Disability Discrimination
Cases
Hannon v First Direct Logistics Limited
DEC-S2011-066
EQUALITY OFFICER’S DECISION
“1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Louise Hannon (hereafter “the complainant”) that she was subjected to discriminatory treatment in relation to her working conditions and discriminatory dismissal by First Direct Logistics Limited (hereafter “the respondent”) on the grounds of her gender and/or disability. The date of dismissal was 14 August 2007.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 18 January 2008 under the Employment Equality Acts. On 27 May 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer – for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 27 September 2010. A second hearing was held on 10 January 2011.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.
4.2. It was accepted by parties that the complainant was suffering with a disability at all material times pertaining to this complaint. It is also clear that the respondent was notified of the complainant’s condition in or about October 2006.
4.3. It is well established in law that the gender ground protects transgender persons from sex discrimination, that is, discrimination arising essentially if not exclusively on the sex of the person concerned. Such an approach was approved by the European Courts of Justice in P v S and Cornwall County Council (Case C-13/9).
4.4. Transsexualism is a recognised medical condition. Transsexualism is treated by a combination of hormone therapy, surgery (in some cases) and ‘real life experience’, that is, living as a member of the other sex. To gain ‘real life experience’ the person must be able to live their life continuously in the other sex without the need to revert to the birth sex. It is clear that for such experience to be relevant and appropriate the person must be able to interact with the society as a whole. This also applies to the workplace and it is clear that these Acts impose an obligation on an employer to enable a person with a Gender Identity Disorder to allow, within the confines of said workplace, allowing for health and safety, uniform etc. requirements, to accommodate such ‘real life experience’.
4.5. In relation to discriminatory treatment. While I note that there is considerable disagreement in relation to the facts surrounding the transition period or the ‘plan’ that was undertaken to phase out ‘John’ in favour of the complainant, it is clear that this was a unilateral approach that had not been fully explored with the complainant. It is clear that in circumstances where the complainant worked in a small office environment it was appropriate to inform her colleagues about the transition and to discuss such disclosure with the complainant. It ought to be clear however that it is a purely management matter to deal with staff concerns that may have risen among staff about transsexualism. Such issues should not be a burden for the complainant. It should also be clear that, in most circumstances, a person diagnosed with Gender Identity Disorder does not need their employer’s permission to seek and begin treatment.
4.6. I find that the approach set out by the respondent has little in relation to actually enabling the complainant to work in her female identity and is not realistic in terms of timing. The approach is more concerned with how ‘John’ could be phased out and does not include a specific date when the complainant, as a female, would start working with the respondent. The terms submitted by the respondent implied a process that is entirely controlled by the respondent and the facts support a similar finding. I accept that elements of this approach had been discussed with the complainant to some extent. I do not however accept that such discussions were adequate in the manner necessitated by the Acts. Furthermore, I do not accept that the complainant had agreed to continue reverting to her birth identity in the manner submitted by the respondent and find it entirely inappropriate that the respondent ever made such a request. I also find that there is no evidence to suggest that the respondent revisited or adjusted the approach when the complainant informed the respondent of the difficulties she was having in relation to this approach. I am satisfied that such an approach – requesting that the complainant switch between a male/female identity whenever the respondent felt the need for it – constitutes direct discrimination on gender and disability grounds.
4.6. I am not satisfied, having heard the full facts of this case, that the respondent had a genuine business need for the complainant to work from home. I find that the request that she work from home was more convenient to the respondent who failed or refused to manage any issues that the complainant’s transition to female may have brought about internally or with third parties. The request to work from home was way out for the respondent who did not want to deal with the complainant who was now presenting herself as female. I find that such an approach constitutes discrimination on both gender and disability grounds.
4.7. I am satisfied that the facts support such a finding. It was not disputed that the complainant had been instructed to continue meeting clients in her male identity. It was accepted that she was not provided with a new email address despite having requested one a number of times. And it was accepted that she was specifically told not to use the female toilet. I do not accept that this sudden decision to have the only sales person, who happened to be the complainant, to work from her home was made because it was deemed to be beneficial for the sales role or because there simply was no room for this position in the existing premises. I find that the complainant, had she remained in her male identity, would not have been requested in similar circumstances to work from home. I am therefore satisfied that such treatment constitutes gender discrimination in relation to the complainant’s work conditions within the meaning of the Acts. It is clear that these conditions were less favourable to the complainant and that she alerted the respondent to these facts a number of times.
4.8. It is also clear from the facts that the respondent had little, if any, understanding that the gender transition process is a form of treatment relevant to the complainant condition. I find that if it had understood the treatment aspect of the ‘real life experience’ then the situation is analogous to the respondent suggesting to a person with a different disability that s/he may only treat his/her condition on days that are convenient to the respondent. Such an approach is clearly ludicrous and I cannot accept that such a situation would arise in circumstances where the respondent had an understanding of a particular disability such as, for example, diabetes. I am satisfied that an employer has a duty under these Acts to obtain enough knowledge about an employee’s disclosed disability to ensure that their actions do not discriminate against a person whose disability may require the person to behave or act in a certain way. I am not satisfied that the respondent fulfilled such a duty in the circumstances of this case. I find that it is important to note that the respondent did encourage the complainant to stay with the respondent at the time of disclosure and was initially supportive of her. However, the facts of this case clearly reveal how a failure to appreciate the reality of a disability and the exclusion of the person with a disability from the process that aims to integrate her, has resulted in discriminatory treatment on the gender and disability grounds.
4.9. While it is clear that the complainant did not, because of her disability, require special assistance, treatment or facilities per se, she did require a workplace that recognised her right to dress and be identified as a female. I was provided with no evidence to suggest that the complainant herself refused or neglected to carry out her duties after she took on her female identity. It is clear that she was willing to face the public as a female. The difficulties concerning the complainant’s gender lay entirely with the respondent. It is apparent that the respondent itself presumed that there would be negative consequences because of the complainant’s female identity. In making such an inference I am satisfied of the following facts:
The complainant was the only member of staff who was asked to work from home;
The decision to have the complainant work from home was very proximate to the beginning of the ‘real life experience’ treatment that the complainant was receiving;
The number of incidents concerning the complainant’s female identity that had taken place prior to the decision to have her work from home. It is important to note that the complainant did not pursue a claim for harassment and therefore I have no jurisdiction to investigate such matters. I am satisfied however that allowing co-workers to address the complainant by her male name also constituted gender discrimination in the circumstances of this case;
It is an agreed fact that she was told to meet clients and to deal with such people over the phone in her previous male identity;
There was no genuine business rationale why the complainant could not remain in the offices until the new premises where available;
The respondent was aware of the fact that the complainant was finding it difficult to meet her targets from home and had made a number of requests to return to the office.
4.11. In relation to the claim of discriminatory dismissal. The complainant resigned the respondent company to take up alternative employment in late July 2007 and when this employment fell through a couple of weeks later, she sought to rejoin the respondent company. While I note that it could be argued that the circumstances imply that the conditions of work could not be found to be too bad if the complainant was willing to return, I do not accept such a premise. I am satisfied that the conditions imposed on the complainant were of such nature that she believed that alternative employment was the only option. The fact that the complainant sought to return to the respondent company when this job fell through is not illustrative of anything other than that the complainant did not want to be unemployed.
4.12. It is clear that this was a challenging time for the complainant. I note that the complainant began her ‘real life experience’ in early March 2007 and had resigned from the company in late July/early August 2007. This is a five month period during which the complainant was receiving treatment and adjusting to her female identity. It is clear from the facts that she received no relevant support, including any consideration for what is a statutory duty (reasonable accommodation), from her employer. She was isolated in her home from late April 2007 and was refused the right to use her legal name in emails and threatened with losing her job if her performance did not improve dramatically. I am satisfied that the respondent’s approach in such circumstances amounts to discriminatory dismissal on the gender and disability grounds.
4.13. An issue of victimisation was raised at the hearing, arising from the facts put forward by the complainant in her oral evidence. The respondent objected to such a claim referring to notification requirements set out in the Acts. I am satisfied that provided that facts supporting a claim of victimisation is made during a hearing – facts relating to matters that have occurred after an initial complaint has been made – that I have jurisdiction to extended an investigation provided that such extension does not unfairly prejudice the respondent. I placed both parties under notice that I would hear the facts and ensure that the respondent would have an opportunity for reply. I was assured by the respondent Director that there was no difficulty in responding to the claim.
4.14. The claim relates to an agreement between the parties whereby the respondent undertook to pay the complainant a sum of €1000 for a period of six months. These monies relate to ex-gratia payments that the respondent undertook to make to the complainant. The complainant submitted that she received five such payments and that after she lodged her complaint under these Acts the respondent refused to make the last payment.
4.15. A reply in relation to this matter was received on 1 November 2010. The respondent submitted that the complainant was paid commission for the six months post to the making of her last sale. The Director had given this undertaking to the complainant at their last meeting in August and as the last sale had been in June this meant that the last payment would be made in November 2007. It was submitted that it was not the respondent’s policy to continue to pay the employee when an employee has left the employment but that in this instance, as a good will gesture, the respondent did so knowing the financial problems that the complainant often experienced and out of genuine concern for the complainant.
4.16. Having considered the matter and examined the supporting documentary evidence, I am satisfied that payments were made up to November 2007. The complainant stated that she believed that a further payment ought to have been made in December. The payments were made in the middle of each calendar month and therefore I am not satisfied that even if a further payment was due in December it was not paid because the complainant had lodged her complaint with the Tribunal. The complainant lodged her complaint on 20 December and therefore I am not satisfied that the facts give rise to a claim of victimisation within the meaning of the Acts.
4.17. The matter of the complainant’s remuneration was much in dispute. Having considered the issue, I find that the most acceptable approach is to consider the complainant’s weekly gross payments to determine an annual salary. The respondent objected to this approach as it allows for multiplication of factors such as commission, etc. However, having considered the wording of the Acts, I am satisfied that any taxable income constitutes the grounds for which an annual salary can be calculated. In circumstances where the period of employment is less than 104 weeks, the calculation is made based on the taxable income that the complainant would have received at that date but for the act of discrimination in question. In circumstances where a complainant’s salary is partly dependent on performance it is impossible to determine what her income would have been but for the discrimination. I am satisfied that the actual commission paid can be added to the estimate her actual losses. Such figure does not include mileage, expenses or ex-gratia payments. I note that the respondent submitted that the complainant had failed to mitigate her losses after her resignation. It ought to be clear that there is no duty under these Acts to mitigate loss by reason of Section 34 of the Civil Liability Act, 1961. The redress awarded under these Acts is for compensation for the effects of discrimination.
4.18. The calculation of the complainant’s gross basic pay thus amounts to a €20,540 per annum. In addition she received €1537.57 for commission in a six month period. This calculated for a period of 79 weeks (18 months) amounts to €35422.71.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has established a prima facie case of discriminatory treatment on the gender and disability ground. The respondent has not rebutted this claim.
5.3. I find that the complainant has established a prima facie case of discriminatory dismissal on the gender and disability ground. The respondent has not rebutted this claim.
5.4. I find that the complainant has not established a prima facie case for victimisation.
5.5. Accordingly, I am compelled in the circumstances of this case to award the complainant redress of 79 weeks in accordance with section 82(4)(b) of the Acts. The amount is €35422.71.
5.6. Furthermore, pursuant to S. 82(5)(b) of the Acts, I order the respondent to pay the complainant interest at the Courts Act rate in respect of the amount above in respect of the period beginning on 20 December 2008 (being the date of the reference of the claim) and ending on the date of payment.
5.7. These awards are made in compensation for the distress suffered by the complainant in relation to the respondent’s unlawful conduct and are not in the nature of pay and therefore not subject to tax.”
A Government Department v An Employee
EDA062
The Labour Court
“This is an appeal by a Government Department against the decision of the Equality Tribunal which found that it had discriminated against Mr B on the disability ground in contravention of Section 8 of the Employment Equality Act 1998 (the Act), in not offering him promotion to the grade of Assistant Principal Officer (AP). For ease of reference in this determination the parties are referred to using the designations prescribed by Section 74(4) of the Act. Hence Mr B is referred to as the Complainant and the Government Department is referred to as the Respondent.
Background
The Complainant is a Civil Servant with the grade of Higher Executive Officer. He is a recovering alcoholic and has not been active since 1995. He has been at his existing grade since December 1979 and is the longest serving HEO in the Respondent Department. He applied for promotion to the next grade (AP) on a number of occasions through a system of promotions based on a combination of seniority and suitability. This involves consideration of candidates by the senior management of the Department in what is referred to as a consistory. This is one of three systems by which Civil Servants can attain promotion.
The consistory system involves an assessment of the candidate by his or her line manager against predetermined criteria. The Principal Officer presents the assessment to the consistory and makes the case as to the candidate’s suitability for promotion. The consistory consists of the Secretary General of the Department, all Assistant Secretaries General and Principal Officers. Each participant is entitled to question the suitability of a candidate. Following a discussion on each candidate a consensus may emerge as to his or her suitability for promotion or the question may be put to a vote. In the event of a vote at least 60% of the consistory must approve a candidate’s suitability before they can be placed on a promotional panel. Those placed on the promotional panel are ranked in order of seniority and vacancies which arise during the currency of the panel are filled accordingly. A panel is normally maintained for a period of one year and is then renewed.
The Complainant applied unsuccessfully for inclusion on promotional panels established in 2000, 2001 2002. The consistory to compile a panel for 2003 was convened in November 2002. However, for technical reasons the outcome of the consistory was subsequently voided and it was reconvened in January 2003. This consistory effectively endorsed the outcome of the earlier voided meeting and the Complainant was again deemed to be unsuitable for promotion. The Complainant applied again in 2004 and was successful. Because of his seniority he was placed at the head of the panel for that year. No vacancies to be filled from the 2004 panel arose during its currency. The Complainant applied again in 2005. However on that occasion he was deemed unsuitable and was not placed on the panel.
The Complainant contends that his exclusion from the panel, and his consequent failure to attain promotion, was due to his alcoholism. This condition, he contends, is a disability within the meaning of Section 6 of the Act. He presented a complaint to the Equality Tribunal pursuant to Section 77 of the Act on 6th March 2003. Having regard to the limitation period prescribed by Section 77(5) of the Act, that complaint could only relate to the exclusion of the Complainant from the panel created in January 2003 and not to his exclusion from the earlier panels. The complaint was investigated by an Equality Officer who held with the Complainant. The Respondent appealed against that decision to this Court.
Disability.
By way of a preliminary point Counsel for the Respondent contended that the Complainant is not suffering from a disability, as alcoholism cannot be so classified. In the alternative Counsel submitted that at the material time the Complainant was not suffering from alcoholism, as he had not drank alcohol since 1995.
Section 2 of the Act 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 is imputed to a person;
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a Court may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. (See the decision of the Supreme Court inMason v Levy [1952] IR 40.)Paragraph (3) of Section 2 includes within the statutory definition a “condition illness or disease” having the symptoms referred to therein. It is a notorious fact that active alcoholism results, to varying degrees, in each of the symptoms referred to at paragraph 3, and in particular that it frequently results in disturbed behaviour. The Complainant’s evidence to the Court disclosed that while he was drinking to excess his behaviour was furtive and withdrawn and left him unable to carry out the normal functions of his job. By any normal standard such behaviour could properly be classified as coming within the scope of paragraph (e) of the statutory definition of disability. The Complainant’s pattern of compulsive drinking was indissociable from his alcoholism. It follows that the consequences which flowed from his drinking pattern were the results of his alcoholism. However, in order to come within the statutory definition the symptoms referred to must be the result of a condition, illness or disease.
In considering if alcoholism is a condition illness or disease the Court was referred to the decision of an Equality officer in the case ofA Complaint v Caf? Kylemore (DES-S/2002/24) (a case under the Equal Status Act 2000) wherein the following passage appears: –
“In Black’s Medical Dictionary 39th edition it states inter alia that:
“Alcohol depresses the central nervous system and disturbs both mental and physical functioning…… Persistent alcohol misuse leads to physical, mental, social, and occupational problems, as well as the risk of dependence ….. Alcohol dependence – is the most serious, and can severely disrupt health and social stability…..many researchers consider alcohol dependence to be an illness…..” In relation to addiction the Dictionary states that: “it was not until the mid 18th century that excessive drinking, or ‘inebriety’ as it was then known, came to be regarded as some sort of disease. Alcohol dependency is also described in the Dictionary as a “Drug Addiction or dependence is the compulsion to take a drug repeatedly.
The definition of alcoholism by the National Council on Alcoholism and Drug Dependence, Inc, New York, is “Alcoholism is a primary, chronic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterised by continuous or periodic impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notable denial”.
The Court of Appeal in Northern Ireland in an case concerning the entitlement of a person to a war widow’s pension, under the relevant legislation, where the cause of death was certified as alcoholism the Judge stated: “It was not in dispute that alcoholism is a disease and hence would fall within the definition of an injury contained in the amended Schedule 4 to the 1983 Order.”
The definition of alcoholism in Collins English Dictionary and Thesaurus 21st century edition “alcoholism is a condition in which dependence on alcohol harms a person’s health, family life etc.”
It appears to me from the above definitions that alcoholism is an addictive disease and the consequence of that addiction leads to health problems both mental and physical. I am satisfied that the condition of alcoholism comes within the definition of disability in the Equal Status Act, ” a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgements or which results in disturbed behaviour.” and this definition concurs with the accepted medical definition of the disease alcoholism in the various dictionaries. I find therefore that the complainant is covered by the discriminatory ground.”
The definition of disability under the Equal Status Act 2000 is materially the same as that in the Employment Equality Act 1998. The case is therefore apposite the instant case and the Court adopts the careful analysis and reasoning of the Equality Officer in the passage quoted. Accordingly the Court has no hesitation in accepting that alcoholism is a condition illness, or disease coming within the intendment of paragraph (e) of the definition of disability at Section 2 of the Act.
The Respondent submitted in the alternative that since the Complainant no longer suffered from alcoholism at the material time he cannot maintain a complaint of discrimination on the disability ground in relation to his exclusion from the promotional panel in 2003. That submission takes no account of the plain wording of the statute which provides that the definition “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 is imputed to a person”.Moreover, the Court accepts the conclusion of the Equality Officer that alcoholism is, in effect, an incurable condition and it could never be said that a person has fully recovered from the condition.
For all of these reasons the Court is satisfied that at the time material to his complaint the Complainant was suffering from a disability within the meaning of Section 2 of the Act.
……………..
Facts.
The material facts of this case, based on the admissions of the parties or the Court’s evaluation of the evidence adduced, are as follows: –
The Complainant started drinking to excess in 1990. His drinking pattern had a serious impact on his work and he gradually became incapable of functioning at his job. In 1995 his then AP, Mr F, told the Complainant that his behaviour was no longer tolerable and advised him to obtain help. The Complainant first attended a clinic in Dublin where he underwent treatment for alcoholism for three weeks. He later relapsed but subsequently underwent further treatment at a clinic in the west of Ireland. Following his discharge from the clinic the Complainant underwent a programme of aftercare for three years.
The Court is satisfied that the Complainant’s work performance and self –confidence were adversely affected by his condition. However, he showed significant improvements in both respects as his recovery continued.
It was common knowledge amongst the Complainant’s colleagues that he was a recovering alcoholic. In that regard when Mr K was first assigned responsibility for the section in which the Complainant worked he was specifically informed by his manager of the Complainant condition and history.
The Complainant was assessed for promotion in 2000 and 2001 and was given a ranking of D. He was subsequently deemed unsuitable for promotion by the consistory. In 2002 he was again assessed and was given a ranking of B. Of those placed on the promotional panel created by the consistory in 2002 / 2003, one received an overall ranking of C and fourteen received a ranking equal to that of the Complainant. The Complainant had significantly greater service that those placed on the panel. On a similar ranking the Complainant was placed on the panel in 2004 but not placed in 2005.
………………..
The Court accepts that a candidate’s assessment ranking is not regarded as determinative of his or her suitability. It is ultimately a matter for the consistory to collectively decide whether or not the candidate has the attributes necessary to carry out the duties of the higher grade. However, the Court is also satisfied that a candidate’s line manager’s assessment is of considerable weight in the process. At the consistory in 2002 / 2003, the Complainant’s line manager assessed him as suitable for promotions and did not resile from that position in the course of the consistory.
The Court is satisfied that most, if not all, of those present at the consistories at issue knew that the Complainant is an alcoholic. The Court does, however, accept that this was not adverted to by any of the participants who spoke at the meeting.
The impugned consistory was attended by approximately 30 Officers of the Respondent. No more than six of those participated in the discussion on the Complainant’s candidature. A number of participants raised questions regarding the Complainant’s suitability for promotion, two of whom, Mr H and Mr PB, gave evidence before the Court. Mr F, who is now an Assistant Secretary and who had been the Complainant’s manager at the time of his active alcoholism, also raised question concerning his suitability. It appears from the evidence that these questions related,inter alia,to the Complainant self-confidence and his ability to represent the Respondent at external meetings
At the close of the discussion on the Complainant’s candidature the Secretary General of the Respondent (who chaired the consistory) put it to the meeting that there was a consensus against the Complainant’s suitability for promotion. None of the participants demurred and no vote was taken. No minute or other formal record of the meeting was maintained nor was the basis upon which candidates were deemed suitable or unsuitable reduced to writing.
Burden of Proof
The apportionment of the burden of proof in all discrimination cases is now governed by Section 85A of the Act, as inserted by Section 38 of the Equality Act 2004. This Section provides as follows: –
85A.—(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.
There is no disagreement between the parties as to the applicability of this Section in the instant case. The appropriate test for determining if that burden is shifted is that formulated by this Court inTeresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent.
There is no exhaustive list of factors which can give rise to an inference of discrimination. However in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can in themselves give rise to such an inference. In this case the process was wholly lacking in transparency and a candidate’s chances of success were as much dependant on their P.O’s power of advocacy and his or her standing with their peers, as on the candidates ability to undertake the duties of the higher post. Moreover candidates with equal assessment were treated differently in that 14 candidates who were ranked equal to the Complainant were deemed suitable for promotions whereas the Complainant was not. Yet, without any improvement in his ranking, the Complainant was deemed suitable for promotion in a year in which no vacancies came to be filled from the panel (2004) and on the same ranking in 2005 was again rejected as unsuitable.
The witnesses who gave evidence on behalf of the Respondent sought to explain these anomalies as being innate features of the consistory process. Nonetheless, the Court is satisfied that the procedure followed in this case, and the result which it produced, were so discordant with normal standards of reasonableness and objectivity that they must constitute facts from which it may be presumed that there has been discrimination in relation to the Complainant.
Conclusion.
Article 2 of Directive 2000/78 (Equal treatment in employment and occupations) provides that the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on the grounds of disability (emphasis added). It is well settled that in interpreting national law the Court must do so in light of the wording and purpose a Directive so as to achieve the result achieved by the Directive (see Marleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135). It is therefore necessary for the Respondent to prove on the balance of probabilities that the rejection of the Complainant for promotion was in no sense whatsoever on grounds of his disability.
Further, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258)
The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (seeNevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).
In this case the Respondent, up to and including the hearing of this appeal, did not accept that alcoholism is a disability within the meaning of the Act. On that account the nature and scope of its statutory duty to avoid discriminating against the Complainant on the disability ground was never specifically considered by the Respondent. Crucially, the Respondent never adverted to its duty under Article 5 of Directive 2000/78 (and Section 16 of the Act) to take appropriate measures to enable the Complainant to overcome any features of his disability which impede his ability to advance in employment.
The witnesses who gave evidence for the Respondent told the Court that the consistory declined to place the Complainant on the promotions panel because there was a consensus that he was unsuitable for promotion. That is a mere assertion which has no probative value. The evidence disclosed that between 25 and 30 Senior Officers of the Respondent participated in the consistory. Some five or six raised question in relation to the Complainant’s candidature. Two of those who asked questions gave evidence (Mr H and Mr PB). It was suggested that the ranking which the Complainant obtained in 2002 showed such an improvement over previous assessment as to cast doubt on its reliability. It appears not to have entered the consciousness of those who raised these questions that the Complainant’s continuing rehabilitation might provide a cogent explanation for his significantly improved work performance.
The Court was also told that issues were raised by some unidentified participants concerning the Complainant’s self-confidence and his dependability in representing the Respondent at external meetings. While this Court does take a relaxed attitude to the admission of hearsay evidence and witnesses were allowed to recall the statements made by others not in Court, they could not explain the true purpose of those statements or the effect which they may have had in influencing the decision of others. It is inherently possible that such questions were based on the Complainant’s previous record of uncontrolled drinking and such a possibility cannot be discounted by hearsay evidence. In that regard it appears that Mr F (who was the Complainant’s immediate manager during his last episode of uncontrolled drinking) spoke against the Complainant being placed on the panel. Mr F did not give evidence before the Court.
The decision on the Complainant’s suitability was taken when the Chairperson put it to the meeting that there was a consensus against placing him on the panel. As no one demurred the Chairperson’s proposal was deemed carried. The Chairperson did not give evidence and the Court cannot speculate as to the reason why he reached that conclusion or as to the underlying rationale for the consensus relied upon. Finally, the absence of any minute or record of the consistory, in itself, makes it impossible for the Respondent to satisfy the Court that the reasons for the Complainant’s exclusion from the impugned panel were wholly unrelated to his disability.
For all of the above reasons the Court is satisfied that the Respondent cannot succeed in this appeal and that the Decision of the Equality Officer must be upheld.
Determination.
It is the Determination of the Court that the Respondent did discriminate against the Complainant on the disability ground when it failed to place him on a panel for promotion in January 2003. The Court is further satisfied that the redress ordered by the Equality Officer is fair and reasonable having regard to all the circumstances. Accordingly, the Respondent is directed to implement the said order as follows in accordance with the Decision of the Equality Officer: –
1. that the complainant is appointed to the relevant grade with immediate effect and that this appointment is backdated to the date of the first appointment made from the panel established following the consistory meetings on 20 November, 2002 and 24 January, 2003;
2. that he is paid the full necessary adjustment in salary and any other benefits that applied to the post during the period at (i) above;
3. that the respondent pay the complainant €6,000 by way of compensation for the distress suffered by him as a result of the discrimination;
4. whilst acknowledging that the consistory method of promotion is accepted by the complainant’s trades union as a suitable mechanism for promotion, the respondent should take immediate steps to ensure that the process is conducted in an open and transparent fashion and that the reasons by which it arrives at its decisions can be clearly identified. In particular adequate records must be retained in order to demonstrate that the process is objective and free from bias on any of the grounds covered by the Act.
Decision of the Equality Office is affirmed and the Respondent’s appeal herein is disallowed.”
Chacon Navas
[2006] 3 CMLR 40, [2007] ICR 1, [2006] IRLR 706, [2007] All ER (EC) 59
“29. As there are doubts about the correct interpretation, the Juzgado de lo Social nr. 33 de Madrid (Spain) has decided to refer the following questions to the Court:
“1. Does Directive 2000/78, in so far as Article 1 thereof lays down a general framework for combating discrimination on the grounds of disability, include within its protective scope an employee who has been dismissed by her employer solely because she is sick?
2. In the alternative, if it should be concluded that sickness does not fall within the protective framework which Directive 2000/78 lays down against discrimination on grounds of disability and the first question is answered in the negative, can sickness be regarded as an identifying attribute in addition to the ones in relation to which Directive 2000/78 prohibits discrimination?”
………………
2. The interpretation of Article 13 EC and Directive 2000/78
46. The evolution and wording of Article 13 EC reflect the restraint shown by the authors of the Treaty in the drafting of this complementary non-discrimination provision. The initial proposals for such a provision were increasingly curtailed as the conclusion of the Treaty of Amsterdam neared. (6)
47. That restraint is evident from the wording of Article 13 EC.
Firstly, it provides a legal basis only for the taking of “appropriate action”.
Secondly, the description of the prohibited grounds for discrimination is exhaustive. This contrasts with classical international human rights treaties and, for example, Article II-81 of the Constitutional Treaty, where the lists of prohibited grounds for discrimination are worded without limitation.
The limitation due, thirdly, to the subsidiary nature of the provision has been discussed above.
Fourthly, the application of Article 13 EC requires the measure under consideration to be “within the limits of the powers conferred by [the Treaty] upon the Community”.
48. I maintain that when interpreting Article 13 EC and the “appropriate action” taken on the basis thereof, as provided for in Directive 2000/78 in this instance, there are convincing arguments for taking into account the definitions and delineations laid down therein. Being of comparatively recent date, they reflect the express will of the authors of the Treaty and of the Community legislature.
49. However, apart from these arguments based on the history of the Treaty and grammar, there are also substantive arguments against an extensive interpretation.
50. The object of some of the prohibitions of discrimination listed in Article 13 EC, such as that based on age and disability, means that the identification of prohibited formal inequality of treatment will always entail a substantive claim to equal access to or continued employment in an occupation or business, equal conditions of employment, the availability of special training or of facilities which compensate for or alleviate the limitations due to age or disability. In view of the potentially far-reaching consequences, economic and financial, which such prohibitions of discrimination may have in horizontal relationships among citizens and in vertical relationships between public authorities and interested citizens, national legislatures tend to provide precise definitions of such prohibitions of discrimination in terms of their scope – including justified exceptions and limitations and the provision reasonably to be made for compensatory facilities.
51. The greater detail which Directive 2000/78, and especially Articles 5 and 6 thereof, adds to the prohibitions of discrimination on the grounds of age and disability, suggests that the Community legislature, too, was aware of those potentially far-reaching economic and financial consequences.
52. The definitions and delineations set out in Directive 2000/78 should be taken seriously, since the economic and financial effects of the prohibition of discrimination on grounds of disability are felt primarily in areas which are indeed covered by the Treaty, but where the Community has at best shared, but for the most part complementary powers. This is true of employment policy, where the Community has a limited, coordinating power, under Articles 125 to 130 EC, and of social policy, where, according to the first sentence of Article 137(1) EC, the Community is required to “support and complement” the activities of the Member States in a number of fields. In the areas of education and vocational training (Articles 149 and 150 EC), and public health (Article 152 EC), which are also relevant in the present context, the Community’s powers are similarly of a complementary nature.
53. I infer from this that the Court must respect the choices made by the Community legislature in the rules on the application of Article 13 EC with regard to the definition of the prohibition of discrimination and the substantive and personal delineation of that prohibition and must not stretch them by relying on the general qualification reflected in that article by the words “Within the limits of the powers conferred by [the Treaty] upon the Community.” There is even less room, in my view, for widening the scope of Article 13 EC by relying on the general policy of equality.
54. So broad an interpretation of Article 13 EC and of the rules adopted by the Community legislature on the implementation of that article results, as it were, in the creation of an Archimedean position, from which the prohibitions of discrimination defined in Article 13 EC can be used as a lever to correct, without the intervention of the authors of the Treaty or the Community legislature, the decisions made by of the Member States in the exercise of the powers which they – still – retain. Given that, according to the EC Treaty, the core of those powers continues to rest with the Member States, even if the Community competence in that respect is activated by the Community legislature, this is an undesirable outcome from the viewpoint of both the system underlying the Treaty and institutional balance.
55. I would also point out, for the sake of completeness, that the implementation of the prohibitions of discrimination of relevance here always requires that the legislature make painful, if not tragic, choices when weighing up the interests in question, such as the rights of disabled or older workers versus the flexible operation of the labour market or an increase in the level of participation of older workers. Not infrequently the application of these prohibitions of discrimination necessitates financial compensation, the reasonableness of which partly depends on available public resources or the general level of prosperity in the Member States concerned. Within the national sphere such considerations do not take place in a legal vacuum. As a rule, they are examined for their compatibility with fundamental national constitutional rights and the relevant provisions of international human rights treaties. That being the case, the Court must surely, as the Community’s judicial authority, have an indisputable and superior basis of competence if it wishes to correct decisions taken by a national legislature within the limits set by the national constitution and international law, and in accordance with its retained powers.
56. In view of the foregoing arguments I therefore advocate a more restrained interpretation and application of Directive 2000/78 than adopted by the Court in the Mangold case. (7) So saying, I am already anticipating the answer to the second of the referring court’s questions.
3. The concept of “disability” as a concept of Community law
57. The concept of “disability” is an indeterminate legal concept, which is susceptible to many different interpretations in its application. The fact that the term occurs in Article 13 EC, which seeks to prohibit discrimination based on disability, a prohibition which is then activated and elaborated on in Directive 2000/78, is a compelling argument for defining that concept as a matter of Community law.
58. There is all the more reason for this as the concept of “disability”, in not only its medico-scientific but also its social sense, is undergoing fairly rapid evolution. It cannot be excluded in this context that certain physical or mental shortcomings are in the nature of “disability” in one social context, but not in another.
59. On the one hand, the variability and contextual sensitivity of the term “disability” may lead to major differences in the interpretation and application of the prohibition of discrimination. That suggests there is a need for a uniform interpretation. On the other hand, the combination of dynamic changes and variation in the scientific perception and social treatment of the phenomenon of disability calls for caution in any efforts to achieve uniformity. I will revert to this later.
60. In the course of the social history of the past two centuries the number of people regarded as disabled has undeniably grown. This is partly due to the tremendous improvement in public health in the more prosperous societies. The result has been that persons who were unable to benefit from that prosperity because they were handicapped by more or less permanent physical or mental afflictions became more visible.
61. Developments in the biomedical sciences have led to a better understanding of the physical and mental afflictions underlying disabilities. They have also helped to widen the concept of “disability”. Greater vulnerability to serious ailments owing to a genetic defect may result in serious limitations for those concerned.
62. The last example indicates that the particular social environment of disabled people may also be relevant when it comes to assessing whether they are regarded as such. As long as the genetic defect has not been identified, the person in question faces no discrimination. This may change once it becomes known, because employers or insurers do not want to risk employing or insuring those concerned.
63. One of the characteristics often referred to in the literature to distinguish disabilities from diseases is the permanence of the physical or mental defect. In most cases this is indeed a sound basis. However, there are progressive diseases entailing serious and long-lasting losses of function which impede the functioning of the patients so badly that they do not differ significantly in society from “permanently” disabled people.
64. The foregoing leads me to the conclusion that the concept of disability in Directive 2000/78 is a Community legal concept which must be interpreted autonomously and uniformly throughout the Community legal system, with account taken of the context of the provision and the purpose of the legislation in question. (8)
65. It also goes without saying that a uniform Community interpretation of “disability” is needed for substantive reasons, if only to ensure a minimum of the necessary uniformity in the personal and substantial scope of the prohibition of discrimination. The persons to be protected and the delineation of the functional limitations to be considered must not vary. Otherwise, the protection afforded by that prohibition of discrimination would vary within the Community.
66. None the less, in developing a uniform interpretation of the term “disability” account should be taken of the aforementioned dynamic aspect of society’s perception of the phenomenon of “disability” as a functional limitation resulting from a mental or physical defect, the evolution of medical and biomedical understanding and the major contextual differences in the assessment of a wide variety of disabilities.
67. This suggests that we should not endeavour to find more or less exhaustive and fixed definitions of the term “disability”. The Court’s interpretation of the term must provide the national court with Community law criteria and points of reference with whose aid it can find a solution to the legal problem it faces. (9)
68. The convergent interpretation and application in the Community of the term “disability” can thus be ensured without harming the open nature of that term. In this respect I share the views put forward by the Netherlands Government on the subject. (10)
4. Disability, discrimination and compensation
69. Over the years the legislatures in the social States of Europe, with systems based as the rule of law, have addressed the protection of people with disabilities in three ways.
70. Even as social security legislation was emerging, special provisions were made for people who, having become permanent invalids as a result of industrial accidents, were no longer employable. Subsequently, a guarantee of subsistence was created for people whose disabilities made it impossible for them to support themselves.
71. That disabilities are no reason for unjustified discrimination in the labour market and elsewhere in society is a notion which gradually gained currency after the Second World War. It led to the differentiation of the principle of equality, tailored to discrimination on grounds of disability. In Community law this differentiation finds expression in Article 13 EC and Directive 2000/78.
72. The consequence of the development of medical understanding combined with growing technological possibilities has been that, in an increasing number of cases in which the special treatment of disabled people for whom special treatment had previously been justified in the labour market and elsewhere in society because they did not meet – or no longer met – the requirements of an occupation or other activity, compensation could be made for the deficiency and/or limitation due to the impediments in such a way that they were able – again – fully or partly to resume their occupation or activity.
73. The wider availability of reasonable means of compensating for disabilities, or of limiting their consequences, means that the scope for an acceptable justification for a difference in treatment on grounds of disability is shrinking. This positive side, in terms of the employer’s obligations, of what is in principle a negative prohibition of discrimination is developed in Article 5 of Directive 2000/78. (11)
74. In the light of these four preliminary comments I will attempt to find answers to the questions referred for a preliminary ruling.
C – The first question referred for a preliminary ruling
75. The answer to the first question is easily deduced from the third and fourth preliminary comments.
76. Disabled people are people with serious functional limitations (disabilities) due to physical, psychological or mental afflictions.
77. From this two conclusions can be drawn:
– the cause of the limitations must be a health problem or physiological abnormality which is of a long-term or permanent nature;
– the health problem as cause of the functional limitation should in principle be distinguished from that limitation.
78. Consequently, a sickness which causes what may be a disability in the future cannot in principle be equated with a disability. It does not therefore provide a basis for a prohibition of discrimination, as referred to in Article 13 EC in conjunction with Directive 2000/78.
79. An exception to this rule is admissible only if during the course of the sickness permanent functional limitations emerge which must be regarded as disabilities despite the continuing sickness.
80. A dismissal because of sickness can thus constitute discrimination on the grounds of disability, which is prohibited by Directive 2000/78, only if the person concerned is able to make a reasonable case that it is not the sickness itself but the resulting long-term or permanent limitations which are the real reason for the dismissal.
81. I would add, to complete the picture, that in that hypothesis the dismissal may none the less be justified if the functional limitations – the disability – make impossible or seriously restrict the pursuit of the occupation or business concerned. (12)
82. However, that justification is admissible only if the employer has no reasonable means of alleviating or compensating for the disability concerned in such a way that the disabled person is able to continue pursuing his occupation or business. (13)
83. What is reasonable is also determined by the cost of appropriate resources, the proportionality of those costs if they are not reimbursed by the authorities, the reduction of or compensation for the disability thus made possible and the accessibility of the disabled person concerned to other occupations or forms of business where his disability will be no obstacle or far less of an obstacle.
D – The second question referred for a preliminary ruling
84. The answer to the second question can be deduced from the second preliminary comment:
– neither the history nor the wording of Article 13 EC and Directive 2000/78 allow sickness to be seen as the separate object of a prohibition of discrimination;
– nor can such a prohibition of discrimination be construed as an exception to the general principle of equality.
V – Conclusion
85. In view of the foregoing I propose that the Court should answer the questions referred to it by the Juzgado de lo Social nr. 33 de Madrid for a preliminary ruling as follows:
(1) A sickness which causes what may be a disability in the future cannot in principle be equated with a disability. It does not therefore provide a basis for a prohibition of discrimination based on disability, as referred to in Article 13 EC in conjunction with Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. An exception to this rule is admissible only if during the course of the sickness long-term or permanent functional limitations emerge which must be regarded as disabilities. When relying on the prohibition of discrimination on the grounds of disability, the person concerned must then make a reasonable case that it is not the sickness itself, but the resulting long-term or permanent limitations which are the real reason for the dismissal.
(2) Neither the history nor the wording of Article 13 EC and Directive 2000/78 allow sickness to be seen as a separate ground for a prohibition of discrimination. Nor can such a prohibition of discrimination be construed as an exception to the general principle of equality.”
HK Danmark, v Dansk almennyttigt Boligselskab
[2013] WLR(D) 137,[2013] IRLR 571, [2013] 3 CMLR 21, [2013] Eq LR 528, [2013] ICR
“Legal context
International law
3 The United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35) (‘the UN Convention’), states in recital (e) in its preamble:
‘Recognising that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.’
4 Under Article 1 of the UN Convention:
‘The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’
5 Under the fourth indent of Article 2 of the Convention, ‘“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.’
European Union law
6 Recitals 6 and 8 in the preamble to Directive 2000/78 state:
‘(6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people.
…
(8) The Employment Guidelines for 2000 agreed by the European Council at Helsinki on 10 and 11 December 1999 stress the need to foster a labour market favourable to social integration by formulating a coherent set of policies aimed at combating discrimination against groups such as persons with disability. They also emphasise the need to pay particular attention to supporting older workers, in order to increase their participation in the labour force.’
7 According to recitals 16 and 17 in the preamble to the directive:
‘(16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.
(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.’
8 Recitals 20 and 21 in the preamble to the directive read as follows:
‘(20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
(21) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.’
9 In accordance with Article 1 of Directive 2000/78, the purpose of the directive is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.
10 Article 2 of the directive, ‘Concept of discrimination’, provides:
‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.
…’
11 Article 5 of the directive, ‘Reasonable accommodation for disabled persons’, reads as follows:
‘In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.’
………………
Questions 1 and 2
34 By its first and second questions, which should be considered together, the referring court asks essentially whether the concept of ‘disability’ in Directive 2000/78 must be interpreted as including the state of health of a person who, because of physical, mental or psychological impairments, cannot or can only to a limited extent carry out his work, for a period that will probably last for a long time, or permanently. It further asks whether that concept must be interpreted as meaning that a condition caused by a medically diagnosed incurable illness may be covered by that concept, that a condition caused by a medically diagnosed curable illness may also be covered by that concept, and that the nature of the measures to be taken by the employer is decisive for considering that a person’s state of health is covered by that concept.
35 It must be recalled that the purpose of Directive 2000/78, as stated in Article 1, is to lay down a general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability (see Chacón Navas, paragraph 41). In accordance with Article 3(1)(c) of the directive, it applies, within the limits of the areas of competence conferred on the European Union, to all persons, in relation inter alia to conditions of dismissal.
36 The concept of ‘disability’ is not defined by Directive 2000/78 itself. The Court therefore held, in paragraph 43 of its judgment in Chacón Navas, that the concept must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.
37 The UN Convention, which was ratified by the European Union by decision of 26 November 2009, in other words after the judgment in Chacón Navas had been delivered, acknowledges in recital (e) that ‘disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’. Thus the second paragraph of Article 1 of the convention states that persons with disabilities include ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.
38 Having regard to the considerations set out in paragraphs 28 to 32 above, the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.
39 In addition, it follows from the second paragraph of Article 1 of the UN Convention that the physical, mental or psychological impairments must be ‘long-term’.
40 It may be added that, as the Advocate General observes in point 32 of her Opinion, it does not appear that Directive 2000/78 is intended to cover only disabilities that are congenital or result from accidents, to the exclusion of those caused by illness. It would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability.
41 It must therefore be concluded that if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.
42 On the other hand, an illness not entailing such a limitation is not covered by the concept of ‘discrimination’ within the meaning of Directive 2000/78. Illness as such cannot be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination (see Chacón Navas, paragraph 57).
43 The circumstance that the person concerned can work only to a limited extent is not an obstacle to that person’s state of health being covered by the concept of ‘disability’. Contrary to the submissions of DAB and Pro Display, a disability does not necessarily imply complete exclusion from work or professional life.
44 The concept of ‘disability’ as defined in paragraph 38 above must be understood as referring to a hindrance to the exercise of a professional activity, not, as DAB and Pro Display submit, to the impossibility of exercising such an activity. The state of health of a person with a disability who is fit to work, albeit only part-time, is thus capable of being covered by the concept of ‘disability’. An interpretation such as that suggested by DAB and Pro Display would, moreover, be incompatible with the objective of Directive 2000/78, which aims in particular to enable a person with a disability to have access to or participate in employment.
45 In addition, a finding that there is a disability does not depend on the nature of the accommodation measures such as the use of special equipment. It should be noted here that the definition of the concept of ‘disability’ within the meaning of Article 1 of Directive 2000/78 comes before the determination and assessment of the appropriate accommodation measures referred to in Article 5 of the directive.
46 According to recital 16 in the preamble to Directive 2000/78, such measures are intended to accommodate the needs of disabled persons. They are therefore the consequence, not the constituent element, of the concept of disability. Similarly, the measures or adaptations referred to in recital 20 in the preamble make it possible to comply with the obligation under Article 5 of the directive, but do not apply unless there is a disability.
47 It follows from the above considerations that the answer to Questions 1 and 2 is that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one. The nature of the measures to be taken by the employer is not decisive for considering that a person’s state of health is covered by that concept.
Question 3
48 By its third question the referring court asks essentially whether Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article.
49 As that article states, the employer is required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. Recital 20 in the preamble to the directive gives a non-exhaustive list of such measures, which may be physical, organisational and/or educational.
50 Neither Article 5 of Directive 2000/78 nor recital 20 in its preamble mentions reduced working hours. However, the concept of ‘patterns of working time’ mentioned in that recital must be interpreted in order to determine whether an adaptation of working hours may be covered by that concept.
51 DAB and Pro Display submit that that concept refers to such matters as the organisation of the patterns and rhythms of work, for example in connection with a production process, and of breaks, so as to relieve as much as possible the burden on workers with disabilities.
52 However, it does not appear from recital 20 in the preamble or from any other provision of Directive 2000/78 that the European Union legislature intended to limit the concept of ‘patterns of working time’ to such elements and to exclude the adaptation of working hours, in particular the possibility for persons with a disability who are not capable, or no longer capable, of working full-time to work part-time.
53 In accordance with the second paragraph of Article 2 of the UN Convention, ‘reasonable accommodation’ is ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’.
54 Thus, with respect to Directive 2000/78, that concept must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.
55 As recital 20 in the preamble to Directive 2000/78 and the second paragraph of Article 2 of the UN Convention envisage not only material but also organisational measures, and the term ‘pattern’ of working time must be understood as the rhythm or speed at which the work is done, it cannot be ruled out that a reduction in working hours may constitute one of the accommodation measures referred to in Article 5 of that directive.
56 It should be observed, moreover, that the list of appropriate measures to adapt the workplace to the disability in recital 20 in the preamble to Directive 2000/78 is not exhaustive and, consequently, even if it were not covered by the concept of ‘pattern of working time’, a reduction in working hours could be regarded as an accommodation measure referred to in Article 5 of the directive, in a case in which reduced working hours make it possible for the worker to continue employment, in accordance with the objective of that article.
57 It must be recalled, however, that, as stated in recital 17 in the preamble, Directive 2000/78 does not require the recruitment, promotion or maintenance in employment of a person who is not competent, capable and available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities, which includes a possible reduction in their hours of work.
58 Moreover, in accordance with Article 5 of that directive, the accommodation persons with disabilities are entitled to must be reasonable, in that it must not constitute a disproportionate burden on the employer.
59 In the disputes in the main proceedings, it is therefore for the national court to assess whether a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employers.
60 As follows from recital 21 in the preamble to Directive 2000/78, account must be taken in particular of the financial and other costs entailed by such a measure, the scale and financial resources of the undertaking, and the possibility of obtaining public funding or any other assistance.
61 It should be recalled that, in proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (Case C-433/05 Sandström [2010] ECR I-2885, paragraph 35 and the case-law cited).
