Complainant

Respondent

Anonymised Parties

Legal Secretary

Firm of Solicitors

Representatives

Edel Fitzpatrick BL

Conor Hannaway SHRC Limited

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-00049048-001

07/03/2022

The Complainant was employed as a legal secretary with the Respondent firm from 18 September 2018 until she left the employment in late 2021. She worked 21 hours per week on a gross monthly salary of €1092.00, net €1060. The Complainant has a bilateral hearing loss due to otosclerosis. The Complainant submits that her disability was not reasonably accommodated in that requests for a quiet space, adaptive equipment, and dictation adjustments were ignored. The Complainant further asserts she was subject to discriminatory treatment that included the principal of the practice, Ms A whispering during dictation, placing a shredder near her desk, and minimising her workload.

The Respondent denies the claims. The Respondent submits they met their responsibilities regarding reasonable accommodation, given the resources available to them, and denies there was any discriminatory behaviour directed at the Complainant but rather the Complainant was not fully competent at her job and the claim of discrimination was a reaction to reasonable attempts by the Respondent to improve the Complainant’s performance. The Respondent did not contest the fact that the Complainant had a disability as defined under the Act.

The Complainant gave evidence that she had 15 years of experience as a legal secretary in London, dating back to 2002. The Complainant initially worked with a solicitor, Mr B, and encountered no significant problems. No issues arose regarding the quality of her work, and she found Mr B’s instructions on the Dictaphone to be coherent and this eased her work.

Issues emerged when the practice relocated to new offices in March 2021. Due to her disability, the Complainant required a dedicated workspace. However, she was instead required to share a desk in a small reception area with her colleague, Ms. C.

Efforts were made to improve the workspace setup, including the provision of a desk with high risers and a phone adapted for ergonomic use, supported by a €3,000 grant, however the Complainant found it difficult to work effectively, because she was sharing a space with Ms C, which in itself, the Complainant submitted, raised concerns about the proper allocation of grant funds.

She encountered multiple difficulties in the open plan office space. A shredder was placed near her which impeded upon her capacity to hear dictation from Ms A. This was exacerbated by the nature of the dictation. The Complainant stated that Ms A whispered the words, and this led to difficulties in transcribing information. The Complainant maintained that things were fine when she worked under Mr B, but matters took a turn for the worse when Mr B left the practice, and Ms A took over as principal partner. She believed she faced workplace hostility from Ms A, and the instructions she received were devoid of clear communication about expected procedures.

On 17 September 2021, the Complainant wrote to Ms. A to formally complain about the treatment she was receiving, suggesting remedial adjustments including, amongst other things that Ms A would speak louder in dictation and erect a partition between the reception and the solicitor’s area. The Complainant received no timely reply to this letter but instead felt she was being ignored and believed her efforts to receive reasonable accommodation was being resisted by Ms A. The Complainant went on sick leave soon afterwards and eventually left the Respondent firm to accept a new role.

In cross-examination the Complainant did not deny that she had made mistakes in her work but blamed it on miscommunication by Ms A. The Complainant did not deny that she was the main user of the shredder and therefore it was put to her that it could not impede upon her listening ability when engaged in other work.

Mr B gave evidence that he was the solicitor to whom the Complainant was assigned to when she commenced employment in the old offices from 2018 onwards. He said he acknowledged the Complainant’s hearing disability and was conscious that he had to speak that bit louder when giving dictation. He said he had no problems with her work performance. He acknowledged that he spent little time in the new offices.

Ms C, the legal secretarial colleague of the Complainant gave evidence that everything was fine in the old office, but they deteriorated when there was move to the new offices. She described the layout as being a long reception area with no partition between the Complainant and herself, who shared the reception desk, and the solicitors. She described the proportion of occupancy of this desk to be two thirds hers, with one third allocated to the Complainant.

In cross examination, the witness acknowledged that in exhibited text messages to the Complainant she had warned the Complainant about “burning her bridges” by going sick. Other messages showed the witness saying to the Complainant that she could hear Ms A simply fine and was wondering, (in the text) as to why the Complainant could not hear her with the aid of her hearing aids.

Ms A, the principal of the firm gave evidence that when they moved to the new offices the Complainant was allowed to pick her own desk and equipment. A specialised headset and phone equipment had been purchased to allow the Complainant to receive quietened calls on account of her hearing loss. She said that when Mr B left the practice in June, the problems began to become manifest with the Complainant because she found that she (the Complainant) was not capable of drafting declarations and there were wrong enclosures going out with letters. She instructed the Complainant not to send further enclosures out. In June, the Complainant was asked by the witness to complete a file update of all current files, but the list was inadequate and incomplete. The witness asked the Complainant on a number of occasions to prepare a Register of Title Deeds held by the office, but it was not forthcoming despite numerous requests from the witness. The witness had allocated the Complainant the task of reviewing completed files for closing. When the witness asked the Complainant about this, the Complainant told her that she did not review the files or check if there were any funds in the ledger but merely put the files in a box for storage. When the Complainant mentioned to her about the noise in the office, the witness arranged for her to come in at 8am when all was quiet, but this arrangement did not result in improved work from the Complainant. The witness had many meetings with the Complainant about her competency, but she seemed “to shrug the shoulders” in response. The witness accepted that her voice may have been low on dictation at times, but this was due to a chronic condition, which was in itself a disability. The witness said that the Complainant never handed an exhibited letter (dated 17 September 2021) to her but instead she found it under a mound of documents some weeks later. When she read it the, the witness sent the Complainant a grievance procedure and she was the subsequently “barraged” with emails. She only received one sick note from the Complainant when she went out on sick leave and never received a resignation letter. The witness said she issued a letter to the Complainant threatening defamation proceedings against her because she accused the new secretary of “stealing her job”. The witness requested the Complainant to stop “bad mouthing” the witness, and in relation to the secretary, “to leave the poor woman alone.”

