Complainant

Respondent

Parties

Anthony  Dockery

Roscommon Integrated Development Company

Complainant

Respondent

Anonymised Parties

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Representatives

SIPTU

 Peninsula Business Services Ireland

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-00060483-001

11/12/2023

The complainant, Mr Anthony Dockery, was out sick for a prolonged period of time from his position with the respondent, Roscommon Integrated Development Company Limited.  He alleges that the respondent failed to provide him with reasonable accommodation in respect of his physical disability as the respondent did not allow him to return to work until certain equipment was put in place which was 11 weeks after he had received medical clearance.  He was therefore at a financial loss.

Evidence was given under oath/affirmation by the complainant Mr Dockery, and, on behalf of the respondent by Ms Dawn O’Connor, HR, Ms Brenda McDermot, Health and Safety Officer, and Ms Corina Lennon, Chief Financial Officer.  All witnesses were subject to cross examination. 

All submissions received were considered by me as part of my decision.

The complainant submits that the respondent failed in its obligations to provide reasonable accommodation or to engage in a proper assessment of what appropriate measures could be taken to facilitate the complainants return to work in a timely manner, resulting in financial loss to the Complainant. 

In October 2022 the Complainant went on sick leave for scheduled back surgery. The complainant was certified fit to return to work by his GP with a return date of the 17th April, 2023 and thereafter he was referred to the Occupational Health  (OH) assessors for the respondent.  An assessment was arranged for the 20th April, and on the 25th April, the respondent corresponded noting that the OH had indicated that he was in fact unfit for a return to work, but confirming that the complainant was being “proactive in the management of his condition” and that with physiotherapy he should be in a position to return in 6 weeks (on or about 1st June, 2023). 

 A review was arranged for 6 weeks after this assessment by the Respondent and on the 1st June, 2023  OH confirmed the assessment for a phased return to work, with the return date of the 12th June, 2023. This was not received by the Complainant until the 14th July, 2023. 

An Ergonomics assessment was conducted on the 7th June, in the Complainants office, with the Health and Safety Officer for the Respondent in attendance and was undertaken by an external consultant in line with the discussions which the complainant had with the Ergonomist, equipment had to be sourced. 

On the 25th August, 2023 , HR confirmed that they finally had all of the equipment in place and that the return would commence on the 28th August, on a phased basis, in accordance with the recommendations of the 10th June report. 

Subsequent to his return, the complainant corresponded with his line manager on the 6th September 2023,  querying the delay in his return to work and highlighting that he had incurred 11 weeks loss of earning as a result of delay of the respondent in following the recommendations of their own OH with regard to his timely phased return to work. 

On the 18th September 2023, the Chief Financial Officer responded to the complainant and acknowledged that the delay was as a result of the delay in the respondent securing the items in line with the ergonomic assessment, and as a “gesture of goodwill to pay you during this 11 weekperiod”. She further requested confirmation in relation to payment of illness benefit for the period. 

The complainant responded and advised that he had been compelled to apply for illness benefit while he awaited confirmation of his return date and seeking the balance of the difference between the payment of €220 per week from the Department of Social Protection and his Salary.   

On the 27th September, the CFO responded confirming that the respondent could not provide the top up, noting that the medical certificates deemed the complainant unsuitable for work.  The complainant responded seeking a review of the decision on the 29th November 2023 .  The decision was not reviewed and the matter was referred to the Workplace Relations Commission.

The complainant submits that the respondent has discriminated against him by their failure to reasonably accommodate his return to work in a timely fashion, from June, 2023 until his return on the 28th August 2023. The complainant claims that this discrimination is in contravention of sections 6 and 8 of the Employment Equality Acts and that the respondent is not entitled to rely on section 16(1) of the Acts as a defence having failed in properly observing its provisions. 

The complainant underwent Lumbar Spine fusion during October 2022. His contract sick leave entitles him to 6 months full pay and an additional 6 month half pay during any period of sick leave within a four year period. The complainants sick pay entitlement was exhausted the 10th of April. Shortly after his sick pay was exhausted the complainant was certified by his doctor fit to return to work from the 17th of April.

In line with the Respondents procedures, the complainant was asked to attend an Independent Medical practitioner (OH) to assess the complainant’s readiness to return to work. In April, the complainant informed the respondent that he continued to experience discomfort when either sitting or standing during any lengthy period of time. He further informed the respondent that he had received further medical treatment in order to reduce the discomfort and or pain he was experiencing.