62 It may be of relevance for the purposes of that assessment that, as noted by the referring court, immediately after the dismissal of Ms Ring, DAB advertised a position for an office worker to work part-time, 22 hours a week, in its regional office in Lyngby. There is nothing in the documents before the Court to show that Ms Ring was not capable of occupying that part-time post or to explain why it was not offered to her. Moreover, the referring court stated that soon after her dismissal Ms Ring started a new job as a receptionist with another company and her actual working time was 20 hours a week.
63 In addition, as the Danish Government pointed out at the hearing, Danish law makes it possible to grant public assistance to undertakings for accommodation measures whose purpose is to facilitate the access to the labour market of persons with disabilities, including initiatives aimed at encouraging employers to recruit and maintain in employment persons with disabilities.
64 In the light of the foregoing, the answer to Question 3 is that Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer.
Question 4(b)
65 By part (b) of its fourth question, the referring court asks essentially whether Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in Article 5 of that directive.
66 The circumstance that an employer has failed to take those measures may have the consequence, having regard to the obligation under Article 5 of Directive 2000/78, that the absences of a worker with a disability are attributable to the employer’s failure to act, not to the worker’s disability.
67 Should the national court find that the absences of the workers are attributable, in the present cases, to the employer’s failure to adopt appropriate accommodation measures, Directive 2000/78 would preclude the application of a provision of national law such as that at issue in the main proceedings.
68 Having regard to the foregoing, the answer to Question 4(b) is that Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in Article 5 of that directive.
Question 4(a)
69 By part (a) of its fourth question, the referring court asks essentially whether Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of his disability.
70 By this question the referring court is raising the case of Paragraph 5(2) of the FL being applied to a disabled person following absence on grounds of illness attributable wholly or partly to his disability, not to the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in Article 5 of Directive 2000/78.
71 As the Court held in paragraph 48 of Chacón Navas, unfavourable treatment on grounds of disability undermines the protection provided for by Directive 2000/78 only in so far as it constitutes discrimination within the meaning of Article 2(1) of that directive. A disabled worker covered by that directive must be protected against all discrimination in comparison to a worker not so covered. The question thus arises whether the national legislation at issue in the main proceedings is liable to produce discrimination against persons with disabilities.
72 On the question whether the provision at issue in the main proceedings contains a difference of treatment on grounds of disability, it must be noted that Paragraph 5(2) of the FL, which relates to absences on grounds of illness, applies in the same way to disabled and non-disabled persons who have been absent for more than 120 days on those grounds. In those circumstances, that provision cannot be regarded as establishing a difference of treatment based directly on disability, within the meaning of Article 1 in conjunction with Article 2(2)(a) of Directive 2000/78.
73 It should be observed that a person whose employer terminates his employment contract with a shortened notice period solely on grounds of illness does not fall within the general framework laid down for combating discrimination on grounds of disability by Directive 2000/78 (see, by analogy, Chacón Navas, paragraph 47).
74 It must therefore be concluded that Paragraph 5(2) of the FL does not contain direct discrimination on grounds of disability, in so far as it uses a criterion that is not inseparably linked to disability.
75 On the question whether that provision is liable to produce a difference of treatment indirectly based on disability, it must be observed that taking account of days of absence on grounds of illness linked to disability in the calculation of days of absence on grounds of illness amounts to assimilating illness linked with disability to the general concept of illness. However, as the Court said in paragraph 44 of Chacón Navas, the concepts of ‘disability’ and ‘sickness’ cannot simply be treated as being the same.
76 A worker with a disability is more exposed to the risk of application of the shortened notice period laid down in Paragraph 5(2) of the FL than a worker without a disability. As the Advocate General observes in point 67 of her Opinion, compared with such a worker, a worker with a disability has the additional risk of an illness connected with his disability. He thus runs a greater risk of accumulating days of absence on grounds of illness, and consequently of reaching the 120-day limit provided for in Paragraph 5(2) of the FL. It is thus apparent that the 120-day rule in that provision is liable to place disabled workers at a disadvantage and so to bring about a difference of treatment indirectly based on disability within the meaning of Article 2(2)(b) of Directive 2000/78.
77 In accordance with point (i) of that provision, it must be examined whether that difference of treatment is objectively justified by a legitimate aim and whether the means used to achieve that aim are appropriate and do not go beyond what is necessary to achieve the aim pursued by the Danish legislature.
78 As regards the aim of Paragraph 5(2) of the FL, the Danish Government states that this is to encourage employers to recruit and maintain in their employment workers who are particularly likely to have repeated absences because of illness, by allowing them subsequently to dismiss them with a shortened period of notice, if the absences tend to be for very long periods. As a counterpart, those workers can retain their employment during the period of illness.
79 The Danish Government observes that the provision thus has regard to the interests both of employers and employees and is in line with the general regulation of the Danish labour market, which is based on a combination of flexibility and freedom of contract, on the one hand, and the protection of workers, on the other.
80 DAB and Pro Display state that the 120-day rule laid down in Paragraph 5(2) of the FL is regarded as protection for workers who are ill, since an employer who has agreed to apply it will generally be inclined to wait longer before dismissing such a worker.
81 It should be recalled that the Member States have a broad discretion not only in choosing to pursue a particular aim in the field of social and employment policy but also in defining measures to implement it (see, to that effect, Case C-141/11 Hörnfeldt [2012] ECR I-0000, paragraph 32, and Case C-152/11 Odar [2012] ECR I-0000, paragraph 47).
82 The Court has previously held that encouragement of recruitment undoubtedly constitutes a legitimate aim of the social or employment policy of the Member States and that that assessment must evidently apply to instruments of national employment policy designed to improve opportunities for entering the labour market for certain categories of workers (see Case C-411/05 Palacios de la Villa [2007] ECR I-8531, paragraph 65). Similarly, a measure taken to promote the flexibility of the labour market may be regarded as a measure of employment policy.
83 Consequently, aims such as those referred to by the Danish Government may in principle be regarded as objectively justifying, in national law, as provided for by Article 2(2)(b)(i) of Directive 2000/78, a difference of treatment based on disability such as that deriving from Paragraph 5(2) of the FL.
84 It remains to ascertain whether the means used to achieve those aims are appropriate and necessary and do not go beyond what is needed to achieve them.
85 The Danish Government argues that Paragraph 5(2) of the FL enables, first, the objective of enabling the recruitment and maintenance in employment of persons who have, at least potentially, a reduced work capacity and, secondly, the superior objective of a flexible, contractual and secure labour market to be achieved most appropriately.
86 DAB and Pro Display submit that, under the Danish legislation on sickness benefits, an employer who pays wages to a worker on sick leave is entitled to have the sickness benefits reimbursed by the local authorities of the worker’s place of residence. However, the entitlement to those benefits is limited to 52 weeks, and their amount is lower than the pay actually paid. In those circumstances, the provisions of Paragraph 5(2) of the FL ensure a reasonable balance between the opposing interests of the employee and the employer with respect to absences on grounds of illness.
87 Having regard to the broad discretion enjoyed by the Member States not only in choosing to pursue a particular aim in the field of social and employment policy but also in defining measures to implement it, it does not appear unreasonable for them to consider that a measure such as the 120-day rule laid down in Paragraph 5(2) of the FL might be appropriate for achieving the aims mentioned above.
88 It may be accepted that, by providing for the right to make use of a shortened period of notice for the dismissal of workers who have been absent because of illness for over 120 days, that rule has the effect, for employers, of encouraging recruitment and maintenance in employment.
89 In order to examine whether the 120-day rule laid down in Paragraph 5(2) of the FL goes beyond what is necessary to achieve the aims pursued, that provision must be placed in its context and the adverse effects it is liable to cause for the persons concerned must be considered (see, to that effect, Odar, paragraph 65).
90 In this respect, it is for the referring court to examine whether the Danish legislature, in pursuing the legitimate aims of, first, promoting the recruitment of persons with illnesses and, secondly, striking a reasonable balance between the opposing interests of employees and employers with respect to absences because of illness, omitted to take account of relevant factors relating in particular to workers with disabilities.
91 In this respect, the risks run by disabled persons, who generally face greater difficulties than non-disabled persons in re-entering the labour market, and have specific needs in connection with the protection their condition requires, should not be overlooked (see, to that effect, Odar, paragraphs 68 and 69).
92 In the light of the above considerations, the answer to Question 4(a) is that Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of his disability, unless that legislation, as well as pursuing a legitimate aim, does not go beyond what is necessary to achieve that aim, that being for the referring court to assess.”
……………………
On those grounds, the Court (Second Chamber) hereby rules:
1. The concept of ‘disability’ in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one. The nature of the measures to be taken by the employer is not decisive for considering that a person’s state of health is covered by that concept.
2. Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer.
3. Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in Article 5 of that directive.
4. Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of his disability, unless that legislation, as well as pursuing a legitimate aim, does not go beyond what is necessary to achieve that aim, that being for the referring court to assess.
Donatellos Restaurant v A Worker
EED043
“The complainant had been employed with the respondent as a waiter from Sunday 24th March, 2002 until Saturday 6th April 2002. He stated that he is a diabetic. At the time he was employed, his employer made no enquiries concerning his state of health or medical history.
On the night of Friday 5th April, 2002 while working in the restaurant he became disorientated due to low sugar levels and had to be helped to the back of the restaurant where after taking some food and drink to restore his sugar levels, he recovered and was prepared to go back to his duties. He explained to staff what had happened to him and that it was because of his diabetes. His manager told him to go home and to return early the following day. Before the commencement of his duty the following day, his manager dismissed him.
He claims that when the disability was disclosed, his manager made an immediate decision to dismiss him, thus discriminating against him on the grounds of disability in breach of Section 6 (1), 8 (1) and 16 (3) of the Employment Equality Act, 1998 (the Act). The Complainant brought a claim for dismissal in circumstances amounting to discrimination under Section 77(2) of the Act.
The complainant contends that at recruitment his employer stated that he would commence on a one-week trial period, however, after two days he was told that he was to be made “full-time”.
He submits that he was never given any indication that a decision had already been made before 5th April 2003 to dismiss him nor was he given any indication that there was dissatisfaction with his work. He rejects any suggestion that he was given “verbal warnings” about his timekeeping.
The complainant stated to the Court that as a sufferer of diabetes for over 17 years he is completely familiar with the regime of taking medication and with coping with any signs of falling blood-sugar levels and has had no difficulty working while controlling his diabetes before. However, he was not given any opportunity to explain this to his employer, after the incident on 5th April 2002 and before his dismissal. Accordingly, he claims that he was not afforded the same treatment in relations to his conditions of employment as would be afforded to another employee. He maintains that he was dismissed without notice immediately following the discovery by his employer that he had a disability.
…….
Counsel for the respondent submitted that the complainant’s disability was not a factor in the decision not to employ him. Counsel added that had the complainant been found suitable and of the appropriate standard, his diabetes would not have affected his ability to do the job of a full-time waiter and that all necessary accommodation would have been made in terms of his diabetic condition.
Another employee of the respondent, who suffered from asthma, gave evidence of the concern which the respondent had shown towards her, the assistance which he had provided to her in dealing with her illness and of the respondents concern for employees’ welfare, particularly at Christmas time.
A number of witnesses called by Counsel for the respondent testified as to the complainant’s unsuitability for the job and indicated that they were aware, prior to the incident on 5th April 2002, that he was not going to be hired for the full time position at the end of his trial period.
Evidence was given that the respondent did not know of the complainant’s medical condition prior to 5th April 2003. Following his collapse that night, the respondent explained that the manager sent the complainant home and asked him to return early the following day. This was for the purposes of informing him that his trial was unsuccessful and he was not been given the position of full time waiter. It had been intended to do this at the end of his duty on Friday 5th April; however, due to his collapse the respondent explained that they felt it was more appropriate to do it the following day.
Upon being informed of the decision the respondent stated that the complainant became abusive and threatening both to the manager and the proprietor, to such an extent that it was necessary to telephone the Garda Siochana to report the matter. It was denied that the proprietor told the complainant that he had a brother in Italy who suffered from epilepsy and could not work in the business either. He did however, say that he had a brother with diabetes and was familiar with the condition. This was said to reassure him that his diabetes was not a factor in the decision not to hire him and to highlight that fact that the respondents had first hand experience of the condition and would not make a decision not to hire someone on the basis of diabetes. It is also denied that the proprietor told the complainant’s wife that the reason he was being fired was because he was a diabetic.
……………
Burden of Proof:
It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities.
The Court is satisfied that the primary facts established in this case do raise an inference of discrimination. Consequently, the probative burden of establishing that the complainant’s dismissal was unrelated to the disability from which he suffered rests on the respondent.
It was submitted on behalf of the respondent that there was no dismissal as the complainant had not been hired for the position but rather was on a two-week trial, to ascertain whether or not he was suitable, for permanent employment. The respondent states that there was no dismissal, merely an expiration of a trial period.
……….
A number of witnesses called by the respondent testified that it was well known among the staff that the complainant was not working out and that he would not be rehired following his trial period. The difficulty arises with these witnesses’s evidence is that when the complainant was in fact dismissed, the reason given did not in fact relate to his unsatisfactory performance of his duties. The Court does accept the complainant’s evidence that no complaints were made to him about his performance.
Taking the evidence as a whole the Court cannot accept that the proximity in time between the complainant’s diabetic incident and his dismissal within 24 hours was mere coincidence. The Court is satisfied that the correct inference to be drawn from the facts established on the evidence is that the decision to dismiss the complainant was triggered by that incident. The Court accepts the complainant’s evidence that no complaints or warnings were ever issued to him concerning his work performance and that at no stage was it indicated to him that his position was in jeopardy. In addition the evidence of the Equality Authority concerning the conversation with the respondent’s accountant raises serious questions about the respondent’s attitude to the complainant as a result of his disability. While this evidence was refuted by the respondent as an unauthorised personal view by the accountant, the Court accepts that in that conversation he was responding on behalf of the respondent to the allegation made, and it does in the Court’s view indicate that the complainant’s disability was at least a factor in the decision to dismiss him.
An employer should ensure that an employee is given fair notice that the question of his or her dismissal for incompetence/incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision. No such provision was afforded in this case.
In the circumstances, the Court does not consider that the evidence advanced by the respondent is sufficient to discharge the probative burden placed upon it.
Decision of the Court
The Court is satisfied that the said dismissal constituted discrimination on the disability ground contrary to Section 8 of the Employment Equality Act, 1998.
The Court considers that the appropriate redress in this case is an award of compensation. Having regard to all the circumstances to the case, the Court believes an award of €4000 is appropriate and the respondent is ordered to pay compensation to the complainant in that amount.”
A Computer Component Company v. A Worker
EED 13/2001 [2002] ELR 124
Background
The complainant was employed by the respondent as a packer from October 13, 1999 until December 2, 1999 when she was dismissed. She claims she was discriminated against on the grounds of disability. She referred a complaint to the Labour Court in accordance with section 77 of the Employment Equality Act 1998 . A Labour Court hearing took place on June 27, 2001.
Determination
The complainant contends that she suffered discrimination in being dismissed from her employment with the respondent herein on grounds of disability.
Facts
The material facts as admitted or as found by the Court are as follows:
(i) The respondent manufactures optical discs for use in computers at its plant in Limerick. The complainant was recruited by an employment agency and commenced employment with the respondent as a packer in October 1999. Her initial employment was in a termporary capacity.
(ii) The claimant suffers from epilepsy but her condition is well controlled by medication. She had not experienced a seizure for over two years. She also told the Court that prior to the onset of an attack she would experience symptoms up to 24 hours beforehand. She had worked in the respondent’s plant for five to six weeks without difficulty, and considered herself fully capable of undertaking any of the tasks associated with the employment. At the time of her initial employment, the claimant informed the employment agency of her medical condition.
(iii) In November 1999, the complainant was informed by her supervisor that her work performance was very satisfactory and that the respondent would like to take her on in the permanent position of team member. The complainant was given an application form which she completed and on which she declared her epilepsy. The claimant was informed that she would not be required to attend for interview but that she would be required to undergo a medical examination by a doctor nominated by the respondent.
(iv) The complainant attended for a medical examination on December 2, 1999. Immediately following the examination, the doctor spoke with the respondent’s personnel officer by telephone and told her that the complainant suffered from epilepsy. As a result of this conversation, the respondent’s personnel officer decided not to offer the complainant a permanent post and to terminate her temporary appointment with immediate effect. The doctor subsequently submitted a written report to the respondent but this report had not been received at the time the complainant was dismissed.
(v) The respondent admits that it dismissed the complainant because she suffered from epilepsy. It says that it did so on medical advice. The doctor who examined the complainant was not called in evidence but her written report was furnished to the Court. The advice contained in this report is far less definitive than that recounted by the respondent’s personnel officer from her recollection of the telephone conversation with the doctor.
(vii) While advising that the complainant was not fit to operate heavy machinery, the written report goes on to advise that the complainant’s condition is well controlled with no seizures for the previous two years. The doctor advised that the complainant’s condition would present no problem for the type of work in which she was engaged. Finally, the doctor suggested that the complainant might consult a neurologist for a second opinion, and the respondent could consult with her again if the second opinion differed from that contained in the report.
The statutory provisions
The relevant statutory provisions are contained in sections 2, 6, 8 and 16 of the Employment Equality Act 1998 (‘the Act’ ).
Section 2 defines disability in broad terms and, in the Court’s view, epilepsy is covered by the definition contained at section 2(c) .
Section 6(1) provides that discrimination shall be taken to have occurred where a person is treated less favourably than another is, has or would be treated on any of the discriminatory grounds set out in subsection (2) . Section 6(2) lists the discriminatory grounds which include, inter alia , that of disability.
Section 8(1) prohibits an employer from discriminating against an employee or a prospective employee, inter alia , in relation to access to employment and conditions of employment.
Section 16(1) provides, in effect, that nothing in the Act shall be construed as requiring any person to recruit or promote or to retain in a position a person who is not fully capable and fully competent of undertaking the duties attached to the position, having regard to the conditions under which those duties are, or may be required to be, performed.
Section 16(3) provides, in effect, that a person with a disability shall not be regarded as other than fully competent and fully capable of undertaking any duties if, with the assistance of special treatment or facilities, such person would be fully competent and capable of undertaking those duties. The subsection then goes on to oblige an employer to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facili ties which would render that person fully capable of undertaking the duties of their employment.
For the purposes of this subsection, a refusal by an employer to provide special treatment or facilities is not to be deemed reasonable unless such provision gives rise to costs, other than nominal costs, to the employer. Thus, the only basis on which an employer can refuse to provide special facilities is that of cost, other than nominal cost.
Conclusions
Having applied the statutory provisions to the facts of this case, the Court has reached the following conclusions:
(i) The respondent terminated the complainant’s employment because she suffered from epilepsy. This, prima facie, constituted an act of discrimination on the disability ground. The respondent can only be relieved of liability if it can be shown that, by reason of her disability, the complainant was not fully competent and fully capable of performing the duties of her employment, having regard to the conditions under which those duties were to be performed and could not have had her needs reasonably accommodated.
(ii) The respondent told the Court that it is company policy that employees should be competent to undertake all tasks associated with the production function in which they are employed. It said that in the case of the complainant this would involve the operation of machinery. It told the Court that the decision to terminate the complainant’s employment was taken because, on medical advice, it believed that this working environment posed a danger to a person with epilepsy.
(iii) Whilst the respondent does have some machinery which could be classified as heavy, its use is a minor part of the production system and it is clear that not all production employees are required to use this machinery all of the time. It appears to the Court that if a problem existed in relation to the complainant, arrangements could have been put in place whereby she would not be required to use this machinery.
(iv) If the respondent did conclude that the complainant lacked full capacity to safely undertake the duties of her employment, it appeared to have done so precipitously. The decision was taken and implemented before the doctor’s written report was received. As already observed, this written report does not definitively point to an insurmountable medical or safety impediment to the complainant’s continued employment and could be read as leaning to the opposite conclusion.
(v) The respondent did not consider undertaking any form of safety assessment which could have identified the extent, if any, to which the working environment presented a danger to the complainant, and how any such danger could be amel iorated. Further, the respondent did not discuss its concerns with the complainant and did not advise her to obtain a second opinion from a neurologist as had been suggested by the doctor.
(vi) On the evidence, the Court does not accept that the respondent could reasonably and objectively have come to the conclusion that the complainant was not fully competent or capable of performing the duties of her employment. Even if the respondent did reach such a conclusion, it is abundantly clear that it did not give the slightest consideration to providing the complainant with reasonable special facilities which would accommodate her needs and so overcome any difficulty which she or the respondent might otherwise experience.
(vii) In all of these circumstances, the Court does not accept that the respondent can avail of the provisions of section 16(1) so as to avoid liability under the Act.
Order
For the reasons set out above, the Court finds that the complainant herein was dismissed by the respondent by reason of her disability, and that this dismissal constituted an act of discrimination within the meaning of section 6(1)(g) of the Act.
Having been told that the complainant is not seeking reinstatement, the court determines that the appropriate form of redress is an award of compensation pursuant to section 82(1)(c) . The Court has taken account of the complainant’s loss of earnings together with the distress which she suffered arising from her dismissal and, in bringing this case, awards compensation in the amount of £15,000 (€19,046.07). An order will be made against the respondent in that amount.
A Employee v Local Authority
DEC-E/2002/004
“Summary of the complainant’s submission
The complainant was placed on a panel for the position of clerical officer with the respondent Following a special competition for persons registered with, or entitled to be registered with, the (then) National Rehabilitation Board (the complainant was diagnosed with an astrocytoma on the brain stem in 1984 and subsequently underwent surgery to have it removed). On January 27, 2000 the complainant received a letter from the respondent informing him that the authority was in a position to offer him a permanent position subject to receipt of satisfactory references, completion of a satisfactory medical examination and verification of his educational qualifications. The complainant underwent a satisfactory medical on April 11, 2000 and on the same date the authority received a satisfactory reference from a previous employer of the complainant. The respondent wrote to the complainant on April 7, 2000 requesting him to report for duty on 2 May 2000.
The complainant presented for duty on May 2, 2000. However, although the competition in which he had competed was for a permanent full-time position (which was covered by the authority’s circular) and the offer of employment in the letter of January 27, 2000 was also for a permanent position, the complainant was given only a temporary contract of employment for a fixed period of three months. The union contends that this treatment of the complainant was contrary to the terms and conditions of the circulars governing the competition. It further contends that the complainant had complied with all of the requirements set out in the circular and the letter of offer of employment. It submits therefore, that the complainant was treated different to other employees recruited by the respondent and that the reason for this difference in treatment was because of his disability.
The union contends that the complainant was assigned to one of the busier sections in the authority. It adds that the senior administrative officer in this section was not advised by personnel that the complainant suffered from a disability, which is contrary to the Department of the Environment and Local Government’s Code of Practice for the Employment of People with Disabilities in the Local Authority Service (hereafter called the ‘Code of Practice’ ). It also argues that the complainant was given no formal training and rejects, in particular, the respondent’s assertion that he was provided with one-to-one training by his immediate supervisor and contends that he was in fact ‘thrown in at the deep end’ . The union submits that this behaviour is also contrary to the Code of Practice .
The union states that the complainant was asked to attend a meeting with his senior administrative officer and the acting principal officer of the Department on August 15, 2000. At this meeting the complainant acknowledged that he could suffer from fatigue and that on some occasions concentration was difficult. However, he felt that overall he was able to do his job. The acting principal officer stated although she had no doubt that the complainant was giving of his best, that overall his performance was considerably short of what was required to perform his job. She added that although a two-month extension of the complainant’s contract had been approved, based on his current performance, a further extension or a permanent appointment could not be recommended. The union contends that this approach is contrary to the terms of the circular governing the competition which provides for a permanent post which has a probationary period of one year. The union submits therefore that the complainant, who was very distressed following this meeting, was treated unfavourably and that this treatment was as a result of his disability.
…………..
In addition to the above, the union alleges that the respondent did not explore the obvious option of transferring the complainant to another section where the work might have been more suitable to him. It further contends that the respondent made no attempt to match the complainant’s skills with the work required, although his senior administrative officer clearly states in a reference he prepared for the complainant on his (the complainant’s) departure from the section in November 2000 that the complainant possessed good inter-personal skills and also displayed an aptitude for computer work and data compilation.
In conclusion, the union submits that the respondent failed to examine the options available to it as regards special treatment or facilities for the complainant which would have enabled him fully competent and capable of undertaking the duties attached to the post of clerical officer in the respondent organisation.
Summary of the respondent’s submission
The respondent denies that it discriminated against the complainant in any manner whatsoever, contrary to the Act. It states that its letter dated January 27, 2000 clearly indicated that the appointment was subject, inter alia , to verification of the complainant’s educational qualifications. The respondent states that its records indicate that the complainant’s educational certificates and birth certificate were not checked by it until May 5, 2000, three days after the complainant had taken up duty. The respondent states that in circumstances where some of the items required by it (educational qualifications, medical report, references) are outstanding on the day a new employee reports for duty, it is the respondent’s normal practice to place that employee on a short-term contract, pending permanency. The respondent contends therefore, that the complainant was not treated less favourably than any other new employee whose documentation was incomplete when taking up duty.
The respondent rejects the union’s assertion that the complainant was assigned to one of the busier sections in the authority and states that the section to which he was assigned was not a pressurised environment and was characterised by its friendly, helpful staff. The respondent states that the complainant was assigned duties along the following lines—opening post, typing acknowledgements and other basic letters, photocopying and filing. It adds that it be came evident to the complainant’s line managers fairly soon after he commenced work, that the complainant was neither capable or competent to carry out the duties assigned to him. It contends that there were constant errors in his work, even with the most routine tasks of photocopying and there was a recurring problem with the complainant falling asleep at his desk almost daily.
According to the respondent the complainant was afforded continuous on the job training by a staff officer and assistant staff officer in the section. It adds that this training comprised demonstrating to the complainant what was required and that this training was provided on a daily basis. The respondent states that this training did not result in an improvement in the complainant’s performance and had a consequent detrimental effect on work flow in the section.
The respondent acknowledges that the complainant attended a meeting with his senior administrative officer and the acting principal officer of the Department on August 15, 2000. It accepts that the complainant was informed at this meeting that his performance was below the level required, that his permanency could not be recommended unless there was considerable improvement on his part and that his progress would be monitored. It also accepts that the complainant was not represented at this meeting but adds that it would not be unusual for an employee to attend such a meeting unaccompanied. The respondent states that there is no stipulation that an employee cannot have a representative or observer present at such a meeting and adds that it was open to the complainant to subsequently contact his union representative with a view to meeting with personnel to discuss the matter further. The respondent points out that the complainant did not avail of this option.
According to the respondent, following the meeting on August 15, 2000, the complainant received even more intensive training—training which it asserts could be described as coaching. It adds however, that notwithstanding this attention, the complainant’s performance did not improve to a standard which the respondent considered sufficient to carry out his duties. It decided therefore that his contract would not be renewed at the end of October 2000 and the complainant was informed of this by letter dated September 29, 2000. The respondent adds however, that it was anxious that a reasonable effort was made to retain the complainant in alternative, more suitable employment and he was offered and accepted employment, on a temporary basis, as a general operative in an industrial area of the authority.
The respondent acknowledges that it had discussions with Mr A on a number of occasions, both prior to and following the complainant’s tenure as a clerical officer with the authority. It states that a number of options where assistance might available from FÁS were outlined to it, including: (i) employment support scheme—where a financial contribution would paid to the respondent to offset the cost of the complainant’s salary; (ii) a job coach for a defined period to assist the complainant; and (iii) an independent assessment of the complainant to identify his work strengths and weaknesses. The respondent states firstly that its contacts with Mr A were informal and in its view they did not purport to be professional advice, rather an outline of the services available. It adds that financial implications were not an issue, the provision of a job coach did not seem appropriate to the complainant’s circumstances as it was the respondent’s understanding that such a coach was more appropriate to a person with mental disability as distinct from a person with residual brain damage, which is what the respondent understood the complainant to suffer from. It further adds that the complainant’s line managers had already provided extensive training and coaching for him, to no avail. The respondent states that it never had any objection to a vocational assessment of the complainant and adds that attempts to arrange such an assessment were put in hand after officials from the authority met with the complainant’s parents on November 15, 2000.
The respondent notes that section 16(3)(c) of the Employment Equality Act 1998 states that an employer’s refusal or failure to provide special treatment of facilities to an employee with a disability, shall not be deemed reasonable unless such provision gives rise to a cost which is more than a nominal one to the employer. It contends that to employ the complainant to his potential retirement age of 65 years would mean that it would be liable to pay him form excess of 40 years. It submits, based on the complainant’s lack of productivity and even with external financial support in the form of employment support scheme, that such a course would give rise to a cost to the authority which would be more than nominal in nature.
Finally, the respondent strongly rejects the complainant’s allegation that it adopted a ‘jaundiced’ view of the complainant because of his disability. It adds that at all times the complainant was treated with the greatest respect and courtesy by all staff in the authority.
………………
Equality Officer’s conclusions
The issues for consideration by me are (i) whether or not the respondent discriminated against the complainant on grounds of disability, within the meaning of section 6(2)(g) of the Employment Equality Act 1998 and in contravention of sections 6(1) and 8(1) of the Act, in terms of his contract of employ ment and (ii) whether or not the respondent failed to provide the complainant with a reasonable accommodation as provided in section 16(3) of the Act. In making my decision on these matters I have taken into account all of the submission, both oral and written, made to me by the parties.
I propose to deal with that part of the complaint related to the complainant’s contract of employment, in the first instance. I note that the respondent does not dispute that the competition which the complainant sat was for a permanent post of clerical officer in the local authority. I further note that the respondent’s letter of January 27, 2000 to the complainant offers him a permanent post of clerical officer subject to receipt/confirmation by the respondent of certain information. The respondent contends, and it is not disputed by the complainant (he cannot be certain if he furnished the necessary information on his first day), that some of this material—confirmation of the complainant’s educational qualifications and his birth certificate—were not checked by the respondent until three days after the complainant commenced duty, May 5, 2000. The respondent states that consequently, it placed the complainant on a temporary contract, in keeping with its normal practice in such circumstances. The respondent states that it applies this practice in every case where a new employee’s documentation is incomplete and submits therefore, that the complainant was not treated unfavourably. The complainant states that he complied with all the necessary requirements of the respondent by May 5, 2000 but did not receive confirmation of his appointment until June 7, 2000. He submits that there was therefore ample time for the respondent to appoint him on a permanent basis, that its failure to do so constitutes unfavourable treatment of him and that this unfavourable treatment is based on his disability.
Section 6(1) of the Employment Equality Act 1998 provides:
For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as ‘the discriminatory grounds’ ), one person is treated less favourably than another is, has been or would be treated.
Section 6(2) sets out the discriminatory grounds and section 6(2)(g) specifically provides:
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 8(1) of the Act provides:
In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee.
To prove discrimination therefore the complainant must establish that he was treated unfavourably and that this unfavourable treatment results from the fact that he suffers from a disability and the person to whom he compares himself either does not suffer from that disability, or suffers from a different disability.
I would point out at this stage that the respondent did not dispute that the disability suffered by the complainant was covered by the Act and I therefore offer no further comment on this point. Applying the test set out in the preceding paragraph to the instant case, I note that the respondent furnished details of the number of new employees appointed on temporary contracts of employment in each of the six month periods preceding and following May 2000 (the time when the complainant was appointed). I note from these statistics that during these periods 60 employees were appointed on temporary contracts, 28 of whom had been placed on panels for permanent posts but had reported for duty with incomplete documentation. It is safe to assume, on the law of averages, that some of these 27 other employees (the complainant was included amongst this number) either did not suffer from a disability or suffered from a different disability to the complainant. In my opinion, the complainant was treated in exactly the same way as other persons were, in similar circumstances and I am satisfied that he was not treated in a less favourable manner. I find therefore that the complainant was not discriminated against by the respondent in respect of his contract of employment by reason of his disability. However, before I leave this issue, I would say that I have reservations about the respondent’s practice in this area. It appears to me that there may be issues for answer by the respondent in areas of contract law in circumstances where an offer of permanent employment is effectively revoked and replaced by temporary fixed-term employment on the basis of what might appear to be a technicality.
I will now deal with the second element of the complaint, which refers to the issue of reasonable accommodation. The complainant’s representative alleges that the respondent failed to examine the options available to it in respect of special treatment or facilities which it could have provided to the complainant and that it effectively dismissed the assistance which was available to it from FÁS in this area. The respondent rejects these allegations and states that it examined the options but was not convinced that they would be of assistance in the complainant’s case.
Section 16(1) of the Employment Equality Act 1998 provides:
Nothing in this Act shall be construed as requiring any person to recruit or pro mote 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 … the duties attached to that position or will not accept … the conditions under which those duties are, or may be required to be, performed, or
(b) is not … 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.
Section 16(3) of the Act provides:
(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
The Act therefore does not require an employer to recruit, train or retain in employment a person who is not fully competent or capable to undertake the duties attached to a post. However, it also provides that a person with a disability must not be regarded as other than fully competent and capable of performing the duties attached to a post if the provision of special treatment or facilities would assist this objective. An employer is obliged to do all that is reasonable to provide such treatment or facilities unless its provision would give rise to a cost to the employer which exceeds a nominal cost.
I propose to examine, in the first instance, the three initiatives suggested by FÁS to the respondent as possibly being of assistance in accommodating the complainant. I note that the respondent states that any contact it had with FÁS was not considered by it as professional advice, rather it was an outline of the services available. I also note that paragraph 31 of the Department of the Environment and Local Government’s Code of Practice states that: ‘on questions of expert advice … local authorities should … directly approach the organisation … where the required expertise is most likely to be found’ . I am satisfied that the personnel in the local authority who were involved in exploring the question of appropriate treatment and facilities for the complainant did not possess the relevant expertise in this area and consequently, they required ex ternal advice. I am of the opinion that the information provided by FÁS comprised such advice and that the Code of Practice placed an onus on the respondent to view and treat it as such, in the absence of any attempt by the respondent to obtain the advice elsewhere.
I propose to deal firstly with the suggestion from Mr A that the complainant might undergo an independent vocational assessment to identify his work strengths and weaknesses. I note that the respondent states that it never had any objection to such an assessment and that it discussed this issue with Mr A on a number of occasions, although no record of these discussions were retained on file. I am satisfied however, that these discussions were underway as early as September 16, 2000, when the complainant’s senior administrative officer met with Mr A. I have examined the report prepared by the senior occupational therapist at the National Rehabilitation Hospital who conducted this assessment and note the following:
the complainant carried out three components of the Valpar Work Sample Assessment System. His results indicated very good accuracy. His work speed was just below the standard deemed desirable for open employment. However, his rating suggests that with familiarisation and repetition his work speed could reach the required standard. He carried out the general clerical test and his scores place him in the middle 40% of a clerical norm group—indicating that he is suitable for clerical work.
The senior occupational therapist also offered the following observations:
The complainant impressed as highly motivated and demonstrated signs of good work traits as in interest, application, concentration, method and persistence. In certain circumstances the complainant may require some extra time with initial organisation of new work or a new process. Thereafter when a task is fully understood and a routine established he can manage independently.
I note with particular interest that the report states that the complainant demonstrated good work traits in, inter alia , application, concentration and persistence—the very characteristics the respondent alleges were significantly lacking by him. The results of this assessment, in my view, clearly indicate that the complainant possessed the basic capacity to undertake the duties attached to the post of clerical officer and I am satisfied, on balance, that the vocational assessment presents a more realistic outline of the complainant’s capabilities than the views of the untrained staff involved with the complainant’s performance evaluation within the respondent authority. I note that whilst the respondent did not have any objection to a vocational assessment of the complainant, it only began to give active consideration to the idea in mid-November 2000, some six weeks after it had decided that the complainant was not capable of performing his job as a clerical officer. I find therefore, that the respondent’s conclusion that the complainant was not fully competent and capable to undertake his duties was a decision reached without proper consideration of all of the relevant factors and could not, therefore, have been reached in a reasonable and objective manner.
I shall now examine the second initiative suggested by Mr A—a personal job coach for the complainant. I note that the respondent states that following the meeting between the complainant and two of his line managers on August 15, 2000, the level of training afforded him increased to such an extent that it resembled coaching and that this coaching was performed on a one-to-one basis by the complainant’s staff officer—without any success. I further note that the respondent states that the provision of a job coach did not seem appropriate to the complainant’s circumstances as it was the respondent’s understanding that such a coach was more appropriate to a person with mental disability as distinct from a person with residual brain damage, which is what the respondent understood the complainant to suffer from. As I understand it the role of a coach in these circumstances is to assist the individual concerned to identify the problems in relation to his/her work and through one-to-one tuition and instruction, enable the person to come to grips with these difficulties. It appears to me that to perform such a role effectively requires a significant degree of training—not least when dealing with an individual with a disability to have the necessary awareness of the special difficulties such a person might encounter. Whilst, I am not suggesting that the complainant’s staff officer did not devote a high level of attention to him, her intervention did not prove successful and at that stage the involvement of a professional coach might have been appropriate. I note that the complainant’s vocational assessment, referred to in the previous paragraph, states that in certain circumstances the complainant may require some extra time with initial organisation of new work or a new process, but thereafter when a task is fully understood and a routine established he can manage independently. In the light of this comment, I am of the opinion that had a professional job coach been engaged by the respondent to assist the complainant, the complainant would have been able to carry out the functions attached to his post in a capable and competent manner. I find therefore, that the respondent did not reasonably assess this option, that its decision to dismiss it as not being possibly beneficial to the complainant was hasty and influenced by subjective factors and could therefore not be considered reasonable.
The final initiative suggested by Mr A which may have been of assistance to the respondent was use of the employment support scheme. This scheme offers some level of financial support to employers who employ people with disabilities in certain circumstances. I note that the respondent states that financial matters were not an issue for the respondent but it nonetheless argues that if it were to employ the complainant until the age of potential retirement it would give rise to a cost which would exceed a nominal cost, even if assistance from the scheme was obtained. I must say that I find these comments difficult to reconcile. Nonetheless I would state, in light of the results of the vocational assessment of the complainant—which indicate that the complainant was competent and capable of performing the functions of a post at clerical level following a period of instruction—that the likelihood of the respondent being subjected to around 40 years of expenditure in respect of an employee with a poor level of productivity, was slight. In my view therefore, the worst scenario facing the respondent would have been it having to retain a professional job coach for two/three months, at which time the complainant would have been fully equipped to carry out his duties. I am of the view therefore, that the respondent made little, if any, attempt to explore the option of obtaining assistance under the employee support scheme and its approach in this regard cannot be considered as reasonable.
In light of my comments in the foregoing paragraphs, I am satisfied that the respondent did not adequately examine the options available to it (as suggested by FÁS) in respect of special treatment and facilities which it could provide to the complainant and that its conclusion that the complainant was not fully competent and capable of undertaking the functions attached to his job was not one which was reached in a reasonable and objective manner. In reaching this view, I have been guided by the decision of the Labour court in A Computer Component Company v. A Worker EED 13/2001. Nothwithstanding the above comments, I believe that I must consider whether the provision of this treatment or facilities by the respondent would give rise to a cost to it, in excess of a nominal cost. On the basis of the evidence submitted during my investigation, I am of the opinion that the only outlay which the respondent would be have been liable for, which could be construed as financing special treatment or facilities, is the costs associated with retaining a professional job coach for a period and the cost of the vocational assessment.
I note the respondent states that the term ‘nominal’ is not defined in the Act and this is correct. It is, in the first instance, a matter for this office to decide what constitutes ‘nominal cost’ , a point which was averted to on several occasions on the passage of the legislation through the Houses of the Oireachtas. In my deliberations on this particular matter, I have looked at the Oireachtas Debates on the legislation. I note at Committee Stage in the Seanad that the Minister of State at the Department of Justice, Equality and Law Reform stated that:
Nominal may not be the same for every employer or enterprise and the term may be interpreted in a relative sense. What is nominal for a large enterprise employing hundreds of people will not be the same as that for a small business with two or three employees.
In addition, I have examined the judgment of the Supreme Court in Re Article 26 of the Constitution and of the Employment Equality Bill 1996 [1997] ECR 132 . In that part of its judgment dealing with reasonable accommodation the Court states:
That the Bill has the totally laudable aim of making provision for such of our fellow citizens as are disabled…. It requires [an employer] to bear the cost of all special treatment and facilities … unless the cost of the provision of such treatment would give rise to undue hardship to the employer. There is no provision [in the Bill] to exempt small firms or firms with a limited number of employees.
Whilst the Supreme Court was looking at the test of ‘undue hardship’ which was contained in the Employment Equality Bill 1996, in my view its comments recognised the potential difference in impact of that legislation on small, medium and large employers. The reasonable accommodation provision in the Employment Equality Act 1998 is similar to that contained in the Bill of 1996, except that the test is now “nominal cost” . I am satisfied that the apparent distinction drawn by the Supreme Court between employers of different size and level of resource (mentioned above) refers equally to employers in both the public and private sectors and is still valid. In addition, it is clear from the Minister of State’s comments above, that the legislature’s understanding on the issue of “nominal cost” was that all employers would not be treated in an identical fashion and that the particular circumstances would have to be evaluated in each case. Applying the foregoing to the instant case, I do not believe that the costs associated with the facilities could be considered as anything other than nominal to a large public sector organisation.
The complainant cited a number of other examples where the respondent failed to give reasonable consideration to those issues in its examination of providing the complainant with reasonable accommodation. I do not propose to comment on these factors other than to say that an employer should exercise caution when conducting such an assessment. In addition, I would comment that the respondent’s actions on certain aspects of this case fell considerably short of what is set out in the Code of Practice —failure to notify the complainant’s senior administrative officer at the outset that the complainant suffered from a disability, the fact that the complainant’s supervisory staff did not complete any disability training, the fact that the local authority did not have a disability liaison officer at the time the complainant took up duty and nobody took that officer’s place, the fact that the respondent never spoke with the complainant about his needs. I would also highlight the fact that very scant records of relevant discussion and actions in the course of the complainant’s tenure as a clerical officer with the respondent were retained on file. Without commenting on the foregoing points individually, I would point out that such shortcomings have, in the past, militated against a respondent in certain circumstances.
One other issue which emerged during my investigation, whilst not particularly relevant to the complaint of discrimination, gave me some cause for concern—this is the meeting which the complainant had with two of his senior line managers on August 15, 2000. I note that the respondent states that this meeting was not a disciplinary one and that there is no stipulation that an employee cannot have representation at such meetings. Nonetheless, I am sure that such meetings are not a pleasant experience for any of the parties concerned and that in particular, the employee can leave the room quite distressed. I believe that this distress could well be increased in circumstances where the employee concerned has a disability. I would suggest therefore, that the respondent might consider changing the manner in which such meetings are conducted for all employees, but particularly where an employee with a disability is involved, by indicating to that employee, well in advance, that s/he might be accompanied by another person of his/her choice, including an union representative.
Decision
In view of the foregoing I find that the respondent:
(a) did not discriminate against the complainant in terms of section 6(2)(g) of the Employment Equality Act 1998 and in contravention of sections 6(1) and 8(1) of that Act, in terms of his contract of employment with the respondent in May 2000;
(b) discriminated against the complainant when it failed to provide him with appropriate special treatment and facilities (reasonable accommodation) in the context of section 16 of the Employment Equality Act 1998 during his tenure as a clerical officer with that organisation.
In accordance with section 82(1) of the Employment Equality Act 1998 1 hereby order the respondent to do the following:
(a) to pay the complainant €15,000 by way of compensation for the distress suffered by him as a result of the complainant’s failure to provide him with appropriate special treatment and facilities during his tenure as a clerical officer,
(b) to provide all supervisory staff with appropriate training in disability issues—this training to highlight the requirements under the Employment Equality Act 1998 and the Department of the Environment and Local Government’s Code of Practice for the Employment of People with Disabilities as well as an appropriate module on disability awareness. The training should commence within four months of the date of this decision.
(c) that the training referred to at (b) should include, in particular, the official carrying out the duties of disability liaison officer in the authority. In addition, this official should attend on-going training/awareness courses, or appropriate conferences/workshops or seminars on disability issues to maintain an appropriate level of expertise in the area.
(d) to keep the issue of disability training for staff in general, but particularly those at (b) and (c) above, under constant review.”
Paterson v. Commissioner of Police of The Metropolis
[2007] ICR 1522 [2007] IRLR 763
EAT ELIAS P.
“PART TIME WORKERS
A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he was not disabled within the meaning of the Disability Discrimination Act 1995 because that was not a normal day-to-day activity. In so far as he did claim to be suffer substantial adverse effects on his ability to carry out what the Tribunal accepted were day-to-day activities, the Tribunal was not satisfied that the effects were substantial. They were minor.
The EAT upheld the appeal. The Tribunal had misdirected itself on the proper approach to the meaning of disability. It would wholly undermine the protection afforded by this legislation if the Tribunal were correct.
…………….
The law
The Disability Discrimination Act 1995 first regulated discrimination in the field of employment. At that time there was no European legislation in the field. That has now changed. The Council Directive of 27 November 2000 (2000/78/EEC) “Establishing a General Framework for Equal Treatment in relation to Employment and Occupation” (the “Framework Directive) also requires measures to be taken to combat disability discrimination in employment and related fields. The UK gave effect to these provisions by the Disability Discrimination Act 1995 (Amendment Regulations) 2003, which came into force on the 1 October 2004. The amended legislation must of course be interpreted so as to give effect to the Directive.
Section 1 of the 1995 Act provides:
“Meaning of “disability” and “disabled person”
(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
(2) In this Act “disabled person” means a person who has a disability.”
Section 3 provides that the Secretary of State may provide guidance about matters to be taken into account when analysing the questions raised by s1. Such guidance has been issued and is entitled “Guidance on matters to be taken into account in determining questions relating to the definition of disability.” A tribunal has to take the guidance into account where it appears to be relevant: s3(3).
A number of features should be noted about this definition of a disabled person within the meaning of s1. First, the approach is a functional one; there has to be a substantial effect on a person’s functional abilities.
Second, it is not all physical or mental impairments which fall within the scope of the section. Para 4(1) of Schedule 1 to the Act provides:
“An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following –
(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger.”
That is an exclusive definition; the impairment must affect one of the matters identified. It is common ground that the effect of the impairment of dyslexia falls under para (g).
Third, the impairment must have an effect on the ability to carry out normal day to day activities. Some assistance as to the meaning of normal day to day activities has been provided by part C of the Guidance. The following paragraphs in particular are of assistance:
“C Normal day-to-day activities
Meaning of “normal day-to-day activities”
C1. The Act states that an impairment must have a long-term substantial adverse effect on normal day-to-day activities (S1).
C2. The term “normal day-to-day activities” is not intended to include activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a “normal day-to-day activity” account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis.
C3. The term “normal day-to-day activities” does not, for example, include work of any particular form, because no particular form of work is “normal” for most people. In any individual case, the activities carried out might be highly specialised. The same is true of playing a particular game, taking part in a particular hobby, playing a musical instrument, playing sport, or performing a highly skilled task. Impairments which affect only such an activity and have no effect on “normal day-to-day activities” are not covered. The examples included in this section give an indication of what are to be taken as normal day-to-day activities.”
