workplace because she had crossed a picketline, the fact of this grievance did not absolve the Respondent of their responsibility to proactively engage with her. Specifically, they were on notice of the Complainant’s disability and were required as set out in Nano Nagle above to explore if her position could be adapted to facilitate her return to work. Given that they failed to do so, as set out above, I find that they did not fulfil their obligations under section 16 of the Act and that they failed to afford the Complainant reasonable accommodations in respect of her disability.

Notwithstanding their failure to afford the Complainant reasonable accommodations, I must also be satisfied that she would have been capable of performing some or all of her duties if she had in fact been reasonably accommodated, prior to deciding if she was discriminated against. Given that the Respondent however failed to:

(i)                  send her to a consultant ophthalmologist despite a specific request from their own doctor that they do so

(ii)                send her for a further medical or occupational health assessment at any stage between 15 April 2021, when she had been seen by the company doctor, and when this complaint was referred to the WRC on 9 March 2023

(iii)               present any other concrete evidence to support their assertions that the Complainant would have been incapable of carrying out the necessary functions of the job if a reasonable accommodation had in fact been provided

I find that the Complainant was discriminated against.

As the hearing of this complaint was held in conjunction with ADJ 49598 and I find both complaints are inextricably linked, I have made one award in respect of both complaints.

This is outlined in detail in ADJ 49598.