Mr D, a current partner in the firm, gave evidence that he was sensitive to the hearing needs of the Complainant because his wife has the same condition. The witness described how the practice was generally a happy place to work. He described in detail the layout of the new office. He said the Complainant had no problem with incoming calls. He said that he got on well with the Complainant on a personal level but had little confidence in her from a professional point of view and therefore preferred to do most of his typing himself. When asked in cross-examination as to the specific issues he had with the Complainant’s work he listed regular misspelling, lack of punctuation and appropriate capitalisation.

Legal Argument:

The Respondent fully accepts an employer’s responsibility to make reasonable accommodation for an employee with a disability. The Respondent’s position is that it met its responsibilities in this regard given the resources available to it. The Respondent submits the following points:

1.       The Complainant was involved in the choice of office even if she would have preferred a different office.

2.        She was allowed to make a choice of desk and her equipment.

3.        She did not need a partition as she was able to function with some staff without it.

4.        A work colleague moved in June to another office so as not to distract her.

5.        A soft phone system was obtained to facilitate her.

6.       Her working hours were changed to facilitate here.

7.        She was given the opportunity to raise a formal grievance.

The Complainant submits she was discriminated against on the grounds of disability. Furthermore, she claims she was not afforded reasonable accommodation, primarily when the Respondent would not build an internal partition to shield her from office noise and speak louder into a Dictaphone machine. The stated date of the last discriminatory act was stated by the Complainant to be 29 October 2021, which after hearing the evidence, I accept to be the material last date to be considered when it comes to submission of the complaint, therefore I accept that the submission date of 7 March 2022 to be within the submission timeline.

APPLICABLE LAW:

Section 6, of the Employment Equality Acts 1998-2015 (the Act), in its relevant Parts, describes discrimination on the grounds of disability: -

(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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(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”) …”

Section 2 of the Acts defines disability as follows:

“disability” means—

(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

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

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii)to undergo training,

unless the measures would impose a disproportionate burden on the

employer.

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

(i) the financial and other costs entailed,

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

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

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

4) In subsection (3) -

‘appropriate measures’, in relation to a person with a disability—

a. means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

b. without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

 c. does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

Therefore, the primary obligation of an employer in relation to an employee with a disability is to respond appropriately, where required in a particular case, to enable the employee to, amongst other things, continue in employment. Importantly, there must be an obvious nexus between the accommodation requested and the enablement requirement of the Complainant for her specific disability to continue the job she is doing.

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

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

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

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

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

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

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

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”  

 The Complainant in this instance gave no convincing evidence of discrimination in conditions of employment. The overarching, convincing evidence of both the principal of the firm, Ms A, and partner solicitor, Mr D, was that the Complainant was simply not up to the mark as a legal secretary. Numerous examples of incompetency can be found in the above evidence which was not satisfactorily rebutted by the Complainant. I am not convinced that she could attribute the failure to reasonably accommodate her as being the major reason for her shortcomings, but she did give convincing evidence that aspects of her work, i.e., effective typing from dictation and a quieter office space could have helped her.

The seminal case in this area was the Supreme Court decision in Marie Daly v Nano Nagle [2019] IESC 63. Section 16 of the Acts and an employer’s duty was addressed by McMenamin J as follows:

“Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining  public funding or other assistance.  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.”

The Court stated that employers have a primary duty to proactively consider reasonable adjustments for employees, rather than relying on employees to propose solutions. From the evidence, it was clear to me that no such assessment, whether medical or ergonomic, took place, despite the Respondent being aware of the requests. Furthermore, the Respondent did not present any reasonable argument that the installation of an internal partition or the use of a louder tone of voice into a dictation machine constituted a disproportionate burden. Some adjustments were made concerning equipment, which was purchased through a grant in a process initiated by the Complainant. However, this did not absolve the Respondent of its responsibilities, as set out in Nano Nagle to consider further reasonable adjustments.  Given the evident lack of response to the Complainant’s stated needs, as outlined above, the Complainant established a prima facie case of discrimination on the grounds of not being provided with reasonable adjustments for her disability—an allegation that the Respondent failed to satisfactorily rebut.

Redress:

Although I am satisfied that discrimination did occur, it was clear to me that the primary difficulties the Complainant faced in her employment were unrelated to her disability. I find that the introduction of a new management regime following the departure of Mr B, along with her difficulties in performing fundamental tasks expected of a legal secretary and her resistance to any correction, were the main contributing factors to the dissatisfaction she experienced in her role. While the lack of reasonable accommodation for her disability may have alleviated her situation, it was secondary to the core issues she encountered. Taking the above into account, I am satisfied that the discriminatory treatment in question falls at the lower end of the scale, and I direct the Respondent to pay the Complainant the sum of €5,000 in recognition of the impact of the discrimination.

For the reasons outlined above I find that the Respondent did not reasonably accommodate the disability of the Complainant and I direct the Respondent to pay the Complainant the sum of €5000 for the effects of the disability.

Employment Equality Acts 1998-2015, Disability, Reasonable Accommodation.