We would also observe that in practice if the impairment is of a kind described in para 4 of Schedule 1, then it is almost inevitable that it will have an adverse effect on normal day-to -day activities. The point was lucidly put by Mr Recorder Langstaff QC, as he was, in Ekpe v Metropolitan Police Commissioner [2001] ICR 1084, para 30:
“The question whether the impact of the impairment is upon normal day-to-day activities is, of course, judged by asking whether or not any of the abilities, capacities, or capabilities (whichever expression is adopted) referred to in Paragraph 4(1) of the Schedule to the 1995 Act has been affected. If it is, then it must be almost inevitable that there will be some adverse effect upon normal day-to-day activities. An impairment of manual dexterity – to take that as an example – is almost bound to affect a myriad of individual activities, not all of which could satisfactorily be listed even by the most able and eloquent of applicants. Assuming for the moment, without deciding (because the contrary interpretation is not necessary for the resolution of this case), that an impairment in any of the capacities listed at Paragraph 4(1) is not in itself determinative of the question of impact on normal day-to-day activities, but that the impairment must be shown to have some such effect, it nonetheless seems to us that it will only be in the most exceptional case that any such impairment will not do so. If there were some impairment that affected the concert pianist only in his ability to manipulate the keys of his piano, it would affect his manual dexterity but would not affect normal day-to-day activities within the meaning of the Act: but it is difficult to contemplate what the nature of an impairment might be that had such a selective effect. In most normal cases it is likely that the answer to the question “Has a Paragraph 4(1) ability been affected?” will also answer the question whether there has been an impact on normal day-to-day activities.”
Fourth, the adverse effect must be substantial. Again, some assistance is provided by the Guidance:
Meaning of “substantial” adverse effect
A1. The requirement that an adverse effect be substantial reflects the general understanding of “disability” as a limitation going beyond the normal differences in ability which may exist among people. A “substantial” effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A “substantial” effect is one which is more than “minor” or “trivial”.
. The time taken to carry out an activity
A2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time that might be expected if the person did not have the impairment.
. The way in which an activity is carried out
A3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way the person might be expected to carry out the activity if he or she did not have the impairment
In our judgment A1 is intending to say no more than that in the population at large there will be differences in such things as manual dexterity, ability to lift objects or to concentrate. In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large. As A2 and A3 make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.
There are also certain provisions which deal with coping strategies. In some cases they will prevent the impairment having adverse effects, but only where they can be relied on in all circumstances:
“. Effects of behaviour
A7. Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities. If a person can behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities the person would no longer meet the definition of disability.
A8. In some cases people have such “coping” strategies which cease to work in certain circumstances (for example, where someone who stutters or has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will
sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment.”
Fifth, the effects must be long-term. That is defined in Schedule 1 para 2. It is not disputed that any effects here are long-term.
The significance of medical evidence.
Although there will frequently be medical evidence from experts to assist a tribunal on the question whether someone is disabled, that is a matter for the Tribunal and not the expert to determine. The position was expressed as follows by Morison P in Vicary v British Telecommunications plc [1999] IRLR 680 at para 16:
“…The fact that the medical adviser had been told on some disability discrimination course or seminar that something was or was not a normal day-to-day activity is not of relevance to the tribunal’s determination. It is not for a doctor to express an opinion as to what is a normal day-to-day activity. That is a matter for them to consider using their basic common sense. Equally, it was not for the expert to tell the tribunal whether the impairments which had been found proved were or were not substantial. Again that was a matter for the employment tribunal to arrive at its own assessment. What, of course, a medical expert was entitled to do was to put forward her own observations of the applicant carrying out day-to-day activities and to comment on the case or otherwise with which she was performing those functions. She obviously also was entitled to give any prognosis that might be relevant and to give an opinion as to the position about the effect of medication.”
Mr Laddie submitted that a medical expert would also be entitled in a case like this, where some objective assessment is possible, to give the scores and place them in context. That is plainly correct and is part of the medical analysis. However, that is not the same as determining whether the effects are substantial, although sometimes the assessment will effectively dictate the answer to that question.
The grounds of appeal.
The appellant has identified five separate grounds of appeal. However, stripped of the detail, lying at the heart of the appeal is a simple assertion. It is submitted that once the Tribunal has found – as it has in terms – that because of his disability, the appellant would be at a definite disadvantage in comparison with his work colleagues in performing the assessments which are a prerequisite of being promoted, then the only possible conclusion was that he was disabled within the meaning of the legislation. Once it was accepted that the disability affected Mr Paterson’s ability to progress in his profession, the only reasonable inference was that it had a substantial effect on his day to day activities. Any other conclusion would mean that because of the effects of his dyslexia, he would in practice face a glass ceiling; he would not be able to compete adequately in the promotion stakes beyond a certain level.
Mr Laddie submits that it is simply not adequate for the Tribunal to say that the effect of the dyslexia should be taken into account as part of good industrial practice. The purpose of the legislation is to confer rights on the disabled so that, for example, reasonable adjustments should be made to eliminate or mitigate the adverse effects of their disability. It is not satisfactory simply to rely on the goodwill of the employer to provide those adjustments. Moreover, as in this case, there may well be disputes as to whether a particular adjustment is reasonable or not. Yet if the employee is not even classified as disabled, there is no way in which he can challenge that conclusion in law.
Moreover, he says that if the Tribunal were right, it would have a devastating effect on the operation of the legislation. One of its objectives is to prevent discrimination with respect to the opportunities which the employer affords a disabled person for promotion. It would frustrate that objective if an employer could successfully contend that a person subject to a disadvantage and who required an adjustment to mitigate that disadvantage would not be protected because he did not fall within the statutory definition of a disabled person.
Mr Laddie recognises that the Act is complex and technical, but submits that the conclusion of the Tribunal is so bizarre that it must betray an error of law. The Tribunal has lost the wood for the trees. Someone who, as the employer has conceded in the light of Dr Biddulph’s report, needs 25% additional time for completion of the promotion assessment in order to compete for promotion must be disabled within the meaning of s1 of the Act. To conclude otherwise fundamentally undermines the Act’s intended field of protection.
Ms Padfield, counsel for the employers, contends that the Tribunal was not in error and that the appellant’s argument is based on a misconception of the purpose of the legislation. The issue is not how the appellant would have performed but for his dyslexia; that is the wrong comparison. Rather it is whether he is disadvantaged when compared with members of the population at large.
That in turn is assessed by focusing on whether his impairment has a substantial adverse effect on his ability to carry out normal day to day activities. If it does not, as the Tribunal rightly found in this case, then it matters not whether his disability has caused him to suffer a disadvantage which he would not otherwise have. An employer may choose to make allowances for that disadvantage, but there is nothing in the Act requiring them to do so. As the Tribunal noted, it is a matter of good practice. Ms Padfield accepts that this will indeed limit the opportunities for promotion which a disabled employee will have but submits that this is the social policy of the legislation.
In our judgment the appellant is correct. Where it is not disputed that the employee is suffering a substantial disadvantage because of the effects of his or her disability in the procedures adopted for deciding between candidates for promotion, the only proper inference is that those effects must involve a more than trivial effect on his ability to undertake normal day to day activities. It would fundamentally undermine the protection which the Act is designed to provide were it otherwise.
Moreover, Ms Padfield’s approach misconstrues the task which Tribunals must carry out. As we have said, it is not to compare the performance of the employee with the average person in the population, which was the comparison the Tribunal seems to have made. Rather, it is the comparison between what the individual can do and would be able to do without the impairment. That is a simple summary of our conclusion which we expand in the context of considering the detailed grounds of appeal.
Improper considerations.
The first ground is that the Tribunal erred in law in placing emphasis on the appellant’s ability to carry out normal day to day activities in the period prior to the date of the alleged discrimination. It was an improper consideration and unfairly affected their assessment of his activities. The relevant date for determining whether discrimination exists is the date of the alleged discrimination: see Cruickshank v VAW Motorcast Ltd [2002] ICR 729.
The second ground is related, as Mr Laddie accepted. It is submitted that there was evidence from the appellant that he only managed to perform certain tasks satisfactorily by adopting coping strategies but that as a result he would re-read texts and take longer to perform reading and associated tasks than would his colleagues. He submitted that the fact that Mr Paterson had been able to cope during his career did not show that he was not substantially disadvantaged. Indeed, the only proper analysis of the expert evidence was that he was disadvantaged even in carrying out the every day activity of reading and comprehension.
Ms Padfield contends that these two grounds are misconceived. Whilst in some cases it may be inappropriate to consider how tasks were being performed prior to the date of discrimination, this is because there might have been no disability at the earlier date. Here, however, there was no change in the nature or severity of the symptoms. It was common ground that the appellant had suffered from dyslexia all his life. It was not suggested that the symptoms had deteriorated. In these circumstances the Tribunal was plainly justified in considering the evidence of how the appellant had managed in the course of his police career.
In so far as the work activity included normal day to day activities, the Tribunal was entitled to have regard to it when assessing the appellant’s evidence. That was the conclusion of the Inner House of the Court of Session in Law Hospital NHS Trust v Rush [2001] IRLR 611, and the EAT should follow it. The Tribunal was therefore entitled to conclude that since the appellant could apparently carry out such tasks as bookkeeping and report writing in the course of his work, this was evidence supporting its conclusion that he could deal satisfactorily with normal day to day activities.
As to the coping strategies, Ms Padfield says that the Tribunal was referred to the guidance relating to this, and in any event it should not be assumed that they did not have regard to them merely because they did not expressly refer to them. In any event, since this ground relies upon evidence allegedly adduced before the Tribunal, it was incumbent on the appellant to establish what evidence had been given, either by agreement or, absent agreement, chairman’s notes. Since that has not been done, this ground cannot be pursued.
We accept Ms Padfield’s submissions on the first point. The date of the discrimination was immaterial in this case where the disability relied upon was a form of dyslexia from which the appellant had always suffered. In those circumstances it was obviously appropriate for the Tribunal, when assessing the effect on normal day to day activities, to have regard to the appellant’s ability to cope in his job.
That was of potential evidential significance, as the Inner House of the Court of Session recognised in the Law Hospital case. We also agree that even if the Tribunal has misunderstood or failed to appreciate the significance of such evidence as the appellant gave about coping strategies, we are in no position to assess that without the relevant evidence before us. In principle, as para A7 of the Guidance makes clear, a coping strategy may in an appropriate case eliminate the adverse effects.
Mr Laddie advanced a slightly different point in the course of argument. He submitted that it was plain from the evidence and confirmed in the experts’ reports that in any event the coping strategies themselves involved allowing more time than would be taken by a non-disabled person for reading and comprehension. This taken on its own ought to have led the Tribunal to conclude that there was a substantial adverse effect but they failed to have regard to that factor. We agree that this was potentially an important matter which the Tribunal ought to have considered. However, in fairness to the Tribunal, it was not argued with any force below that the act of comprehension was itself a day-to-day activity, although we have no doubt that it is.
Inadequate treatment of experts’ reports.
The third ground is that the Tribunal erred in improperly discounting the report of Professor McLoughlin or at least, if it were to fail to follow it, it was incumbent on them to say why. Reliance was placed on a decision to that effect in R (H) v Ashworth Hospital Authority [2003] 1 WLR 127. Merely stating that it was because Professor McLoughlin had failed to ask all the questions posed to him, and that his reasoning was inadequate, was an insufficient explanation.
Mr Laddie further submits that for the Tribunal to describe the dyslexia as “minor” was inapposite, even given the Tribunal’s preference for Dr Biddulph’s analysis. He had described it as “mild.”
Ms Padfield says that the Tribunal had to assess the evidence; they were entitled to prefer the evidence of Dr Biddulph and they gave a satisfactory explanation. Moreover, she submits that it is striking that although Professor McLoughlin expressed the view that the dyslexia had impacted on day to day activities, he did not say that it had a substantial impact.
We think that the reasons for preferring Dr Biddulph’s report could have been explained more fully, although reading the Tribunal’s judgment as a whole, the Tribunal also indicated that they did not consider that Professor McLoughlin’s finding that Mr Paterson had difficulty with proof reading was justified. However, in our view this particular ground does not take matters very far, even if correct.
As Morison P observed, giving the judgment of the EAT in Vicary v British Telecommunications plc [1999] IRLR 680, the importance of the medical evidence is to help the tribunal determine whether there was a relevant impairment and what the effect of medication might be. In addition the expert may report on his or her own understanding of the ease with which the patient was able to carry out day to day activities. However, as we have said, what constitutes day to day activities and whether the adverse effect is substantial is ultimately a matter for the tribunal, not the doctor.
In this case it is accepted that there was an impairment, namely dyslexia. Whether it is properly described as minor or mild, or something more severe, is not of itself of any great moment. The issue is whether its effect, however it is described, is to have a substantial adverse effect on normal day to day activities. That is for the tribunal to decide in the light of all the evidence. A misdescription of the impairment, if misdescription there was, is of no materiality when answering that question.
Equally, however, we reject Ms Padfield’s submission that significance should be attached to the fact that Professor McLoughlin did not in terms refer to the fact that the effect on normal day to day activities was “substantial”. It was not for him to comment on that matter at all, and it would have been better had he refrained from so doing. The Tribunal were right to ignore those comments -both what he did say about normal day-to-day activities and also what he did not. The omission of the word “substantial” in that report lends no support at all to the Tribunal’s conclusion.
Misdirection by the Tribunal
The fourth and principal ground of appeal is directed at the Tribunal’s conclusion that the impairment had only a minor effect on day to day activities. This conclusion was reached on the basis that the difficulties faced by the appellant would have a substantial effect only in the context of a high pressure assessment or examination which the Tribunal considered was “by no means a normal day to day activity”.
Mr Laddie says that the Tribunal misdirected itself in reaching that conclusion. He relies in particular on some dicta of this Tribunal of Mr Recorder Langstaff QC in the Ekpe case at
(para 32):
“We should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is “normal” and that which is “abnormal” or “unusual” as a regular activity, judged by an objective population standard. (Just as what is “substantial” for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial. So too may what is “normal” best be understood by defining it as anything which is not abnormal or unusual or, in the words of the Guidance, “particular” to the individual applicant.)”
57. Mr Laddie submits that it is neither abnormal nor unusual for someone to take high pressure examinations, in some cases for the purposes of gaining promotion. On the contrary, it is a usual, if irregular, everyday activity.
Alternatively, he submits that even if the activity of taking an examination is not itself is a day to day activity, once it is accepted that the appellant is disadvantaged because he suffers from a deficit in his reading and comprehension skills, that itself is a day-to-day activity.
Mr Laddie further submits that this conclusion is strongly reinforced, indeed demanded, by the decision of the European Court of Justice in Chacón Navas v Eurest Colectividades SA [2006] IRLR 706. That case was not reported until after the Tribunal had made its determination. It was not referred to them.
The ECJ had to consider the meaning of disability under the Framework Directive. As we have said, the DDA as amended is the domestic implementation of that Directive. The questions posed to the court were on a reference from Spain. The court was asked to hold whether discrimination on the grounds of sickness alone was a breach of the Directive. Not surprisingly, they held that it was not. In answering that question they analysed the concept of disability. The ECJ held that the concept of disability should be given a uniform and autonomous meaning throughout the EU. They defined the concept as follows:
“43 Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context, the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.
44 However, by using the concept of ‘disability’ in Article 1 of that directive, the legislature deliberately chose a term which differs from ‘sickness’. The two concepts cannot therefore simply be treated as being the same.
45 Recital 16 in the preamble to Directive 2000/78 states that the ‘provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability’. The importance which the Community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time. In order for the limitation to fall within the concept of ‘disability’, it must therefore be probable that it will last for a long time. ….”
The court later dealt with what it considered to be the implications of this for the obligation to make reasonable adjustments:
“50 In accordance with Article 5 of Directive 2000/78, reasonable accommodation is to be provided in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities. That provision states that this means that employers are to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures would impose a disproportionate burden on the employer. “
Mr Laddie, in particular, focuses on the observation at paragraph 45 that what disability envisages are situations in which “participation in professional life is hindered over a long period of time”. He submits that is precisely the situation here. Participation is hindered in promotion without reasonable adjustments being made to accommodate the effects of the disability.
Ms Padfield contends that the Tribunal was fully entitled to reach the conclusion that it did. An examination or assessment is neither a normal nor a day to day activity, and to fall within the scope of the Act it must be both. She further submits that whilst it may fairly be said that participating in an examination is not an abnormal or unusual activity that does not mean that it is a day-to-day activity. She says that the Tribunal were right to compare Mr Paterson with the normal range in the population at large, and that it was an error to identify the effects by asking how he would have performed had he not suffered the impairment of dyslexia.
She submits that the Tribunal applied that principle here and were entitled to conclude that whilst the appellant was disadvantaged with respect to his peers, he did not suffer a limitation which went beyond the normal differences in ability which exist between people.
Ms Padfield did, however, recognise that it was difficult for her to maintain her stance in view of the Chacón decision. If that were binding on the EAT, then she conceded that the Tribunal’s decision was incompatible with it. However, she submitted that we ought not to have regard to that case, for reasons we consider later. She also argued that even if we were bound by Chacón, it was not possible to interpret the 1995 Act, and in particular the concept of disability in section 1, compatibly with that decision.
In our judgment, the appellant’s submission is correct. We would have reached that conclusion simply taking domestic law on its own without any reference to the decision in Chacón. In our view carrying out an assessment or examination is properly to be described as a normal day to day activity. Moreover, as we have said, in our view the act of reading and comprehension is itself a normal day-to-day activity. In any event, whatever ambiguity there may be about that, in our view the decision of the ECJ in Chacón Navas is decisive of this case.
We must read s1 in a way which gives effect to EU law. We think it can be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life.
More fundamentally, in our view Ms Padfield’s approach to establishing whether there the disadvantage was substantial is misconceived. In our judgment the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross section of the population, then the effects are substantial.
It follows that this ground of appeal succeeds. Once the Tribunal had accepted that the appellant was disadvantaged to the extent of requiring 25% extra time to do the assessment, which is what Dr Biddulph considered appropriate, then it inevitably followed that there was a substantial adverse effect on normal day-to-day activities.
We are reinforced in this conclusion by the implications of the contrary view. The purpose of the legislation, at least in part, is to assist those who are disabled to overcome the disadvantages which stem from a physical or mental impairment. The approach suggested by Ms Padfield and adopted by the Tribunal does not achieve that. Take the case of someone who has all the skills to be a highly successful accountant, but lacks manual dexterity. This may require that he or she should be given longer to do the relevant examinations. It would surely be no answer and would be wholly inconsistent with the purposes of the legislation, simply to say that that individual was not disadvantaged when compared with the population at large and therefore no obligation to make the adjustment arose. Yet as Ms Padfield accepted, that is the logic of her position.
Perversity
In view of our conclusion on this ground, we need say little about the final ground, which is that the decision was perverse. In truth, as Mr Laddie accepted, this is simply a reiteration of the earlier grounds. Essentially, it is alleged that the conclusion must be perverse because its effect is to restrict the opportunity for someone suffering from a recognised impairment seeking to obtain promotion on a level playing field. We have accepted the thrust of that argument, but it adds nothing to contend that it also amounts to perversity. There was a proper evidential basis for the Tribunal’s conclusion; we simply think that it misdirected itself in law as to the legal effect of the findings it made.”
Kenny v Hampshire Constabulary
[1998] UKEAT 267_98_1410
MR JUSTICE MORISON
MR JUSTICE MORISON (PRESIDENT): This is an appeal against the unanimous decision of an industrial tribunal held at Southampton that the applicant, Mr Ian Kenny, was not unlawfully discriminated against contrary to the Disability Discrimination Act 1995 [‘the Act’].
……………
The first question that arises is whether the arrangements which were necessary to enable the applicant to work with the respondents fall within section 6. We have come to the conclusion that they do not. Broadly, we accept the submission on behalf of the respondents on the cross appeal. In the first place, we consider that Ms Moor’s submission amounts to a contention that every arrangement which could be made to facilitate the disabled person’s employment falls within the definition in section 6(2). Yet, as it seems to us, a line must be drawn somewhere otherwise the statute would have been drafted differently. Subsection (2), as the word “only” foreshadows, is not intended to cover everything an employer could do. For example, the provision of transport for getting to an fro from the employers’ premises is outwith the section. If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but not the employers’ responsibility. The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, but without involving a breach of the Act. Therefore, the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangement within the Act. In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to section 6(2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely “any term condition or other arrangement on which employment promotion a transfer or any other benefit is offered or afforded”, Parliament had in mind what might be called ‘job related’ matters. In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements.
The example of the incontinent job applicant is instructive. Ms Moor argues that an employer would be under an obligation to provide for the sanitary needs of that person, including the provision of a toilet assistant. She says that this interpretation would cause no injustice because the employer would probably be able to say that it was not reasonable for him to take corrective action and would be able to justify any breach. But with respect to that argument, the submissions she makes here belie that contention. She is asserting that the employers failed to justify their action because they could not show that attempts had been made to recruit volunteers from the whole of the force. It is plain that once the duty to make adjustments arises, the inquiry into reasonableness and justification may involve the employer in making extensive, detailed inquiries.
A broad construction seems inconsistent with the word “only” in section 6(2); the opposite point of view does not automatically lead to the employer succeeding because, as here, there will be discrimination under section 5(1) which the employer will be required to justify. As a matter of first impression it seems to us that had Parliament intended to impose on employers the duty to cater for an employee’s personal needs in the toilet it would have said so, and the Code of Practice would have laid out the criteria to be applied. In fact, the Code of Practice is not consistent with such a duty; it is consistent with the respondents’ submissions. Ms Moor referred to “providing supervision” in section 6(3)(l). The Code refers to this thus:
“This could involve the provision of a support worker or help from a colleague, in appropriate circumstances for someone whose disability leads to uncertainty or lack of confidence.”
It seems to us that this is referring to the provision of a helper to enable the disabled person perform their employment duties. The provision of a carer to attend to a person’s personal needs is not aptly described as the provision of supervision. Supervision in the employment context is perfectly comprehensible as a concept and it would be distorting the language to suggest it covered personal care. On the other hand, it seems to us that an employer should be required to consider making physical adjustments to accommodate the presence of a personal carer provided by the disabled person himself/herself. Access to a toilet during working hours is a necessary ancillary to a person’s work to bring the Act into play. Therefore, a failure to make physical arrangements for a disabled person to use the toilet would fall within section 6(1)(b); equally a failure to make physical arrangements to accommodate the carer would fall within that section; but it is going too far, in our judgment, to suggest that employers are under a statutory duty themselves to provide carers to attend to their employees’ personal needs. The example of employment within a hospital was suggested in argument. It seems to us that the answer is, in principle, no different. In terms of its employment relationships, a hospital or police force is not obliged to provide personal carers but each will be required to consider making adjustments to accommodate the carer provided by the disabled person. In both cases, the employer will have discriminated against the disabled person by reason of his disability; in both cases the employer would have to justify the discrimination to avoid liability. In the former case, the question of justification might be answered differently from that in the latter.
As Mr Doughty said, ‘a line has to be drawn’ on the extent of the employer’s responsibilities in providing adjustments to accommodate a disabled employee.
The result is that the cross appeal succeeds, and the Industrial Tribunal were right to reject the complaint under section 5(2) of the Act.
We would add that, had the cross-appeal not succeeded we would have allowed the appeal on the grounds advanced by Ms Moor. We emphasise to Industrial Tribunals the need for them to know the scheme of the Act. Where section 6 applies the question of reasonableness must be addressed before the question of justification.
We were attracted to Ms Moor’s other submission that the tribunal have not fully considered the question whether the employers were justified in not waiting for the result of the PACT application. The submission made to us is that they apparently never considered whether during the intervening period, the employers should have suggested and/or indicated that they would permit the mother to attend on a temporary basis, to hold the fort. Whilst the President would have been minded not to allow the appeal on this ground, his lay colleagues feel differently and he is not prepared to disagree with them, in the light of their considerable workplace experience. This is, therefore, a unanimous decision that the matter should be remitted back for another tribunal to consider the question of justification under section 5(1) of the Act. The new tribunal will not be concerned to consider section 5(2) nor section 6. But it will wish to consider all the circumstances, including the relevant provisions of the Code of Practice. As a matter of general rule, whilst tribunals become familiar with the statute, we recommend to them that in every case reference is made to the Code of Practice. That document helps to set the framework within which decisions must be made and section 53(6) requires tribunals to take into account any provision of the Code which appears to it to be relevant.
The decision of this court is that the matter be remitted back to another tribunal to consider the applicant’s complaint under section 5(1) of the Act only.”
Humphreys v Westwood Fitness Club
(EED037)
Labour Court
The employer must follow the following steps if they become aware that an employee has a disability that may impact their ability to perform their job:
“The employer should ensure that they are in full possession of all the material facts concerning the employee’s condition;
[If relevant] The employee is given fair notice that the question of his or her dismissal for incapacity is being considered;
The employee must also be allowed an opportunity to influence the employer’s decision. This will normally require a two-stage enquiry, which looks firstly at the employee’s capability / incapability and its likely duration, and secondly looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.
If it is apparent that the employee is not fully capable, the employer must consider what reasonable accommodation they can offer the employee to make them fully capable, such as special treatment or facilities that may be available and the cost associated with such treatment/facilities.”
A Meat Company v A Worker
(EDA 1628)
Facts of the Case
The claimant worked as a charge hand in a meat production business. She suffered a serious back injury in 2009 and was absent from work for a number of years. In 2011 her solicitor wrote to the employer indicating that the employee was fit for work but was restricted from handling heavy loads or engaging in jerky movements.
In mid-2012, the employer had her medically examined by their own doctor and noted that she was “unfit to return to work at this current time” as she was unable to work where it involved manual handling and heavy loads.
The employer misinterpreted this to mean that the claimant would never be able to do the work she had previously carried out for the company. As the company had no alternative roles which the claimant could do, it dismissed her on the grounds of disability in that it stated that she was not fit to perform her role and it could no longer keep her job open. The claimant appealed against the decision of the Adjudication Officer.
The decision of the Labour Court
The court found that the employer had discriminated against the employee and awarded €13,500 as compensation. It applied the test adopted in the Humphries case (as noted above) and it found that the employer had not satisfied itself as to the full extent of the claimant’s medical condition.
Further, it misinterpreted the medical evidence that she was ”not fit at this time” to mean she would never be fit again to do the work that she had been hired to do.
The court found that the employer did not give her fair notice that her dismissal for incapacity was being considered.
The court concluded that the employer was overly focused on her incapacity as opposed to her capacity and did not give consideration to what reasonable accommodation could be made.
The Court found that the employer had failed to discharge the burden of proof that it had not discriminated against the employee on the grounds of her disability.
Arravasc Limited v Gerard Cahill
ADE/16/59
“This is an appeal by Arravasc Limited against a decision of an Adjudication Officer DECADJ-00000786 issued on 31thMay 2016 in a claim of discriminatory dismissal taken by Mr Gerard Cahill against the Company (in this case “the provider of agency work”). The claim is made on the grounds of disability.The Adjudication Officer decided that Mr Cahill was discriminated against by Arravasc Limited and awarded him the sum of €42,640.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Gerard Cahill will be referred to as “the Complainant” and Arravasc Limited will be referred to as “the Respondent”.
The Complainant referred a complaint to the Workplace Relations Commission on 30thNovember 2015, alleging that he was dismissed on account of his disability contrary to Section 8 of the Employment Equality Acts 1998-2015 (the Acts) and that the Respondent had failed to comply with its obligation to take appropriate measures to enable him to return to work after he suffered a heart attack on 17thJuly 2015.
The Complainant clarified for the Court that claims alleging discrimination on the ground of disability in failing to employ him and to promote him which were originally referred to the Workplace Relations Commission and for which no decisions were given, were not on appeal to this Court.
For reasons which were explained to the Court, the Respondent did not attend the hearing before the Adjudication Officer.
Background
The material factual background to the case can be summarised as follows:-
The Respondent is an international company involved in the design, manufacture, distribution and marketing of medical devices. Due to the nature of its work and the uncertainty relating to the volume and consistency of work, it uses the services of an employment agency to supply it with staff when and as required. In late 2014, the Respondent contracted Cregg Labour Solutions Limited, an employment agency (hereafter referred to as “the Agency”) within the meaning of the Employment Agency Act 1971, seeking to employ staff. The Complainant applied through the agency for a position with the Respondent and he commenced work at the Galway plant on 29thOctober 2014 as a Manufacturing Team Member and was paid €10.25 per hour.
In this case the Respondent is impleaded as a provider of agency work. A separate case has been heard by the Court where the Agency was impleaded as the Complainant’s employer.
On Friday 17thJuly 2015 while at home the Complainant suffered a heart attack (described as a myocardial infarction), he was hospitalised and underwent a stenting procedure under the care of a Consultant Cardiologist. He spent four nights in hospital and following his discharge he was required to attend intermittently at the outpatients department and at a Cardiology Clinic for rehabilitation purposes.
The Complainant’s wife contacted the Respondent to inform it of her husband’s condition and his son provided it with a medical certificate. Shortly afterwards the Respondent’s Operations Manager visited the Complainant in hospital.
On 9thAugust 2015, the Agency contacted the Complainant to set up a meeting with two of its managers for 11thSeptember 2015. When he attended the meeting he was informed by the Agency that the Respondent was not prepared to await his recovery any further and in consequence, his employment was terminated with immediate effect.
…………..
The Law
The Complainant is an agency worker within the meaning of Section 2(1) of the Acts and the Respondent is a provider of agency work, in relation to the Complainant, within the meaning of Section 2(5) of the Act. The Respondent accepts that it is an appropriate party to these proceedings.
Section 8 of the Acts has a general prohibition on discrimination and states that a provider of agency work shall not discriminate against an agency worker.
Section 16(1) of the Act provides: –
(1) 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.
Subsection (3) of this section provides: –
(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.
The application of this section was extensively considered by this Court in Humphries v Westwood Fitness Club[2004] 15 E.L.R. 296. That decision was subsequently appealed to the Circuit Court under repealed provisions of the Act prior to its amendment by the Equality Act 2004 and was upheld in a decision handed down by Judge Dunne (as she then was) on 13thFebruary 2004.
In its decision this Court held as follows: –
This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.
In a later determination, reported as A Worker v An Employer [2005] ELR 159, this Court expressed the statutory duty on an employer to make reasonable accommodation for a disabled employee as follows:
“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull [2001] I.R.L.R. 60).
The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.”
In Marie Daly v Nano Nagle School [2015] IEHC 785, the High Court recently affirmed the consistent construction of Section 16 of the Acts in the Determinations of this Court and this Court’s interpretation of the scope of the obligation placed by Section 16 of the Act on an employer to consider what reasonable accommodation can be made for an employee with a disability within the meaning of the Act.
Therefore in accordance with Humphriesand in A Worker v An Employer a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes. All of these considerations apply equally to the providers of agency work.
Conclusions of the Court
The Complainant seeks redress for discriminatory dismissal on grounds of his disability.
The Respondent stated that it was not in a position to reasonably accommodate the Complainant as the Agency had taken it upon itself to terminate his employment and at no juncture was the Respondent asked to review its organisation to ascertain whether or not there was work that the Complainant could have carried out.
The Respondent’s HR Manager in an email to the Agency dated 18thAugust 2015 required an update on the Complainant’s health. The Agency replied stating that he was likely to be out for another 4 to 6 weeks depending on recovery and the Respondent replied saying it was hard to sustain long term absences. In an email from the Respondent’s HR Manager to the Agency on 7thSeptember 2016 the Respondent informed the Agency that it had replaced the Complainant with another agency worker from a different agency and had invested a huge amount of training etc in that person. Furthermore, it told the Agency that as the Complainant worked for the Agency “we need to make a decision on this asap”. At this point the Court notes that the Complainant was certified as unfit to report for work until 28thSeptember 2015. On 9thSeptember 2015 the Agency informed the Respondent that it had spoken to the Complainant that morning and while he was improving he did not have a confirmed date of return. The email stated:-
“So based on what you highlighted in your last mail about the person you have in Arravasc covering [the Complainant] that unfortunately we need to terminate his current week to week contract with you but once he is in full health again and if there is any further opportunities within Arravasc you would consider him?”
An immediate response was given by the Respondent:-
“Absolutely …. without a doubt. Please pass on our best wishes to [the Complainant]”.
The Complainant was dismissed on 11thSeptember 2015. Following the dismissal, on the same day, the Agency contacted the Respondent by email stating that the Complainant was upset [by his dismissal] as he was under the impression that his role was still available. In response the Respondent emailed stating that it did not know how he could be under that impression and said that“the reasons we made this decision is our relationship with [the Agency] is that we hire personal [sic] on a temporary contract on a week to week basis.”
From the combined effects of Sections 2(1) and 8 of the Acts it is clear that both the Agency and Respondent can be impleaded under the Acts; the former as the employer and the latter as the provider of agency work for which the Complainant carried out his duties.
The Respondent accepted that it did not seek to “reasonably accommodate” the Complainant as it did not consider it had a responsibility to do so.
Having considered the facts presented in this case, the Court is satisfied that as the provider of agency work, with a statutory liability for any discrimination found to have occurred, the Respondent failed in its duty to the Complainant and substantially and materially contributed to the circumstances which brought about the termination of the Complainant’s employment with the Agency. The Respondent sought to hastily determine the Complainant’s situation and neglected to consider reasonable accommodation as was its duty under the Acts. Liability cannot therefore be avoided by merely pleading that the Agency was responsible as it had taken it upon itself to terminate his employment. In such circumstances the Court finds that the Respondent discriminated against the Complainant on the disability ground and in doing so was in breach of the Acts.
Determination
The Respondent’s appeal is disallowed. The Decision of the Adjudication Officer is varied. The Court awards the Complainant compensation in the amount of €27,000 to be paid within42 days of the date of this Determination.”
Mid Staffordshire General Hospitals NHS Trust v Cambridge
[2003] UKEAT
KEITH J.
“Section 6(1) provides:
“Where—
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.”
The Tribunal held that the duties of Mrs Cambridge’s post constituted “arrangements made by or on behalf of” the Trust, and that the place where Mrs Cambridge was expected to perform the duties of her post constituted both “arrangements made by or on behalf of” the Trust and a “physical feature” of the premises occupied by the Trust. The Tribunal found that Mrs Cambridge was unable to perform many of the duties of her post, and that two of the reasons why she was unable to perform many of those duties were because she was only able to work short hours and because the “physical feature of the specific place at which she was expected” to perform those duties caused her health to deteriorate. Although the Tribunal did not say so in terms, the Tribunal must have concluded that these factors placed Mrs Cambridge (to use the language of section 6(1)) “at a substantial disadvantage in comparison with persons who [were] not disabled”. That finding is not challenged.
As a result of that finding, the duty of the Trust “to take such steps as it [was] reasonable, in all the circumstances of the case, for [it] to have to take in order to prevent [those factors] having [the] effect” of placing Mrs Cambridge at such a disadvantage was triggered. It is here that it is contended by Mr Paul Dean for the Trust that the Tribunal fell into error. The Tribunal, in effect, construed the words “to take such steps as…is reasonable…to prevent” Mrs Cambridgefrom being at such a disadvantage as including taking such steps as would enable the Trust to decide what steps would be reasonable to prevent her from being at such a disadvantage. Those steps included obtaining a proper assessment of
(a) Mrs Cambridge’s condition and prognosis;
(b) the effect of her disability on her;
(c) the effect of her disability on her ability to perform the duties of her post;
(d) the effect of the physical features of her workplace on her and her ability to perform the duties of her post; and
(e) the steps which might be taken to reduce or remove the disadvantages to which she was subjected.
Only then would the Trust be able to come to an informed view about what steps it would be reasonable for the Trust to take to prevent Mrs Cambridgefrom being substantially disadvantaged. The Tribunal found that the Trust did not do that and the relevant finding of fact is in paragraph 38 of the Tribunal’s extended reasons which read:
“[The Trust] failed to seek, obtain or act on a full and proper assessment of [Mrs Cambridge’s] position at any relevant time. The only ‘assessment’ it sought was a prognosis from Dr Smith. Even he did not comply with the [Trust’s] policies by seeking information from [Mrs Cambridge’s] GP or Consultant at the relevant time. By the time it did seek to obtain appropriate reports, mid-way through the disciplinary process…the situation was effectively irretrievable: [Mrs Cambridge] was incapable of cooperating.”
The principal criticism of the Tribunal at this stage of its reasoning is that the gloss which the Tribunal put on section 6(1) is unjustified. It is not warranted by the statutory language, and the effect of the gloss is to impose on the employer an antecedent duty which, once it has been performed, may establish that there are no steps which can reasonably be taken to ameliorate the disabled person’s disadvantage. If the duty imposed by section 6(1) is to take such steps as are reasonable to ameliorate a disabled person’s disadvantage, how can there be, so it is said, an antecedent duty which once carried out may show that no duty has in fact arisen because there are no steps which can reasonably be taken to ameliorate the disabled person’s disadvantage? And if those antecedent enquiries reveal that there are no steps which can reasonably be taken to ameliorate the disabled person’s disadvantage, all that the disabled person will have lost by the employer’s breach of the antecedent duty (which the Tribunal identified) would be the prospect that those enquiries might have produced a different result. Although the Tribunal recognised that that was the logical consequence of its approach, the fact that the Tribunal concluded that Mrs Cambridge’s loss had to be assessed by reference to the loss of that prospect, shows, so it is said, the flaw in its approach, because the law only recognises the assessment of loss by reference to the loss of a chance when liability has already been established.
We are not persuaded by this argument. If it were correct, it would deny section 6(1) practical application in very many cases. There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace, but in which the employer does not know what it ought to do to ameliorate that disadvantage without making enquiries. To say that a failure to make those enquiries would not amount to a breach of the duty imposed on employers by section 6(1) would render section 6(1) practicably unworkable in many cases. We do not believe that that could have been Parliament’s intention. The fact that the preliminary steps which the Tribunal had in mind are not referred to in section 6(3) is not decisive since the list of steps in section 6(3) is not exhaustive, and although section 6(4)(a) is, in terms of language, difficult to link in with preliminary steps of the kind which the Tribunal had in mind, section 6(4)(a) was only a consideration which the Tribunal had to have regard to, and it was not one which was to be treated as decisive. A proper assessment of what is required to eliminate the disabled person’s disadvantage is therefore a necessary part of the duty imposed by section 6(1) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. As the Tribunal said in paragraph 36 of its extended reasons:
“…in the absence of such an assessment it will often be impossible for an employer to know what adjustments might be reasonable, possible or effective.”
The making of that assessment cannot, in our judgment, be separated from the duty imposed by section 6(1), because it is a necessary pre-condition to the fulfilment of that duty and therefore a part of it.
It follows that no doctrinal criticism can be made of the Tribunal’s conclusion that Mrs Cambridge’s loss should be assessed by reference to what the chances would be of establishing that steps could reasonably have been taken to ameliorate Mrs Cambridge’s disadvantage to such an extent that she could have returned to her former post or been redeployed to an appropriate alternative post. It is true that the law only recognises the assessment of loss by reference to the loss of a chance when liability has been established, but that principle has not been infringed here.
Mr Dean complains that the Tribunal did not let the parties know that it was thinking of assessing Mrs Cambridge’s loss by reference to the loss of a chance, and that it therefore failed to give the parties an opportunity to make submissions on the issue. We do not think that any injustice has occurred – certainly not to the Trust. As we have said, the Tribunal’s approach to compensation is the logical consequence of its construction of section 6(1). Once its construction of section 6(1) has been shown not to be flawed, its approach to compensation could not have been flawed either. Since Mrs Cambridge was only denied those steps which an assessment might have established could reasonably have been taken to ameliorate her disadvantage, her compensation will have to be discounted to reflect the possibility that an assessment might have established that no steps could reasonably have been taken to ameliorate her disadvantage. If anyone could have complained, therefore, of not being given the opportunity to make submissions on the topic, it was Mrs Cambridge,because the Tribunal’s approach to the measure of her loss potentially reduces her compensation rather than increases it.
Finally, on this part of the case, the Tribunal’s finding in paragraph 38 is said to be perverse in the sense that it cannot stand with the Tribunal’s findings about Mrs Cambridge’s phased return to work in August 1999, the initiatives proposed by Mr Roberts at the meeting of 31 January 2000, and Mrs Cambridge’s refusal to participate in any of those initiatives. However, we have already said that we have read the Tribunal as saying, in paragraph 11(nn) of its extended reasons, that Mrs Cambridge’s unwillingness to participate in those initiatives was due to her condition, and that, as Mr Edwards pointed out in the course of the hearing, was borne out by the Tribunal’s finding, in paragraph 32 of its reasons, to the effect that the receipt of the package on Christmas Eve had had a substantial adverse effect on the effect of her disability such that she was unable to cope with meetings and discussions. Her phased return to work in August 1999 did not mean that a proper assessment was not required of what needed to be done to see whether her working environment could be changed to accommodate her disability, or whether an alternative position was available which she could do despite her disability. In any event, the assessment could have been conducted without significant participation by her. Accordingly, we do not think that the finding which the Tribunal made in paragraph 38 of its extended reasons was one which it was not reasonably open to the Tribunal to make.
Having decided that the Trust was in breach of the duty imposed on it by section 6(1), the Tribunal had to decide whether the Trust had shown that its failure to comply with that duty was justified. The Tribunal concluded that the Trust had not satisfied it of that fact. There is no appeal from that finding. It follows, therefore, that the argument that the Tribunal erred in law in concluding that Mrs Cambridge had been discriminated against within the meaning of section 5(2) fails.
It is now necessary to return to the question whether the Trust had shown that dismissing Mrs Cambridge and subjecting her to the detriments which the Tribunal identified was justified for the purpose of determining whether she had been discriminated against within the meaning of section 5(1). In that context it is necessary to bear in mind sections 5(3) and 5(5). Section 5(3) provides:
“Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.”
Section 5(5) provides:
“If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.”
The Tribunal found that the Trust had not shown that dismissing Mrs Cambridge and subjecting her to the detriments which we have identified was justified. It reached that conclusion by two routes, either of which alone would have been sufficient. The first route was by relying on section 5(3). To the extent that the act of discrimination was Mrs Cambridge’s dismissal, the Tribunal found that although her inability to perform the duties of her post and the cost of continuing to employ her constituted a reason for dismissing her which was material to the circumstances of her case, that reason was not substantial. The reason why that was not a substantial reason was because the Trust had failed to take such steps as were necessary to establish whether any steps could reasonably be taken to ameliorate Mrs Cambridge’s disadvantage. This conclusion is challenged on the basis that it proceeds on an erroneous construction of section 6(1). Once that challenge fails, as it has done, this challenge must fail as well.
To the extent that the acts of discrimination were the acts by which Mrs Cambridge had been subjected to detriments, it is unclear whether the Tribunal found that budgetary considerations or Mrs Cambridge’s inability to perform the duties of her post had been the reason why she had been subjected to the detriments. Whichever it was, though, the Tribunal must be taken to have found that it was not a substantial reason for subjecting her to the detriments. We do not think that that finding is open to challenge. No Tribunal could reasonably have concluded that the Trust could justify the detriments to which it subjected Mrs Cambridge on the ground of either budgetary considerations or her inability to perform the duties of her post. We can see why budgetary considerations might have inhibited the Trust from commissioning reports of the kind which Mr Roberts proposed at the meeting on 31 January, but the detriments to which Mrs Cambridge was subjected were the premature consideration of her redeployment, the threats of disciplinary action and the invocation of the disciplinary procedure. The Tribunal was entitled to find that no employer could reasonably have concluded that those acts could have been justified on the grounds of budgetary considerations or Mrs Cambridge’s inability to perform the duties of her post.
The second route by which the Tribunal reached the conclusion that the Trust had not shown that dismissing Mrs Cambridge and subjecting her to the detriments was justified was by relying on section 5(5). We think that the only act of discrimination which the Tribunal was addressing in this context was Mrs Cambridge’s dismissal, because the reason which the Tribunal gave for its conclusion did not relate to the other detriments which it had identified. The Tribunal found that Mrs Cambridge’s dismissal would not have been justified even if the Trust had complied with its duty under section 6(1).
On the facts of this case, section 6(1) required the Trust to satisfy the Tribunal that the dismissal of Mrs Cambridge would have been justified if it had obtained an assessment on whether there were steps which could be taken to ameliorate Mrs Cambridge’s disadvantage, and if that assessment established that there were no steps which could reasonably have been taken to ameliorate Mrs Cambridge’s disadvantage. Because the Trust had not obtained such an assessment, it was unable to establish the latter. That is what we take to have been the Tribunal’s process of reasoning from paragraph 34 of its extended reasons in which the Tribunal said:
“On the evidence we have heard the [Trust] has failed to satisfy us that it would have been justified in treating [Mrs Cambridge] as it did if it had complied with its duty to take steps to make reasonable adjustments under S.6. In the absence of a full and proper assessment by appropriate professionals it is effectively impossible to know what adjustments might have been appropriate and whether they might have enabled [Mrs Cambridge] to return to her post.”
Again, this conclusion is challenged on the basis that it proceeds on the erroneous construction of section 6(1). Now that that challenge has failed, it follows that this challenge must as well.
There is one final matter. Section 53A deals with Codes of Practice issued by the Disability Rights Commission. Section 53A(8) provides:
“Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under Part II or Part III shall be taken into account in determining that question.”
Paragraph 6.21 of the Code of Practice for the Elimination of Discrimination in the Field of Employment Against Disabled Persons of Persons who have had a Disability 1996 states:
“It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to have to make.”
The Tribunal did not refer to that passage in the Code of Practice in its reasons, but the fact that the Tribunal did not refer to it does not mean that it did not take it into account. In any event, even if the Tribunal did not take it into account, the Tribunal considered the very issue which this extract from the Code required it to consider by considering the issue which section 6(1) required it to consider.”
D v A Government Department
DEC-E2008-011
“1.1 The dispute concerns claims by Mr. D that he was subjected to discriminatory treatment by a Government Department on the grounds of disability within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.
……..
3.1 The complainant states that he applied for reasonable accommodation under Section 16 of the Employment Equality Act, 1998 in September, 2004 to work on the basis of an 11.00a.m. to 5.00p.m. work-sharing pattern from Monday to Friday. It is the complainant’s submission that this could be accommodated on the computer payroll system at minimal administrative cost to the respondent as a 9.00a.m. to 3.00p.m. work-sharing pattern is in place in the organisation. According to the complainant he applied for this work-sharing pattern because the unavoidable long-term use of medically prescribed psychoactive medication makes him drowsy in the morning and has led to an irregular and disturbed sleep pattern. The complainant says that he was working an afternoon pattern only at the time of application and he considered that the longer working hours would improve his performance particularly since in the previous two years prior to his application he had been carrying out a full-time HEO job in half the time and at half the pay. Despite the fact that he had applied to work half time the complainant says that his line managers certified that his post was not suitable for work sharing without a work-sharing partner. The complainant says that Human Resources ignored this and in effect he was doing a full-time Higher Executive Officer job in half the time and for half the pay.
3.2 The complainant says that Human Resources asked that his doctor submit a report on the matter and on receipt of that report the respondent would be prepared to consider work-sharing patterns outside the types provided for in the Work Sharing Circular. It was also stated to the complainant by Human Resources that the respondent had no details of his medical condition on file. The complainant says that when he received his personnel file under the Freedom of Information Acts he discovered that a diagnosis of schizophrenia had been on his file since 1981. In 1995 consultant doctors revised this and according to his current consultant the complainant has shown no symptoms of any formal psychiatric disorder over the past 12 years.