On the 20th of April the complainant met with OH who after examination declared that the complainant continued to be unfit for work. She determined that the complainant’s back condition was not sufficiently stable for him to return to work. OH anticipated a potential return to work in 6 weeks and scheduled a follow-up meeting with the complainant in June. Following a further appointment on the 1st of June OH expressed support for a phased return to work. Part of the recommendation was that an ergonomics report be carried out in order to facilitate a safe return to work.

An ergonomics assessment was to be conducted on the 8th of June to identify aids that could be brought into the employment to facilitate the complainant in his work. It was identified that specialist equipment would be required. On the 11th of July the respondent received the ergonomics report four weeks following the same. Following receipt of the said report the respondent had to ensure that the new offices were compliant with Health and Safety requirements from the ergonomics report.

The complainant returned to work once all Health & Safety measures were put in place on the 28th of August. Upon his return to work he wrote to his line manager on the 6th of September. He informed the respondent via email that he had been fit to return to work 11 weeks prior and that he had been at a loss of eleven weeks’ pay. The matter was passed to the respondents Chief Financial Officer (CFO) to address. The CFO reached out to the complainant stating that as a gesture of good will, they would back pay the pay due to him being fit to return to work.

It was ascertained that the complainant was in receipt of illness benefit for the 11 week period in question due to him being certified unfit to work. As the complainant’s sick leave was exhausted, the complaint was not entitled to any further sick leave pay. It was communicated to the complainant that the respondent was not paying any pay in relation to his illness as his contractual sickness pay had come to an end.

The respondent in this matter has not discriminated against the complainant in relation to a disability. The respondent has proactively engaged with the complainant in very effort to return him to his position.

Subsection 16(3)  of the Employment Equality Act deals with competency and reasonable accommodation requirements  as follows;

16 (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.

 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 summary, this means that an employer must facilitate a person with a disability to access and advance in employment by taking appropriate measures. These measures may include modifying the job description itself, in terms of tasks or working hours to accommodate the employee but having consideration for the costs involved and the business needs of the company.  It is of note that a disability can be temporary in nature and the fact that the complainant  had a  disability within the meaning of the Act is not disputed in the within case.

The general principles set out in Humphreys v Westwood Fitness Centre [2004] E.L.R. 296 require an employer to make a bona fide informed decision regarding a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of employment.  In the within case the respondent made assumptions about being the complainant being unfit which were not stated in the OH report.  The report on 1st June stated…….In my opinion, Mr. Dockery is fit to return to work with restriction. In my view, Mr. Dockery's condition has improved sufficiently to allow for a return to working life. A phased return to work is advisable, if this can be reasonably accommodated. A suggested format is 50% usual hours week 1 then increase to 75% usual hours week 2, with a view to resuming usual hours thereafter. This would help to support a successful return to work for Mr. Dockery, in my opinion.

The earlier OH report in April had stated  “I would anticipate that Mr. Dockery's symptoms should improve further following the planned intervention and with physiotherapy, to allow for a return to work in 6 weeks. A phased return to work is advisable at this time, if this can be reasonably accommodated. A suggested format is 50% usual hours weeks 1 and 2, then increase to 75% usual hours weeks 3 and 4, with a view to resuming usual hours thereafter.

I recommend that an ergonomic assessment of Mr. Dockery's workstation is completed. I have also advised Mr. Dockery to take regular micro-breaks throughout the working day, to stand, stretch and mobilise, to avoid prolonged static postures.

I recommend referral for occupational health review in 6 weeks, to confirm Mr. Dockery's fitness for work.”

The respondent interpreted this earlier report as requiring that an ergonomic assessment and any recommended adjustments had to be in place before the complainant could be allowed to return to work.  This was not stated in either report.  From the evidence given at the hearing I have no doubt that the respondent acted in good faith in this regard but nonetheless wrongly interpreted the OH reports to the detriment of the complainant.

The respondent has argued that the submission of sick certificates by the complainant is evidence that he could not return to work during that period in question as he was not fit.  However, from the evidence given at the hearing, it is clear that the submission of the certs was in response to the decision of the respondent that the complainant could not return until certain equipment was in place. Clearly the complainant could have been in some sort of limbo had he not submitted certs. Evidence at the hearing from the respondent underscored this interpretation as they were unable to say what classification was applied to the leave he was on in the period in question.

The complainant was discriminated against insofar as the respondent did not afford him reasonable accommodation as required under the Act.  He was at loss of his income for 11 weeks which he need not have endured.  I note that he was in receipt of Social Welfare during this period and also that OH had recommended a phased return.  I therefore assess the compensation due as €5000.

The complainant has been discriminated against and I order the respondent to pay him €5000 compensations

Temporary disability, reasonable accommodation, adherence to medical advice