3.3 The complainant states that he asked his consultant to submit a report supporting his request to the Chief Medical Officer (hereinafter to be referred to as the CMO) but he said that he would submit a report only at the specific request of the CMO and not otherwise. As a consequence the complainant wrote to the CMO requesting reasonable accommodation in relation to his work-sharing pattern and asking that he request a report from his consultant. According to the complainant the CMO refused his request to seek a medical report from his consultant. The complainant says that on 4th February, 2005 the Personnel Officer refused his request for reasonable accommodation on principle stating that to grant such a request would create a free-for-all in the respondent organisation. It is the complainant’s submission that his application was on the basis of a severe sleep disorder, which affected his attendance and punctuality over his years of employment. The complainant says that he attended a Sleep Disorder Consultant in the Mater Hospital in 2000 and following an overnight sleep study she confirmed that he had a very disturbed sleep pattern with a high return to wake index and that there was a drug effect shown in his EEG.
3.4 The complainant says that throughout his 24 years of employment no detailed individual needs assessment of his disability was ever carried out by the respondent which he claims suggests that the respondent failed in its duty of care and safety to him provided for in the Health and Safety Acts throughout these years. It is the complainant’s submission that, at no time, since 4th February, 2005 did Human Resources, either orally or in writing, state that it was prepared to change this decision in relation to his request for reasonable accommodation. The complainant asks the Equality Officer to find that the respondent has breached the Employment Equality Acts in relation to his request for reasonable accommodation; that an order for compensation is made and a direction given to the respondent to put in place measures to equality proof all future requests for reasonable accommodation, particularly those of an atypical work-sharing pattern.
…………….
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
Failure to provide reasonable accommodation:
4.1 The respondent confirms that the complainant sought a non-standard work-sharing pattern of 11.00a.m. to 5.00p.m. as he considered that the longer working hours would improve his performance and discharge a heavy workload while at the same time admitting that his medication made him drowsy in the mornings. It is the respondent’s argument that this line of argument ignores two major issues namely that the complainant had a very poor record of attending an afternoons only work pattern, that his performance was poor and his work was regularly discharged by his line managers. The respondent further notes that the complainant’s request to work from 11.00a.m. to 5.00p.m. was one of a number of requests for different work-sharing patterns. For example in on 27th August, 2003 the complainant advised Human Resources that he had reconsidered a recent application for a return to full-time working and that he wished to work afternoons only, Monday to Friday; on 11th June, 2004 the complainant stated in an e-mail that he was withdrawing his request for ‘reasonable accommodation’ under Section 16 of the Employment Equality Act, 1998 and that he was happy to continue the afternoon only work-sharing arrangement at present; two weeks later on 28th June, 2004 the complainant changed his position again and requested a return to full-time working with effect from 8th September, 2004.
4.2 The respondent denies that it refused the complainant’s request for a change in his work-sharing pattern so that he could work from 11.00a.m. to 5.00p.m. However it says that, having approved three different work-sharing patterns for the complainant, it wrote to the complainant and clearly stated that “in order to give full and informed consideration to your request for ‘reasonable accommodation’ I would suggest that you submit to the Chief Medical Officer, a comprehensive medical report from your consultant detailing your disability and its impact, if any, on your ability to give regular and dependable attendance and to perform the full range of duties of a HEO. On receipt of this report the Chief Medical Officer will be in a position to advise the Department on these issues and we will be in a position to consider your request fully”. According to the respondent the complainant failed to provide the CMO with a comprehensive medical report and in those circumstances the respondent was unable to consider and possibly accede to the complainant’s request in terms of his preferred work-sharing pattern.
4.3 The respondent says that on 4th January, 2005 the complainant e-mailed Human Resources and set out options on the best way forward to endeavour to resolve matters informally and get his career back on track. In this regard the complainant set out solutions to four outstanding issues namely the new work-sharing arrangement, his flexi-time deficit, refund of fees and the non-payment of an increment. According to the respondent Human Resources thanked the complainant for his proposals and said that it would ask the CMO to seek a medical report from the complainant’s consultant. Then in early February, 2005 the CMO advised the complainant that he would not be seeking a report. It was on the basis of this that Human Resources informed the complainant that doctor-to-doctor correspondence would not provide a sufficient basis to accede to the request for a modified working pattern. The respondent says that Human Resources discussed the complainant’s case with the CMO again in October, 2005 and noted that the respondent had ongoing concerns about the complainant’s work performance. The respondent had reduced the complainant’s hours at his request and was not prepared to increase his hours until it was satisfied that he could perform his duties as required. According to the respondent the CMO confirmed that this was the correct approach in the circumstances. The respondent notes that the complainant, in a letter to the Secretary General of the respondent organisation, recognised his problems and inconsistencies when he stated – “I recognise the Department had grounds for concern in relation to my attendance, punctuality and to a lesser extent, underperformance (I think I had gone stale in the job after over 15 years as a HEO)”.
4.4 In conclusion the respondent says that it frequently provided reasonable accommodation to the complainant and it was prepared to go further and to work outside the terms of the Work-Sharing Circular subject to the submission of supporting medical evidence, which the complainant failed to provide in relation to his disability. In giving due consideration to this claim the respondent says that the Equality Officer should have regard to the fact that it had made arrangements and accommodations for the complainant over the years, that there was a lack of a clearly stated and supported basis for his specific request in September, 2004 (the 11.00a.m. to 5.00p.m. work-sharing pattern), his frequent requests for changes to his work patterns, his poor attendance record and his lack of on-the-job performance.
4.5 The respondent notes that the complainant, in his submission, has made the following statement:
“Throughout my 24 years of employment no individual needs assessment of my disability was ever carried out by the respondent which suggests the respondent failed in its duty of care and safety to me provided for in the Health and Safety Acts throughout the years.”
It is the respondent’s submission that this allegation has no basis for the following reasons:
· There was never an obligation on the respondent to carry out an individual needs assessment of disability under Health and Safety Legislation or otherwise;
· There was no request to the respondent by the complainant for such an assessment;
· The complainant was very familiar with the processes for making such special requests;
· The respondent had a record of accommodating staff with special needs where such requests were made or where it was perceived that they might be needed.
……………….
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 on the grounds of his disability and in contravention of Section 8 of those Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
Failure to provide reasonable accommodation
5.2 It is the complainant’s contention that he was subjected to discriminatory treatment when he was not provided with reasonable accommodation (i.e. to work from 11.00a.m. to 5.00p.m. Monday to Friday) in terms of Section 16 of the Employment Equality Acts, 1998-2004. The respondent has denied the allegation.
5.3 The complainant joined the Civil Service as an Executive Officer in June, 1982. He was appointed as a result of a special competition conducted by the Civil Service Commission in 1981 for disabled persons. At the time of appointment the respondent was notified that the complainant suffered from Schizophrenia and no special arrangements needed to be made for him. The complainant was employed by the Civil Service for some 24 years. During the course of that time (since 1979) I note that the complainant has been receiving medication by way of injection on a fortnightly basis, which has been administered by his G.P. In fact the complainant was on this medication when he joined the Civil Service and there has been no change in the medication since.
5.4 The respondent provided me with details of the complainant’s sick leave record from January, 2001 to May, 2006. I note that during that period the complainant had 118 sick leave absences. Between January, 2001 and February, 2005 the reason for the sick absence ranged from stomach upset; injuries to a body part; respiratory tract injections, neck strain; dental pain; etc. After February, 2005 11 out of 24 absences related to stress or work related stress. I am satisfied that, from the respondent’s perspective, none of the absences up to the time the complainant sought a work-sharing pattern of 11.00a.m. to 5.00p.m. related to his disability.
5.5 The respondent, in its submission, has stated that the complainant was granted work-sharing on four separate occasions as follows:
January, 1989 – January, 1990 – Week on, Week off
(to complete a degree)
February, 1999 – November, 2000 – Split Week (no reason given)
September, 2002 – September, 2003 – 4 day week (Wednesdays off) (no reason given)
September, 2003 – June, 2006 – Afternoons only (domestic reasons)
It is notable that two of the previous requests for work-sharing did not relate to his disability or the impact his medication was having on him. As no reason was given for the other requests for work-sharing there is no evidence that the requests related to his disability.
……………..
5.6 Section 16 of the Employment Equality Acts, 1998-2004 states as follows:
……
The purpose of this provision in the legislation is to facilitate the employment of persons with disabilities where with reasonable accommodation the disabled person can carry out all the duties of the role. I note that for 18 of the 24 years the complainant was employed, he was employed on a full-time basis and during this period he was promoted from the grade of Executive Officer to Higher Executive Officer. It is clear that during this period he had no requirement for reasonable accommodation. In May, 2004 the complainant applied for reasonable accommodation to work from 11.00a.m. to 5.00p.m. from Monday to Friday. Then on 11th June, 2004 he withdrew this application for no expressed reason. Then in September, 2004 he re-instated his request for reasonable accommodation. Before considering this request the respondent sought medical evidence of the impact of his disability on him which required that he be allowed work from 11.00a.m. to 5.00p.m. The complainant undertook to provide this but reverted to the respondent saying that his consultant would only provide a report if requested to do so by the Chief Medical Officer (CMO). I note that the complainant wrote to the CMO asking him to seek such a report from his consultant and the respondent indicated to the complainant that it would ask the CMO to seek such a report. The CMO wrote to the complainant stating that he would not do so. The respondent was unable to provide any documentation as to the reason for the CMO’s decision but stated that communications between the CMO and the respondent in this matter had been by way of a telephone conversation. It is on this basis that the complainant has argued that the respondent has failed in its duty of care to him as a disabled employee.
5.7 In its defence the respondent has contended that it is normal practice where an employee is seeking to be facilitated as in this case that the onus is on the employee to support his/her request with medical evidence. The respondent noted that the complainant was refused an up-lift to a higher scale in September, 2000 because his sick leave record was well in excess of agreed limits. The complainant appealed the decision to the Personnel Officer and supported this appeal with medical evidence. The respondent notes that the medical evidence was not precise in terms of the complainant’s illness or treatment. It is the respondent’s submission that a distinction can be drawn where it is imposing on obligation on an employee. In this regard the respondent notes that the complainant was on certified sick leave in August, 2005 for a period of ten weeks as a result of stress. In order to establish his fitness to resume employment the respondent asked the CMO to formally request a Doctor-to-Doctor report before clearing the complainant for a return to work. It is noteworthy that in the report from the complainant’s consultant he stated that the complainant has
“a long standing chronic medical condition that is currently stable, and has been stable for quite some time. He receives a course of treatment every two weeks, and this can result in him being somewhat fatigued for some days afterwards. This is a longstanding problem. Basically, he is at his normal baseline at present, although his health could be further improved if he made some lifestyle changes”.
5.8 At the hearing of this claim respondent questioned whether or not the complainant was suffering from a disability. The reason for this was because of a letter which the complainant had sent to the Secretary-General of the respondent organisation in August, 2006 an extract of which is as follows:
“It came as a pleasant surprise that the CMO was prepared to sign off on Form E.Gen for early retirement on medical grounds as my consultant had indicated that the diagnosis supplied by doctors at the time of entry in 1981 should never have been imputed to me and with regard to the diagnosis of chronic depression given by my GP to the CMO at the time of my retirement, my consultant who is Medical Director of a large academic teaching hospital and is one of the most qualified and experienced guys in the city of Dublin or indeed the whole country indicated in a report to the CMO in September, 2005 that I was not clinically depressed and that in the 12 years he has known me I have shown no symptoms of any formal psychiatric disorder. The treatment I was receiving was purely a precautionary measure and doctors often indicated to me over the years that I could probably survive without it.”
During the course of the hearing it was the complainant’s submission that he was suffering from a disability but the medical profession were unable to quantify it in terms of a name. However he stated that he was on a strong medication as a precaution and was administered by his G.P. by injection twice weekly. If taken off the medication the complainant stated that he would become emotionally distressed. The complainant stated that he did not want to be labelled as having Schizophrenia.
5.9 Having examined all of the evidence I find that, at the time the complainant sought reasonable accommodation, the evidence before the respondent was that he did suffer from a disability and that disability was Schizophrenia. To the respondent’s knowledge (from the CMO at the time) the complainant did not require any special facilities or accommodations in relation to this disability and after commencing employment the complainant did not notify the respondent of any special needs he required because of his disability. I note that throughout his career the complainant has, not only a history of seeking various accommodations for reasons other than his disability (see Appendix A), he has a history of withdrawing his application for these accommodations. By seeking a work-sharing arrangement of an 11.00a.m. to 5.00p.m. working day and then withdrawing this application it is my view that this behaviour undermines the complainant’s argument that this work-sharing arrangement was required for reasons of his disability. It is my view that the onus was on the complainant to support his application for reasonable accommodation with medical or other appropriate evidence outlining the reason for the request for the accommodation and the nature of the accommodation required to enable the complainant to be fully competent and capable of undertaking the duties of the position. Having received such a report the respondent could have opted to seek independent medical advice. I note that the respondent agreed to approach the CMO asking that a Doctor-to-Doctor report be obtained in relation to this request and for reasons unknown the CMO refused to take this course of action. In terms of this particular case there was no obligation on the respondent to approach the CMO regarding the complainant’s request for reasonable accommodation and therefore, in the circumstances of particular this case, the respondent cannot be penalised for its actions in this regard.
5.10 In conclusion I find that there is no merit to the complainant’s allegation of discriminatory treatment on the grounds of disability in relation to his request for reasonable accommodation.”
….
6. DECISION
6.1 In view of the foregoing I find that Mr. D was not subjected to discriminatory treatment by his employer (A Government Department) on the grounds of disability in terms of Sections 6 and 16 of the Employment Equality Acts, 1998-2007 and in contravention of Section 8 of those Acts in relation to the provision of reasonable accommodation or the non-payment of an increment.”
Gannon v Milford Care Centre
DEC-E2004-048
1. DISPUTE
This dispute involves a claim by Ms. Philomena Gannon that she was discriminated against by Milford Care Centre on grounds of disability, within the meaning of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of sections 8 and 16 of that Act, when it refused her request for alternative duties over a period of time, in particular on 22 November, 2001 and also denied her access to training/education opportunities.
2. BACKGROUND
2.1 The complainant was employed as a nurse with the respondent. In early 1997 she sustained an injury to her back. In early October, 1998 she suffered a further injury to her back which resulted in her absence from work from then (save for a six week period performing data collection duties in 1999) until her employment with the respondent ceased in March, 2002. The complainant submits that a number of medical reports from December, 1998 onwards suggest that she could return to light duties but despite her requests for such duties, the respondent refused to facilitate her. She contends that the respondent’s behaviour in this regard constitutes discrimination of her on grounds of disability contrary to the Employment Equality Act, 1998. The complainant also contends that the respondent failed to offer or provide her with certain training or educational opportunities which were afforded other staff and that this also constitute discrimination of her contrary to the Act. The respondent rejects the complainant’s assertions.
2.2 The complainant’s legal representative referred a complaint on her behalf to the Office of the Director of Equality Investigations (the Equality Tribunal) on 22 April, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 23 September, 2002, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received form both parties and hearings took place on 26 May, 2003 and 29 September, 2003. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. The final piece of orrespondence in respect of the case was received by the Equality Officer on 19 April, 2004.
5. DECISION OF THE EQUALITY OFFICER.
5.1 The issues for decision by me is whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Act, 1998 (i) when it failed to afford her special treatment and facilities contrary to section 16 of the Act and (ii) in the manner in which it behaved in respect of training and further education opportunities for her contrary to section 8 of the Act. In reaching my decision I have taken into account all of the submission, oral and written, made to me by the parties.
5.2 I propose to deal with the issue of reasonable accommodation first. Section 16(1) of the Employment Equality Act, 1998 provides:
“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 …. the duties attached to that position or will not 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.”.
Section 16(3) of the Act provides as follows:
“(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.”.
Section 16(1) of the Act does not oblige an employer, inter alia, to retain in its employment any person who is not fully competent, capable and available to carry out the duties attached to a post. Section 16(3) of the Act qualifies the respondent’s entitlement as regards persons with disabilities by providing that a person with a disability must be not be regarded as other than being fully competent and capable of performing the duties attached to a particular post, in circumstances where the provision of special treatment or facilities would enable the employee to do so. The statute also places an obligation on an employer to provide those special treatment or facilities (reasonable accommodation) unless its provision would give rise to a cost to the employer which exceeds a nominal cost.
5.3 In the instant case it is not disputed that the injury to the complainant’s back constitutes a disability for the purposes of section 2 of the Act. Neither is it in dispute between the parties that as a result of this injury the complainant is unable to perform tasks which require her to lift or bend. The complainant was employed by the respondent as a Registered General Nurse in the Hospice immediately before she commenced her period of sick leave in October, 1998. I note she accepted that the Job Description for the post of Registered General Nurse, which was submitted by the respondent, accurately reflects the tasks of the post. On examination of this list of tasks it appears to me that there is only a very small number of them which would not involve lifting or bending to some degree in the normal course of events. I also note that given the nature of the patients which the respondent caters for there is a significant increase in the likely level of demand placed on a nurse in that area to perform duties (involving lifting and bending) which may not be required of a nurse in other areas. I am satisfied therefore that the complainant was not capable of performing the full range of duties of the post she was engaged for by the respondent because of her disability.
5.4 The next issue for consideration is whether or not the provision of special treatment or facilities would enable the complainant to perform the duties associated with her post of Registered General Nurse with the respondent. The respondent submits that it provided hoists which would reduce some of the physical strain and effort required of the complainant, but that it was unable to eliminate the effort totally. It further submits that if all such duties were removed from the complainant there would be little of her job left and it would impose an excessive burden on her colleagues. In light of my comments in the previous paragraph as regards the nature of the tasks associated with the complainant’s job as a nurse I concur with the respondent’s comments in this regard.
5.5 I must now consider whether or not the respondent’s obligation under section 16(3) of the Act requires it to provide the complainant with alternative light duties. The respondent submits that this is not the case and I would disagree with such a sweeping statement. I am of the view that all possible alternatives must be explored, on a case by case basis, to see if an employer can facilitate a reasonable accommodation for an employee with a disability, subject of course to the nominal cost test, and that this examination might include access to alternative work arrangements or attendance patterns which are connected with the post for which the employee was originally recruited. It does not however, in my view, place an obligation on an employer to offer the employee light duties in respect of other positions in the organisation for which the employee was not originally recruited, although there is nothing to stop the parties agreeing such a course of action themselves.
5.6 I note that shortly after the complainant commenced her sick leave the respondent referred her to its company doctor (December, 1998). His opinion was that she had sustained an injury to her back and that any lifting or bending would exacerbate the problem. He went on to suggest that alternative work might be offered to the complainant and mentioned that she had expressed an interest in Home Care. He subsequently conceded that such work would also exacerbate her condition as it involved bending and lifting. The complainant’s own Orthopaedic Surgeon (January, 1999) reached the conclusion that the complainant could not perform duties involving lifting or bending and added that she be might be facilitated with light/moderate duties. In April, 1999 the respondent arranged for the complainant to be examined by Mr. Brendan Deasy, Occupational Health Consultant Physician. Dr. Deasy’s opinion was that the complainant was not able to perform duties which involved bending or lifting. Dr. Deasy examined the complaint on three further occasions (the final one in August, 2001) and he reached similar conclusions each time. Dr. Deasy attended the hearing and stated that based on his examination of the complainant, his knowledge of the working environment and the post and his clinical experience of such injuries, he formed the opinion she was unable to perform duties involving lifting or bending and he was unable to identify any alternative duties which the respondent might offer her.
5.7 In A Health and Fitness Club v A Worker1 (which was subsequently upheld on appeal by the Circuit Court) the Labour Court held that section 16(3) of the Act “can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of that section, of performing the duties for which s/he is employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case.”. The Court then went on to set out the approach it considers should be adopted in the circumstances. Firstly, the employer should establish “the factual position concerning the employee’s capability, including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer”. Secondly, the employer should “consider what, if any, special treatment or facilities may be available by which the employee can become fully capable….. the cost of such special treatment and facilities must also be considered.”. Thirdly, “such an enquiry could only be regarded as adequate if the employee is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”.
5.8 In the instant case the respondent had regard to a significant volume of medical evidence, all of which stated that the complainant was unable to perform duties involving lifting and bending. These were integral features of the complainant’s position as a nurse. I am satisfied that there is no special treatment or facilities which the respondent could provide which would enable the complainant fully competent and capable to perform the full range of duties associated with the post for which she was employed in those circumstances. I also note the complainant accepts that she was unable to perform duties involving lifting or bending. I am therefore satisfied that the respondent did not discriminate against the complainant in terms of section 16 of the Employment Equality Act, 1998. In the interests of completeness I would add that I have examined the evidence presented to me as regards the complainant’s ability to perform the other duties in the respondent organisation mentioned by her and I am satisfied that she does not possess the necessary qualifications to work in those areas – Home Care, Palliative Care, Pastoral Care and Bereavement Counselling.
5.9 I shall now deal with the complainant’s assertion that the respondent discriminated against her on grounds of disability contrary to section 8(1) of the Employment Equality Act, 1998 in connection with training and further education opportunities. Section 8(1) of the Act provides:
“In relation to —
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee…..”.
It has been the common approach of this Tribunal and the Labour Court in the past in respect of complaints of discrimination on grounds of disability, that the complainant must, in the first instance, establish facts from which it may be presumed that discrimination took place. It is only when such a prima facie case is established that the burden shifts to the respondent to rebut the inference of discrimination.
5.10 In the instant case I note that the respondent operates a scheme of financial assistance to employees who wish to pursue relevant education or training opportunities. The last time the complainant applied for funding to pursue a course was in 1998 and her application was successful insofar as a contribution towards the cost was approved. However, for personal reasons she never took up the offer. Shortly after this she commenced a period of extended sick leave and she contends that other employees were assisted to pursue certain qualifications and that this constitute less favourable treatment of her on grounds of her disability. The respondent states that these employees applied through the normal channels and were assisted in accordance with the assessment criteria it operates. I am satisfied, on balance, that this was the case. I am also satisfied that the complainant made no such application during her absence, notwithstanding the fact that as an employee she was entitled to do so and have it evaluated along with any others. I do not agree that the respondent has an obligation to identify suitable courses/education programmes etc. and to bring them to the attention of all employees, although as an element of a human resource strategy it may well do so. In light of the foregoing I am satisfied that the complainant was not treated less favourably on grounds of disability.
5.11 The complainant also asserts that the respondent denied her an opportunity of pursuing a Postgraduate Degree in Psychotherapy in May, 1999 because her Line Manager at that time refused to act as a referee because she (the complainant) was on long-term sick leave at the time. I note the Line Manager recalled (during the course of the hearing) that she had a conversation with Ms. Gannon, that she indicated to her that she was unsure whether or not the complainant could obtain a reference when absent on long-term sick leave and that she would raise the matter with Sister A. I also note the Line Manager’s comment that she is unsure if she spoke with Sister A about the matter and that Sister A has no recollection of such a conversation. Having examined the evidence available I am satisfied, on balance, that the respondent made a conscious decision not to respond to the complainant’s request for a reference and that this decision was based solely or mainly on the fact that she was absent from work on long-term sick leave. This absence was occasioned by an injury to her back, which constitutes a “disability” in terms of the Employment Equality Act, 1998. It follows therefore that the respondent’s actions constitute less favourable treatment of the complainant on grounds of disability contrary to the Act. I note that the incident complained of took place in early 1999 at a time which pre-dated the coming into force of the Act. Whilst the respondent’s actions may be viewed as discriminatory, they were not however, unlawful. However, I would add that should such a practice operate today it would not, in my view, attract the same protection. In light of the foregoing I find that the complainant was not discriminated against on grounds of disability by the respondent in respect of this issue.
6. DECISION OF THE EQUALITY OFFICER
I find that
(i) Milford Care Centre did not discriminate against Ms. Gannon on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 16 of the Act, when it failed to afford her alternative light duties,
(ii) the complainant has failed to establish a prima facie of discrimination in respect of her contention that she was discriminated against on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in respect of training and further education opportunities for her, and
(iii) the whilst the failure of the respondent to provide the complainant with a reference to enable her purse a third level qualification because she was on long-tern sick leave constitutes less favourable treatment of her on grounds of disability, it was not unlawful as the incident pre-dated the coming into force of the Employment Equality Act, 1998.”
MK v. Convertec Ltd
DEC-E/2001/034
“Facts
The complainant was recruited by the respondent on probation for a period of six months. The complainant alleged that he had informed the respondent of his disability at the job interview. The respondent denied this. Although the complainant started off well, his performance levels did not reach acceptable levels for employees without a disability. At meetings between the complainant and the company to discuss his poor performance, the comlainant explained that his performance was affected by his disability. The complainant was subsequently dismissed for poor performance. The complainant alleged that the respondent expected a higher level of performance from him where there was no set performance levels in the respondent company and in circumstances where the respondent was aware of the disability of the complainant.
The dispute was referred to the Director of Equality Investigations on the basis that the respondent discriminated against him on the disabililty ground in contravention of section 6(2)(g) and section 8 of the Employment Equality Act 1998 .
The Equality Officer concluded:
(1) The respondent had discriminated against the claimant in terms of section 6(2)(g) and of section 8 of the Employment Equality Act 1998 by failing to examine the options available to accommodate the needs of the complainant given his disability.
(2) This decision covered the period up to, but not including, the dismissal.
……………….
Conclusions of the Equality Officer
This claim concerns whether or not the company discriminated against the complainant in terms of section 6(2)(g) of the Employment Equality Act 1998 and in contravention of section 8 of that Act by subjecting him to discriminatory treatment on account of his disability. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
The complainant was employed by the respondent company as a general operative following an interview which was held on September 26, 2000. He commenced employment on October 11, 2000 on the basis that the first six months were on probation. It is the complainant’s contention that he informed the company at interview that he had a disability and he produced documentation in that regard but the company manager who carried out the interview did not look at this documentation. According to the complainant he also informed the receptionist of his disability when he handed in a ‘Back to Work’ form some days before he commenced employment. The complainant also says that he informed his supervisor of his disability on appointment. For its part the company denies that the complainant informed the company manager of his disability at the interview or, indeed, produced documentation in that regard. The company also denies that the complainant informed the receptionist and his supervisor of his disability. It is the company’s contention that the complainant’s supervisor spoke to him about his poor performance on November 29, 2000 and in response the complainant informed her that ‘he was a slow learner, he had a slow hand on account of his disability’ . According to the company the complainant did not tell his supervisor the nature of his disability. At the hearing of this claim the company indicated that it was not because of the complainant’s disability but because of his poor performance that it had to eventually dismiss the complainant who was still on probation. The company notes that the complainant did perform well when initially employed but that his performance deteriorated through time instead of improving as would be expected.
In this claim there is a dispute between the parties as to the facts. It is unclear when the company became aware of the complainant’s disability but the company does accept that it was aware that the complainant had a disability on November 29, 2000. According to the company it was not aware of the nature of the disability at that time, but the company did know that the complainant’s disability adversely affected his hand. It is irrelevant when the company became aware of the fact that the complainant had a disability. What is important is the fact that the company did become aware of the complainant’s disability. Consequently what needs to be examined is the way the company treated the complainant after it became aware of his disability.
The company says that the complainant’s performance was of concern not his disability. In this regard the company noted that it had in its employment a number of people with disabilities, e.g. epilepsy, diabetes, deaf and dumb, etc. In relation to the complainant’s performance the company produced a printout showing the complainant’s efficiency level for each week of his employment. Efficiency levels were determined by the length of time taken to complete tasks. A standard time was allocated for each task and employees knew the length of time which it should take to complete the various tasks. Completion of a task within the time allocated for that task resulted in a 100% efficiency level. Completion of a task in a longer time period than the time allocated for the task resulted in an efficiency level which was lower than 100%. In the complainant’s first week of employment his efficiency level was at 41% which, according to the company, would be acceptable for a new employee to the company. His efficiency level rose to 54% in his third week of employment but fell subsequently to a low of almost 22% at the end of the year (2000) and rose again somewhat in the new year. The complainant never exceeded an efficiency level of 54% (which he attained in week three of his employment). It is the complainant’s submission that the adverse affect of his disability on his hand meant that his hand would get tired and hence he was unable to function at a consistently fast level. The union, on behalf of the complainant, argued that the company failed to acknowledge the complainant’s disability as it had the same expectations of him, in terms of performance, as it had of any other employee without a disability. It is noteworthy that the company, in employing the complainant, was satisfied that he was qualified to do the job.
I note that the company held a number of meetings with the complainant to discuss his poor performance with him. It is noteworthy that it was during the latter half of his employment with the company (i.e. when these meetings were taking place) that the complainant’s performance levels were at their lowest. It could be argued that the pressure on the complainant to improve his performance had the effect of adversely impacting on his performance.
At the hearing of this claim the company stated that employees attend the company doctor for a medical examination within their first six months of employment. For the duration of the complainant’s employment with the company I note that he had not attended the company doctor for his medical. While the company says that the decision to dismiss the complainant was based on his poor performance it must be noted that the complainant’s poor performance resulted from his disability. On becoming aware of his disability the company could have had the complainant attend for a medical. I find, therefore, that the company made no effort to establish the impact of the complainant’s disability on his performance.
Under section 6(1) of the Employment Equality Act 1998 discrimination shall be taken to occur where:
one person is treated less favourably than another is, has been or would be treated.
Section 6(2) sets out the discriminatory grounds and section 6(2)(g) specifically provides as follows:
that one is a person with a disability and the other either is not or is a person with a different disability.
In this case the complainant had a disability which adversely affected the movement in his hand unlike his co-workers who did not suffer this disability.
Section 16 of the Employment Equality Act 1998 sets out the obligations of employers. Section 16(1) states, as follows:
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 … the duties attached to that position or will not accept … the conditions under which those duties are, or may be required to be, performed, or
(b) is not … 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.
The complainant, in this case, demonstrated both his willingness and his ability to undertake the duties of the position. He had the necessary qualifications and he undertook the tasks assigned to him. However one of the conditions attaching to these duties was that he perform the tasks with an 80% efficiency level. The complainant, because of his disability, was unable to meet this condition.
Section 16(3) of the Employment Equality Act 1998 provides as follows:
(a) … a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
The complainant did not require any special facilities, in terms of equipment, to carry out the job. However, he was unable to work to the same speed as his co-workers, who did not have his disability.
The company submitted a detailed daily breakdown of the length of time taken by the complainant to complete each task undertaken. According to the company it is clear, from this detailed information, that the complainant had the ability to complete tasks within the specified time allocated to these tasks and in some instances he had the tasks completed in a shorter time than the time specified. I have examined these records and note that the complainant had an efficiency level (i.e. the completion of tasks in the time specified) in excess of 100% on four occasions in a 15-week period during which time he had completed 228 tasks in total. While it took the complainant longer than the specified time to complete the remaining 224 tasks his efficiency level for 50 of the tasks was between 50% and 100%. Hence for the remaining 174 tasks the complainant recorded an efficiency level under 50%. It is also worth noting that his efficiency level disimproved during his latter weeks with the company which was during the period when his performance was being questioned by the company.
At the hearing of this claim the complainant pointed out that the variations in the time taken by him to complete tasks was a factor which could be attributed to his disability. On account of the problem with his hand it would get tired and hence it would take him longer than normal to complete a task. The company stated, at the hearing, that staff were expected to have an overall 80% performance potential. The union, on behalf of the complainant, stated that an overall performance potential of 75% was laid down as standard by the ILO. Based on the details of the complainant’s performance I am satisfied that he was achieving half the performance potential on average of other co-workers who did not have his disability.
While the Employment Equality Act 1998 does not require an employer to employ any person who is not competent to carry out the duties attached to the position having regard to the conditions attaching to that position (section 16(1) refers) an employer must have regard to section 16(3) of the Act. Under this section an employer must do all that is reasonable to accommodate a person with a disability unless such a provision would give rise to a cost, other than a nominal cost, to the employer. I find that the company, in this claim, could have arranged for the complainant to attend a medical examination for the purposes of ascertaining what he could do consistent with his disability. In terms of reasonable accommodation the company could also have considered the provisions of section 35(1) of the Employment Equality Act 1998 and employed the complainant on the basis of his lower rate performance and it could have paid him accordingly.
Decision
In view of the foregoing I find that Convertec Ltd discriminated against Mr Mark Kehoe in terms of section 6(2)(g) of the Employment Equality Act 1998 and in contravention of that Act by failing to examine the options available to accommodate the needs of the complainant given his disability. This decision covers the period up to, but not including, the dismissal.
In accordance with section 82 of the Employment Equality Act 1998 I hereby order the respondent to pay Mr Kehoe the sum of £8,000 by way of compensation for the stress suffered as a result of the discrimination.”
A Complainant v An Employer
DEC – E2008 – 068
“1. Background
The complainant referred a claim to the Director of the Equality Tribunal, received on 30th March 2006, under the Employment Equality Acts 1998-2004 on the disability ground. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, on 18th April 2008 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a hearing was held on 9th July 2008. Information submitted following the hearing was received on 15th September 2008 from the respondent. This was copied to the complainant who was afforded an opportunity to respond.
2. Summary of the Complainant’s case
In January 2006 the complainant saw an advertisement inviting applications for the position of Graphic Designer (Part-Time) and he lodged an application on 1st February 2006. He saw a call coming in on his phone on 7th February and as he is deaf he texted the caller asking them to text him with the content of their message. This they did, indicating that he was requested to attend for interview the next day with the respondent company at 11:30am. The complainant indicated that he would attend the interview and contacted the Cork Deaf Society, Mr. P, attempting to organize an interpreter for the interview. This did not prove possible and Mr. P called the respondent to discuss matters. It became apparent that the respondent intended to hold the interviews on the following day only. As an interpreter was not available Mr. P indicated that the complainant would not attend for interview. Subsequently, the complainant suggested to Mr. P that perhaps the interview could take place with the aid of a computer. This was put to the respondent who replied that it would not be possible as the interviewer was not computer literate. The interview slot originally assigned to the complainant was reassigned to another applicant. While Mr. P felt that things were still open at that stage he was also clear that the complainant had missed the interviews.
3. Summary of the Respondent’s Case
Mr. A was the interviewer for the respondent company. At the relevant time of year he is normally busy attending trade shows in Asia. The interview date was selected as he would be in Ireland on that date. He selected a number of CVs that looked promising and asked his brother Mr. B to make the arrangements for the interviews. The vacancy had arisen as a result of talks with another business when they decided to create the post and share the cost between the businesses. At that time neither Mr. A or Mr. B were capable of undertaking an interview by computer. The complainant was known to Mr. B as a result of a delivery to the complainant’s home some years previously. While Mr. P indicated, at the hearing, that in his opinion the matter was somehow still open Mr. B said that they made it clear that the interviews were only available on one day. The respondent argued that as the complainant was known to Mr. B and he was still offered an interview there can be no suggestion that he was denied an interview because he was deaf. The claim is therefore misconceived. If however, the claim is well founded any breach of the Act can not be considered a serious matter given the circumstances because this is a small company and the matter is trivial in the extreme. The matter concerning the use of a keyboard/computer is something the Tribunal need not be concerned with. The interviews had to be held that day and it is difficult to identify other special treatments that might have been offered in terms of Section 16(3) dealing with reasonable accommodation.
4. Conclusions of the Equality Officer
It is agreed that the complainant applied to the respondent for the post, was called for interview the day before they were due to be held, and that his attendance at the interview was pointless without the aid of a sign language interpreter. It is also agreed that the respondent was not prepared to defer the interview and that they were unable to conduct the interview with the aid of computers. What has to be decided is whether or not the complainant’s disability impacted in any way on the interview process and if so, whether
· This amounts to discrimination on the disability ground in terms of Sections 6, and 8 of the Act,
· The respondent was required by statute to provide reasonable accommodation,
· Reasonable accommodation was provided.
In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
Section 85A of the Employment Equality Acts provides as follows:
Where in any proceedings facts are established by or on behalf of the 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.
This requires the complainant in the first instance to establish facts from which it can be inferred that he was treated less favourably because of his disability. If this is achieved the burden shifts to the respondent to rebut the presumption of discrimination raised.
Section 8 states :
…………..
The respondent made arrangements for the interviews to take place on one assigned day. All applicants selected for interview were required to attend for interview on that day. The complainant was unable to attend for the interview as no sign language interpreter was available. Attendance without an interpreter would have been unproductive and the interview could not have proceeded. The respondent applied the same requirement to all interviewees, that is all interviewees were required to attend on the same day at very short notice. However, the complainant was in a different situation in comparison to the other interviewees as he required an interpreter to proceed with his interview. This requirement is directly linked to the complainant’s disability The Labour Court has addressed this issue as follows:
Further, it is trite law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations (see Case C-279/93 Finanzamt Koln-Altstadt v Schumacker [1995] E.C.R. I-225, and Campbell Catering Ltd. V Aderoke Rasaq [2004] 15 ELR 310). [1]
The matter of providing for a delay in an interview process for a person with a disability was also addressed in the same Labour Court Determination as follows:
“However, where, as in the instant case, a disabled candidate could attend if a reasonable deferment of the interview were granted, a refusal to grant such a deferment must constitute discrimination.”
In relation to the length of deferment the Court stated :
“The Court does not suggest, nor could it be seriously contended, that an employer must defer the filling of a job indefinitely in order to accommodate a candidate who is ill and unable to attend for interview. Candidates for employment or promotion are generally interviewed within a time frome in which the post must be filled. Candidates with a disability are entitled to no more than that.”
This Determination actually referenced Section 8(8) in relation to a person who was already an employee but I am satisfied that it applies equally to Section 8(5) and in that regard I note the reference to “Candidates for employment or promotion” in the extract above.
The Determination goes on to say that an employer has not fulfilled its duty “by offering a disabled employee an opportunity that is illusory in the circumstances of their disability when a reasonable alternative would be of real utility.” I am satisfied that this also applies to a prospective employee.
I am satisfied that the respondent’s refusal constitutes less favourable treatment when a reasonable deferral would have allowed the complainant to take part in the interview and have a real opportunity to access the employment. This establishes a presumption of discrimination in accordance with Section 85A. I find that the complainant has established a prima facie case of discrimination in terms of Sections 6 and 8(5)(a) on the disability ground.
The respondent was asked at the hearing to produce evidence in support of the contention that the interviewer was out of the country or otherwise unavailable during the period surrounding the interview date. As nothing was received a letter issued to the respondent’t representative on 22nd July clarifying the information required. On 8th September a reminder was issued. A response was received on 15th September 2008 in which it was indicated that the respondent would endeavor to obtain evidence from Aer Lingus but this has not been received. Neither has a contemporaneous diary or any other evidence been presented. In addition, no evidence has been presented in support of the assertion that any delay in the appointment of a person to the post was unacceptable. Therefore, the respondent has presented no supporting evidence to the assertion that the interviews had to be completed on the one day, notice having been given to interviewees the previous day. With regard to such evidence the Labour Court stated:
“Firstly, since the facts to prove an explanation can only be in the possession of the respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258).” [2]
In the absence of any such evidence I find that the respondent has failed to rebut the prima facie case of discrimination.
The deferral of the interview, as discussed above, required the employer to passively respond to the situation and do nothing other than allow the complainant time to procure an interpreter. The interview could then have been conducted in the normal way. Caselaw suggests, as above, that this constitutes less favourable treatment in terms of Sections 6 and 8. The use of a computer for communication at an interview, however, would have required an active response from the respondent in that they would have had to conduct the interview in a different way. The requirement to provide treatment that goes beyond what is provided to the majority of people, in order to bring people with disabilities to the same starting line, is normally addressed in terms of Section 16 (3).
Section 16 (as amended) provides that:
……………..
The Equality Act 2004 amended the Employment Equality Act 1998 to implement, inter alia, Directive 2000/78, otherwise known as the Framework Directive. [3] Article 5 of the Framework Directive provides as follows:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”
The interpretation of national law in the light of EU law was addressed by Hamilton CJ in Nathan v Bailey Gibson [4] as follows:
“It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result envisaged by the directive.”
………
“This Court is in the same position and under the same obligations as any other national court to interpret the provisions of s.29c) and s.3 of the Act, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the directive…..
The European Court of Justice has also addressed the matter in Von Colson and Kamann v Land Nordrhein-Westfalen[5]
“However the member states’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows, that in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive no 76/207 national courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the results referred to in the third paragraph of Article 189.”
As the 2004 amendment of the Act was designed to implement, inter alia, the Framework Directive, it should be interpreted in a manner to achieve the result envisaged by the Directive. I am satisfied that this Article creates an independent requirement to provide reasonable accommodation where it is needed in a particular case. In order to give unfettered effect to Article 5 of the Directive subsection 16(3)(b) of the Acts must be considered to create an independent cause of action without the need for a respondent to rely on the defence in subsection 16(1). I shall apply subsection 16(3)(b) of the Act accordingly.
Section 16(3) has been addressed at length by the Labour Court for example in such cases as An Employer v a Worker (Mr. O), EDA0419, A Government Department and a Worker, EDA0612, and more recently Bus Eireann and Mr. C, EDA0811. However, the cases cited above relate to incidents occurring before the amendment of the Act.
Section 16, as amended, was considered by the Equality Officer in decision DEC-E2006-058. In that case a prospective employee whose vision was impaired attended for interview and asked to do the technical test, which formed an intrinsic part of the selection process, electronically. He was not afforded that opportunity. He also claimed that the interview process was tainted by discrimination. The Equality Officer was not satisfied that the process was so tainted and that part of the claim failed. However, the Equality Officer found that the complainant was not afforded the opportunity to take the test as other candidates were.
“I am satisfied that this failure arose from the complainant’s vision impairment and that he was treated less favourably than the other candidates as a consequence.
……
– the Act places an obligation on the employer to provide reasonable accommodation to prospective employees at recruitment stage unless it gives rise to a disproportionate burden – and it should have made further enquiries as to the complainant’s needs in that regard.
……
the provision of the test in electronic format could not, in any sense, be considered as imposing a disproportionate burden on the respondent and it cannot therefore rely on the defence at section 16(3) of the Acts.”
This decision was appealed to the Labour Court but not in respect of reasonable accommodation. I adopt the Equality Officer’s reasoning in my approach to the instant case.
The complainant initially accepted the interview time allocated to him. He later sought, through his contact, a postponement to facilitate the procurement of the services of an interpreter. This was refused. He then sought, through his contact, permission to do the interview with the aid of a computer. This was also refused. I am satisfied that the respondent did not investigate what this latter request might have entailed or required and refused it out of hand as the interviewer was not computer literate. I find that this was a failure to provide reasonable accommodation in terms of Section 16(3)(b).
I am also satisfied that the respondent cannot rely on the argument that such a facility would have created a disproportionate burden for them. The computer communication could have been as basic or elaborate as they chose, beginning with using a simple MS Word document to type questions and answers or choosing more elaborate communications software. Neither could ensuring the availability of a person with typing skills for the duration of the interview be taken as creating a disproportionate burden on the respondent. I am satisfied that the respondent cannot rely on the defence in subsection 16(3)(c).
Decision DEC-E2008-068
Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant was discriminated against in terms of sections 6 and 8(5) of the Acts on the disability ground, when a deferral of his interview was refused. I find that the respondent failed to provide reasonable accommodation in terms of Section 16(3)(b) to the complainant when they failed to consider or provide the opportunity to undertake the interview with the aid of a computer.
Redress
In accordance with Section 82 (1)(c) I hereby order the respondent to pay the complainant €8000 for the effects of the discrimination.”
CONNACHT GOLD CO-OPERATIVE SOCIETY v A WORKER
AHDeputy Chairman
Complaint seeking adjudication
A Sales Representative v A Books Wholesaler
Nano Nagle School -v- Daly
FOA for Kaltoft
William Gorry v Manpower
DEC – E/2001/017
Equality Officer
8 June 2001
[2001] 12 E.L.R. 275
Full text of the decision of the Equality Officer:
Claim
The complaint concerns a claim by Mr William Gorry that Manpower discriminated against him in terms of section 6(2)(g) of the Employment Equality Act 1998 and in contravention of section 8 of the Act in relation to his application for the position of switchboard operator. The complainant also claims that he was indirectly discriminated against in terms of section 31 of the Employment Equality Act 1998, on the disability ground and in contravention of section 8 of the Act.
Background
On 15 February 2000, an advertisement was placed in the Evening Herald by the respondent employment agency, seeking applications from persons for the position of switchboard operator in Eircom. Applicants were invited to contact *277 the respondent by telephone. The complainant phoned and he was invited to forward his curriculum vitae. The complainant stated on his curriculum vitae that he had a slight visual impairment since birth. The complainant was not called for interview and he alleges that he was discriminated against in his application for the post on the ground of his disability. The respondent denies the complainant’s allegation of discrimination.
The complainant referred a complaint to the Director of Equality Investigations and the Director subsequently assigned the claim to an Equality Officer for investigation and decision. Submissions were received from both parties to the claim and a joint hearing was held on 19 December 2000. After that hearing, the respondent submitted evidence from Eircom on its behalf. Eircom is not a party to these proceedings. The Director in accordance with her powers under section 95 of the Act requested a representative from Eircom to attend a supplementary hearing to give evidence. A supplementary hearing was held on 23 May 2001.
Summary of the complainant’s submission
The complainant states that a job advertisement was placed in the Evening Herald on or about February 2000 which sought a person or persons with excellent people skills and basic computer skills and invited applicants to call the respondent for an immediate interview.
The complainant states that he contacted the respondent on Tuesday 15 February 2000 and was told to send in his curriculum vitae and that he would be called for interview. The complainant forwarded his curriculum vitae and called the respondent a few days later. He was then told that his curriculum vitae was sent to Eircom and that they had heard nothing from Eircom in relation to it.
The position was advertised again on 20 March 2000 in the Evening Herald . The complainant asked a friend to phone the respondent on foot of the new advertisement. His friend phoned the respondent on 21 March 2000 and was told he would have to attend the respondent’s offices to do a test and an interview on the following day. His friend was also told that the results of the test and interview would be looked at and his application would be taken from there.
The complainant states that he again phoned the respondent on 21 March 2000 and asked what the chances were of being recruited to the switchboard operator positions. He states that he was advised that there were only two vacancies and that the qualifications were a lot better than the previous year. The complainant’s application was not progressed and he alleges that he was discriminated against on the ground of his disability.
Summary of the respondent’s submission
The respondent states that the complainant applied for the switchboard operator position with Eircom in February/March 2000. It states that it was established at that time that the complainant had worked for Eircom some time in 1999 on a *278 short-term contract and as it is a policy of Eircom not to re-employ, his application was not progressed. The respondent states that the complainant was informed verbally on the telephone that his application was not going to be progressed.
The respondent states that it is committed to equal opportunities and has policies to guide staff in that respect. The respondent states that the complainant’s submission does not detail the complainant’s disability or how he considers the events described discriminated against him on the ground of his disability.
Conclusions of the Equality Officer
In this case, the complainant alleges that Manpower directly and indirectly discriminated against him on the disability ground when it did not process his application for the position of switchboard operator in Eircom. I must consider whether the respondent directly discriminated against the claimant on the disability ground in terms of section 6(g) of the Employment Equality Act 1998 and in contravention of section 8 of the Act. I must also consider, in the alternative, whether the respondent indirectly discriminated against the complainant in terms of section 31 of the Employment Equality Act 1998, on the disability ground and in contravention of section 8 of the Act. In making my decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties
I will firstly consider the issue of direct discrimination. Section 6(1) of the Employment Equality Act 1998 provides that:
Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (3) (in this Act referred to as ‘the discriminatory grounds’), one person is treated less favourably than another is, has been or would be treated.
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
that one person 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’).
At the first hearing of this matter on 19 December 2000, the complainant confirmed that he has a visual impairment which falls within the definition of disability in the Employment Equality Act 1998. The respondent stated that it does not dispute that the complainant has a disability, as defined in section 2 of the Employment Equality Act 1998.
In addition to less favourable treatment, discrimination normally also involves a difference in treatment. In a case relating to nationality discrimination, the European Court of Justice stated: *279
It is also settled law that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (Finanzamt Koeln-Alstadt v. Roland Schumacker (Case C-279/93) [1994] ECR I-249).
The European Court of Justice subsequently referred to the case and stated in a case relating to gender discrimination:
It is well-settled that discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations (Gillespie & Ors v. Northern Health and Social Services Board & Ors (Case 342/93) [1996] ECJ I-492).
In this particular case, the complainant alleges that he has been treated differently and less favourably by the respondent on the disability ground in his application for the position of switchboard operator with Eircom.
A person making an allegation of discrimination under the Employment Equality Act 1998 Act has to present prima facie evidence of his or her allegation. Prima facie evidence has been described as:
Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred (Dublin Corporation v. Gibney EE5/1986).
Once a prima facie case of direct discrimination has been established, the burden of proof then shifts to the respondent who must rebut the presumption of discrimination by showing that it did not discriminate unlawfully. If the complainant fails to establish a prima facie case of discrimination, the burden does not shift to the respondent to show that it did not act in a discriminatory manner.
The Northern Ireland Court of Appeal commented that
Once the evidential burden has shifted … the question then is whether there is any evidence to justify the conclusion that the evidential burden has been discharged by the respondent (Wallace v. South Eastern Education and Library Board [1980] NI 328; [1980] IRLR 193).
The Labour Court applied the same test recently and stated:
The first question the Court has to decide is whether the appellant has established a prima facie case of discrimination (Gleeson v. Rotunda Hospital [2000] ELR 206).
I was informed at the first hearing that the respondent is in the business of an employment agency and recruits employees for clients. Section 2 of the Employment Equality Act 1998 provides that ‘employment agency’ means ‘a person who, whether for profit or otherwise, provides services related to the finding of *280 employment for prospective employees or the supplying of employees to employers’. It is the case, therefore, that the business of the respondent falls within the definition of an ‘employment agency’ as defined in the Act.
Section 11(1)(a) of the Act provides that:
Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person — who seeks the services of the agency to obtain employment with another person.
The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of direct discrimination. The complainant in this case, alleges that the respondent directly discriminated against him on the disability ground when it did not process his application for the position of switchboard operator in Eircom.
The complainant in his submission states that in response to an advertisement that was placed in the Evening Herald in February 2000 seeking switchboard operators for Dublin 1, he phoned the respondent and he was requested to forward his curriculum vitae and told that he would be called for interview. He forwarded his curriculum vitae to the respondent and phoned a few days later and was then told that the curriculum vitae had been sent to Eircom and the respondent had heard nothing back. The complainant states that he phoned the respondent again after a second advertisement had been placed for switchboard operators and that he was told that there were only two vacancies and that the qualifications that year relative to the previous year were a lot better. At the first hearing, the complainant stated that during his second phone conversation with the respondent, he was told that he was not qualified for the post and in response he stated that he disputed that contention as he had done a telephony course as stated on his curriculum vitae. He claims that as his curriculum vitae refers to the fact that he has a visual impairment, the respondent as an employment agency discriminated against him.
The advertisement which was placed in the Evening Herald on 15 February 2000 is headed ‘Wanted switchboard operators’. It seeks persons with ‘Excellent interpersonal and basic keyboard skills and a good telephone manner needed’. The complainant states that he was qualified for the position as he had passed a telephony course. He had also previously worked for Eircom as a switchboard operator and left the position of his own accord. On the basis of the complainant’s qualifications and previous experience as a switchboard operator and that there has been no assertion by the respondent that there was an issue going to the performance of the complainant, it appears that he was capable of meeting the requirements of the post. I am, therefore, satisfied that the complainant has established a prima facie case of direct discrimination. The onus of proof then shifts to the respondent to show that it did not unlawfully discriminate against the complainant on the disability ground.
*281
The complainant phoned the respondent three times in relation to his application, initially to enquire about the position, then a few days later to enquire about the progress of his curriculum vitae and again following the second advertisement being placed in the Evening Herald on 20 March 2000. At the hearing, the complainant stated that all contact with the respondent was made by him and he was not given a reason that his application was not going to be progressed other than that he was told during his second phone call that he was not suitable which he disputed. The respondent stated at the hearing that its role in recruitment for the three-month contracts included placing the advertisement, doing the interview, checking references and nominating the person for the position. It also stated that when people phoned in relation to the advertisement, they would have been booked in for an interview immediately or requested to forward a curriculum vitae depending on the availability of the interviewers on a particular week. The complainant was requested to forward his curriculum vitae when he inquired about the positions.
The complainant stated in his submission that he asked a friend to phone the respondent on foot of a new advertisement in March. His friend phoned the respondent on 21 March 2000 and was told he would have to attend the respondent’s offices to do a test and interview on the following day. His friend was then told that the results of the test and interview would be looked at and the application would be taken from there. He stated that the person who phoned would be available at the hearing. However, the complainant did not call that person as a witness on his behalf at either hearing. The respondent stated, at the first hearing, that the crucial difference between the complainant and his friend was that the complainant had previously been employed by Eircorn and his friend had not been. It stated that the complainant could not be re-employed because of the Eircom policy of not re-employing former employees. It further stated that the respondent’s employee, now an ex-employee, had not previously placed the complainant’s friend with Eircom and it was perfectly reasonable for the ex-employee to seek to place him with Eircom. It remained the case that the ex-employee sought to implement the Eircom policy of not employing former employees of Eircom. It stated that the ex-employee, as instructed by Eircom did not wish to disclose the policy and for that reason sought to minimise the number of vacancies available and said that qualifications were better than the previous year. I note that the complainant’s submission refers to a conversation with a different employee of the respondent in relation to qualifications and vacancies.
The respondent stated in a written submission dated 20 June 2000 that at the time of the complainant’s application for the post, it was established that the complainant had worked for Eircom the previous year and ‘as it is a policy of Eircom not to re-employ, his application was not progressed for that reason.’ In its submission dated 30 June 2000, the respondent stated ‘Mr Gorry’s application was not followed up for Eircom as the policy was that they did not re-employ *282 previous staff. Eircom confirmed that this was the case.’ In a later submission dated 27 September 2000, it states ‘Eircom’s policy of not re-employing previous staff was communicated verbally. The staff in our office who would have been involved in the discussions are no longer with us. [Ms K] of Eircom will confirm the policy.’ At the first hearing, the respondent stated that Ms K was not available. Any further details in relation to the policy were not made available prior to the first hearing and the respondent stated that there was no written evidence other than an internal memorandum of the respondent referring to the existence of such a policy. Further to my request, at the first hearing, for clarification as to whether there was a written contract between Manpower and Eircom in relation to the recruitment of staff for Eircom, the respondent stated by letter dated 19 January 2001 that there is no written contract.
The respondent alleges that it did not discriminate against the complainant and seeks to rely on its application of an Eircom policy verbally communicated to an ex-employee of the respondent as the reason for the manner in which the complainant was treated. At the first hearing, it stated that the policy was communicated verbally by an official of Eircom to a person who is now an ex-employee of the respondent. It stated that when processing the complainant’s application, the ex-employee followed the policy that had been communicated to her by Eircom. It stated that the ex-employee was aware from a record retained of all employees placed with Eircom, that the complainant was a former employee of Eircom and therefore, according to Eircom policy could not be placed by the respondent with Eircom. It stated that Eircom requested that the policy should not be disclosed to applicants and that normal recruitment practice should be adhered to and it was for that reason that the respondent’s ex-employee told the complainant that she had forwarded his curriculum vitae to Eircom. The respondent did not call the ex-employee as a witness on its behalf at either of the hearings of the claim.
At the first hearing, the respondent made available a copy of the internal memorandum referred to. On one page which is headed ‘Telecom Éireann Part-Time Contract Details’, it states that ‘Telecom Éireann employees post-1984 are not eligible for this scheme. These candidates should be requested to forward their C.V., as this is not general knowledge’. The complainant clarified that he did not apply for a part-time position and this part of the memorandum would therefore have no relevance to his application. On the second page which is headed ‘TELECOM ÉIREANN POSITIONS IMPORTANT POINTS’, it states in relation to all positions ‘State that the position is with Telecom Éireann and ask the candidate have they ever worked for them before — if they have worked for them since 1984, request a cv to be sent in (DO NOT TELL THEM ABOUT THIS POLICY!!!!).’ The memorandum then goes on to refer specifically to Dublin switchboard positions and the length of contracts and hours applicable to the positions. The memorandum is not dated, directed to anyone or signed by any- *283 one. It does not specifically state when the regulations applied. I note that the memorandum also refers to recruitment for Telecom Éireann and not Eircom.
The respondent submitted, at the first hearing of the claim, that the motivating ground, in order for there to be a finding of discrimination, must be the person’s disability and that the definition of discrimination does not include less favourable treatment on grounds completely independent of the person’s disability. It stated that it did not place the complainant with Eircom because it was specifically prohibited, by virtue of an Eircom policy, from doing so and submitted that this ground is independent of the complainant’s disability. It submitted that the respondent had every interest in seeking to place the complainant with Eircom and in 1999, it placed the complainant with Eircom on a three-month contract. The complainant confirmed, at the first hearing, that he worked for Eircom for a period from 14 June 1999 to 15 July 1999 and that it became necessary for him to resign from the post due to financial pressures.
The respondent stated that the only reason that the complainant was not put forward with Eircom a second time was that it was operating under clear instructions from Eircom in relation to employing former employees. I was perplexed at the respondent’s constant assertion throughout the first hearing that its instructions in the matter were clear as it also asserts that there was only a verbal communication to an employee on the matter and the only written record of the policy is an internal memorandum which is vague and undated. The respondent contends that the Eircom policy was the reason that it did not process the complainant’s second application for the position of switchboard operator and that the internal memorandum is evidence of the existence of the policy. Additionally, the respondent stated that the fact that it formerly placed the complainant with Eircom is further evidence that it did not discriminate against the complainant. At the second hearing of the claim, the complainant stated that in 1999, when he applied for the switchboard operator position with Eircom. he submitted a curriculum vitae which referred to his health. It was his normal practice over the years when submitting details to employers to refer to his health as he felt that he should be open about the matter. He also stated that in fact, the curriculum vitae which was submitted to the respondent in 2000 was a copy of the curriculum vitae that was submitted a year earlier in 1999. In 1999, he was requested by the respondent to undertake a teleskills assessment test and an interview and he was then placed by the respondent with Eircom.
At the first hearing, the respondent stated that applicants for positions normally receive a letter informing them of the success or otherwise of their application, but unfortunately, in this instance, a letter was not sent to the complainant. It stated that there was no particular reason that a letter was not sent to the complainant other than it was an oversight. It also stated that the complainant’s application was probably badly dealt with as the respondent was not allowed to reveal Eircom’s policy to applicants and that the sole reason that the complain *284 ant’s application was not progressed was because of Eircom’s policy. At that hearing, the respondent failed to produce any material from Eircom in relation to the existence of such a policy. On 8 February 2001, the respondent submitted a copy of a letter dated 8 February 2001 which was e-mailed from Eircom to the respondent and which states that the writer has had the opportunity to speak with two colleagues who would have dealt with the respondent when the original arrangements for recruiting staff for operator services were set up. It states that ‘employees who had availed of a voluntary leaving scheme operated by Eircom could not be re-employed by eircom for tax and pension reasons.’ The letter specifically refers to not re-employing ex-employees in the context of the operator services. The writer of the letter was requested to attend a supplementary hearing to clarify the nature and extent of the policy of not re-employing ex-employees.
I note that the respondent’s letter of 8 February 2001 which enclosed the letter from Eircom refers to the respondent’s ‘understanding’ of the Eircom policy. This may be contrasted with its earlier assertion that it was issued with and operated under clear instructions from Eircom. The respondent’s previous statements on the existence of the Eircom policy are referred to above and the written submission presented on the day of the first hearing states ‘Eircom have, since the outset of the business relationship, issued Manpower with a clear instruction that under no circumstances should an employee who had worked for Eircom from 1984 onwards and subsequently left the organisation be placed by Manpower with Eircom.’ The same submission also states ‘Manpower were operating under clear instructions from Eircom ….’ It is interesting that prior to 8 February 2001, there is no reference to the respondent’s understanding of the Eircom policy and it is quite definite about the contents of the policy. Prior to the second hearing, the writer of the Eircom letter dated 8 February 2001 advised by further letter dated 4 May 2001 that Eircom plc operated a number of voluntary leaving programmes during the year 1999 and that none of those leaving programmes were applicable to operator services in the Dublin area, which is where the complainant was employed.
The respondent from the outset has sought to rebut the claim of discrimination on the basis of the existence and application of an Eircom policy prohibiting the employment of former employees. At the first hearing, it stated that the policy related to staff who had worked from 1984 onwards and subsequently left the employment of Eircom. Prior to or during the first hearing, the respondent did not provide evidence, other than an internal memorandum, to support the contention that it was communicated to it that an Eircom policy in relation to the non-recruitment of persons who previously worked for Eircom existed. The Eircom letter of 8 February 2001 refers to it being Eircom’s position that employees who had availed of a voluntary leaving scheme could not be re-employed by Eircom for tax and pensions reasons. The respondent’s letter of the same date *285 acknowledges that the policy of not re-employing former employees only extended to those ex-employees who availed of a voluntary leaving scheme. The letter goes on to state that it was the respondent’s understanding of the policy that it applied to all staff previously employed by Eircom post-1984 and that recruitment carried out by the respondent on behalf of Eircom was on the understanding that ex-employees post-1984 could not be re-employed.
An Eircom representative, Ms K present at the second hearing, confirmed that she gave the respondent instructions on a number of matters in relation to the recruitment it was carrying out on its behalf. She stated that the instructions were verbal which may have been confirmed by e-mail subsequently but she did not have copies of any e-mails. She stated that Manpower was advised that anyone who left under a voluntary leaving scheme may not be-employed. She further stated that there were several phone conversations with two officials of the respondent and her instructions were clearly that if the person left of their own accord or the contract had finished and the person did not leave under a voluntary leaving scheme operated by the respondent, the policy on not re-employing them did not apply. She confirmed that there were no voluntary leaving schemes applicable to Operator Services in the Dublin area in 1999 and that the complainant did not leave under a voluntary leaving scheme in 1999. She also confirmed that at the time of the complainant’s application for employment, there was no written contract between the respondent and it in relation to recruitment. She was not in a position to comment in relation to the memorandum on recruitment produced by the respondent as it was not an Eircom document. She also stated that to the best of her knowledge, the respondent was not instructed by Eircom to withhold the reason as to why a person could not be re-employed.
I have considered the submissions made by the respondent and the clarifications provided by Eircom in relation to a policy of not re-employing staff who had previously worked for Eircom. I note that a policy did exist of not re-employing persons who had left the employment of Eircom under a voluntary leaving scheme. There were no voluntary leaving schemes applicable to Operator Services in the Dublin area in 1999 and the complainant did not leave the employment of Eircom under the provisions of a voluntary leaving scheme. He did, however, leave the employment of Eircom voluntarily and did not complete his three-month contract with Eircom in 1999. In the circumstances, he could have been re-employed by Eircom the following year.
I note that the respondent processed the complainant’s application for employment in 1999 notwithstanding the fact that his curriculum vitae at that time also referred to his health. On that occasion, the complainant was placed by the respondent with Eircom as a switchboard operator following an interview and teleskills assessment test. I also note that in 1999, the respondent placed the complainant with Eircom at a time when the Employment Equality Act 1998 was not in operation and when discrimination on the disability ground was not *286 actually unlawful. 1 consider that the Eircom policy of not re-employing persons who had previously worked for Eircom and left under a voluntary leaving scheme was misapplied to the complainant. Given that the respondent did not have clear written instructions on the provisions of the policy and that the complainant did leave employment voluntarily, albeit not under a voluntary leaving scheme, I consider that it is not unreasonable that the policy could have been misapplied. In the circumstances, I find that the misapplication of the Eircom policy was the reason that the complainant’s application was not processed and that the respondent did not discriminate against the complainant on the disability ground. I consider that the respondent could have been more prudent in relation to obtaining a clear communication in writing on the provisions of the policy and in communicating the precise details to staff dealing with recruitment, particularly as the policy was being applied in making important decisions as to whether to place prospective employees with employers. I consider that the respondent also has an issue to consider in relation to not providing feedback to applicants who are unsuccessful in their applications for employment and who seek feedback.
I must also consider the issue of indirect discrimination raised by the complainant. The complainant’s representative in its submission dated 15 January 2001 states that the complainant was indirectly discriminated against. The complainant’s representative states that the provisions of section 31 of the Act in respect of indirect discrimination are relevant. It is submitted that if the category to which C and D belong is taken to be former employees of Eircom who again apply for a post, with C being someone who worked with them post-1984 and D being someone who worked with Eircom pre-1984, the issue of indirect discrimination arises.
Part IV of the Employment Equality Act 1998, deals, inter alia, with indirect discrimination. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Section 28 of the Act provides that C and D represent two persons who differ in relation to any of the eight grounds. In relation to the disability ground, this means that a comparison may be made between a person who has a disability and a person who does not have a disability or who has a different disability. Section 31 of the Act, prohibits indirect discrimination and provides that where a provision relating to employment applies to all employees or prospective employees and operates to the disadvantage of one person compared to another and in practice can be complied with by a substantially smaller proportion of employees or prospective employees of a particular category relative to persons of a different marital status, family status, disability, etc., and cannot be justified as being reasonable in all the circumstances, it shall be regarded as indirect discrimination. Section 31 of the Act only allows for a comparison between two persons on any of the eight grounds mentioned in section *287 28 and does not allow for a comparison to be made between former employees of Eircom, pre-1984 and post-1984 as submitted by the complainant’s legal representative. The complainant did not identify any provision which applied to prospective employees which operated to the disadvantage of a person with a disability and which in practice could be complied with by a substantially smaller proportion of persons with a disability relative to persons who do not have a disability or have a different disability and which cannot be justified as being reasonable in all the circumstances. I find that the complainant has failed to establish a prima facie case of indirect discrimination on the disability ground.
There were a number of issues raised by the complainant’s legal representative in relation to the provisions of the Employment Equality Act 1998 in support of the complainant’s claim which I feel I must address in an attempt to be comprehensive. The complainant’s representative by submission dated 15 January 2001 refers to section 8(1) of the Act and submits that the section deals with discrimination at entry level and specifically includes agency workers in its remit. It is submitted that subsection 8 forbids rules and instructions which discriminate against an employee or class of employees and that subsection 5 forbids the imposition of specific entry requirements in respect of employees or classes of employees. It is submitted that the requirement of not having been an employee of Eircom since 1984 amounts to the imposition of a specific entry requirement which is forbidden.
I have considered section 8 of the Act which deals with discrimination by employers and providers of agency work. Section 8(4) and not section 8(8) of the Act, as stated by the complainant prohibits an employer or provider of agency work from having rules or instructions which would result in discrimination against an employee or class of employees in relation to access to employment, conditions of employment, training or experience, promotion, re-grading or classification of posts. Section 8(4) also states that an employer or provider of agency work shall not apply or operate a practice which results or would be likely to result in any such discrimination. Section 8(5) provides that discrimination shall be taken to have occurred if an employer or provider of agency work discriminates against an employee or prospective employee in relation to access to employment in any arrangements the employer or provider of agency work makes for the purpose of deciding to whom employment should be offered or by specifying in respect of one person or class of persons entry requirements which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.
The complainant’s representative submitted that the requirement of not having been an employee of Eircom since 1984 is the imposition of a specific entry requirement which is prohibited by the Act. Section 8 of the Act prohibits discrimination by employers. Section 6 of the Act defines discrimination for the *288 purposes of the Act as treating one person less favourably than another is, has been or would be treated, on any of the nine grounds (gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community). The complainant has failed to show how the entry requirement of not being an employee of Eircom since 1984 is discrimination on any of the nine grounds within the meaning of the Act. I do not accept the argument put forward by the complainant that the requirement of not having been an employee of Eircom since 1984 is contrary to sections 8(4) and 8(5) and amounts to discrimination within the meaning of the Act. Furthermore, I note in this case, the respondent is not actually the complainant’s employer or prospective employer. I also note that a provider of agency work is defined in section 2 of the Employment Equality Act 1998, as:
A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to agency workers, as the ‘provider of agency work’.
In this case, the respondent does not fall within the definition of a provider of agency work as provided in the Act.
The respondent submitted a copy of its Equal Opportunities Policy and I note that the policy was drawn up for the purposes of its UK operations and is therefore not applicable in this jurisdiction. Although I cannot make a binding order in relation to this issue as I have not found in favour of the complainant, I consider that it would be appropriate for the respondent to draft an equality policy applicable to this jurisdiction and make it available to every member of staff.
Decision
On the basis of the foregoing, I find that the respondent has rebutted the complainant’s allegation of direct discrimination on the disability ground. I, therefore find, on the balance of probability that the respondent did not directly discriminate against the complainant in terms of section 6(2)(g) of the Employment Equality Act 1998 and contrary to the provisions of section 8 of the Act. I also find that the complainant has failed to establish a prima facie case of indirect discrimination.
A Meat Factory Worker v A Meat Processor
Workplace Relations Commission ADJ-00001504
15 April 2016
[2016] 27 E.L.R. 322
Procedure
This case refers to a general operative in an abattoir and meat production facility (the complainant) who has alleged that following an accident at work, which has led to a disability, that she has not been reasonably accommodated and where the treatment by her employer amounts to discriminatory dismissal.
The dispute concerns a claim by the complainant that she was discriminated *324 against by the respondent in relation to her employment on the grounds of disability contrary to s.6(2)(g) of the Employment Equality Acts (hereinafter also referred to as “the Acts”), owing to the respondent’s failure to provide her with reasonable accommodation contrary to s.16(3) of the Acts.
The complainant commenced employment on 3 September 2012 where she is paid €9.50 per hour and where her work varies depending on demand. She is contracted to work a 37-hour week.
In accordance with s.41(4) of the Workplace Relations Act 2015 and s.79 of the Employment Equality Act 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s submission and presentation
The complainant, a Brazilian national, worked for the respondent in a meat factory where she was required to work with meat and with knives. The complainant has poor English.
The complainant alleged that she suffered an injury in June 2014 at work when she was trimming meat and where a knife being used by a work colleague fell on her cutting her nose and upper lip which required medical treatment including five stitches.
The complainant returned to work on 7 July 2014. It was recommended by her GP that due to the seriousness of the injury she received that the complainant be moved from the area of work where the accident happened and that alternative suitable duties be assigned to her.
The complainant experienced a setback during 2015. She attended counselling from May 2015 where she was required to attend for weekly sessions each Thursday morning. However she advised that she took further sick leave related to her disability from 17 August 2015, where she was also undergoing treatment.
The complainant contended at the hearing that she was diagnosed in 2015 as suffering from post-traumatic stress disorder as a result of the accident and as such she had a disability as defined in the Employment Equality Act.
The complainant submitted a medical letter to the respondent dated the 7 October 2015 stating that she was unable to work due to psychological difficulties and flashbacks from the accident. She sought to return to work on the 2 November 2015.
On the 2 November 2015 the complainant provided the respondent with a letter from her doctor referring to flashbacks arising from her accident at work and an inability to work with knives. Her doctor referred to the fact that this medical condition was confirmed by the complainant’s psychiatrist.
The complaint contended that the respondent was not satisfied with this where it immediately rejected the suggestion that she could work in a meat factory and not work with knives. The complainant maintained that there was work she could *325 do, for example making boxes, cleaning, or packaging and suggested this to the respondent but that no reasonable consideration was given to her suggestions. Instead she maintains that she was asked to get further letters from her doctor where she understood that she was in fact being asked to get a letter saying she could work with knives or else she could not return to work.
The complainant was upset at the way she was being treated and maintained that the respondent’s refusal to accommodate her contributed to her poor financial situation due to not being able to return to work. She went back to her doctor and obtained a further letter, dated the 6 November 2015, again referring to her disability regarding the psychological effects of her accident at work. It is stated in this letter that she was suffering from post-traumatic stress from the accident and where she suffered flashbacks.
On the 11 November 2015 the complainant met with the respondent again concerning her wish to return to work. She contended that she was told that the cleaning and packaging jobs were all taken.
On the 20 November 2015 the complainant’s psychiatrist wrote a recommendation that the complainant should be moved to another department as working with knives exacerbated her anxiety and flashbacks arising from her accident at work.
On the 1 December 2015 the complainant met with the respondent and spoke about her difficulties with returning to work and where she was again seeking reasonable accommodation. On 2 December 2015 the HR/payroll administrator wrote a letter to the complainant where the complainant concluded from this letter that the respondent saw the matter very simply as one in which it did not have any alternative work (without providing any details – or seeking to consult with the complainant on options) and the complainant would have to be able to work with knives, or not at all.
On the 7 December 2015 the complainant again spoke with the HR/payroll administrator. The complainant maintained that at this meeting she referred to the respondent’s letter of the 2 December 2014 where the respondent had concluded that she could only return to work if she was fully fit and when she was able to work with knives. When she asked the respondent to confirm this conclusion the complainant maintains that the respondent confirmed she could come back to work when she was fully fit to work with knives. When the complainant advised that she would do other jobs at the plant she was told that these other jobs including cleaning and packaging would involve working with knives, even if it was only for “five minutes”. The complainant said she would therefore need to look for another job and she contended that the respondent instructed her to write a letter to this effect and that her P45 would issue to her. The complainant wrote a letter to that effect on 7 December 2015 and gave it to the respondent.
In another note to the respondent on the same day the complainant stated that she was grateful for her three years’ work with the company but that she didn’t know when she would be “fine”, meaning her difficulty with working with knives.
*326
The complainant maintains that she did not say or write to the respondent that she would never be able to work with knives.
The complainant contended that her notes stated that she couldn’t work with knives and didn’t know when she would be able to, and with reference to her financial circumstances and responsibilities to her family she asked for an alternative role without having to work with knives.
The complainant advised that the respondent wrote to her on the 7 December 2015 and maintains that this letter effectively ignored the complainant’s situation as it stated “as it stands, based on the two medical reports you are unable to carry out work with knifes (sic) and we have been unable to find alternative work that would not put you in contact with knifes (sic)”. The complainant further argued that this letter to her, which was received on the 14 December 2015, only left a single day for her to appeal the respondent’s decision. The complainant maintained that this approach was contrary to the respondent’s sickness/injury payments and conditions policy, and in particular the respondent ignored a requirement for an independent medical examination as set out in the policy. The complainant further argued that if matters remained as they were, and that no alternative to a job working with knives was considered, that this was a discriminatory dismissal. As such the complainant contended that no reasonable effort was made by the respondent to seek alternatives to working with knives.
The complainant therefore argued that the respondent failed to afford her the protections afforded to workers with disabilities and referred to the case of A School v A Worker [2014] E.L.R. 307 which was recently upheld on appeal to the High Court regarding reasonable accommodation.
Respondent’s submission and presentation
The respondent refutes the allegation that it has discriminated the complainant by reason of her disability and that it has failed to reasonably accommodate her.
The respondent raised two preliminary points as follows
The respondent maintains that as the claimant has also lodged a claim for personal injury before the High Court she is not entitled to obtain redress in both forums and referred to the rule in the Henderson v Henderson (1843) 67 E.R. 313 case as cited with approval in Parson v Iarnród Éireann [1997] 2 I.R. 523 and in Cunningham v Intel Ireland Ltd [2013] E.L.R. 233; [2013] IEHC 207 where it was stated “[A]ll matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances.”
The respondent also argued that the complainant has failed to put forward a prima facie case to show that first she suffered from a recognised disability and that the reasons for her failure to return to work were for discriminatory reasons in relation to this disability. The respondent maintained that “it is only if the initial burden is discharged and the court is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of *327 proving that there was no infringement of the principle of equal treatment passes to the respondent. If the claimant does not discharge the initial probative burden required of [her], her case cannot succeed”. The respondent referred to Melbury Developments v Valpeters [2010] E.L.R. 64 where the Labour Court set out the circumstances in which the probative burden of proof operates:
“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must 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 respondent also contended under this preliminary point that the complainant has not supplied any evidence of her allegations against the respondent. Referring to Giblin v Bank of Ireland Asset Management Ltd Equality Tribunal Decision DEC E/2011/161 the respondent argued that where a claimant had lacked any sound evidentiary basis the complaint should be regarded to be frivolous and vexatious and as such be dismissed.
The respondent acknowledged that the complainant worked without incident from her commencement of employment on 3 September 2012 to 9 June 2014 when she was involved in a workplace accident where another employee dropped a knife from a height cutting the complainant on the nose and upper lip. The accident required medical care which was provided by the respondent.
The respondent acknowledged the complainant submitted sick certificates for the period 16 June 2014 to 23 June 2014 due to a facial injury, and from 23 June 2014 to 6 July 2014 due to stress.
On 7 July 2014 the complainant submitted a fitness to work certificate where the complainant’s doctor recommended that the claimant “be removed from the area of work where the accident happened. I recommend that alternative suitable duties be assigned to her in a different area of the business”. The respondent advised the complainant returned to work in a different area, but continued to perform similar work (with knives).
The respondent acknowledged that (in May 2015) the complainant submitted a letter from the HSE stating she needed to attend weekly counselling sessions on Thursday mornings at 11a.m.
The respondent received further sick certificates from 17 August 2015 to 31 August 2015 stating the complainant was unable to attend for work due to post-traumatic *328 stress disorder. The complainant then submitted sick certificates on 22 September 2015 to 28 September stating she was unfit to work due to neck pain, and from 2 October 2015 to 12 October 2015 stating the complainant was unable to work due to continuing treatment. The respondent advised that on 7 October 2015 the complainant attended her doctor with low mood and flashbacks of the accident and was unable to attend for work for a while. The complainant then provided a sick certificate for 12 October to 1 November 2015 stating she was unable to work due to a neck injury
The respondent advised that on 2 November 2015 the complainant submitted a fit to work certificate which stated “However she should not work with knives as she gets flashbacks from the accident she sustained at work. The recommendation has also been made by her psychiatrist.” On 3 November 2015 the respondent invited the complainant to a welfare meeting to discuss her health, and on 5 November 2015 the complainant again attended her doctor. The respondent further advised that her doctor’s report issued on 6 November 2015 and stated “She is ready to work in any area of the factory that does not involve working with knives as she gets flash back which distress her”. The respondent acknowledged that at this time the complainant submitted a further medical report from her psychiatrist which stated “I would recommend that [the complainant] be considered for transfer to another department within your company to avoid working with knives as this exacerbates her anxiety.”
The respondent maintained that it met with the complainant on 1 December 2015 in order to discuss facilitating her return to work and referred to this meeting in its written submission as a medical capability hearing. This meeting was attended by the complainant, an operations manager, and the HR/payroll manager. Following this meeting the respondent issued a letter to the complainant on 2 December 2015 stating that there was no alternative employment available and that the complainant should return to work when she was able to work with knives again.
The respondent maintained that the complainant resigned her employment on 7 December 2015 and stated that the resignation was because there was no role available for her and she did not know when she would be able to return to work. The respondent contended that it asked the complainant to reconsider her resignation as the role would be available to her when she was fit to return to work. In this regard the respondent acknowledged that the complainant suggested that she could work in the roles of making boxes, packing, or cleaning until she had fully recovered. However the respondent maintained that the box-making role was not a full-time role where it amounts to only a few hours a week; that there is not a vacancy in the packaging role; nor was there sufficient work in the cleaning role as the current incumbent worked only 15-16 hours per week, and when the plant was busy it would amount to 30-33 hours per week. In addition to not having the available capacity in these roles, the respondent argued that the packaging role was similar to the complainant’s current role and involved the use *329 of knives. The respondent also maintained that the cleaning role involved using knives and where the cleaner, as part of her duties, must walk through the abattoir and pick up any knives that have been left down, and where knives had to be washed. The respondent was therefore mindful that it understood the complainant had a certificate from her doctor stating she was unable to work with knives.
In its response the respondent maintained that it has not failed to reasonably accommodate the complainant or that they have dismissed her on discriminatory grounds. The respondent contended that the complainant left and that her job remained open for her, but in light of the medical advice that she could not work with knives it was not possible to safely employ her until she was fit to return to work. The respondent also referred to legal precedent as follows.
In accordance with Humphrey’s v Westwood Fitness Club [2004] E.L.R. 296 the respondent attempted to appraise themselves of the full facts of the medical condition through reports from the complainant’s doctor. The claimant was unable to work with knives and as all roles within the company involved working with knives, the respondents were unable to offer an alternative. In this regard the respondent maintained that it acted reasonably and accommodated the complainant by letting her know her role would be available to her when she was able to return to work.
In An Employer v A Worker [2005] E.L.R. 159, the Labour Court found that the reasonable accommodation test is an objective one. They further held that the duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. However the respondent noted that the Labour Court did not feel that this was operationally feasible in a small plant. In this regard the respondent submitted that to remove the duties the complainant performed which involved knives would not be operationally feasible. Furthermore the complainant in resigning her employment did not give them an opportunity to assess what adjustments could be made. During the hearing the respondent maintained that it had no other job without the use of knives and it was not feasible for it to build a special room for the complainant to avoid knives so she could return to work. The respondent also submitted that the complainant did not afford the respondent the opportunity to follow a process to determine if a further role or any accommodations could be made for the claimant.
In Rogers v Dublin Corporation [1998] E.L.R. 59 it was held that an employer is not under any legal obligation to provide alternative work to an employee who is no longer medically fit to perform the duties for which he was employed. Furthermore in Carroll v Dublin Bus [2005] 4 I.R. 184; [2005] E.L.R. 192; [2005] IEHC 278 Clarke J. agreed with Rogers v Dublin Corporation but made it subject to the employee being reasonably fit to carry out the work for which he was employed and where an overly technical objection to an employee’s ability to carry out such duties may disentitle the employer to treat the employee as being unable to do so; and secondly while stating that no term would be implied into *330 a contract to the effect that an employer is under a duty to provide “light duties” to an incapacitated employee, but that this rule may be displaced by an express term in the contract of employment or by custom and practice.
In light of the precedents referred to above, and the fact that the complainant was not fit to work with knives, the respondent submitted the complainant was not offered alternatives as her condition prevented her from working with knives and all roles in the abattoir involved working with or near knives. The respondent reiterated that it did not dismiss the complainant but informed her that her role would be available when she was fit to return.
Accordingly the respondent maintained that it did not discriminate against the complainant on the grounds of disability in accordance with s.16 of the Employment Equality Acts 1998-2011. The respondent refuted the allegation the complainant was dismissed arguing that she in fact resigned her employment in circumstances where the respondent acted reasonably in allowing the claimant time to recover before returning to work.
Decision
Section 41 (4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Sch.6 of that Act. Section 79(6) of the Employment Equality Act 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under s.82 of the Act.
Preliminary issues for decision
The adjudication has been provisionally asked to consider whether the case can be heard in the first instance as the complainant has also made a claim to the High Court in relation to personal injuries and where the respondent is relying upon the Henderson v Henderson precedent.
Having reviewed this matter and considered the issues presented before me, I am satisfied that the personal injuries claim is related to the workplace accident that occurred on 6 June 2014. I am satisfied that the complaint of discrimination and complaint of failure to provide reasonable accommodation are not part of the claim being made to the High Court which refer to a specific incident and in which the complainant notified the respondent she was intending to issue proceedings in relation to a personal injury shortly after the accident. I am satisfied the current complaint before the WRC refers to the alleged treatment of the complainant in her attempts to return to work during 2015 following a period of sick leave, and as such they do not arise from the same set of facts or circumstances. The issues relating to the complaint before the WRC post-date the issues related to the claim which has been made to the High Court, and yet to be heard. As such I do not find that the WRC is being asked to decide upon the same set of circumstances, or circumstances which have already been heard and decided upon. Accordingly I find that the current complaint is properly before the WRC for adjudication.
*331
On that basis the issues for decision are whether or not the respondent discriminated against the complainant on grounds of disability in terms of s.6(2)(g) of the Employment Equality Acts and failed to provide her with reasonable accommodation in terms of s.16(3) of the Acts.
With regard the whether the complainant has failed to put forward a prima facie case to show that firstly she suffered from a recognised disability, and that the reasons for her failure to return to work were for discriminatory reasons relation to this disability, s.85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. When investigating a complaint, the role of the adjudicator includes undertaking an examination of any conflicts of fact in the evidence presented by the parties to arrive at reasoned findings of fact.
Based on the evidence provided, and where it is clear that the complainant experienced an injury due to a workplace accident, and where her sick certificate at the time indicated she was suffering from stress and should work in an alternative areas upon her return to work, it should have been obvious to the employer that the complainant was prone to stress due to the work environment in which the injury occurred. Furthermore it is also clear that from May 2015 the complainant was attending counselling sessions, and again due to her sick certificates during the latter part of 2015 where she is diagnosed as experiencing post-traumatic stress disorder. On that basis the respondent should have reasonably known that that the complainant was presenting with a disability.
The definition of disability contained in the Employment Equality Acts 1998-2008 sets out a list of broad categories of impairments within the definition 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 is imputed to a person.”
*332
Generally the definition does not require that a disability meet a threshold of severity for the condition or impairment to meet the definition for the purposes of the legislation; nor does the case law define an exhaustive list of conditions. The definition includes temporary disabilities, imputed disabilities, past disabilities and future disabilities. Both the Labour Court and Equality Tribunal have held that disabilities which are of a temporary nature can come within the ambit of protection of the Acts.
Counsel for the complainant submitted that the complainant’s condition (post-traumatic stress disorder) is a disability in terms of s.2(1)(e) of the Employment Equality Acts. I have carefully considered the evidence adduced by the parties on this matter and I am satisfied that the condition mentioned is encompassed by the definition of disability contained at s.2(1) of the Acts.
Accordingly I find that in light of the medical reports being provided to the respondent at the time, and where such certificates are advising that the complainant was experiencing post-traumatic stress disorder, a prima facie case based on credible evidence formed by medical experts existed regarding the facts relating to the complainant’s condition. As such, and in consideration of the respondent’s arguments, the complainant has met is obligations under s.85A of the Act. In this regard the respondent also accepted the medical reports from the complainant and did not seek an alternative opinion.
Decision regarding reasonable accommodation
With regard to reasonable accommodation, s.16(1)(b) of the Acts provides that an employer is not obliged to retain an employee in a position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is then subject to s.16(3)(a) of the Acts which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of “appropriate measures”, more commonly referred to as “reasonable accommodation”. This is subject to the proviso that such measures would not impose a disproportionate burden on the employer. In practical terms, s.16 of the Acts as interpreted in the seminal case of A Health and Fitness Club v A Worker Labour Court Determination EED037 upheld by the Circuit Court (Humphreys v Westwood Fitness Club [2004] E.L.R 296), requires the employer to undertake a two-stage enquiry.
First, the employer has to establish the employee’s capacity to undertake their duties and secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable.
The nature and extent of the enquiry depends upon the particular circumstances of each case but “an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision.” The proactive nature of this process was confirmed by the Labour *333 Court in A Worker v A Hotel Labour Court Determination EDA0721 as: “[T]he duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.” In An Employer v A Worker [2005] E.L.R. 159, the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required:
“… may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.”
In this regard having considered all of the documentation, evidence, and submissions presented I find that the respondent has fundamentally misinterpreted and misconceived its obligations under s.16 of the Acts in how it decided the manner in which it responded to the complainant’s requests for reasonable accommodation. Essentially, it was the respondent’s position that the complainant was not fit to return to work unless she was certified as being fit to work with knives. This position is evidenced by the correspondence between the parties, and the meeting notes of the various discussions between the complainant and the respondent. However this decision is not supported by any objective test conducted by the respondent before making its decision.
In effect the respondent failed to conduct a proper and thorough enquiry once it became aware that the complainant was certified as experiencing post-traumatic stress disorder (a recognised disability) and where the medical practitioners recommended alternative work should be considered. The respondent decided unilaterally that the complainant could not return to work so long as there were knives in the work environment, did not seek an independent medical view of the situation, nor did it conduct a proper analysis of what reasonable accommodation was required before it decided, on its own accord, that the complainant could not return to work until she was in effect fully fit and without a disability. This decision, and action taken by the respondent, clearly falls short of its obligations to conduct a proper enquiry as established in Humphreys v Westwood Fitness Club, a case it refers to in its defence.
Decision regarding discriminatory dismissal
With regard to discriminatory constructive dismissal, the definition of dismissal within the Employment Equality Acts covers constructive dismissal. Section 2(1) of the Employment Equality Acts provides that dismissal, includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, *334 because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly.
To meet the burden of proof on the complainant, she must demonstrate that she was entitled to resign from her employment due to a fundamental breach of contract or in all of the circumstances, it was reasonable for her to resign. What is reasonable is a question of fact and the degree to be decided having regard to all the circumstances of the particular case. Except in exceptional circumstances the complainant is expected to seek to have formally invoked and worked through her employer’s procedures prior to resigning
The evidence provided supports the fact that the complainant, upon advising the respondent of her medical setback and condition during 2015 engaged in all meetings requested from her employer, and provided further medical evidence when requested regarding her condition. In this process the complainant fully co-operated with the respondent’s requests. Throughout this process she maintained that if her role was reconsidered and she was given opportunities to work elsewhere, in other words if she was reasonably accommodated, she could and was willing to return to work. She never indicated that she could not work with knives. However the evidence submitted and considered demonstrates that the respondent was insistent that the complainant could only return to work on the basis that she was fully fit and certified by her doctor to work with knives. This in effect ignored the nature of the complainant’s disability. The complainant maintained other work was suitable for her and without an objective assessment of this and whether she could be reasonably accommodated, she was left with no option but to resign in order to seek alternative employment. In this regard the respondent failed to adhere to its own procedures which states “if we feel it necessary we will require you to be independently medically examined.”
In addition the respondent sent a letter to the complainant which did not appear to provide reasonable time for her to consider a response as to whether she wished to appeal the respondent’s decision not to provide her with alternative work (i.e. she received a letter regarding her resignation on 14 December 2015 where the respondent asked her to respond by 15 December 2015). I therefore find that this action, added to the complainant’s previous efforts to have the respondent give reasonable consideration to her needs, amounted to a fundamental breach in the trust between the parties. Under the circumstances I find the conduct of the respondent towards the complainant has entitled the complainant to terminate the contract without giving such notice, and it would be reasonable for her to interpret that she was in effect “dismissed”.
Conclusion and findings
I have concluded my investigation of the complaint herein and based on the aforementioned, I find that pursuant to s.79(6) of the Act, the respondent *335 discriminated against the complainant on grounds of disability in terms of s.6(2)(g) of the Employment Equality Acts; failed to provide her with reasonable accommodation to enable her to return to work in terms of s. 16 of the Acts; and the actions of the respondent led to the dismissal of the complainant by way of the complainant terminating her contract of employment because of the conduct of the respondent.
In accordance with s.82 of the Act, I order the respondent to, within 42 days of the date herein, pay the complainant €20,000 in compensation for breaches of the Employment Equality Acts. The complainant clearly suffered considerable upset and distress in relation to the manner in which the respondent responded to her diagnosis and handled her request for reasonable accommodation to enable her to return to work. This award is arrived at having regard to the nature of the discrimination where in effect, without conducting an objective assessment of the issue, the respondent advised the complainant that whilst her job remains open to her she can only return when she does not have a disability. In making my decision I also have regard of the requirement pursuant to art. 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” and as such equates to just over one year’s pay. As this redress is for the infringement of the complainant’s statutory rights, it is therefore not subject to income tax.
A Worker (Mr O) v An Employer (No.2)
EED0410
Labour Court
5 January 2005
[2005] 16 E.L.R. 132
Determination
Mr O (the complainant) claims that he was discriminated against on grounds of disability by his former employer (the respondent) by being constructively dismissed from his employment.
The complainant was employed by the respondent in a specialist occupation. On or about April 2002, he was admitted to hospital suffering from a psychiatric illness. The complainant was discharged from hospital in June 2002, and was advised by his psychiatrist that he could return to work, preferably on a phased basis. The respondent did not allow the complainant to return to work. The complainant was referred to a psychiatrist nominated by the respondent and later to an occupational physician. He was eventually allowed to return to work on October 9, 2002.
The complainant contends that on his return to work he was told that he would not be allowed access to the respondent’s clients and that his work would be monitored. He further claims that he was treated with hostility by the respondent. The complainant resigned from his employment on October 11, 2002, in circumstances which, he claims, amounted to a constructive dismissal. He brought a claim before the court pursuant to s.77 of the Employment Equality Act 1998 (the Act).
The complainant also brought a claim alleging that he had been discriminated against on grounds of his disability during the currency of his employment when the respondent failed to facilitate his return to work following his discharge from hospital. That claim was referred to the Equality Tribunal and was heard by an Equality Officer who held with the complainant. The respondent then appealed to this court. Since the claim heard by the Equality Officer and the dismissal claim being heard at first instance by the court are grounded on *135 interrelated facts, the court, with the consent of the parties, determined to hear both cases together. However, since they constitute separate referrals, and are subject to separate avenues of appeal, the court decided to issue separate determinations in each case.
The submissions made by the parties on both issues and all of the evidence adduced at the combined hearing are summarised in the determination of the appeal against the decision of the Equality Officer in Mr O and an Employer (No.1) Determination DEC E 2003/052. This determination should, therefore, be read in conjunction with that determination.
Facts
Based on the submission of the parties and on the evidence adduced, the court, as a matter of probability, has reached the following findings of fact material to the complainant’s dismissal claim.
The court accepts that the working environment with the respondent was pressurised and that a least one of the partners would, at times, publicly remonstrate with staff in robust language. The testimony of two independent witnesses, Mr McQ and Ms K who gave evidence on behalf of the complainant, supports this conclusion. Nonetheless, there is no evidence to suggest that the respondent was other than a reasonable employer in its overall dealings with its staff. In the case of the complainant, he appears to have been content in his employment for over 14 years. He had extended periods of sick leave in respect of which he received his full pay, except on those occasions on which he declined to accept his salary, believing that he would be under less pressure to return if he was not paid. No issue was taken with the complainant concerning the length or frequency of his absences on sick leave.
When the complainant indicated that he had difficulty in his reporting relationship to Mr B it was agreed that he should generally report to Mr H instead. Mr H befriended the complainant during times of personal difficulty for him and he did not disagree with the suggestion that Mr H had provided him with a shoulder to cry on. Further, when the complainant’s state of health deteriorated in April 2002, the respondent arranged for him to be admitted to hospital and one of the partners drove him there. The partners also remained in contact with the complainant’s wife to check on his progress.
The respondent contends that at all material times it treated the complainant sympathetically and with consideration in relation to his illness. The court accepts that at the commencement of his illness the respondent did provide commendable assistance to the complainant. However, its later treatment of the complainant could not be so characterised.
The court has found that the respondent failed to do all that was reasonable to accommodate the complainants needs by providing him with special treatment or facilities so as to enable him to return to work on a phased basis. Moreover, *136 after his discharge from hospital, the respondent appears not to have had any personal contact with the complainant. Apart from one meeting with Mr H on June 14, 2002, the respondent communicated with the complainant by letter. These letters, which were delivered by courier, were terse and business like. They contain no expression of interest in his state of health or enquiry as to his well-being.
On his return to work on October 9, 2002, the complainant attended a meeting with Mr H and Mr B. At this meeting he was presented with a job description which defined in detail the role and responsibilities attaching to his job. Whilst this job description was provided to an occupational medical specialist (to whom the complainant was referred by the respondent), and was shown by him to the complainant, the court is satisfied that over his 14 years with the respondent, the complainant had never previously been given a detailed job description. The complainant was also told that he could no longer deal with clients. The respondent told the court that because of the complainant’s illness this limitation was considered necessary in order to protect the interest of their business.
The complainant had suffered from an anxiety-related illness for some time and there was no evidence before the court that his illness had in any sense adversely affected the relationship between him and the clients with whom he dealt. The respondent contends that this change was made because the complainant suffered from memory loss. The evidence does not support this. While the complainant may have presented with this symptom in the period before his hospitalisation, the evidence indicates that it was no longer a problem by the time he returned to work. In his report to the respondent, Dr S (the psychiatrist nominated by the respondent) stated that he had given the complainant a Mini Mental State test and that this showed that his memory function was reasonably good. There was no mention of memory deficiency in the report prepared by Dr D (the second specialist nominated by the respondent). Moreover, the complainant received no indication that this was a temporary restriction or that the position would be reviewed at a later stage.
The complainant described the atmosphere at the meeting of October 9 as antagonistic. The court believes, as a matter of probability, that the meeting was business like and formal and was intended to redefine the working relationship between the respondent and the complainant. The court further accepts the complainant was told that his standard of performance would have to improve relative to what it was previously. In that context he was told that the respondent would be monitoring his work. The complainant also told the court, and the court accepts, that he was ignored by Mr H and Mr B over the following two days.
In the court’s view the respondent’s approach to the complainant on his return to work was not indicative of a caring or sympathetic attitude towards an *137 employee who had been absent from work with a serious psychiatric illness.
The court also accepts that on his return to work the complainant felt that he was not wanted and that the respondent was intent on making his life difficult. This perception was evidenced by the demeanour of the partners of the respondent towards the complainant and by what was told at the meeting on the morning of October 9. The complainant testified that he felt demeaned and threatened and that he became concerned that he might suffer a relapse of his illness. The court accepts the general thrust of the complainant’s evidence in this respect and it further accepts that there was a reasonable basis for those concerns.
After the second day the complainant discussed the situation with his wife and decided to resign. He had been absent from work since early the previous June. He had been without pay since July 19. His wife had been made redundant and he was the only breadwinner in his family. He had spent the previous three months actively tying to resume his employment, partially because he wanted to work but mainly because he needed an income. He had 14 years’ service with the respondent and a history of illness. Because of his health record, his prospects of obtaining alternative employment would have been limited.
Against that background, the complainant’s resignation might appear to have been an irrational and inexplicable act. The respondent suggested that the complainant was intent on resigning at the time he returned to work and that he contrived to lay the basis for a claim against the respondent in the manner of his resignation. The court can see no basis for this suggestion and it is rejected. In the court’s view, what occurred on October 11 is more consistent with the complainant’s explanation of why he resigned, and the court accepts that what he told the court on this point is substantially correct.
The court also attaches significance to the respondent’s decision to accept the complainant’s resignation there and then. In evidence, the partners of the respondent accepted that the complainant’s resignation had the appearance of an impulsive or irrational act. They knew the nature of the complainant’s illness and of his emotional vulnerability. In the court’s view, a reasonable employer would have paused before accepting a resignation in these circumstances and might have contacted the employee later to ascertain the reason for the resignation or to provide an opportunity for the employee to recant.
From all the surrounding circumstances, and in particular from the respondent’s response to the complainant’s resignation, the court has come to the view, as a matter of probability, that at that stage, the respondent was, at best, indifferent as to whether or not the complainant remained in its employment. The court is further satisfied that the complainant had perceived this to be the position.
*138
The law applicable
Section 2(1) of the Act defines a dismissal as including:
“[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so …”.
This definition is practically the same as that contained at s.1 of the Unfair Dismissals Acts 1977–2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.
*139
Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.
Conclusion
It is not suggested that the respondent breached any express term in the complainant’s contract of employment. It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.
On the facts which it has found, and set out in this determination, (and in Determination EDA0419) the court is satisfied that the respondent conducted itself in relation to the complainant in a manner which was destructive of a relationship of mutual trust and confidence. Whilst the conduct of the respondent may not, itself, have amounted to a repudiatory breach of the employment contract, the court is satisfied that, having regard to the complainant’s undoubted emotional and psychological vulnerability at the material time, the conduct of the respondent was so unreasonable as to justify the complainant in resigning there and then.
Counsel for the respondent submitted that the complainant’s failure to make any complaint in relation to his treatment, prior to his resignation, is fatal to his claim of constructive dismissal. The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address what ever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (see Allen v Independent Newspapers [2002] E.L.R. 84; May v Moog Ltd [2002] E.L.R. 261 and Monaghan v Sherry Bros [2003] E.L.R. 293. See also the determination of this court in New Era Packaging v A Worker [2001] E.L.R. 122).
There are a number of factors which, in the exceptional circumstances of this case, excuse the complainant’s failure to formally complain to the respondent before resigning. First, the respondent did not have a grievance procedure in place. Secondly, the offending conduct was perpetrated by the principals of the respondent who knew or ought to have known what its likely impact would be on the complainant having regard to his temperament and mental fortitude. Thirdly, the complainant condition was such as to require him to avoid confrontational or stressful situations and this was known or ought to have been known to the respondent.
Determination
Having regard to the foregoing, the court is satisfied that the complainant’s *140 employment with the respondent came to an end in circumstances amounting to a dismissal within the meaning of s.2(1) of the Act. The court is further satisfied that the dismissal was on grounds of the complainant’s disability. Accordingly, the court holds that the respondent did discriminate against the complainant herein in terms of s.6(2)(g) and contrary to section 8 of the Act.
The court further determines that the appropriate redress is an award of compensation. The complainant did not obtain alternative employment but started in business on his own account. He had little in the way of earnings in the first year but is now deriving an income. The complainant’s gross salary with the respondent was €41,900. The complainant had 15 years’ service with the respondent, and the loss of the accrued value of this service must be reflected in measuring the quantum of compensation.
The court considers that the claimant should receive an award in an amount equal to one year’s pay in respect of the economic loss attributable to his dismissal. The court is further satisfied, on the evidence as a whole, that the complainant suffered stress, anxiety and indignity in consequence of the discrimination to which he was subjected. Further, it is well settled that an award of compensation for the effects of discrimination should not be confined to economic loss but should contain an element which is dissuasive of future infractions of the principal of equal treatment. Accordingly the court awards additional compensation in the amount of €8,000 under these headings.
An order will be made direction the respondent to pay to the complainant compensation in the amount of €49,900, in accordance s.82(1)(c) of the Act.
Division of the Labour Court: Mr Duffy (Chair), Mr Doherty, Ms Ní Mhurchú
Robert Cunningham v Irish Prison Service
and Labour Court (notice party):
2018 No. 309 MCA
High Court
9 June 2020
[2020] 31 E.L.R. 317
(Barr J.)
Introduction
1. This case concerns a discreet issue of law, which arises in the following circumstances: The appellant has at all material times been employed as a prison officer by the respondent. In the course of his duties he suffered two assaults by prisoners, which resulted in him suffering a serious back injury, which has required three operations.
2. In 2015, the Chief Medical Officer for the Civil Service (hereinafter “the CMO”) certified that the appellant would not be fit to carry out any restraint and control duties in the medium or long term.
3. After a number of meetings and correspondence between the parties, the respondent informed the appellant that it could not offer him a position with restricted duties. They could only offer him the opportunity to resign and apply for employment as a prison administration staff officer (hereinafter “PASO”), or he could apply for ill-health retirement.
4. The appellant brought a claim under the Employment Equality Act 1998 (as amended) (hereinafter “the Act”) claiming that the respondent had discriminated against him on the ground of disability and in particular had failed to make any reasonable accommodation for him as required by the Act. The appellant argued that there were a number of posts within the grade of prison officer in the Irish Prison Service, which did not involve interaction with prisoners, such that the capability to carry out control and restraint duties was not an issue.
5. The respondent argued, inter alia, that s.37(3) of the Act meant that they did not have to provide reasonable accommodation to the appellant. The sole issue was whether the appellant was capable of performing the range of duties that he may be called upon to perform as a prison officer, so as to preserve the operational capacity of the prison service. It was submitted that as he was clearly incapable of performing control and restraint duties, he therefore failed the test provided for in s.37(3) and the respondent was relieved of the obligation to provide reasonable accommodation for him to enable him to continue as a prison officer in the prison service.
6. Section 37(3) of the Act provides as follows:
“(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”
7. The appellant succeeded before the Adjudication Officer, but the Labour Court found against him on a preliminary issue; holding that the combined effect of ss.37(2) and 37(3) of the Act provided a complete defence to the appellant’s claim and further held that questions relating to the provision of reasonable *320 accommodation did not arise. The Labour Court held that s.37(3) of the Act provided an exemption to the respondent from a complaint of discrimination in circumstances where the complainant was not capable of carrying out the full range of duties that are required of prison officers.
8. The issue before this court is whether the Labour Court was correct as a matter of law to dismiss the appellant’s claim, because they found that the provisions of s.37(3) exempted the respondent from providing reasonable accommodation for the appellant.
Background to the appellant’s claim
9. The appellant is approximately 40 years of age. He is a married man with a young daughter of six years of age. Having worked in the hospitality industry, he joined the Irish Prison Service on 5 March 2005. It was common case between the parties that prior to the injuries suffered by the appellant, his performance as a prison officer had been exemplary.
10. On 9 December 2007, while serving as a prison officer at Cloverhill Prison, he was injured while relocating a violent prisoner. Medical examination revealed that he had damaged a disc in his back at L5/S1. The injury to the disc deteriorated over the following years and on 12 November 2010 a discectomy was carried out at the L5/S1 level. After the surgery scar tissue formed and a nerve root block was carried out on 21 January 2011.
11. The plaintiff returned to duties in Cloverhill Prison, but was put on noncontact duties for four to five months, working in the control room, manning the gate, working in the waiting room and in the censor’s office.
12. The appellant was transferred to the Midlands Prison on 18 June, 2011, where he was assigned to general duties. On 11 December 2011 he sustained an injury while moving a prisoner who became violent and then required to be restrained using control and restraint techniques. As a result of this, the appellant suffered a further injury to his back. He was out of work for a period of five months until 18 May 2012.
13. On 16 April 2012, Governor Malone of the Midlands Prison sent an email to the Human Resource Directorate of the Irish Prison Service in relation to facilitating the appellant with restricted duties. In that email he stated as follows:
“At present we have one female officer who is on restricted duties because of pregnancy, and we have a further four officers who are on long-term restricted duties following serious illnesses. We do not have any more rotational posts which could be classified as restricted duties. Given our current situation we are not in a position to accommodate Officer Cunningham with the restricted duties as requested by the CMO.”
14. Subsequently, the appellant returned to work in the Midlands Prison on 18 *321 May 2013. On 12 March 2013, the CMO had advised the IPS that the appellant would not be able to involve himself in control and restraint (C&R) in the medium to long term. The appellant was assigned to restricted duties upon returning to work. In a letter dated 25 March 2013, the Governor of the Midlands Prison was instructed by the Human Resource Directorate that the CMO had stated that while the appellant was medically fit for work, she did not believe that he would be medically fit to be involved in control and restraint duties. That restriction was likely to be in the medium to long term. However, on 18 May 2013, the appellant was assigned a full range of duties slowly over a period of three to four weeks.
15. It appears that the appellant had a further operation to his back in or about August 2013, because in his statement he refers to returning to work from his second surgery after a period of sick leave from 20 August 2013 to 29 September 2013. The court is not aware of the nature of this surgery.
16. The appellant had a third operation to his back carried out on 17 February 2015 in the form of a foraminotomy decompression at L5/S1 level. The appellant has not returned to work as a prison officer since that time. In a letter dated 11 May 2015, Dr Sharon Lim, on behalf of the CMO, stated that following the third back surgery Mr Cunningham should be assigned to non-prisoner contact duties to allow for an adequate rehabilitation period following his surgery. She stated that, if that could be facilitated, he should be fit to resume work within the following three to four weeks. However, she went on to state:
“Going forward, our opinion is that Mr Cunningham should be excluded from all control and restraint duties/training. As I mentioned in my previous correspondence to you (5/11/13), I understand that Mr Cunningham has a mutual understanding with his Governor regarding limiting his control and restraint duties. I would also suggest that Mr Cunningham is excluded from night shift duties. He tells me he is rostered for night shifts but swaps out of them with his colleagues and has not worked nights since 2011. He does not intend to work night shifts going forward.”
17. Thereafter, there was an exchange of correspondence and meetings concerning the question of the appellant’s return to work. Ultimately, in an email dated 6 November 2015 Mr Sean Sullivan, Assistant Principal Officer in the Staff and Corporate Services Directorate with responsibility for attendance management, informed the plaintiff:
“In your case, the CMO has advised that you are unlikely to return to full duties. It is therefore not possible for you to return to duty under the current policy. I can explore the potential for you to return as a PASO grade with PASO terms and conditions, if you wish, or I can forward you the ill-health retirement forms. I regret I do not see that we have any other options”.
18. The appellant did not wish to resign his position as a prison officer and apply *322 for a job at the PASO grade, as that would have meant a drop in income of circa €48,000 gross per annum. In addition, his retirement benefits would have been seriously affected, in that he would have had to have worked an extra 10 years in order to obtain same and his pension and lump sum gratuity would have been reduced. The appellant brought a claim under the Employment Equality Act 1998 (as amended) claiming that he had been discriminated against on grounds of disability.
The appellant’s core claim
19. The essence of the appellant’s claim under the Act, was to the effect that he was entitled to have reasonable accommodation under the provisions of the Act by being given duties as a prison officer, which did not have prisoner contact. He maintained that there were many such posts available to prison officers within the IPS. In respect of the Midlands Prison, the applicant gave the following posts which did not entail C&R duties and gave the number of officers involved in brackets after each posting: Operational Support Group (2/3); security screening units (3); canine unit (2/3); postal censoring (2); prisoner phones/staff keys (1); internal numbers and keys (2); main gate assist (1); visitor reception/booking (2/3); control room, CCTV, radios, phones (2/3); visits entrance/exit (1); prison business/local driver (1) and detail office (3). In addition, the appellant stated that the Probation Service and the Prison Service Community Return Supervision Scheme, which had been based in Smithfield, Dublin, were due to roll out to more locations including the Midlands Prison and these would be ideal for him.
20. The appellant was also able to furnish the names of a number of prison officers, who he stated had been carrying out restricted duties on a long-term basis as follows: Mr D P who had been working on the visiting gate in the Midlands Prison for a period of five years despite having a serious medical condition; Mr G O’C had been working at Cloverhill Prison despite a shoulder and back injury for a period of ten years; Mr D K had been working at Cloverhill Prison despite a heart complaint and working on the main gate for the previous 5-10 years and Mr S C had been working at Cloverhill Prison despite a hip complaint and had been working in the Control Room for the previous 6-12 months. In addition, the appellant was aware of two officers, Mr M G and Mr C D, who each had had serious back surgery and had been permitted to return to work in the previous 12 months. While the appellant was not privy to their exact arrangements, he stated that some form of accommodation must have been afforded to them.
21. In these circumstances, it was submitted that there was an established practice within the IPS, whereby officers who were injured or otherwise disabled, had been accommodated in the past by being assigned to long-term posts which involved restricted duties. It was the appellant’s case that he was entitled to be given a similar accommodation by his employer.
*323
The respondent’s core argument
22. The respondent argued that under Irish Law and in particular having regard to the provisions of s.37(3) of the Act, they were not obliged to make reasonable accommodation for the appellant because, due to his inability to perform control and restraint duties, he was not capable of performing the duties that he may be called upon to perform as a prison officer.
23. It was submitted that control and restraint duties were fundamental to the role of a prison officer. An officer had to be able to act as a first responder to acts of violence so as to protect and assist both colleagues and other prisoners, who may be the subject of assault or violence.
24. The respondent had indicated to the Labour Court that it would call evidence from a number of witnesses, in particular from Mr Seán Sullivan, Governor Ethel Gavin of the Midlands Prison and Assistant Governor Fran Baker, also of the Midlands Prison, who would state that it is a fundamental requirement that all prison officers be capable of performing C&R functions in the course of their duty. To that end, the evidence would be that all prison officers are required to undertake and pass an annual C&R test. It was submitted that if an officer could not carry out C&R duties, that would adversely affect the operational capacity of the prison service, as it was absolutely essential that all prison officers were in a position to carry out such duties if the need arose.
25. It was pointed out that the IPS had an accommodations policy, which had been introduced in 2015. This was designed to allow for a phased return to work for prison officers who were returning from illness or injury, or who were otherwise unfit for full duties, for example due to pregnancy. The policy provided that officers could return on restricted duties for a period of up to three months, provided that thereafter they would be fit for full duties. The appellant did not come within that cohort, as the CMO had certified that he was permanently unfit to perform C&R duties.
26. It was submitted that the IPS had made reasonable accommodation for the applicant in that the option of resigning and applying for a PASO position had been suggested to him. It was denied that this would cause him a loss of €48,000 gross per annum; it was stated that the loss would only amount to circa €10,000 gross per annum. Alternatively, he had been given the option of seeking early retirement on ill-health grounds.
The hearing in the Labour Court
27. The appellant succeeded at first instance in his application before the Adjudication Officer, who delivered a ruling on 2 February 2017. The respondent appealed that ruling to the Labour Court. The Labour Court decided the appeal on a preliminary issue, without hearing any witness evidence in relation to the feasibility of providing reasonable accommodation. In particular, the Labour Court did not hear any evidence as to whether any prison officers are being, or *324 have been, accommodated with restricted duties on a long-term basis.
28. The Labour Court held that s.37(3) provided a complete exemption to the respondent due to the fact that the appellant was not capable of performing C&R duties. The essential reasoning of the Labour Court is set out in the following paragraphs of its Determination:
“The only reasonable explanation as to why the legislature considered section 37(3) necessary is that it was considered that the police force and the prison service is different to the generality of employment and should be specifically legislated for. Where a situation is covered by a general provision and also by a particular provision it must be assumed that the Oireachtas intended the particular provision to apply. It follows, that while section 16 deals with the general rights and duties of employees and employers in respect to a disability, section 37(3) deals specifically with the Garda Síochána and the prison service and that it does so differently. It was, of course, open to the Oireachtas to have included in section 37(3) a provision similar to that of section 16(3). Neither subsection (2) or (3) of section 37 are qualified by the requirement to provide reasonable accommodation. However, the Oireachtas chose not to include such a provision and the court cannot import into that provision words that are not there.
Section 37(3) of the Act provides that full physical capacity to undertake all of the functions which a prison officer may be called upon to perform is a genuine and determining occupational requirement for employment in the prison service within the meaning of section 37(2) of the Act. Consequently, the combined effect of both subsections provides a complete defence to the within claim and questions relating to the provision of reasonable accommodation do not arise.
Determination
For all the above reasons the court is satisfied that section 37(3) of the Act should be interpreted as a standalone provision which is not qualified by or conditional on section 16(3).
Therefore, the court finds that section 37(3) of the Act provides an exemption to the respondent from a complaint of discrimination in circumstances where the complainant is not capable of carrying out the full range of duties that are required of prison officers.
Accordingly, the respondent’s appeal succeeds and the Adjudication Officer’s decision is overturned.
The Court so determines.”
The issue before this court
29. The sole issue before this court is whether as a matter of law the Labour Court was correct in holding that the provisions of s.37(3) did not require the respondent to make reasonable accommodation for the appellant, once they asserted that because he was not capable of performing C&R duties, he was therefore not capable of performing the range of duties that he may be called upon *325 to perform as a prison officer and consequently the respondent was not guilty of discriminating against the appellant in failing to provide him with reasonable accommodation so as to enable him to continue in his job as a prison officer.
Legal submissions on behalf of the appellant
30. On behalf of the appellant, Ms Kimber SC made a number of general submissions at the outset. Firstly, she submitted that the court had to have regard to the fact that the Employment Equality Act 1998 (as amended) was enacted to implement in Irish law Council Directive 2000/78 of 27 November establishing a general framework for equal treatment in employment and occupation (hereinafter “the Framework Directive” or “the Directive”).
31. It was submitted that the court should have regard to the provisions of Art. 1 of the Directive which set out its purpose as being to lay down a general framework for combatting discrimination on a number of grounds, including disability, as regards employment and occupation, with a view to putting into effect in Member States the principle of equal treatment. She also referred to art.2 which dealt with the concept of discrimination and in particular art.2.2(b) which provides that indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice, would put persons having a particular religion or belief, a particular disability, a particular age or a particular sexual orientation, at a particular disadvantage compared with other persons unless: (1) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (2) as regards persons with a particular disability, the employer or any person or organisation to whom the Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in art.5 in order to eliminate disadvantages entailed by such provision, criterion or practice.
32. Counsel further submitted that the provisions of Art. 4 were relevant in the context of this case. Article 4.1 provides as follows:
“(1) Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”
33. It was submitted that it was well settled in law that in interpreting an Act that was designed to implement a particular Directive, the court should do so in a way that would give effect to the terms and objectives of the Directive, which are sought to be implemented by the Act.
*326
34. Counsel also referred to the provisions of art.5 of the Directive which relate to reasonable accommodation for disabled persons and provide as follows:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”
35. The provisions of the Directive insofar as they relate to disability within the workplace were transposed into Irish law in s.16 of the Act.
36. It was submitted that the court also had to have regard to the fact that both the European Union itself and Ireland have become signatories to the UN Convention on the Rights of Persons with Disabilities (hereinafter “the CRPD”). And in particular the court was urged to have regard to the provisions of art.27 thereof. It was submitted that recognition of this background to the interpretation of the Act was set out in the decision of MacMenamin J. delivering the majority judgment of the Supreme Court in Nano Nagle School v Daly [2019] IESC 63, where at paras 22-28, the court looked at the interaction between the 1998 Act, the Directive and the CRPD and held that following from the decision in HK Danmark, acting on behalf of Jette Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S [2013] I.R.L.R. 571, it followed that the Directive insofar as it related to disability, thereafter had to be interpreted in harmony with the CRPD.
37. In the course of his judgment, MacMenamin J. had noted that Advocate General Whal had described the judgment in Ring as “marking a “paradigm shift” in CJEU case law, whereby, departing from a narrower definition, the EU concept of disability was explicitly aligned with the UNCRPD (para.88), noting that the court’s definition of disability only covered professional life, as opposed to society at large. While not referred to in Ring, art.27(1)(b) CRPD provides that: ‘States Parties shall safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation to inter alia … (b) protect the rights of persons with disabilities on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value …’”
38. Counsel submitted that the Supreme Court had made it clear in the Nano Nagle case that the duty to provide reasonable accommodation was not infinite. The court had clearly stated that the test was one of reasonableness and *327 proportionality; an employer cannot be under a duty to re-designate duties so as to create a different job to facilitate an employee. It was the duty of the deciding tribunal to decide, in any given case, whether what was required to allow a person continue in employment was reasonable accommodation in the job, or whether, in reality, what was sought was an entirely different job; s.16(1) of the Act refers specifically to “the position” not to an alternative and quite different position; see para.89 of the judgment. MacMenamin J. had gone on to reiterate the concept of proportionality or reasonableness at para.106 in the following terms:
“But I would again wish to emphasise these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open-ended one. There is no obligation to re-define the employment of an airline pilot as an airline steward, or vice versa. The question is, rather, to consider whether the degree of redistribution, or ‘accommodation’, is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.”
39. Counsel submitted that while the decision in the Nano Nagle case did not specifically deal with s.37(3) it was nevertheless a very important decision, which set out the general approach which should be taken to the interpretation of the 1998 Act, in particular, having regard to the terms and objectives contained in the Directive and in the CRPD.
40. Counsel also referred to the decision of the CJEU in Wolf v Stadt Frankfurt Am Main [2010] I.R.L.R. 244, where the court looked at whether it was permissible to have an age bar on recruitment to the fire service to remove applicants over the age of 30 years. In analysing whether such provisions were contrary to the Directive, the court had the benefit of a substantial amount of statistical and medical evidence as to the physical capabilities of persons generally over the age of 45 years. In effect, the evidence was that above that age peoples’ physical capacity diminished substantially and in particular their capacity to carry out the type of emergency work that would be carried on by firefighters. For that reason, the age bar was put at 30, so that the fire service would obtain at least 15 years’ service from firefighters at this level. The court noted as follows at paras 37 et seq:
“37. As regards, first, the objective pursued by the national legislation, the German government’s statements show that the aim pursued is to guarantee the operational capacity and proper functioning of the professional fire service.
38. In this respect, it must be pointed out that the professional fire service *328 forms part of the emergency services. Recital 18 in the preamble to the Directive states that the Directive does not require those services to recruit persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.
39. It is thus apparent that the concern to ensure the operational capacity and proper functioning of the professional fire service constitutes a legitimate objective within the meaning of Article 4(1) of the Directive.”
41. The court went on in the following paragraphs to note that there was uncontradicted evidence in relation to the tasks that had to be performed by persons in the intermediate career of the fire service and in relation to studies that had been carried out in the field of industrial and sports medicine, which showed that respiratory capacity, musculature and endurance, diminish with age. Therefore, it was possible to conclude that very few officers over 45 years of age had sufficient physical capacity to perform the firefighting duties/aspects of their activities. As for rescuing persons, the evidence was that at the age of 50 years, the officers concerned no longer had that capacity. The court went on to state that in considering whether the limit of 30 years as the maximum recruitment age was proportionate, it must be examined whether that limit was appropriate for achieving the objective pursued and did not go beyond what was necessary to achieve it. Having regard to the evidence before the court, it held that the legislation which set the maximum age for recruitment to the intermediate career posts in the fire service at 30 years, may be regarded first as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and second, as not going beyond what was necessary to achieve that objective.
42. Counsel submitted that the significance of Recital 18 to the Directive and the provisions of s.37(3) of the Act, were that in the decision which had to be reached, where there was a three-limbed test, the respondent was relieved of the obligation to prove that capacity to carry out the range of functions that they may be called upon to perform was an occupational requirement for employment in the particular emergency service. However, it was submitted that they were still obliged to prove the other elements in the test as set out in the Wolf judgment.
43. It was submitted that it was clear from the decision of the CJEU in Egenburger v Evangelisches Werk für Diakonie und Entwickling e.V. (C-414/16), which dealt with the partial exemption provided for religious institutions in art.4(2) of the Directive, the CJEU had held that where there was a dispute as to whether or not there was a permissible discrimination, there could be no selfcertification by the employer or other such body. The court stated at para.46:
“46. Clearly, if review of compliance with those criteria where, in the event of doubt as to that compliance, the task not of an independent authority such as a *329 national court but of the church or organisation tending to practice a difference of treatment on grounds of religion or belief, it would be deprived of effect.”
44. Counsel pointed out that the court had elaborated on the requirement of objective oversight at paras 51-53 of the judgment, where it held that the objective of art.4.2 of the Directive was to ensure a fair balance between the right of autonomy of churches and other organisations and the right of workers when they are being recruited, not to be discriminated against on grounds of religion or belief, in situations where those rights may clash. To that end, that provision sets out the criteria to be taken into account in the balancing exercise which must be performed in order to ensure a fair balance between those competing fundamental rights. The court stated that in the event of a dispute, however, it must be possible for the balancing exercise to be the subject if need be of review by an independent authority and ultimately by a national court.
45. At para.61, the court set out the requisite test stating that by virtue of art.4(2) the purpose of the examination was to ascertain whether the occupational requirement imposed by the church or organisation, by reason of the nature of the activities concerned or the context in which they are carried out, was genuine, legitimate and justified, having regard to that ethos. The court outlined at paras 65-67 what was meant by the criteria being “genuine”, “legitimate” and “justified”. The court further stated that the requirement in art.4(2) of the Directive must comply with the principle of proportionality. The national courts must ascertain whether the requirement in question is appropriate and does not go beyond what was necessary for attaining the objective pursued.
46. Ms Kimber SC submitted that it was of relevance that the IPS had had a complete exemption under the original Employment Equality Act 1998. This was changed in the amending Act of 2004, which inserted s.37(3). Thus, it was clear that the IPS did not have a complete exemption as was contended for by the respondent. It was submitted that the correct interpretation of s.37(3) was that the respondent was relieved of the obligation of proving the first part of the test, namely that it was an occupational requirement that the persons employed in the emergency service should be fully capable of undertaking the range of functions that they may be called upon to perform, so as to preserve the occupational capacity of the service. However, it was submitted that having regard to the provisions of the Directive and the CRPD and the case law outlined above, the appellant was still entitled to make submissions on the other aspects which had to be proved as set out in the Wolfe and Egenburger cases, namely that the restriction or discriminatory act was legitimate and justified or proportionate.
47. It was submitted that if the court accepted the interpretation placed on the subsection by the respondent, which had been accepted by the Labour Court, such interpretation was incompatible with the terms of the Directive and as such, must be disapplied by the Irish courts: see decision of CJEU in Minister for *330 Justice and Equality, Commissioner of An Garda Síochána v Workplace Relations Commission [2019] E.L.R. 57 (paras 45, 50 and 52); Egenburger case at para.79.
48. Counsel submitted that the interpretation proposed on behalf of the appellant permitted s.37(3) to be interpreted in a way that was in compliance with the Directive. This was to the effect that the section only permitted an exemption for the respondent from establishing the first part of the test, but the court could still look at the remainder of the questions and could ask whether a person could do the job after reasonable accommodation had been made for them, without adversely affecting the operational capacity of the emergency service concerned.
49. It was submitted that in this case, if reasonable accommodation was made for the appellant, which would include the division of tasks, so that the appellant would be assigned to one of a large number of duties as detailed by him, which did not involve control and restraint, then he would be capable of performing the duties required of him as a prison officer, without any adverse effect on the operational capacity of the prison service.
50. It was submitted that the Labour Court had been wrong to deal with the matter by way of preliminary issue without hearing any evidence, thereby preventing the appellant from calling witnesses to establish that there were indeed long-term posts available which did not include C&R duties. In relation to the assertion that there was an annual C&R test that had to be taken by all prison officers, the appellant would dispute that that was a requirement within the prison service. It was submitted that he should be given the opportunity to put his evidence before the Labour Court and to challenge the assertions made by the respondent’s witnesses. It was submitted that it was unfair and contrary to the objectives of the Directive and of the CRPD that the subsection should be interpreted in such a way as to allow the respondent to effectively self-certify that the appellant was incapable of performing the functions that he may be called upon to perform as a prison officer and therefore they did not have to make reasonable accommodation for him. It was submitted that the court should allow the appeal and remit the matter back to the Labour Court for a full hearing and determination on the facts.
Legal submissions on behalf of the respondent
51. It was submitted by Mr Ward SC on behalf of the respondent that this case involved a case of statutory interpretation of Irish law, namely the interpretation of s.37(3) of the 1998 Act. He drew attention firstly to the notes at the side of the section which provided that it was a section dealing with the exclusion of discrimination on particular grounds in certain employments. Secondly, he stated that the words in their plain and ordinary meaning clearly excluded people who were not capable of carrying out the range of functions that they may be called upon to perform. The key word he submitted was the word “may”. It was submitted that in this case there was no dispute that the appellant was not *331 capable of performing C&R duties. It was submitted that this was a fundamental aspect of the duties that are carried out by prison officers. In these circumstances it was submitted that it could not be contended that the appellant would be able to carry out the range of functions that he may be called upon to perform as a prison officer.
52. It was submitted that the provisions of s.37(3) were entirely in accordance with the Directive, because those provisions were specifically catered for in Recital 18 to the Directive. Furthermore, what Recital 18 and s.37(3) did, was to have regard to the fact that the services provided by An Garda Síochána, the prison service and other emergency services, were just that – emergency services. They were activities that had to be carried out sometimes in situations of great danger to either members of the public at large, or to those who were receiving the emergency services. In such circumstances, it was reasonable to have a requirement that those who are employed in such emergency services should have the capacity to carry out the range of functions that they may be called upon to perform in the course of their work.
53. In relation to the functions of a prison officer, it was submitted that it was fundamental to their role that they should be able to step in and carry out control and restraint functions as and where necessary. This was due to the fact that prisoners due to their incarceration and due to their often-dysfunctional backgrounds, or other factors such as drug use or mental health issues, were often volatile individuals, who were prone to violence. It was submitted that it was a fundamental requirement that a prison officer would be able to step in, to either protect his colleagues, or to protect another prisoner, who may be the subject of an assault at the hands of a violent prisoner. It had to be remembered that the prison officer owed a duty of care to protect both the public at large, his colleagues and other prisoners from violent attack. He could only do that if he was in a position to carry out control and restraint techniques as and where necessary.
54. It was submitted that the fact that the ability to carry out C&R was a fundamental requirement of the job was clearly set out in the affidavit of Mr Seán Sullivan sworn on 6 December 2018 where he stated at para.11:
“The CMO’s report explicitly states that the appellant should be excluded from duties which involve ‘control and restraint’. The evidence before the Labour Court was that the requirement that a prison officer is capable of engaging fully in control and restraint should the need arise in the course of his/her duties is fundamental to the role of prison officer. Serving prison officers have to pass a control and restraint examination each year in order to demonstrate that they are capable of restraining prisoners when problems with prisoners arise. The evidence before the Labour Court was that the appellant herein, due to his medical condition, was not capable of taking part in control and restraint duties.”
55. It was submitted that once it was established that the ability to carry out *332 C&R duties was an essential part of the role of a prison officer and where it was accepted that the appellant was not capable of carrying out those duties, then it was clear that he would not be capable of carrying out the range of duties which he may be called upon to do as a prison officer and therefore he clearly fell within the provisions of s.37(3). It was submitted that the provisions of Recital 18 were very clear. The Recital clearly stated that the Directive “does not require” the prison service to maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services. Those provisions were clearly and unambiguously transposed into the provisions of s.37(3) of the Act.
56. It was submitted that the interpretation proposed by the appellant would effectively interpret s.37(3) out of existence. The appellant wanted the court to give it such a restricted interpretation whereby only the first limb of the test was satisfied and the court was being asked to hold that the respondent still had to provide reasonable accommodation and then justify the requirement on grounds of legitimacy and proportionality. It was submitted that by so doing, the appellant was trying to take his case out of the ambit of s.37(3) and bring it within the general provisions of s.16 of the Act. It was submitted that that flew contrary to both the terms of the Act and the terms of Recital 18 to the Directive.
57. It was submitted that the respondent had attempted to make reasonable accommodation for the appellant by giving him the option to resign as a prison officer and apply for a PASO position, or in the alternative, he could apply for ill-health retirement. However, what the appellant wanted was a different role, where he would not carry out any control and restraint duties, but where he would continue to be employed on the terms and conditions of a prison officer. It was submitted that that was simply not possible if one was to maintain the operational capacity of the prison service, which required that all officers should be in a position to carry out C&R functions.
58. It was pointed out that the IPS did have an accommodations policy, which was designed to provide for the gradual reintroduction of staff to fulltime working in the IPS after injury or illness. It provided for such persons to be reintegrated on restricted duties, but this was limited to a period of three months, where it was envisaged that after that period the person would return to full duties. Such positions were also available on a temporary basis for female officers who were pregnant.
59. It was submitted that what the appellant wanted in this case were the terms and conditions of a serving as a prison officer, but without any prisoner contact. This was clear from his submissions to the Labour Court. Counsel submitted that that state of affairs was incompatible with preserving the operational capacity of the IPS.
60. It was submitted that the decision in the Nano Nagle case, while very *333 important in relation to the interpretation of s.16 of the Act, had no relevance to this case, because it did not deal with the provisions of either Recital 18 to the Directive or s.37(3) of the Act.
61. It was submitted that where the wording of an Act was clear, the court had a duty to give the words their ordinary and natural meaning, so as to give effect to the intention of the Oireachtas. Here the wording of s.37(3) was clear and unambiguous. It clearly provided that persons employed in the emergency services had to have the capability of carrying out the range of functions that they may be called upon to do, so as to preserve the operational capacity of the emergency service. The appellant was clearly not in a position to do that. That was the end of the matter and the Labour Court had been correct in reaching the decision that it had done in this case.
62. It was submitted that the appellant had been forced to adopt a contrived interpretation of s.37(3) in order to effectively do away with the exemption and bring his claim within the ambit of s.16 of the Act in the ordinary way. It was submitted that to do that, would be to fly in the face of the clear words of the section and that was not permitted at law. What the appellant wanted was for the Labour Court to examine whether it was necessary and proportionate to require prison officers to be capable of doing control and restraint functions. It was submitted that to do that would be to interpret s.37(3) out of existence. It was submitted that the section carved out an exemption for essential public services, which carry out difficult and at times dangerous duties on behalf of the public. The subsection carved out an exception to provide that other sections of the Act do not apply to it because of the nature of the duties they are called upon to perform. This was recognised by the clear wording of Recital 18 to the Directive. The interpretation proposed by the appellant would render both the section and Recital 18 meaningless. Accordingly, it was submitted that as s.37(3) and Recital 18 were clear in their terms, the Labour Court had been correct in the approach that they had adopted and in the result that they had reached. Accordingly, it was submitted that the appellant’s appeal should be dismissed.
Conclusions
63. It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgments of the CJEU referred to earlier and the judgment of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are *334 also relevant to the question of the correct interpretation of the Act. The court must interpret s.37(3) of the 1998 Act in light of art.27 of CRPD to which both the EU and Ireland are signatories.
64. If possible, the court must also interpret s.37(3) in a manner that is consistent with both the wording and the objectives sought to be achieved by the Framework Directive, which was implemented in Irish law by the Act.
65. Having regard to the provisions of the CRPD and the Directive, Irish law recognises the dignity of persons with disability and that fundamental to their dignity is the right to work. This is the background against which s.37(3) must be interpreted. However, Mr Ward SC was correct when he said that if the words of the section were clear and unambiguous, this court was obliged to give effect to them.
66. In approaching s.37(3) the court is mindful that in the Employment Equality Act as originally drafted the IPS had a complete exemption. That was removed by the amendment made in the 2004 Act by the insertion of s.37(3). It is relevant that while the Oireachtas removed the complete exemption that had existed for the respondent, they did not simply remove it, which would have had the effect of bringing the respondent within the general provisions of s.16 of the Act, like any other employer. Instead, the Oireachtas recognised the particular function of An Garda Síochána, the prison service and other emergency services by providing that it is an occupational requirement for employment in the prison service that persons employed therein are fully competent and available to undertake and fully capable of undertaking the range of functions that they may be called upon to perform so that the operational capacity of the prison service may be preserved.
67. I accept the submissions made on behalf of the appellant that the correct interpretation of s.37(3) does not mean that the respondent can self-certify that the appellant is incapable of performing the range of functions that he may be called upon to do as a prison officer due to the fact that he cannot perform C&R functions and that they are therefore relieved of the obligation to make reasonable accommodation for him. To allow such self-certification by the IPS would deprive the appellant of an effective remedy in seeking to enforce his rights under the Directive and the Act: see Egenburger judgment supra.
68. It may well be that a particular disability will in fact render a person incapable of performing the necessary functions in a particular emergency service. Everything will depend on the circumstances of the case. For example, if the emergency service involved a small unit, for example, if the Kerry Mountain Rescue Service was a full-time or part-time paid position and if it only had a relatively small number of employees, if one of them suffered an injury whereby they were confined to a wheelchair, there would be no accommodation which could be made to enable them to continue to act as part of the team, because a rescuer would have to be able to climb and hike considerable distances to reach *335 an injured climber; they would have to be able to administer first aid and then assist in carrying the injured person to the nearest pickup point, for collection by vehicle or helicopter. The person who was confined to a wheelchair clearly would not be able to perform the range of functions which they would be called upon to perform as part of a mountain rescue team. In such circumstances the employer would be relieved of the obligation to make reasonable accommodation for them and they would not be the subject of discrimination if they were not retained in employment.
69. However, in a larger organisation there may not be a single characteristic function, which is essential should be performed by all employees so as to preserve the operational capacity of the particular emergency service. For example, in An Garda Síochána, most Gardaí would have to be able to chase and apprehend suspected criminals, intervene in situations of violence and carry out searches of buildings and other locations. A person in a wheelchair would not be able to perform these functions. However, if the Garda was employed in the Forensic Document Section, or in the Cyber Crime Section, he or she could probably be relatively easily accommodated if they had an accident and had to use a wheelchair, because their work is completely deskbound. In these circumstances, they could be accommodated in their use of the wheelchair, without in any way compromising the operational capacity of An Garda Síochána.
70. While the court can see the force in the argument put forward on behalf of the respondent, that control and restraint is an important requirement generally within the prison service; given the size of the service and the range of duties performed by prison officers, there may be duties which could be undertaken by the appellant within the role of prison officer, which would not involve control and restraint, yet which would not adversely affect the operational capacity of the prison service.
71. The appellant has put forward evidence that there are such posts in existence and that some prison officers have been given them on a long-term basis due to ill-health or other reasons. The email sent by Governor Malone on 16 April 2012 supports this contention. On the other hand, the respondent has indicated that its witnesses will give cogent evidence that control and restraint is a fundamental requirement of the role of a prison officer and that all prison officers have to undergo an annual test in C&R techniques. There is clearly an issue of fact to be determined in this regard.
72. In addition, the case law makes it clear that the employer does not have to create a job for the person with the disability, nor do they have to provide measures that are unduly burdensome. This is the test of proportionality or reasonableness: see Nano Nagle judgment at paras 89 and 106. That includes a consideration of the financial and other costs entailed in providing appropriate measures, the scale and financial resources of the employers’ business and the possibility of obtaining public funding or other assistance. It would also include *336 a consideration of the operational capacity of the organisation. In a prison, it may be that some posts are more sought after than others for any number of reasons; perhaps because they are regarded as easier or “cushy” posts; while other posts may be more demanding, but may attract better allowances. The Governor may decide for good reason, that he or she will rotate officers among various roles within the prison, so as to share out the more sought-after roles fairly and also to provide some variation in duties to the prison officers. Similar considerations would also apply in the prison service nationally.
73. In addition, it would be reasonable for the Governor to retain a role which did not involve control and restraint for officers who may need temporary access to restricted duties when they are coming back from injury or illness, or in the case of a female officer, because of pregnancy. It could be argued that it would be unreasonable and unfair to other officers if the appellant were to be given one of the restricted duties posts on a permanent basis. In addition, if there are already officers who have been allocated such roles on a long-term basis perhaps for medical reasons, it would not be fair that they should be put out of such roles solely to accommodate the appellant. Obviously, there would only be a given number of restricted duties roles within a particular prison. All of these are considerations that can be legitimately raised by the respondent.
74. I also note that the appellant is not able to undertake night duty, but he has apparently found another officer or officers willing to do his night shifts. That poses a problem in the longer term, because if the other officer changes his mind for personal or other reasons, or simply because he gets tired of doing extra night shifts, the Governor cannot force him to do the appellant’s shifts. So that may well cause a problem in the longer term.
75. Normally where a court decides an issue by way of a preliminary issue, it does so either on the basis of a statement of agreed facts, or it makes the necessary findings of fact as part of the hearing of the preliminary issue. While it may be possible for a court to interpret a particular section in the absence of agreed or determined facts, it is not possible for the court to decide a dispute between the parties, on the basis of its interpretation of section, without applying that interpretation to the facts as found by it.
76. I am satisfied that the Labour Court was in error due to its failure to hear evidence and make findings of fact in this case. The only fact that was agreed between the parties was the fact that the appellant is no longer able to do control and restraint duties. However, he did not accept that the capacity to carry out such duties was essential for all prison officers. He maintained that there were a number of posts available within the prison service which only required officers to carry out restricted duties. A point of law, such as the interpretation of a particular section in a statute, does not exist on its own; it has to be applied to the facts in order to reach a particular determination in a particular case. It is the application of the decision reached by the court on the point of law to the facts as found by *337 the court, which gives the ultimate decision. It is a fundamental requirement of justice that both parties to the dispute are given an opportunity to assert their version of the facts and to test the propositions put forward by the opposing party. That was not done in this case. The Labour Court did not hear any evidence, but determined the matter on the assumption that the proposition put forward on behalf of the respondent, to the effect that the capability of all prison officers to carry out control and restraint duties was a fundamental requirement of the job, was correct. They then proceeded to apply s.37(3) of the Act to that state of affairs, notwithstanding that the appellant wished to contest the assertions that had been put forward by the respondent in this regard. But he was not afforded the opportunity to call evidence and test the evidence put forward on behalf of the respondent. That rendered the hearing unsatisfactory and unfair.
77. All of the matters outlined above, had to be considered. The applicant’s core complaint is that the Labour Court held that on a true interpretation of s.37(3) that once it was established that the appellant could not do C&R duties, which the respondent maintained was fundamental to the role of a prison officer and therefore to the operational capacity of the prison service, that the respondent did not have to provide reasonable accommodation to the applicant and that was the end of the matter, without engaging in an evaluation of the evidence and the practical considerations as outlined above. It should be noted that in the Wolf case the national court had extensive evidence, mostly uncontroverted, of the physical capacity of persons of differing ages to deal with the demands of the job of a firefighter at the intermediate grade.
78. I am of the view that the exception in s.37(3) does not go as far as contended for by the respondent. Everything depends on the circumstances of the particular case. If it can be established that notwithstanding his disability, a person is capable of performing the functions that they may be called upon to perform in their particular role within the prison service, and that that can be done without adversely affecting the operational capacity of the prison service, it seems to me that the requirements of the Directive mandate that he be given the reasonable accommodation, if not unduly burdensome, and thereby be permitted to continue in employment.
79. Accordingly, I find that the Labour Court was wrong in law to interpret s.37(3) in the way that it did. The subsection merely provides that it is an occupational requirement that an employee in the prison service be fully capable of undertaking the range of functions that they may be called upon to perform so that the operational capacity of the prison service may be preserved. However, the correct interpretation of the subsection does not relieve the employer of the obligation to attempt to make reasonable accommodation for the person if it is not unduly burdensome for them to do so and if having done so, the operational capacity of the service is not adversely affected.
80. I am satisfied that such an interpretation is in accordance with the *338 terms and objectives of both the Directive and the CRPD. It is appropriate that if possible, the Act should be interpreted in a way that is consistent with the provisions of EU law.
81. Furthermore, I am satisfied that the use of the pronoun “they” in s.37(3), makes it clear that what is being referred to is the competence of the particular person to perform the range of functions that they may be called upon to perform as part of the relevant emergency service. As noted earlier, in a larger organisation, different duties involving different levels of physical capacity, will be performed by different operatives at the same level, e.g. some Gardaí will perform active duties in the community, whereas others will perform specialised investigations from an office. The section makes it clear that there is no “one size fits all” requirement, which must be attained by all the operatives within a particular emergency service. It is necessary to look at the range of duties that a particular person may have to perform in his or her role within the emergency service concerned.
82. I accept the submission of counsel on behalf of the appellant that s.37(3) does not exempt the emergency services from providing reasonable accommodation, but merely enables them to satisfy the first limb of the test set down in cases such as Egenburger and Wolf, that capacity to carry out the range of functions required is an occupational requirement for employment in the particular emergency service, in this case in the IPS. However, the section does not absolve the IPS of the duty of providing reasonable accommodation for the disabled person, if that can reasonably be done and while at the same time preserving the operational capacity of the prison service.
83. While acknowledging that s.37(3) is a standalone provision, this interpretation is consistent with the provisions of s.37(2), which effectively establishes in Irish law the three-strand test set out in the European cases referred to above. When read with s.37(2), s.37(3) gives clarification as to what constitutes an occupational requirement for the purposes of employment in An Garda Síochána, in the Irish Prison Service and in emergency services generally. This can be contrasted with the provisions of s.37(5), which gives a complete exemption to employment in the Defence Forces. Thus, I am satisfied that the interpretation which the court has given to s.37(3), is consistent with the provisions of the section generally, when read as a whole.
84. However, as stated before, everything will turn on the facts of a particular case and the size and nature of the emergency service concerned. 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 of the emergency service concerned.
85. As the appellant was not given that opportunity, I will allow the appeal *339 and remit the matter to the Labour Court for a consideration of all the factual evidence outlined above.
Nano Nagle School v Daly (SC)
[2019] IESC 63 (31 July 2019)
An Chúirt Uachtarach
The Supreme Court
O’Donnell J
MacMenamin J
Dunne J
Charleton J
O’Malley J
Supreme Court appeal number: S:AP:IE:2018:000037
[2019] IESC 000
Court of Appeal record number: 67/2016
[2018] IECA 11
High Court record number: 2014 516MCA
[2015] IEHC 785
Judgment of Mr. Justice John MacMenamin dated the 31st day of July, 2019
1. The appellant, Marie Daly, began work as a special needs assistant (“SNA”) in the respondent school in the year 1998. She is also a qualified nurse. The Nano Nagle School in Killarney (“the school”) caters for children on the autistic spectrum, and those with mild to profound disabilities. In July, 2010, Ms. Daly sustained very serious injuries in an accident whilst on holiday. As a result, she was paralysed from the waist down. Since then she has had to use a wheelchair. She undertook an extensive course of rehabilitation. By the beginning of 2011, she was anxious to resume her employment. The school, as her employer, initiated an assessment process for this purpose. The job of an SNA is a challenging one, and has a significant physical aspect. Ultimately, following a process described in this judgment, the school board refused the appellant permission to return to work.
The Equality Officer
2. Advised and assisted by her trade union, the appellant brought an application (DEC-E 2013-161) under s.83 the Employment Equality Act, 1998 – 2011 (“the Act”), to the Equality Tribunal, now merged into the Workplace Relations Commission (See, now, Workplace Relations Act, 2015). She claimed that the school’s decision constituted unlawful discrimination under s.6, s.8, and s.16 of the Acts, and that the employer had failed to comply with its statutory duty under s.16(3) and (4) of the legislation, to provide ” reasonable accommodation ” or ” appropriate measures “, to accommodate her disability, which would have allowed her to return to work. The claim was first heard by an Equality Officer appointed under the Act. His decision, dated the 3rd December, 2013, determined the appellant was no longer fully competent and available to undertake, and no longer fully capable of undertaking, the duties attached to the position. He concluded the school had given consideration to the provision of what are called under s.16 of the Act ” appropriate measures ” to enable the appellant to return to work, but that these measures gave rise to ” a cost other than a nominal cost “, and the school was entitled to rely on s.16(3) of the Act as a defence. It appears that, referring to nominal cost , the officer was under a misapprehension as to the applicable law; the nominal cost test had been removed by s.9 of the Equality Act, 2004; and replaced by amendment outlined later. This was not the sole basis of his decision, however, as he held the school had a good defence on the basis of incapacity, that there was no discrimination, and the appellant was not entitled to any remedy under the Act.
The Labour Court
3. The appellant appealed to the Labour Court, which reversed the decision. It held there had been a failure to comply with s.16(3) of the Act, and held that, in making its decision on the question of reasonable accommodation, the school had failed to consult with the appellant, who was awarded €40,000 in compensation.
The High Court and Court of Appeal
4. The school appealed to the High Court on points of law. There, Noonan J. upheld the decision of the Labour Court. The school then appealed to the Court of Appeal, (Ryan P., Finlay Geoghegan J.; Birmingham J. concurring in both judgments), which upheld the school’s appeal, and reversed the decision of the High Court in two judgments, delivered by Ryan P., and by Finlay Geoghegan J. on the 31st January, 2018, (A:AP:IE:2016: 000067; [2018] IESC DET 103). The appellant then applied for leave to appeal to this Court, which application was granted in a determination dated the 6th July, 2018, [2018] IESC DET 103.
The Leave Determination
5. In the leave application, the appellant submitted that the decision of the Court of Appeal introduced significant qualifications to the obligations on employers to consider the redistribution of tasks to facilitate persons with disabilities in the workplace. The panel of this Court pointed out that the application appeared to raise the issue of a tension between the duties involved in a particular post, and the tasks which may be distributed or redistributed by way of reasonable accommodation.
6. The issues which arise are, undoubtedly, of significant importance, not only to the appellant, but in the broader field of disability law. The appeal has been elaborately argued on agreed facts, and counsel have helpfully provided extensive and welcome academic commentary, as well as the normal material required for compliance with the practice directions of this Court. Counsel for the Irish Human Rights & Equality Commission, as amicus curiae , also made helpful written and oral submissions. While the issues turn largely on the interpretation and application of s.16 of the Employment Equality Act, 1998 (as amended), other ancillary questions also arise from the Labour Court’s determination.
This Appeal
The Act – General Background
7. A general overview of the legislation may be helpful as a starting point. The purpose of the 1998 Act is, inter alia, to promote equality between employed persons, and make further provision with respect to discrimination in, and connection with, employment. The Act outlaws discrimination in connection with work related activities on nine distinct grounds, including disability. Whether Ms. Daly, an employee with a disability can be ” reasonably accommodated ” with what are called ” appropriate measures ” is a core issue arising from s.16 of the Act. The difficulty arises with the identification of what are the duties of a position? The section undoubtedly requires that tribunals, and courts, should decide what are those duties. But, even before the original 1998 Act was enacted, scholars expressed concern that the then-proposed legislation was insufficiently specific, as it lacked a clear definition of what were the ” essential ” and ” non-essential ” duties of a work-position. It was suggested this lack of clarity raised the possibility that the provisions of the 1998 Act might be interpreted ” narrowly “, so that it would be necessary for an employee with a disability to demonstrate that they could undertake all the duties of the position, whether with or without reasonable accommodation. (c.f. Quinn & Quinlivan, “Disability Discrimination: The Need to Amend the Employment Equality Act 1998 in Light of the EU Framework Directive on Employment”, and “Equality in Diversity: The New Equality Directives”, Costello & Barry Eds. Vol 29 (Irish Centre for European Law, 2003), at pages 24 and 25). The appellant submits that the Court of Appeal so interpreted s.16, as it now provides, so as to render it necessary for a disabled person, on reasonable accommodation, to be able to perform all of what were seen as the core duties of a position of employment. The appellant and the amicus curiae submit that such an interpretation is unwarranted by the words of the section and would defeat the Act’s purpose. Counsel for the school stands over the Court of Appeal judgments, submitting that, when properly interpreted, they express the true meaning and effect of s.16 of the Act.
8. The 1998 Act, later amended by the Equality Act, 2004, repealed the Anti-Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977, although re-enacting parts of that legislation with amendments. Insofar as relevant, the purpose of the 2004 amendments was to give effect to those provisions of Directives 2000/43/EC, 2000/78/EC and 2000/73/EC, which still required to be implemented in the State. At the time of the amending enactment in 2004, there was some renewed concern that the new provisions of the 2004 Act did not go far enough in transposing the three Directives.
The 1998 Act, as now amended
9. Section 2 of the 1998 Act defines ” disability “. The definition includes a partial absence of a person’s bodily function . (s.2(a)). There is no doubt the appellant comes within this category. Section 6 defines ” discrimination “. It provides that, for the purposes of the Act, discrimination shall be taken to occur where, on any of the grounds defined in sub-section 6(2), a disabled person is treated less favourably than another person would be treated. This is referred to as the ” disability ground “. Section 8 deals with discrimination by employers. It provides, in relevant part, that an employer shall not discriminate against an employee in relation to access to employment, conditions of employment, access to employment, or classification of posts. (See s.8(1)(a), (b) and (e) of the Act). Under s.8(4)(b), an employer is prohibited from having rules or instructions which would result in discrimination against an employee, or class of employees, including in relation to access to, or conditions of, employment, or in the classification of posts. The prohibition therein contained also relates to a ” practice ” which results, or would be likely to result, in such discrimination. Section 8(6) provides that, without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the ” discriminatory grounds “, the employer does not afford to that employee (a) the same terms of employment (other than remuneration and pension rights), (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons.
10. Section 8(7) provides that, without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the “discriminatory grounds “, that employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training, and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different. It is unnecessary for a claimant to prove there was an intention to discriminate.
Section 16 of the Act
11. Section 16 of the Act deals directly with disabilities in the context of work. As amended by s.9 of the Equality Act, 2004, s.16(1) now provides that nothing in the Act is to 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.
…” (Emphasis added)
Seen in isolation, these emphasised words might convey that an employer does not have to retain an individual who is no longer capable of performing the duties in that position. But the section must be read in its entirety. An important issue arises from the word ” duty ” or ” duties “. The same word is not used throughout s.16. Later, the drafter used the word ” tasks “. (See s.16(4)(b)). Do the words ” duties ” and ” tasks ” have the same meaning, or not? The Court of Appeal held that the law permitted, and required, the distribution of ” tasks “, but that there was no obligation to remove from a disabled employee, or distribute to other employees, what were referred to as the ” main duties “, or “essential functions ” of a position. The appellant submits that the section does not contain any words such as ” core duties “, or ” essential functions “. Counsel for the school argues the words ” tasks ” and ” duties ” have different meanings, the first connoting peripheral features of a job; the second the central or core elements.
12. Section 16(2) is not material. But s.16(3)(a) then provides:
“(3)(a) For the purposes of this section, 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) An 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 and advance in employment,
(iii) To undergo training,
unless the measures would impose a disproportionate burden on the employer. …” (Emphasis added)
The words emphasised above are also keys to understanding the section. The section then identifies criteria for identifying what is a ” disproportionate burden “. Section 16(3)(c) therefore provides:
“(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,
(iii) The possibility of obtaining public funding or other assistance . …” (Emphasis added)
The issue of ” public funding or other assistance” is considered later.
The Main Issue
13. In a sense, the fundamental issue arises because of the way in which s.16(1) and s.16(3) are sequenced. The Court of Appeal held that s.16(3) of the Act must be seen as being subject to what is contained in s.16(1). In standing over that decision, counsel for the school submits this must mean that a court or tribunal should look first to s.16(1), in order to assess the main duties of a position, and thereafter determine whether, on reasonable accommodation under s.16(3), an employee was fully competent or capable of undertaking these main duties. On this reading, main duties form the starting point for consideration. As reflected in the decision of the Court of Appeal, the school’s case is that, if it is shown that an employer has formed a bona fide belief that an employee with disabilities was not fully capable of performing the duties for which he or she was employed, there is a complete defence to a claim of discrimination. Thus, it is argued, the first stage of any analysis requires identification of the duties required for any job based on an assessment of the structure and needs of the particular organisation, and the role required to be performed. Once these main duties of a role are identified, a disabled person should be assessed in accordance with those duties in order to determine their capacity to perform the job. If they cannot perform these duties, then the next question is whether an employer can undertake any reasonable accommodation to render the employee capable of performing those duties. But, if the disabled employee remains unable to perform these main duties after reasonable accommodation, then there is a full defence. The school submits that it arranged to have the duties associated with an SNA assessed by an expert, Ms. Ina McGrath, who identified sixteen duties attached to the position. Ms. Daly could wholly or partly perform nine duties, but was unable to perform seven. Counsel for the school submits that the Court of Appeal correctly held that no adaptation or accommodation could make the appellant able to carry out the job. She submits that there is no requirement to “strip away” some duties associated with a particular job, as this is not required by the section. Counsel submits this would be to create an entirely new position, which is not mandated at either national or European level. But counsel acknowledges that a distribution of ” tasks ” is acceptable. But these ” tasks ” are to be seen as those peripheral to the main duties; that is, that they would be secondary or marginal in nature.
14. Rather confusingly, s.16(4) contains two sets of sub-paragraphs, both identified as “(a)”, “(b)” and “(c)”. The first set relates to the identification of an ” employer ” and is immaterial. But s.16(4) then provides that the words ” appropriate measures “, to be found in s.16(3)(a) and (b) ” in relation to a disability “, are to be interpreted as meaning:
“… (a) effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,”
Then the sub-section first mentions the word ” tasks ” in these terms:
“(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;” (Emphasis added)
The Court of Appeal felt that the word ” tasks ” had a different connotation to ” duties “, and that an employer’s obligation was to consider only the distribution of tasks, but not core duties, which were essential to the job.
15. It is necessary then to touch on the provisions for redress. Section 75 provides that investigations by an Equality Officer are to take place under the aegis of the Director of Equality Investigations. It sets out the forum for seeking redress, the appeals procedure to the Labour Court, and further appeal, on a point of law, to the High Court. Section 82 of the Acts sets out the forms of redress that can be awarded. These include an order for compensation in the form of arrears of remuneration for a limited period; and that a successful claimant may receive an order for compensation for the effects of acts of discrimination or victimisation, that occurred not earlier than 6 years before the date of the referral of the case under s.77. The Act also allows for an order that an employer be directed to take a particular course of action satisfied, or an order for reinstatement or re-engagement, without an order for compensation. The level of compensation is subject to a maximum of 104 week’s pay, or €40,000. (s.82 of the Act). The practice of the tribunal in determining the level of compensation is to place the complainant in the position he or she would have been in had the discriminatory treatment not taken place. ( A v. Public Sector Organisation , DEC-E 2006-026).
The E.U. Background
16. Counsel for the appellant, and counsel for the amicus curiae , submit that, by interpreting s.16(3) as being subject to s.16(1), the Court of Appeal erred. The primary argument is based on the wording of s.16. They also place reliance on E.U. legal instruments and case law. The E.U. law is undoubtedly a useful point of reference. But whether it is even necessary to resort to E.U. law is a point to be determined. It is true that the amending 2004 Act put in legislative form, and reflected, the provisions of Council Directive 2000/78/EC, referred to as the “Framework Directive”. It is also true that the Recitals of that Directive identify measures intended to play an important role in combating discrimination on grounds of disability. But counsel for the school argues that the mere fact that the Oireachtas used some of the terms employed in the Recitals does not, itself, elevate those words to anything beyond guidance for the Framework Directive itself.
The Framework Directive
17. Recital 17 of the Framework Directive sets out:
“This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.” (Emphasis added)
18. Recital 20 provides:
“Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.” (Emphasis added) It will be seen, therefore, that the Recital expresses the precept that an individual’s workplace must be adapted to the disability and not vice versa.
19. Recital 21 reflects some of the wording of s.16(3)(c) of the Act. It provides:
“To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.”
20. Article 5 mandates that there must be provision to facilitate persons with disabilities to obtain, and to participate as fully as possible in employment:
“Article 5
Reasonable accommodation for disabled persons
In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures , where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.” (Emphasis added)
Article 5 undoubtedly contains terminology similar, if not identical to, what is to be found in s.16.
Section 16: A Summary
21. To summarise, looking to s.16 itself, the term ” reasonable accommodation ” was defined by statute as including ” appropriate measures “. (See s.16(3)(a) and (b)). The question of ” disproportionate burden ” under s.16(3)(b) is to be evaluated by taking into account financial and other costs, the scale and financial resources of a business, and the possibility of obtaining public funding or assistance. (s.16(3)(c)). Section 16(4)(a) defines ” appropriate measures ” as meaning effective and practical measures ” where needed ” in a particular case to adapt the employer’s place of business on the basis of the disability concerned. Section 16(4)(b) provides that, ” without prejudice ” to the generality of paragraph (a), this duty would also include the adaptation of premises and equipment, patterns of working time, distribution of tasks, or the provision of training or integration resources.
The Directive: A Summary
22. Turning then to the Directive, Recital 17 states that the Directive does not require the ” maintenance in employment ” of an individual to perform the essential functions of the post concerned, but ” without prejudice ” to Article 5 of the Directive, which provides that employers shall take appropriate measures where needed in a particular case to enable a person with a disability to have access to, or participate in, employment, unless such measures would place a disproportionate burden on the employer. Such measures shall not be deemed ” disproportionate ” when sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.
The CRPD
23. At this point it is necessary only to advert to one other feature of the legislative background. The United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) was approved by the European Community by Council Decision 2010/48/EC of the 26th November, 2009. (OJ 2010/L23/P35). The Convention was ratified by Ireland on the 20th March, 2018, two months after the Court of Appeal judgment.
24. Article 1 of the CRPD recites that the purpose of the Convention was to:
“… promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. …”
25. Article 2 provides that discrimination on the basis of disability means any distinction, exclusion, or restriction on the basis of disability that has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field. This includes all forms of discrimination, including denial of reasonable accommodation. It defines reasonable accommodation as being necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
26. Article 5 deals with the equality and non-discrimination. Article 5(2) provides, insofar as material:
“States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. ” (Emphasis added)
27. Article 5(3) provides that:
“In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.” (Emphasis added)
CJEU Case Law: H.K. Danmark
28. In HK Danmark, acting on behalf of Jette Ring (Applicant) v. Dansk almennyttigt Boligselskab (Respondent) (Case C-335/11 and Case C-337/11 [2013] IRLR 571, the Court of Justice considered the meaning to be ascribed to the term ” disability ” for the purposes of the Equal Treatment Framework Directive 2000/78/EC. The issue which arose in that case was the distinction between ” disability ” and ” illness “. But the CJEU also made significant observations on whether the obligation under the Directive to provide a disabled worker with reasonable accommodation included an obligation to reduce her working hours, in circumstances where she was unable to work full-time due to her disability. The court considered the extent of the duty imposed on employers to provide a disabled worker with reasonable accommodation. It addressed whether that duty included an obligation to offer a disabled worker a facility to work part-time? But the CJEU pointed out that the E.U. had ratified the United Nations Convention on the Rights of Persons with Disabilities in 2010, and observed that, in accordance with Article 216(2) TFEU, where the European Union had pronounced that international agreements were binding on its institutions, and therefore prevailed over Acts of the European Union. (See Case C-366/10, Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change [2012] ALL.ER EC 1133). As a consequence, the CJEU held that the primacy of international agreements concluded by the European Union meant that instruments of secondary legislation of the European Union were to be interpreted, insofar as possible, in a manner consistent with those agreements. Thus, it followed that Directive 2000/78/EC, insofar as it related to disability, thereafter to be interpreted in harmony with the U.N. Convention.
29. Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be ” physical, organisational and/or educational .” It concluded that, in accordance with the second paragraph of Article 2 CRPD, reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held:
” It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’ .” (para. 53) (Emphasis added)
30. The court continued:
“54. Thus, with respect to Directive 2000/78, that concept must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers. …”
At paragraphs 55 and 56, it went on to hold that, as Recital 20 in the preamble to Directive 2000/78 and the second paragraph of Article 2 of the UN Convention envisaged not only material but also organisational measures. It noted the term ‘pattern’ of working time must be understood as the rhythm or speed at which the work is done. The court concluded, therefore, that a reduction in working hours may constitute one of the ” accommodation measures referred to in Article 5 of that directive “. (para. 55). It pointed out that the list of appropriate measures to adapt the workplace to the disability in recital 20 in the preamble to Directive 2000/78 was not exhaustive. Consequently, even if it were not covered by the concept of ‘pattern of working time’, a reduction in working hours could be regarded as an accommodation measure referred to in Article 5 of the directive, in a case in which reduced working hours ” make it possible for the worker to continue employment, in accordance with the objective of that article .” (para. 56).
31. While the court referred to Recital 17 of Directive 2000/78 as not requiring the recruitment, promotion or maintenance in employment of a person who was not competent, capable and available to perform the essential functions of the post concerned, it held this was “wi thout prejudice to the obligation to provide reasonable accommodation for people with disabilities, which includes a possible reduction in their hours of work.” (para. 57) (Emphasis added) What is in question, therefore, is a balancing process identifying what is reasonable and proportionate.
32. Having pointed out that, in accordance with Article 5 of that Directive, the accommodation persons with disabilities are entitled to must be reasonable, but that it must not constitute a disproportionate burden on the employer, the court went on to hold that it was for a national court to assess whether a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employers.
33. The passage must be read as a whole. Seen in this way, it conveys that a principle laid down in para. 57 must be seen as being without prejudice to the obligation on employers to provide reasonable accommodation for people with disabilities.
34. In his opinion in Z v Government Department and Anor., Case 363/12, Advocate General Wahl described the judgment in Ring as marking a “paradigm shift” in CJEU case law, whereby, departing from a narrower definition, the E.U. concept of disability was explicitly aligned with the UNCRPD (para. 88), noting that the court’s definition of disability only covered professional life, as opposed to society at large. While not referred to in Ring, Article 27(1)(b) CRPD provides that:
“States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment , by taking appropriate steps, including through legislation, to, inter alia: …
b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, …” (Emphasis added) (c.f. Opinion of Advocate General Wahl in Z, para. 117).
The Facts
35. The factual description which now follows is taken from the agreed facts, but must also refer to the Labour Court determination. But counsel for the appellant criticises the fact that the Labour Court failed to resolve an important evidential issue. This concerned contacts between the school principal and the NCSE about the appointing the appellant as a “floating SNA”. She submits this was an important point, and could have been easily resolved. But counsel for the school submits that, while recording much of the testimony, the Labour Court omitted any reference to what is said to be highly important evidence which could have had a direct bearing on the outcome of the claim. She submits that this evidence raised serious question marks as to whether, even with the most extensive appropriate measures, the appellant could perform the duties of an SNA. These questions can only be answered by consideration of the evidence before the Labour Court.
36. One can only be conscious of the fact that the following description of the evidence is lengthy, but one can only understand the objections to the determination, and the judgments of the Court of Appeal and the High Court, when set in their full factual context.
The School
37. The school is situated near Killarney in County Kerry. It operates under the aegis of the National Council for Special Education (NCSE), a State Agency which is the funding authority. At the relevant time, there were seventy-three children attending the school. These were divided into ten classes. Each class contained between six and eight pupils. The school employed twelve teachers and twenty-seven SNAs. It also employed ancillary therapy workers, bus staff, a caretaker, a secretary, as well as receiving volunteer help. Two of the classes in the school were designated for pupils with severe or profound difficulties. The pupils in the other classes were classified as having more moderate disability, though the school principal testified that the challenges facing staff members were nonetheless significant, even with those pupils.
The Work
38. Each SNA worked in tandem with a teacher. In general, two SNAs, plus one teacher, were assigned to each classroom. But in three classrooms, graded on the basis of pupils’ disabilities, the teacher was accompanied by three SNAs. Prior to her accident, the appellant worked in one of these classes. The role of an SNA was described in a Departmental Circular SP.ED.07/02. Those duties were of a non-teaching nature. They included preparation and tidying up of classrooms; escorting pupils in alighting and using school buses; providing them with special assistance; helping physically disabled pupils engaging in typing or writing; helping with clothing, feeding, toileting, and general hygiene; assisting in out-of-school visits, walks, and similar activities; supplementing teachers in the supervision of pupils with special needs during assembly, recreational, and dispersal periods; accompanying individuals or small groups who might have to be withdrawn temporarily from the classroom; providing general back-up to the class-teachers; and, where necessary, assisting in catering for the needs of a specific pupil. As the appellant was a qualified medical nurse, she fulfilled a number of roles in the school, and also undertook some secretarial duties from time to time.
Consideration of Return to Work
39. By late 2010, the appellant had completed her five-month period of rehabilitation in the National Rehabilitation Centre (NRC). She was assessed there by a senior occupational therapist, who formed the view that she could return to work as an SNA on a phased basis. The appellant was discharged from the NRC on the 19th December, 2010.
40. Ms. Daly contacted the school in January, 2011 to discuss resuming work. She met the school’s occupational physician, Dr. David Madden of Medmark, which is a medical consultancy. Dr. Madden himself is a general practitioner, and a consultant in occupational health. He informed the school principal that the appellant had agreed to a possible return to work on the 8th March, 2011. During the month of February, 2011, the school asked the appellant to assist on a number of days in carrying out secretarial and administrative duties. Dr. Madden furnished a report to the school board on the 1st March, 2011. He confirmed the appellant had completed a satisfactory recovery, and that, despite her ongoing injury, she was fit to return to many of the duties of an SNA. But he expressed the reservation that the school should commission an assessment to ensure that the appellant could carry out the work safely, and to identify potential work-activities which might prove challenging to her. In March, 2011, the school arranged for an excursion for some of the children to Florida. The appellant was asked to go on this trip in order to assist the teachers and other staff. However, she declined this request due to having been away from her own children for a considerable period during her stay in the NRC.
The Southern Safety Risk Assessors’ Report
41. The school organised a risk-assessment later in the month of March. This was performed by Southern Safety Risk Assessors on the 14th to 15th March, 2011. The report recommended that, in order to accommodate a return, the appellant’s work practices should be re-arranged so that her role would be less challenging; that she should rotate from room to room so as to assist in generally less intensive tasks; and that a system be implemented so that she was not alone with children and, where, when necessary, she could call for assistance. It recommended the appellant should not have to carry out challenging or lifting activities. It proposed an occupational therapist be engaged in order to assess the tasks which the appellant could perform, and to assist in setting up a suitable system of work. The report recommended that the occupational therapist should carry out fortnightly, and then monthly, assessments. The report concluded that the Principal, Deputy Principal, and staff members would all have to work together in order to accommodate the appellant, in a process which would require the full commitment of all school staff. It recommended that the school management, as well as the Department of Education, should facilitate the principal and her staff in the process of re-introduction.
42. In the light of later evidence on this issue, it is worth nothing that this report proposed that, if recommended, extra resources be obtained from the Department of Education to maintain the level of care for the children whilst accommodating the appellant’s re-integration, that the appellant should be consulted in all of these matters and fully included in the process. These recommendations acquire a greater significance when the whole picture is considered later.
43. The consultants proposed all this should be carried out on a trial basis, and then reviewed. The school board considered this report, and thereafter reverted to Dr. Madden recommended a further report. The appellant, too, requested a different risk assessment be carried out.
Ms. Ina McGrath’s Report
44. Subsequently, Ms. Ina McGrath, who was qualified as an occupational therapist and in ergonomics, was asked to carry out a second assessment following on that conducted by Southern Safety. Her report, based on assessments on 2nd and 9th September, 2011, was sent to the school on the 29th September, 2011. The appellant was present on the second day, but not the first. The report contained a description of the broad range of activities which staff members undertook, and the way in which the students progressed through the school. Ms. McGrath’s report, which assessed the appellant in the school environment, is one of the evidential keystones of the case. Some of what follows is set out in paras. 38 to 48 of Ryan P.’s judgment in the Court of Appeal. But what is contained in the report must be set out here in a little more detail. Ms. McGrath noted that the appellant had already passed her driving test as a wheelchair user. She had good extremity range of motion and strength. She was able to pick up items from the floor. She could lean to one side but not forward, as there was a risk of unbalancing. She was independent with her own care needs. She needed assistance with getting items from higher shelves which were outside of her reach, and in using sinks which were all at standing height.
45. The report compels admiration for the valuable work carried out in the school, both by staff and students. But it also showed the extent to which the job of an SNA had a significant physical aspect to it. The report must be considered in detail. Without that detail, there is a risk that the determination and judgments of this and other courts will be misunderstood. Ms. McGrath assessed the position in relation to the suitability of each of the classes. The “reception class”, which catered for new pupils needing considerable physical assistance, was ruled out. Classes where the students had autism were also ruled out as unsafe, as there was the potential for students who would regularly need to leave the classroom, or might “act out”, possibly needing physical hands-on care in the event of what were called “outbursts”. A senior special class was also seen as off-limits, as it was a step-up from the junior special class, where again the children would require a high level of physical assistance.
46. Two senior classes were ruled out completely as the children were by then older, and were being taught skills to help them become independent in the community. The students in those senior classes went into Killarney to use facilities to go shopping and to participate in work-experience activities in the community. But Ms. McGrath considered Ms. Daly would not have the ability to self-propel her chair for such long distances. Additionally, there were “very strong” young adult males in those classes, which might not be a safe environment for Ms. Daly.
47. Ms. McGrath identified the junior and middle two classes as those with the greatest classroom and bathroom accessibility, and the least amount of safety-risk for the appellant and students. The appellant was asked to come in and spend half a day in each of those classes. She had not assisted in any of those classes previously.
The Junior Class
48. The average age of the students in the junior class chosen was 9 years. Three of the students had been diagnosed with autistic spectrum disorder (ASD). Many of the students had been in the class for three years. They could walk independently, although two of them required supervision. One child required assistance with toileting. Another child needed close supervision secondary to “acting-out”. One child had dyspraxia, resulting in the risk of accidents and falls. Ms. McGrath described that a new child who had joined the class engaged in serious “acting-out” behaviour, and tried to make physical contact with another child. In order to stop this conduct, the SNA permanently working in that class had to remove the newly arrived student to the sensory integration room. There was a further such incident later in the morning. The teacher and the other SNA had to intervene to prevent injury to staff and to other students. Two SNAs had to remove the student from the classroom. Some of the staff members involved reported that, on the previous week, they themselves had had to move out of the way when a shelf was pushed over.
49. Ms. McGrath found that accessibility did not pose an insurmountable problem. The appellant was able to engage in adequate supervision of four of the children. However, she would not have been able to assist with the child who required assistance in toilet-hygiene, or with the child with ASD, as the conduct of that child was said to be “inconsistent” and “physical”.
50. Ms. McGrath had earlier described the student who had created a problem in junior class being brought to a sensory integration room. The appellant brought one of the other students with dyspraxia into the same room to work on therapy exercises. The other SNA worked with the student with ASD at all stages, while the appellant focused on the child with dyspraxia. The appellant was able to give directions to the child she was assisting on using some specific toys, but was limited to minimal physical assistance. Whilst she was able to verbally prompt the child to use other facilities, she was unable to herself demonstrate correct use of these pieces of equipment. She was able to provide verbal prompts. Ms. McGrath pointed out that, on occasions, with some children, an SNA might, occasionally, have to lie or kneel on a mat to complete a therapy activity. She also pointed out that the appellant could not turn her wheelchair quickly if a child ran behind her or towards the door. Children removed their shoes in the room, and there was a risk of the wheels of the wheelchair going over a child’s foot. When returning to the classroom, Ms. McGrath asked an SNA who had worked with the child with ASD if she had felt safe at the time going to, from, and during, her time in the sensory integration room. The SNA “honestly” felt that the child she was supervising needed two physically able SNAs as there was a potential the child might act out physically.
The Middle Class
51. In the middle class there were eight children, one teacher and “2.5 SNAs”. The “0.5”, or “half-SNA”, was a person shared with the reception class. Three of these children required assistance with mobility. One had epilepsy and needed physical assistance when walking. Two SNAs escorted this child to the bus. One child with ASD needed to be escorted to a quiet room. Another child with gait difficulties, needed physical assistance. The other five children were independently mobile. The appellant was able to assist another SNA with two children who needed assistance with toileting. She provided “good assistance” with one child who was able to assist her in divesting clothing in the course of toileting, but had difficulties with another child who, for physical disability reasons, could not provide the same assistance. Some of the children needed hygiene supervision. The appellant could provide the verbal cues and physical prompts to complete these tasks. The appellant was able to carry out many, but not all, of the functions in that classroom. Suitable adaptation would have required the sinks to be lowered, but this, in turn, would have created difficulties for a person normally standing. The appellant was able to assist children with taking out books and working on a one-to-one activity; however, was unfamiliar with the children and their programmes of care, which made it difficult for her to get involved. Of the three children in the middle class who needed physical assistance, one was having difficulties, and walking about in a disruptive manner, although not aggressively. The teacher asked the SNAs to take her to a quiet area as the other children were being disruptive. Ms. McGrath stated that the appellant could not assist with escorting this child.
The Jobs Demand Analysis
52. Ms. McGrath also carried out an assessment in tabular form in a Jobs Demand Analysis. The first column of the table, set out below, lists the duties an SNA performed in the school. Again, in hindsight, it is significant the second column broke down the ” duties ” into ” tasks “. The third column identified ” tasks ” which Ms. McGrath saw as a ” best fit ” for the appellant. The last column described any environmental or equipment-changes that could facilitate the appellant in her role. A classification process, and an interpretation, of s.16, in the light of ” core duties “, on the one hand, and ” tasks “, on the other, formed an important part of the Court of Appeal’s approach. Whether such categorisation was either required or permitted by s.16, or any other provision of the Act, is considered later. The table must also be considered in light of Ryan P.’s conclusion in the Court of Appeal that, in fact, the appellant was regrettably unable to carry out many of the core elements attached to the position of an SNA. The appellant is, of course, referred to in the table as “Ms. Daly”.
TABLE 1
SNA Duties Task Demands Fit with Ms. Daly Adaptations/
Equipment Required
Assist on/off bus Physically get on bus and assist child with mobility limitations off the bus Not a suitable duty for Ms. Daly
Walk with child from bus to assembly providing physical assistance
Carry bag while physically supporting student
Supervision in assembly Walk with students to assembly
Provide verbal direction or physical prompt in direction of assembly with children who are independently mobile and who are not at risk for absconding.
SNA Duties Task Demands Fit with Ms. Daly Adaptations/ Equipment Required
Sit with student group in assembly
Say prayers with group and sing with group Ms. Daly can sit with and encourage input from children.
She can lead independently mobile children to top of assembly to say prayers, celebrate birthdays, etc.
Physically assist with dancing
Prevent hitting out and acting out behaviour Ms. Daly would be limited in self-propelling as many children throw off their shoes
She could not assist and would be advised to move back if any acting out behaviour occurred
Prepare and tidy classroom
Moving tables and chairs Bending, reaching, laying out equipment on desks
Lifting, pushing and pulling Ms. Daly could complete these tasks with minor changes to where and how equipment is laid out
Not suitable duty for Ms. Daly Minor modifications to where frequently used items are stored
Assist with on/off clothing Assist with taking off outer garments and putting on outer garments
Take off trousers, underclothes and nappies/pads
Put on new pad, underclothes and nappies/pads Can assist the more physically able child and child who have less behavioural issues
Can assist children that require verbal or physical prompt by herself and with another SNA for children who require physical assist Provision of step more frequently used nappies or extra clothes to wheelchair accessible shelf
SNA Duties Task Demands Fit with Ms. Daly Adaptations/ Equipment Required
Change nappies/menstruation pads Can assist independently if bathroom permits access for higher functioning kids, i.e. those that do not require physical assist Move menstruation pads and nappies to accessible shelves
Toilet hygiene Clean soiled child
Remind child to wipe self
Assist with washing hands
Remind child to wash hands Can help wipe child if can access toilet from the side in her chair
Can provide supervision, and verbal cues Remove panel from toilet cubicle on right in Junior
Remove bath in Middle 2
Use of school equipment, school chairs, hoists, changing tables, baths Requires pushing, pulling, use of hi-lo function, use of brakes Not suitable for use by Ms. Daly
Mobilise with children in school Walk with children from assembly to class or room to room on site.
Stairs: Work with children on use of stairs as part of therapy activity. Only with independently mobile children who will not run off and who can follow instructions.
Stairs are not accessible for Ms. Daly
Escort children on lift Children are not encouraged to use lift unless they are in a wheelchair and only one wheelchair will fit in the lift.
SNA Duties Task Demands Fit with Ms. Daly Adaptations/ Equipment Required
Escort to other school/college in town/shops/coffee shops, etc. Requires ability for close supervision, assisting children with community skills, long distance mobility Ms. Daly reports she has difficulty with thermo-regulation and cannot self-propel for long distances. Therefore, not suitable duty for Ms. Daly Powered mobility was offered as option to increase mobility in community but Ms. Daly declined at this time.
Safety with kids who hit out, run off, become aggressive Hands on intervention to prevent a child from hitting other children/staff
Escort child who is acting out to sensor integration room or quiet room Not suitable
Not suitable
Calming exercises requires sitting on mat, brushing child or rolling children in weighted blankets, vestibular roll, etc. Not suitable
PE/Therapy Activity
Escort to sensory integration room
Ms. Daly cannot access some parts of room because of floor mats, bean bags, therapy equipment, body rollers, and sensory balls
SNA Duties Task Demands Fit with Ms. Daly Adaptations/ Equipment Required
Sit on mat and facilitate brushing, rolling in balls on sensory balls, body rollers, etc.
Escort to OT *, SLT +, Physiotherapy Unable to demonstrate
equipment or transfer on/off mats. Cannot turn fast in wheelchair and needs large turning area. Not suitable at this time.
Ms. Daly could escort children who walk independently and are not a flight risk. However, staff report that the children who attend therapies do not fit in this category.
Set up and assist with feeding Hand out lunches, cut up and prepare lunches and drinks
Clean up Ms. Daly with some minor changes can set up and assist with feeding. She cannot access sinks for wash up and cleaning of utensils. Minor change to classrooms layout and where food/ utensils etc. are stored.
Yard duty Supervise and work with kids when in playground or gardening outside
Assist on/off swings, etc.
Push on swing Not good fit, as Ms. Daly cannot regulate changes in temperature well
* Occupational Therapy
+ Speech Language Therapy
SNA Duties Task Demands Fit with Ms. Daly Adaptations/ Equipment Required
Attend on trips and tours Assist with children on buses when on day trips or tours Ms. Daly reports she will not travel on a bus as she gets travel sickness on buses – not suitable activity.
Set up classroom activity – books, pencils, DVD’s, paper tasks, homework, etc. Empty items from school bags, pack bags with children
Reach shelves, cupboard, etc. Suitable duty for Ms. Daly Minor changes to where items are stored and layout of tables
Desk top activity Encourage children and assist with turn pages or homework, etc. Suitable duty for Ms. Daly May need some room change to allow Ms. Daly access to desk top
53. The sixteen “duties” in the Jobs Demand Analysis were broken into a number of “task demands”. It concluded that the appellant could do all, or part of, nine out of the sixteen duties identified, but could not perform seven of them.
54. Ms. McGrath commented that because the appellant was in a wheelchair, she was in a more vulnerable position than other staff members, perhaps in instances where a child was “acting-out” by throwing items. She could not move as quickly to get herself out of the way if required, or to intervene to protect a child or a staff member. Students who acted-out or who required physical assistance needed two physically able SNAs. Ms. McGrath expressed concern that the appellant would not be able to support the other SNA in the instance of a physical outburst that puts that SNA at risk. There might also be a concern regarding division of labour.
55. The report concluded that it was clear the role of the appellant was limited in assisting with children with physical care needs; and that safety was a main concern for the appellant, staff, and students. Both of the classes assessed had students who could act-out and needed hands-on intervention and escorting. This suggested that these classes would need two physically able SNAs to assist with these children. Accessibility was not a limitation, although some adjustments might be required to toilet facilities. Ms. McGrath recommended, therefore, that the appellant could act as a “floating” SNA. She would be able to work with children in certain categories, and could perform SNA duties with children who needed verbal or physical prompts. The report recommended against the appellant working with children who could act-out physically. Ms. McGrath expressed a hope that the school would have resources to support the appellant, as it was evident that she was very motivated to return to work.
56. Ms. McGrath’s report went to Dr. Madden. The appellant was not given sight of the report. Following further conversations with the school principal, Dr. Madden then took the view that, whilst the appellant might be fit for some categories of work, such as a floating SNA, no such position existed in the school. He stated that the assessment confirmed that Ms. Daly had difficulty in completing many of the more challenging aspects of her role as a Special Needs Assistant. He stated that it confirmed that she was not suitable to complete a series of routine work tasks safely. He, too, observed that she was not suitable to work with children who might act-out physically, or with physically able children that might run off. Typically, two physically able SNAs were deemed suitable to meet the demands of such roles. The appellant would not be suitable to carry out such routine work tasks, with one other able-bodies SNA.
57. Referring to the report and conversation with the Principal, Dr. Madden pointed out that, while the report suggested that the appellant might be suitable for the position of a floating SNA, no such position existed. He had reviewed the risk assessment, and shared the view that Ms. Daly could not participate in many tasks. He understood from discussions that it was not possible to meet the level of accommodation required in order to ensure the safety of all those involved. He acknowledged that the number of roles where Ms. Daly would need accommodation was significant. He concluded that Ms. Daly was not medically fit for the position of a Special Needs Assistant.
Consultation
58. At the Labour Court hearing, the principal of the school testified that she did not consider allocating the appellant’s duties among other SNAs. In her view, it would be difficult to relieve the appellant from some of her duties, and the appellant could return to work only if she was able to perform all the duties of an SNA, with assistance or otherwise. She expressed this view to Dr. Madden.
The Areas of Concern
59. At this point, it is convenient to re-address the two areas in the determination where the parties express concern with the Labour Court’s general approach. The appellant’s concern is shorter and may be addressed first.
(a) Contact with the NCSE
60. The minutes of the school board of 15th December, 2011 indicated that, as part of the process, the School Principal telephoned the Department of Education, and then the NCSE as funding authority, to enquire about “the feasibility of funding for a floating SNA”. The minutes stated that, in this phone call, Marie Clifford, the NCSE official, stated the authority would not approve funding for an SNA, because ” the NCSE appoints staff for pupils with disabilities, and not for adults “. Thereafter, the board sent a letter to the appellant dated the 27th December, 2011, informing the appellant that she was medically unfit for the position of special needs assistant, and declining her request to return to work.
61. The school principal accepted that the decision was made without any consultation or input from the appellant. In turn, the appellant accepted that her disability would prevent her from undertaking every one of the tasks normally associated with an SNA. After the school’s decision was made known, and after she brought a claim to the Equality Tribunal, the school agreed to provide her with inspection facilities for an expert, but no such inspection took place.
An Unresolved Issue?
62. In its determination, the Labour Court recorded that it had difficulty in discerning the meaning of the evidence concerning the NCSE. Counsel for the school makes the case that Ms. Clifford must have understood and appreciated the questions she was being asked. The appellant submits otherwise. But the Labour Court which heard the evidence noted that the official, Ms. Clifford, had not been called to give evidence, and considered the minuted record of the board meeting as “somewhat puzzling”, and that there was never any suggestion that the appellant should work with adults. (p.32 of the determination). The Labour Court went on to hold that, in fact, it was for the Board of Management to make its own assessment of the reasonableness and proportionality of the form of accommodation that was needed. It concluded that apart from seeking an opinion of the NCSE, there was no evidence that the board had ever independently considered that question. The determination found that the Board was influenced in its decision by Dr. Madden’s conclusion that the appellant was medically unfit to return to work on the understanding that the school would not, or could not, make the necessary adjustments in work organisation to accommodate the appellant, and to allow her to return to work part-time in a part-time secretarial role.
63. In the Court of Appeal, Ryan P. commented that the Labour Court and High Court appeared to have some difficulty in ” deciphering ” the ” shorthand message ” conveyed by the official, whom the judgment erroneously identified as a male. The meaning of this minute was obviously a significant issue. But its true significance could have been explained if Ms. Clifford had been available to explain what her response meant. There might have been some significance in that the phone call did not appear to have been preceded by, or followed up with, any letter making a formal case to retain the appellant as a floating SNA, or in one or other of the capacities she had previously fulfilled. Seen in isolation, this might have possibly raised a question as to whether, under s.16(3)(c) of the Act, the school had, in fact, taken real steps to identify ” the financial and other costs ” entailed by taking the ” measure ” of employing the appellant as a floating SNA, or ” the possibility of obtaining public funding or other assistance ” for such a proposal . (c.f. s.16(3)(c)(i) and (ii) of the Act).
64. In my opinion, this was potentially an issue of some importance, and, ideally, should not have been left without clarification. There was no evidence that Ms. Clifford was unavailable, or that documents from the NCSE were unobtainable. The issue went to the question as to whether the school had, in fact, explored the possibility of obtaining public funding, or other assistance. (c.f. s.16(3)(c)(iii)). |But, ultimately, this view must be seen in light of the observations later in this judgment as to legal duties on employers under the section, and also in the light of the questions a bona fide employer should explore and resolve prior to making a decision.
(b) Omitted Parts of Ms. McGrath’s Evidence
65. But counsel for the school submitted that the Labour Court had failed to outline, or address, important evidence from Ms. McGrath. It is correct to say she had conducted the more comprehensive of the only two risk-assessments which dealt with reasonable accommodation. Prior to the appeal to the High Court on a point of law, the school applied for discovery of documentation relating to the record of evidence given during the course of the Labour Court hearing. It did not accept that the determination accurately reflected Ms. McGrath’s oral evidence. The Labour Court voluntarily provided notes taken by the Registrar’s Secretary.
66. The Labour Court determination recorded Ms. McGrath as testifying, first, that she never considered furnishing Ms. Daly with a draft report for comment before it was presented to the school; second, that the school should consider re-allocating or reorganising tasks among SNAs so as to relieve Ms. Daly from the requirement of the tasks she could not perform; and, third, that Ms. Daly could “work with moderately disabled children”.
67. But the school’s case is that this was a selective recounting of the evidence which, taken out of its context, suggested that the position was capable of being reorganised, and that the appellant would have been capable of working in the school in such a reorganised position. Counsel submits that, by recording only part of Ms. McGrath’s evidence, to the effect that Ms. Daly could work with more moderately disabled children, the determination conveyed the erroneous impression that this was all Ms. McGrath had to say in relation to Ms. Daly’s ability and capacity to work as an SNA in the school. What follows is not disputed by the appellant.
68. Counsel for the school submits the Labour Court determination did not record the fact that Ms. McGrath already knew the appellant, and was familiar with the situation prior to being engaged with the school, despite the fact that this had been outlined at the outset of her evidence. It is said that, when Ms. McGrath indicated she had not appreciated prior to the assessment how demanding the role of an SNA was, she had also said that to perform the tasks associated with the role, a person needed to be able bodied. Counsel points out that, after she observed the appellant in the sensory integration room, Ms. McGrath approached the other SNA who expressed concerns to her that the appellant would not be able properly to assist the other SNA whilst in the room. Counsel submits that, in considering whether or not the appellant was suitable to perform the role of an SNA, Ms. McGrath had concluded that a person performing that role needed to be physically able, and that, having considered everything, she did not believe that the environment in the school was safe for the appellant, and that it was not possible to allow her to perform the role of SNA. It appears that, in response to the Chairman’s question, Ms. McGrath had, in fact, testified that it was not possible to accommodate the appellant within the school, and had said that the level of dependency of the children in the school was too high, so that the appellant would be unable to manage. Furthermore, it is said the Labour Court did not accurately reflect Ms. McGrath’s views in relation to the issue of a ” floating SNA “, a position which she acknowledged did not exist. Counsel submits that, in fact, Ms. McGrath certified that, having considered the matter, Ms. Daly was not suitable for this type of role within the school either.
69. Counsel submits that no account had been taken of the evidence that Ms. McGrath gave that the appellant was no longer capable of taking on the role of an SNA, and that the role of an SNA in the school was a most physically demanding role. Finally, it is said that, again in response to questioning, Ms. McGrath had testified that the appellant could not work as an SNA in an reorganised environment with the school, and that the role could not, in fact, be reorganised to accommodate the appellant.
70. Counsel for the school points out that the appellant did not adduce any contradictory expert evidence. She submits that the determination did not record that Ms. McGrath had listed a series of “core functions” which the appellant was not capable of performing, irrespective of adaptations or specialist equipment being provided by the school. It is said this, too, was at odds with the account of Ms. McGrath’s evidence set out in the Labour Court’s determination.
71. The school’s objection in principle therefore, was that highly relevant uncontradicted expert testimony was omitted, and had not been reflected in the Labour Court findings of fact. Counsel submitted this error was so egregious that no reasonable administrative tribunal could ever have come to the same conclusion when faced with the same testimony.
72. Counsel for the school refers to the fact that, on the appeal, the High Court tended to be dismissive of the documentation which was provided in order to demonstrate the discrepancies in the Labour Court determination, and of the notes of the omitted evidence.
(c) The Effect of the Omitted Evidence
73. The Labour Court and its members perform a service of huge public value. The determination in this case is, in many respects, extremely thorough and meticulous. It contains an impressive outline of the developing case law, by highly experienced panel members, who drew the attention of the parties to the CJEU judgment in Ring . But there is no doubt significant and relevant evidential material was not recorded or evaluated.
74. A tribunal, or other decision-maker which is under a duty to give reasons for its decision, should, as part of this process, give some outline of the relevant facts and evidence upon which the reasoning is based. This does not in any sense, mean that a determination must set out all of the evidence; but it should set out such evidential material which is fundamentally relevant to its decision or determination; still more if such relevant evidence is not disputed. Obviously, the test as to the issue of materially must be fact-specific, and dependant on the circumstances.
75. There is already a rich and evolved jurisprudence on the duty of deciding bodies to give reasons, developed from the early days of Pok Sun Shun v. Ireland [1986] ILRM, High Court; to The State (Daly) v. Minister for Agriculture [1987] I.R.; International Sea Fisheries v. Minister for Marine [1989] I.R. 149; and Mallak v. Minister for Justice, Equality & Law Reform [2013] I.R. It is also necessary to consider the statutory provision in question, and the general context. The statutory duty under which the Labour Court operated provides that, on request, it should set out a statement of ” why ” it reached its determination. (c.f. s.88(1) of the Act). The omission to set out the omitted details of Ms. McGrath’s evidence has added significance, not least because of the otherwise comprehensive nature of the Labour Court determination. Parties to a decision are entitled to know why they have won or lost, as a matter of fair procedure, and in order to decide whether to appeal. But parties are also entitled to be assured that, in making a decision, an administrative or curial tribunal has had regard to very relevant evidence which arguably had the potential to be potentially determinative of an issue, if not the claim, before it.
76. It is abundantly clear that not part, but all, of Ms. McGrath’s evidence played a significant role in the Court of Appeal decision. What was omitted was relevant. Evidence to the effect that the appellant was unable to perform any of the core functions of the job, that she could not work as an SNA in a re-organised environment, and that the role could not be re-arranged to accommodate the appellant, should have been recorded and addressed. I do not say this would have determined the outcome. But alone, or taken in conjunction with the unresolved NCSE issue, this unfortunate omission can only lead to the conclusion that the determination did not fulfil its primary statutory role, and did not determine the complaint in accordance with relevant evidence. Put simply, by not addressing this relevant evidence, the Labour Court did not fulfil its statutory duty. How, in my view, this should be remedied is discussed later.
(d) The Decision of the Labour Court: Further Observations
77. The determination included an outline of evidence from the appellant, her husband, the school principal, and deputy principal, and the principal of another special school, as well as Dr. David Madden, as well as what was included in the account of Ms. McGrath’s evidence. The determination considered legal analysis, based on Irish, English and E.U. judgments, including Ring , which was considered in order to resolve any ambiguity in s.16, by reference to the Directive. There is reference, too, to the well-known decision of Case C-106/89 Marleasing . The Labour Court considered the Recitals in the Directive had been taken into account by the drafters of the statute, and, therefore, assisted in the process of interpretation. There was considerable focus on decided case law, perhaps in preference to a more straightforward and precise process of applying the words of s.16 of the Act. As the judgment seeks to explain, the meaning of s.16 can be seen within its own terms, and simply by legislative intention, rather than by having to resort to a more sophisticated approach.
(e) A Free-Standing Obligation?
78. The Labour Court ultimately concluded that the appellant was entitled to succeed on the basis that the board of management had failed to discharge a statutory duty under s.16 to take adequate measures to provide the appellant with reasonable accommodation so as to allow her to continue in employment. The determination did not find that the appellant was competent to carry out the duties of a Special Needs Assistant. It concluded, rather, that the school had a duty fully to consider the viability of a re-organisation of work and a redistribution of tasks among all Special Needs Assistants, so as to relieve the appellant of those duties which she was unable to carry out. It observed that it might have transpired that it was not possible to make the necessary adaptations.
79. However, it concluded that, in circumstances where the school had failed to carry out such exploration, this, in itself, constituted a failure in its statutory duty. The determination observed that the school’s response to the position was based on the belief that its duty was confined to providing the appellant with such accommodation as might enable her to undertake the full range of tasks expected from an SNA. But it observed that, regrettably, no amount of accommodation could produce that result. The determination concluded that the school had construed its duty too narrowly, and taken a mistaken view of what the law required in the prevailing circumstances, including the viability of a re-organisation of work, and distribution of tasks.
80. Referring to Humphries v. Westwood Fitness Club , Dunne J. [2004] 15 ELR 296, the Labour Court also observed that the school might reasonably have sought input from the appellant herself and her trade union before making its decision. Consideration might have been given to returning the appellant with modified duties for a trial basis. The determination held that the school had not given any real consideration to those possibilities, and that it was impossible to speculate as to what the outcome might have been if the school’s board of management had given proper and adequate consideration to these or any other options that the appellant might have advanced if given the opportunity to make submissions in defence of her position. The school might have concluded that these were or were not viable or reasonable and proportionate in the circumstances prevailing. The determination also observed that it was significant that the school had not considered offering the appellant a renewal of her secretarial role.
81. In the Court of Appeal, Ryan P. strongly criticised the Labour Court’s conclusion that there could be a “free standing” obligation on an employer to carry out an evaluation of all the available options, irrespective of the fundamental question of whether the employee is actually capable of doing the job. He held there was a duty on the Labour Court to answer this fundamental question in the context of the facts of the case as adduced in evidence, not as what he termed ” an abstract proposition “. As this judgment seeks to explain later, put in this way, the criticism has some force. This is a case brought under s.16 of the Act. The purpose of the Act is to promote equality between employed persons, and to remove discrimination connected with employment. An obligation is not free-standing, and failure of compliance will not, in itself, give rise to a right to compensation. The effect of a “failure in that obligation” must be considered within the framework of s.16 of the Act seen as a whole. Insofar as the appellant’s case might suggest there is a free-standing obligation in this situation, I must reject that proposition as a matter of law. I expand on my reasons later.
(f) The Basis for the Compensation Award
82. There is a further issue: the appropriate form of redress was compensation in the maximum sum of €40,000. But how or why this particular sum was arrived at is unclear. The determination does not specify under which subheading of s.82(4) it comes. The reasoning in the determination moves from a heading “Outcome” to that of “Redress”, five lines later, without any explanation as to how this particular compensation sum was arrived at. In my view, as a matter of fair procedures, parties are entitled to be provided with appropriate level of reasoning and definitions for the level of compensation. This is a protection against any accusation of an arbitrary or capricious decision-making. I do not say that the decision here comes within that category, but there should be some established, rational, connection between the level of compensation awarded, and the circumstances of the case, including the outcome. This is, a fortiori , true in the highly unusual circumstance here where, apparently, as the Labour Court determination recited, at page 6, the appellant had never actually received a P45 from the respondent, and that she had been informed that the Department of Education still regarded her as being employed. This incongruity, and its possible consequences for the claim, were not explored.
Conclusions on the Determination
83. For all these reasons, I am unable to conclude that the determination by the Labour Court, as it stands, complies with s.88(1) of the Act. Justice must be seen to be done. Part of that process must be that a deciding tribunal is seen to engage with the relevant evidence, and, in its decision, address it one way or another within the prism of the applicable law. When an award is made, there should be some explanation of the basis for the award, as compared to any other sum.
Interpretation and Application to this Case
84. Reduced to its essentials, the interpretation issue as applied here could, at one level, be characterised as to whether s.16(1) is to be seen as subject to s.16(3), or vice versa ? The terms of the section have been set out earlier. Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the ” section “, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties , if they would be so competent on reasonable accommodation. 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. 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.
85. In my view, the term ” distribution of tasks ” must be read in a manner which is consistent with the entirety of s.16, and the purpose of the Act. If it is arguably ambiguous, it should be given an interpretation that reflects the plain intention of the Oireachtas, which can be determined from the Act as a whole. (Section 5, Interpretation Act, 2005). Seen from the perspective of legislation, it could not have been the intention of the legislature to create a situation where, by deploying the term ” tasks ” to divide up the term ” duties “, an employer could effectively render an employee’s duty incapable of performance. That would defeat the purpose of the Act, which is to achieve equality. It is arguable also that this would allow an employer to unlawfully “classify” a post in a discriminatory way. (See s.8(1)(e)).
86. The Court of Appeal reversed the High Court judgment, and set aside the Labour Court determination, thereby allowing the decision of the Equality Officer to stand. The court did not consider it necessary to remit the case to the Labour Court, which is the forum charged with evaluating evidence. Both judgments of the Court of Appeal make references to the term ” core duties “, but no such distinction is to be found in the Act. One would have thought that, if it was the intention of the legislature to identify the words ” core duties ” as creating some form of separate category, it would have been simple to do so. Similarly, the term ” essential functions ” does not occur in the section.
87. Moreover, the distribution of some of the appellant’s duties, in order to require her to do more of that which she could do, would not necessarily mean that she was not performing the duties of an SNA. The term ” where needed ” in a particular case, to adapt the employer’s place of business to the disability (s.16(4)(a)) must be read in the context of s.16(4)(b), which provides that, without prejudice to the ” generality “, (that is, to adapt the place of business where needed), there are also specific duties which include adapting premises, equipment, working patterns, or task distribution . The limitation contained in these sections is only that of disproportionally.
88. But to imbue the word ” tasks ” with an artificial value, or as some form of interpretative “trump card”, defeats the purpose of the section and the Act. At any level, to seek to distinguish between tasks and duties would pose real problems, as to how the distinction is to be made, and who should make it? In the case of Ms. Daly, how many of the ” task demands ” set out in the table can be seen as entirely divorced from duties? In my opinion, very few, if any, of them.
Limitation
89. This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a ” disproportionate burden “. If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or ” stripped out “. But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, ” fully capable of undertaking the duties ” attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job , or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to ” the position “, not to an alternative and quite different position.
90. But I am forced to agree with counsel for the appellant: he is correct in saying the Court of Appeal ” read-in ” words and intent to s.16, which are simply not to be found there. Thus, when Ryan P. observed that the fundamental proviso in s.16(1) ” must be respected …” (para. 54), this was, to my mind, to misunderstand the section. Neither the Act, nor the Directive, (were it necessary to refer to it), requires full competence, seen in isolation. Ryan P. was of the view that s.16 required that there be full competence as to the tasks that are the essence of the position, otherwise subsection (1) [of s.16], is rendered ineffective. I differ from this view: to the contrary, full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures.
91. It is unnecessary to resort to the judgment of the CJEU in Ring , or the Framework Directive, though all of these support the interpretation. But the analysis can be confined to the words of the section. The words of s.16(3) provide that a person will be seen as fully competent if they would be fully competent on reasonable accommodation. Those terms, too, have meaning. They must be seen as being included in the legislative intention that what is contained in s.16(1) can only be seen or understood in the context of what is provided for in s.16(3) of the Act. Section 16(3) is not peripheral – it is fundamental to understanding the section. This conclusion, based on the words of the section alone, as it happens, accords with any interpretation of the section by reference to the reasoning of the CJEU in Ring . But this does not mean that s.16(1) is irrelevant.
92. It follows, therefore, that I am constrained to express respectful disagreement with the judgments of the Court of Appeal. The judgment of Ryan P., which forms part of the ratio, laid much emphasis on the evidence in the case, and carried out a careful consideration of Ms. McGrath’s report. That evidence in its entirety cannot be ignored.
Issues Addressed in the Court of Appeal
(a) Contact with the NCSE
93. But the judgment also referred to the telephone contacts made with the NCSE. He set out the school principal had followed up the floating SNA idea by contacting that body, but the proposal had not been approved. He observed that the official who had dealt with the request was named in the Labour Court, so that the school was specific as to the refusal of funding. Perhaps so, but this was unclear, and was not solely a matter for the school.
94. The duty laid down under s.16(3)(d) is mandatory. An employer is to explore ” the possibility of obtaining public funding or other assistance “. To my mind, the making of a phone call, where there was a potential for there having been a misunderstanding, required more. I do not think it could be held to be satisfied simply by making a phone call, where arguably there was misunderstanding. (See Purdy, Equality Law in the Workplace, Bloomsbury, 2015, Ch. 17.105, which refers to the existence of the Government Employment Regrant Scheme for employers). This Court has not been given any reason why such issues could not have been clarified further in the Labour Court.
(b) Consultation with Co-Employees
95. The learned President also observed that the Principal should not be criticised for not approaching the other SNAs to take on physical aspects of the job. He held that the school had a decision to make about Ms. Daly’s capacity to work as an SNA. In his view, the Principal was not required to canvass the other SNAs whether they would be willing to take on the work that the appellant could not do; even if they were willing, the Principal and the Board would still have had a decision to make. It would not have been sufficient to have a majority vote of the SNAs.
96. Again, I think this conclusion did not have sufficient regard to the fact that the terms of the section are mandatory. They place a duty on the employer to show that, if they have not carried out such a process, then it is only because the re-organisation necessary would be disproportionate or unduly burdensome. What is essential is that it be shown, objectively, that the employer has, in fact, given the question of redistribution full consideration.
97. The learned President went on to observe that, even if there could have been redistribution of some non-essential tasks, this was based on a mistaken premise, flowing from s.16(1), as to the need for full capability. It is clear the reasoning in the judgments proceeds upon the basis that consideration of redistribution should only be of non-essential tasks. For the reasons outlined earlier, that is to introduce a new test, and new words, into the Act.
(c) Evaluation
98. Addressing a ” duty to consult “, Ryan P. rejected, in very firm terms, the proposition that there was a ” freestanding obligation on an employer to carry out an evaluation, irrespective of the other circumstances of the case and without regard to the fundamental question as to whether the employee is actually capable of doing the job.” (para. 62). He concluded that as practical adjustments cannot be made as objectively evaluated, the fact that the process of decision is flawed does not avail the employee. (para. 63). He rejected the proposition that the section, in terms, made the process of inquiry a ground of default, or that a failure to consult constituted a breach of the duty imposed. (para. 56). He commented that this was ” starkly stated ” by the Labour Court, as a matter of law. This alleged failure was ultimately the basis for its conclusion that Ms. Daly was entitled to compensation, on the basis that the employer had failed in its duty under the Act to make reasonable accommodation. Ryan P. concluded there was nothing in s.16 to justify a rule that there should be adequate consideration, absent which, an employer could not form a bona fide belief that measures to be taken were impossible, unreasonable, or disproportionate. He considered the proposal to create a floating SNA position was to ” create an entirely new position”. (para. 58). The President went on to conclude that the central reality of the case was that the appellant was ” unable to perform the essential tasks of a Special Needs Assistant in this particular school.” (para. 64) In his view, no accommodations could change that, unfortunately. In his view, the Labour Court had wrongly concluded that the obligation of the employer was to strip away things the appellant could not do, and then to ask whether she was able to perform the essential tasks that remained. He concluded that this discounted the consideration which the school gave to the new position arising from Ms. McGrath’s report, and was erroneous. (para. 64).
99. Finlay Geoghegan J. expressed similar views, in particular emphasising the distinction she perceived between the terms ” tasks ” and ” duties “. She considered that the duty of the employer was only to consider a distribution of certain tasks . That duty would depend on the facts, and, in particular, whether the tasks in question were, or were not, all the tasks demanded of a particular duty attached to the position in question.
100. Here I must respectfully differ. The duty to reasonably accommodate, or to take appropriate measures, where needed, is laid down in s.16(3), in order for a person with a disability to have ” access to employment “, unless the measure would impose a disproportionate burden on the employer. The matters to which a decider should have regard in this connection include those outlined in s.16(3)(c), including financial and other costs, etc. Finlay Geoghegan J. considered that the duty of an employer did not extend to considering the removal from a position or job of a duty, or duties, which might properly be considered a main duty, or an essential function of the position concerned, by the redistribution of all tasks demanded by that duty. But there is no such distinction in the section.
101. As explained earlier, the term ” distribution of tasks ” to be found in s.16(4)(b) is illustrative in nature. It must give way to the words in the main part of the section. The word ” duty ” or ” duties ” occurs five times in the section; ” tasks ” just once. An illustration cannot control the language of the section, although at times it may be a guide. It should not curtail or expand the meaning of the section. It does not derogate, or subtract, from the more general duty to be found in s.16(4)(a), to provide “effective and practical measures” where needed in a particular case, to adapt the place of business to the disability concerned. The sub-section is not to be interpreted as undermining or eroding the main purpose set out in s.16(3)(a) which is to hold that a person with a disability is fully competent to undertake any duties, if they would be so competent and capable on reasonable accommodation being provided by the employer, provided that it is not disproportionate. The term ” essential functions ” is not to be found in the Act. What is required by the section, read in its entirety, is that consideration be given to distribution of essential duties, as part of a reasonable accommodation.
102. Again, standing back from the facts of this case, a want of clarity, or vagueness, or imprecision, on this duty might permit employers to themselves categorise elements of a job as being ” duties “, rather than ” tasks “, thereby limiting the obligation to consider re-organisation of the way in which the work was done. I am unable, therefore, to agree with Finlay Geoghegan J.’s observations that s.16(1) contained a limitation, to the effect that nothing in the Act should be construed as requiring any person to retain an individual, if that individual is no longer competent or available to undertake the duties attached to the position. Section 16(1) is not freestanding, it is subject to s.16(3).
103. Finally, it should be noted that the Court of Appeal found that there was no justification for the rule outlined in the Circuit Court decision of Humphries v. Westwood [2004] 15 ELR 296. In Humphries , Dunne J., then a judge of the Circuit Court, held that, in order to form a bona fide belief that a claimant was not fully capable of performing the duties for which she was employed, a respondent employer would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant’s capacity. The nature of the enquiries would depend on the circumstances, but would, at minimum, involve looking at medical evidence to determine the level of impairment arising from the disability, and its duration. If it was apparent that the employee was not fully capable, the respondent was required, under s.16(3), to consider what, if any, special treatment or facilities might be available, by which the employee could become fully capable, and account was to be taken of the cost of such facilities or treatment. But Dunne J. went on to hold that such an enquiry could only be regarded as adequate if the employee concerned was allowed a full opportunity to participate at each level, and, on the facts of that case, to present relevant medical evidence, and submissions.
104. Ryan P. considered Humphries in the light of subsequent English case law. (See Mid-Staffordshire General Hospital NHS Trust v. Cambridge [2003] IRLR 566; R (Davey) v. Oxfordshire County Council [2017] EWCA Civ 1308; Muzi-Mabaso v. Commissioners for Her Majesty’s Revenue & Customs [2016] EWCA Civ. 1369; Burnip v. Birmingham City Council [2012] EWCA Civ. 269; AH v. West London MHT [2011] UKUT 74 (AAC); Tarbuck v. Sainsbury’s Supermarkets Ltd [2006] IRLR 664, to which might be added Chief Constable of South Yorkshire Police v. Jelic , UKEAT/0491/09/CEA, and Royal Bank of Scotland v. Ashton [2010] UKEAT/0542/09 – 1612). In his view, a statutory duty was ” objectively ” concerned with whether the employer complied with an obligation to make reasonable accommodation. In this State, however, our courts have always attached importance to fair procedures where employment is at stake. (See Bolger v. Showerings [1990] ELR 184, Lardner J., and the recent judgment of Ní Raifeartaigh J. in Dublin Bus v. McKevitt [2018] IEHC 78).
105. I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.
106. But I would again wish to emphasise these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open-ended one. There is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa. The question is, rather, to consider whether the degree of redistribution, or ” accommodation “, is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.
A Final Issue: Section 16(1)
107. 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. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.
The High Court Judgment
108. In other circumstances, it might be that the decision of the High Court could then stand in place of that of the Court of Appeal. Regrettably, I cannot reach such a desirable conclusion, which would at least bring an end to this litigation. While there are significant areas of the legal reasoning where I find myself in respectful agreement with Noonan J., one cannot ignore the factual lacuna which arose in this case. In the High Court, Noonan J. referred to the decision of this Court in Henry Denny & Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 IR 34, where Hamilton C.J. observed that courts should be slow to interfere with decisions of expert administrative tribunals, save where the conclusions were based on an identifiable error of law, or unsustainable finding of fact. Noonan J. concluded he should be slow to interfere with the determination on that reasoning. I do not think Henry Denny is the last word on this issue.
109. But in the Attorney General v. Davis , The Supreme Court, 27th June, 2018 [2018] IESC 27, (O’Donnell J., McKechnie J., MacMenamin J., Dunne J., O’Malley J.), there is to be found a convenient summary of the present law, which is somewhat more nuanced than the judgment in Henry Denny . In a detailed judgment, McKechnie J., speaking for the Court, identified what may be regarded as issues of law which may be considered on a case stated. These included (i) findings of primary fact where there is no evidence to support them; (ii) findings of primary fact which no reasonable decision-making body could make; (iii) inferences or conclusions which are unsustainable by reason of any one or more of the matters listed above; or which could not follow or be deducible from the primary findings as made; or which were based on an incorrect interpretation of documents. (See para. 54). If not included in that category, I would add a determination which is ultra vires , where there is a failure of statutory duty. Undoubtedly, deference is due to an administrative tribunal acting within the scope of its duty. But, when there is a substantial failure of compliance with that statutory duty, a court must intervene. The determination did not comply with the statutory duty laid down in the Act.
110. It is a most unfortunate fact that this case has now been considered and analysed in some detail by five different tribunals, but there is now only one course available in my view.
Remedy
111. The question of remedy is constrained by the fact that the approach adopted in each earlier legal forum was erroneous. The Court is faced with a series of invidious choices. But this does not mean that the situation is entirely beyond remedy. While the Labour Court determination did not comply with the statute, what occurred can, in fact, and in law, be addressed. But, to my mind, it can only be remedied by remitting the appeal to the legal forum charged under the statute with evaluating the evidence in accordance with law – and applying the law to the facts. There are some issues yet be determined; which, in my opinion, can only be determined by the Labour Court itself. In this way, statutory compliance can be achieved. This Court should not act as a surrogate Labour Court, which is charged with carrying out a statutory function. Regrettably, therefore, it seems that the only appropriate order is to remit the matter for the Labour Court for further consideration in accordance with the totality of the evidence adduced, together with such further limited evidence as may be necessary, and the law, as explained in this judgment. This Court should not, in my view, seek to pre-empt, or short-circuit, that process. But the decision of the Labour Court must address the legal principles applicable in light of the full evidence. The Labour Court is under a statutory duty to carry out its function in accordance with the law enacted by the Oireachtas. This duty can result in having to make difficult decisions, as well as easy ones. It is to be hoped, however, that whatever ultimate conclusion is arrived at, based an appreciation of the full factual background, and on a correct interpretation of the law, will bring an end to this overlong litigation.
What the Labour Court must address
112. The issues which the Labour Court must address are:
(a) The process of consultation with the NCSE;
(b) The entirety of Ms. McGrath’s evidence, and its legal consequences.
An ultimate legal question, however, is the extent to which it can be said that, even with reasonable accommodation, the appellant can return to the position of an SNA. That is what s.16(1) provides for in this type of case. If it arises, the Court will have to provide a reasoned basis for any award of compensation, having regard to the principles of rationality and proportionality, and the appellant’s employment status. The scope of the inquiry is limited to whether the appellant was, in fact, the subject of unlawful discrimination, and, if so, what was the precise nature of that discrimination?
113. The appellant obviously carried out her work to everyone’s satisfaction prior to her accident. Her situation will inevitably attract much sympathy. The issues are important for employees who are disabled, but also for employers, who must know their duties. The fact that this case has not been otherwise resolved to date reflects the fact that the legal issues are not easy ones. The order proposed does not imply that there must be any predetermined outcome in the Labour Court’s reconsideration. Ultimately, the duty of the Labour Court is to make a determination on the entire facts, by applying the law as enacted. The scope of the renewed hearing will inevitably be narrow. Other than these limited areas identified, no new issues can be introduced by either side. That would be to create an injustice. I would, therefore, propose that the appeal against the Court of Appeal order be allowed, and that the specific matters arising be remitted to the Labour Court for further consideration.
Judgment of Mr Justice Peter Charleton delivered on Wednesday July 31st 2019
1. The purpose of this judgment is to indicate the reasons for partly assenting in the analysis of MacMenamin J but to also dissent as to the result proposed.
2. Having suffered a dreadful accident in July 2010, the applicant Marie Daly’s job in Nano Nagle School in Tralee, County Kerry, was held open for her. She is a qualified nurse and had worked there a highly valued special needs assistant in a school which educates children with mild, moderate and severe disabilities. These include many children who have physical handicaps. After a long period of treatment and rehabilitation for a severed spine, and now using a wheelchair, the applicant sought to return to work. There was a serious engagement by the school in that process. To the regret of everyone, the decision was made that the nature of the work could not suit the applicant.
The legislation
3. The Employment Equality Act 1998 has been much amended; including by the Equal Status Acts 2000 and 2004, the Equality Act 2004, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the Civil Law (Miscellaneous Provisions) Act 2011, the Education and Training Boards Act 2013, the Equality (Miscellaneous Provisions) Act 2015 and the Workplace Relations Act 2015. Central to the changes in the legislation is the drive by society to ensure that persons of varying ethnicity, language, religion, and orientation do not suffer from exclusion but are treated, as much as any majority, as valued members of the workforce and of society. This is part of an international and European drive to declare the value which is inherent in the dignity of all people and to combat discriminatory conduct. In this regard, the United Nations Convention on the Rights of Persons with Disabilities, ratified by both the State and the European Union, is part of the necessary backdrop to this appeal. Article 27 of the Convention outlines the rights of persons with disabilities at work, which encompasses “the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.” State parties to the Convention have an obligation under this Article to “safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment” through measures such as reasonable accommodation and prohibition of discrimination. Directly relevant are Ireland’s obligations under European Law as expressed in EU Council Directive 2000/78/EC of 27 November 2000, the Framework Equality Directive. The Directive prohibits employment discrimination on the grounds of religion or belief, disability, age or sexual orientation. It states in Recital 16 that the provision of measures accommodating “the needs of disabled people at the workplace play an important role in combating” such discrimination. The 1998 Act must be interpreted in the light of the Directive. In turn, the Directive requires to be seen in the light of the international obligations entered into by the European Union, the Convention. Matters of interpretation cannot, however, change the clear wording of a statutory obligation. This is a line which the European Court of Justice declared cannot be crossed. In the joined cases of Pfeiffer and Others v. Deutsches Rotes Kreuz [2004] E.C.R. I-08835 (C-397/01 to C-403/01), the following observations were made by the Court:
111. It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective.
112. That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC, presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20).
113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC (see to that effect, inter alia, the judgments cited above in Von Colson and Kamann , paragraph 26; Marleasing , paragraph 8, and Faccini Dori , paragraph 26; see also Case C-63/97 BMW [1999] ECR I-905, paragraph 22; Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 30; and Case C-408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I-2537, paragraph 21).
4. Section 2 of the 1998 Act defines disability as meaning:
(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 is imputed to a person;
5. Discrimination should not occur. That happens when persons with disabilities are excluded from work of which they are capable. Section 35 goes so far as to enable a person who cannot do a full shift of work, or a full week, to be engaged to do less than a person without a disability and for remuneration to be adjusted. Under section 8 of the Act, discrimination is prohibited as regards “access to employment”, “conditions of employment”, “training or experience for employment”, “promotion or re-grading”, or “classification of” employment posts. Section 6 of the Act provides that where “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), “discrimination occurs”. Declared as unacceptable to society are gender discrimination, civil status discrimination, family status discrimination, sexual orientation discrimination, religious discrimination, age discrimination for those over 18, disability discrimination, race discrimination, Irish Traveller Community discrimination, and discrimination because of pregnancy. Work of equal value must, under section 7, be generally remunerated in an equal way. Advertisements containing discriminatory provisions are prohibited by section 10 of the Act. Where contracts, and here the provision particularly concerns contracts related to employment, contain discriminatory terms, these are “null and void” under section 9 of the Act. The provisions are equally applicable to men and women under section 18 and both are entitled to equal remuneration under sections 19 and 29.
6. The legislation also provides at section 16 that the imperative of the legislation is not to require “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” where that individual cannot do the work, is not competent or qualified for the work, or will not do the work. That is specifically put in this way in section 16(1) so that no employer, or prospective employer, or employment agency, is required to offer employment to, or continue in employment, or to search for employment for any individual who:
(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.
7. This is not different to Recital 17 of the Directive which provides:
This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
8. Both in the High Court and in the Court of Appeal in this case, and on this appeal, there was considerable discussion as to whether the anti-discrimination provisions in relation to disability in section 16 of the 1998 Act ought to be construed on the basis that section 16(1) is somehow dominant over the provision requiring reasonable accommodation for persons with disabilities in section 16(3). All legislation is to be construed in accordance with an appropriate regard to other relevant provisions which provide the context for a proper interpretation. Sections 6 and 16 fit together to provide that while it is prohibited that “a person is treated less favourably than another person is, has been or would be treated in a comparable situation” because of grounds ranging from disability to race, that does not mean that an employer is required to engage those who are not willing to do the work or are not “fully capable” of performing the work. Both are sides of the same coin. They go together. What is thus, for example, specifically provided for is that those seeking a person to play as principal flute in a symphony orchestra do not have to engage someone who plays only the piano but expresses a willingness to start learning the other instrument. Thus, whether the person is 40 years old or 80 years old, gay or straight, an Irish-speaking individual descended from Brian Boru or a recently arrived Russian, a Christian or a Jewish applicant, any can and should be chosen once selection for employment is on the basis of competence and willingness. The general and imperative provisions of the legislation are, however, so wide that in section 16(5) the legislature has felt it necessary to declare that nothing in the Act is to be taken as “requiring an employer to recruit, retain in employment or promote an individual” where that “employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.” To bring home that qualification, section 16(5) provides that this saver is particularly applicable “where the employment concerned involves access to minors or to other persons who are vulnerable.” Thus, while an employer cannot discriminate, an employer is entitled and expected to choose people to fill posts on the basis of ability. A person can be able but have criminal propensities which may, and should on any commonsense basis, disqualify him or her.
9. The thrust of the legislation is thus to outlaw in the workplace only the kind of discrimination based on bigotry, prejudice or racism. To discern that a particular individual is not committed to the work, or that that person lacks the competence for the work or the capability to tackle the work, is not to deny someone employment through unlawful discrimination. That is not to deny the legislation its nuances; but merely to attempt a summary. This legislation, after all, is directed to employers and to employment agencies. It is not directed to accountants or tax specialists or lawyers. Occluding the legislation with a legal mist of fine distinctions as between various terms for work or tasks and asking such questions as to core competencies and attempting a perfect definition of any particular form of employment in distinction from the commonsense and honest appraisal that the legislation clearly requires is to do a disservice to the human rights of disabled individuals and the thrust of the Convention and of the Directive. Hence, it is difficult to see distinctions in relation to any discernible differences between duties, functions and tasks, or core duties and responsibilities as helpful. Nor is it particularly useful to see disability as medical in nature. A person with a disability remains a person, an individual with human dignity who is required to be treated as such. Then the issue is as to how the workplace treats that person. The ideals in the Convention are translated into practical measures through the Directive and through the Act.
10. In reality, every job is different. A person who has pursued an avocation in police work could usefully serve in a vast range of functions in such a huge and multi-faceted sphere of employment. Hence, whether on the beat, or acting as a crime analyst or detective or in administration, a police officer is part of a vast organisation where the specific skills of police work may be more or less needed and where people may be redeployed to tasks which require discretion to be exercised but which back up those at the front line. In some cases, an employer may be able to redeploy people from a very physical task to an area in administration. Thus, in Chief Constable of South Yorkshire Police v Jelic [2010] IRLR 744, a police officer was diagnosed with chronic anxiety syndrome. The English Employment Appeals Tribunal found that it would have been a reasonable adjustment to swap the jobs being undertaken by the claimant and another policeman, or to offer him re-employment in a civilian job within the police force which was being advertised at the relevant time. A person who lays bricks is different, because qualities such as a keen eye and physical strength backed by experience are there demanded. If someone is employed to build, losing those attributes through an accident means the loss of the trade. English authorities including Archibald v Fife Council [2004] UKHL 32 and Jelic suggest that redeployment is part of the duties of an employer in England and Wales under the relevant legislation in force at the time they were handed down: section 6 of the Disability Discrimination Act 1995 referred to the employer’s duty to make adjustments including “transferring [a person] to fill an existing vacancy”. This legislation has since been replaced by the Equality Act 2010. Sections 20, 21 and 22 thereof impose a duty to make reasonable adjustments for disabled persons, but do not reference redeployment. The requirement to redeploy does not arise under the 1998 Act in this jurisdiction. Thus such cases as cited above from the England and Wales jurisdiction would not carry the same imperative here. But even under that legislative model, not wishing to work directly with prisoners, as in Irish Prison Service v A Prison Officer [2018] ILCR Determination No EDA1837, or as in British Gas Services Ltd v McCaull [2001] IRLR 60, the necessity to have more than one operative suggests a common sense interpretation of the legislation, and not one suffused with legal nuance.
11. Hence, properly the focus is on the work. Again, this is not to be reduced to legal disputations. A job can best be seen by looking at what is involved on the ground. Seeing that job carried out through observation, or experience of that employment, can define the nature of a post much better than any contract of employment or any paper exercise. That was the approach in this case and that approach is right. This is a practical exercise.
12. Leeway to a reasonable degree is to be afforded to disabled persons in order to enable them to do a job. As mandated by section 16(3) of the 1998 Act, those with a disability are “fully competent to undertake and fully capable of undertaking” a job on “reasonable accommodation … being provided by the person’s employer.” Examples may assist. A person putting together exhaust manifests in a car factory requires to be both highly mobile and very strong, since the items are both heavy and cumbersome, as well as skilful in welding. A physical incapacity coming about while holidaying during employment may mean inability to do the job. On the other hand, a person sitting at a work bench and assembling ignition systems for a car may just as easily do that job from a wheelchair. That person’s place of work or access to a workbench may need sensible adjustment. All these assessments are fact-based and legal analysis is not the object of the legislation, the Directive or the Convention. Returning to an earlier example: the principal flute in the symphony orchestra becomes disabled through an accident and is in a wheelchair. She is still a brilliant flautist with a golden tone but, to get on stage, she needs a ramp. To go on tour, a hoist or other measures are needed to get her on the bus. To be fully comfortable, a disabled toilet needs to have easy access to the ladies dressing room in the rehearsal venue or concert hall. These are what the legislation refers to as appropriate measures. And the Act requires that every “employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability” to get to their place of work, to “to participate or advance in employment” or to obtain “training”. Those steps must be taken “unless the measures would impose a disproportionate burden on the employer.” What is proportionate or disproportionate descends into cost analysis based on “the financial and other costs entailed”, the scale of the employer, the state of the employer’s financial health and “the possibility of obtaining public funding or other assistance.” Section 16(4) amounts to a reiteration in stating that what needs to be done, if it can reasonably be done, is to take “effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned”. That can include “the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources”. Recital 20 of the Directive is not contradictory of this analysis:
Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
13. But, it is always a question of what can be done and whether it will really help that person who has a disability, or who has developed a disability while in the course of employment, to do their job. To go back to the example of the orchestral musician, if the disability is such as to destroy memory or concentration or ability to play at the top level, then as a matter of humanity, the employer may consider if it is possible to reassign. That is not a legal obligation. If the ability to be, as the Act says, “fully competent”, with “reasonable accommodation” is not there, then there is no discrimination according to the legal definition if the person cannot do the work.
14. Any analysis should focus on what happens on the ground. It is not appropriate for any body charged with deciding employment matters to leave out large sections of a narrative given in good faith by an occupational therapist or doctor in order that a particular result may seem attractive. In that regard, the concerns expressed by MacMenamin J are worrying. The test in the legislation is of full competence when reasonable accommodation is made. That test requires a plain analysis of the facts.
Remedy
15. The appeal in this case was from the Director General of the Workplace Relations Commission to the Labour Court. This reversed the finding of the former. That happened in circumstances of concern. The remedies available under section 83, following a hearing, of the 1998 Act are in practical terms those available already at first instance under section 82. Hence, section 82(1) provides:
Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:
(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;
(b) an order for equal remuneration from the date referred to in paragraph (a);
(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;
(d) an order for equal treatment in whatever respect is relevant to the case;
(e) an order that a person or persons specified in the order take a course of action which is so specified;
(f) an order for re-instatement or re-engagement, with or without an order for compensation.
16. In turn, there are limitations as to monetary amounts. Thus under section 82(4):
The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c ) or (1)(f ) shall be —
(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —
(i) 104 times the amount of that remuneration, determined on a weekly basis,
(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or
(iii) €40,000, or
(b) in any other case, €13,000.
17. Here, the award of the Labour Court was for €40,000. It was not that something specific be done or that the employment held open for the applicant in anticipation of a hoped-for recovery should recommence.
18. Under section 90 of the Act, upon a determination being made, either the Labour Court, or the parties, may “refer to the High Court on a point law” and the Labour Court may “if it thinks it appropriate, adjourn the appeal pending the outcome of the reference.” Here, the errors of fact made in effectively rewriting the occupational therapy report amount to an error of law.
19. On dismissal from employment for misconduct, a minimal form of fair procedures is required. Some contracts of employment may require more. Where ill-health is in issue then the principles laid out in Humphries v Westwood [2004] 15 ELR 296 and McKevitt v Dublin Bus [2018] IEHC 78 apply. In Humphries , Dunne J noted the following in her analysis of section 16 of the 1998 Act:
This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.
20. In McKevitt , Ní Raifeartaigh J endorsed at paragraph 53 the decision of Lardner J in Bolger v Showerings [1990] ELR 184, which held that where an employer wishes to dismiss an employee with poor health on grounds of incapacity, the onus is on them to show:
i. That it was the incapacity that was the reason for the dismissal;
ii. The reason was substantial;
iii. The employee received fair notice that the question of his dismissal for incapacity was being considered; and
iv. The employee was afforded an opportunity of being heard.
21. The decision not to start the applicant in employment was not due to any misconduct on her part. Procedural rights are thus not engaged in the sense of enabling the right to answer a charge of discreditable conduct. Instead, it was due to the unfortunate occurrence of the disability which the school realised could not enable it to employ the applicant as a special needs assistant. Certainly, had the board of the school sat down with the applicant and discussed the reports in this case, it may be that no case would ever have been taken. But, what was done, in giving the applicant an opportunity to consult with a doctor and to engage with every aspect of the case on the ground as to the effect which her disability had on the highly responsible and physically demanding work of a special needs assistant sufficed as a procedure. The legislation does not demand, and nor should this Court impose, any further requirement such as one which demands some kind of procedure related to any scheme of accommodation that might be reached. It is for an employer to be open to the prospects for engagement and to consider what can in good faith be done.
Result
22. On the papers before the court, there is nothing whereby the genuineness of either side could be doubted.
23. The order of the Court of Appeal, perfected on 21 February 2018, was to “set aside the said determination of the Labour Court” and that the “award of compensation be vacated”. That order should be upheld but on the narrow grounds herein explained.
McGowan & ors v Labour Court Ireland & anor
[2013] IESC 21 (09 May 2013)
THE SUPREME COURT
310/10
Denham C.J.
Murray J.
Fennelly J.
O’Donnell J.
Clarke J.
Judgment of the Court delivered on the 9th of May, 2013 by O’Donnell J.
1 It is possible, although not without some difficulty, to detect in these proceedings an important point of constitutional law concerning the Industrial Relations Act 1946 (hereinafter the “Industrial Relations Act”, the “Act” or the “1946 Act”), albeit almost entirely obscured in a thicket of procedural complication and confusion.
2 The appellants are, or at least are alleged to be, electrical contractors and as such, affected by an employment agreement registered by the Labour Court on the 24th of September 1990 pursuant to the provisions of Part III of the Industrial Relations Act 1946 setting out certain terms and conditions of employment of electricians within the construction sector. The operation, effectiveness and validity of that Registered Employment Agreement (hereafter “REA”) has been sought to be challenged in multiple proceedings which have led, by a circuitous route, to this appeal.
3 It is necessary to explain in some detail the legal operation of Registered Employment Agreements in general, and indeed the wider operation of the Industrial Relations Act 1946, before it is possible to commence the analysis of the constitutional issue raised in these proceedings.
4 The 1946 Act contained two mechanisms under which a general sectoral agreement made in respect of terms and conditions of employment in a specified industry or sector of an industry may become legally enforceable both in civil and criminal law. Although this case concerns the provisions of Part III, it is also necessary to have regard to the provisions of Part IV which have been the subject of the case law relied on in this appeal.
5 Part IV of the Industrial Relations Act (ss. 34-58) permitted the Labour Court to establish Joint Labour Committees (“JLCs”) either where there was substantial agreement among groups representing employers and employees, or where it was considered that the existing mechanism for the regulation of remuneration and other conditions made it expedient to establish such a body. A JLC could then make a submission to the Labour Court which, if accepted by the Labour Court, would result in the making of an Employment Regulation Order (“ERO”) giving effect to the proposals of the JLC. The effect of such an ERO was to make its provisions concerning remuneration and conditions of employment part of the contract of employment between an employer and an employee within the sector (whether represented in the JLC or not) and failure to comply with such terms was not only enforceable in civil law, but also gave rise to a criminal offence punishable by a fine. Provision was also made for an inspectorate to assist in the enforcement of the provision.
6 The provisions of Part IV of the Act can be traced back to the Board of Trades Act 1909 which was part of the reforming labour legislation introduced at that time in response to the growing power of the trades unions. JLCs tended to be utilised in industries with a transient work force and often lower paid employees, and where traditional collective bargaining could not take hold. The perceived benefit of a JLC was that it provided a structure for a form of collective bargaining in such industries which might not otherwise arise naturally because of the structure of the industry and the nature of the workforce.
Part III of the Industrial Relations Act 1946
7 The provisions of Part III of the Act of 1946 have similarities of structure to those of Part IV. However it appears that Part III is unique to the Irish code of industrial relations and cannot be traced back to any pre-existing body of legislation. Under Part III an employment agreement, defined as an agreement regulating remuneration and conditions of employment of work and made between trade unions and an employer or a group of employers or at a meeting of the registered Joint Industrial Council, may on the application of the parties thereto, be registered by the Labour Court. On any such application the Labour Court is obliged to register the agreement if it is satisfied that the conditions of six subparagraphs of s.27 of the Act have been complied with. It will be necessary to return to this section in some detail later in this judgment. Once registered, an REA, like an ERO under Part IV, becomes incorporated in the contract between the employer and employee and is enforceable by criminal prosecution. The agreement may be varied by application brought by the parties to the original agreement, and may be cancelled by the court either on a joint application of the parties, or if the Labour Court is satisfied that there has been substantial change in the trade or business. But most significantly for present purposes, an REA like an ERO applies not just to the parties thereto and those they represent, but to every worker and employer in the sector, whether or not they were a party at the original agreement, or represented in the conclusion of the agreement, or even in existence at the time it was made. Thus, s.30(1) of the Act provides:
“A registered employment agreement shall, so long as it continues to be registered, apply, for the purposes of this section, to every worker of the class, type or group to which it is expressed to apply, and his employer, notwithstanding that such worker or employer is not a party to the agreement or would not, apart from this subsection, be bound thereby.”
8 The provisions of Part III appear somewhat anomalous today. In general collective agreements are considered not to be legally enforceable either by the parties thereto, or the persons represented by the parties to any such agreement. Indeed in general the fact that collective agreements exist outside a precise legal framework and are not enforceable by either the civil or criminal law, is normally seen as a desirable feature in industrial relations. Furthermore, since 1946 there has been considerable further development of statutory regulation of employment but it has been away from private sectoral agreements and towards legislation having general effect imposing obligations such as setting minimum terms and conditions of employment in employment. But the most striking feature of Parts III and IV of the 1946 Act to modern eyes is the fact that both EROs and REAs are made part of the criminal law and bind everyone who participates in the relevant sector. Furthermore, the relevant provision of the criminal law is made not by the Oireachtas, but rather by private individuals, themselves participants in the industry to be regulated. Not only therefore does the scheme of the 1946 Act confer a high degree of autonomy on participants to an ERO or an REA, in the sense that they are empowered to make law for themselves, they are also empowered to make law for others giving rise to the prospect of burdensome restraints on competition for prospective employers and intrusive paternalism for prospective employees. Given these unusual features it was perhaps inevitable that this scheme would come under increasing scrutiny.
9 The first significant challenge arose in the context of Part IV of the Act in Burke v. The Labour Court [1979] I.R. 354 (“Burke”). That case arose in a narrower context than that which has given rise to the present litigation. In Burke an ERO had been made in relation to the hotel industry without regard to submissions made on behalf of the employers. The ERO was challenged on non-constitutional grounds by representatives of the employers and the Supreme Court held that the relevant JLC had failed to comply with fair procedures. In the course of the judgment however, the court took the opportunity to make some pointed observations about the legislation and in particular the extent of the law-making power which appeared to have been conferred on the parties to the JLC, or on those parties and the Labour Court conjointly. Thus, Henchy J. said of Part IV:
“It will be seen, therefore, that the power to make a minimum-remuneration order is a delegated power of a most fundamental, permissive and far-reaching kind. By the above provisions of the Act of 1946 Parliament, without reserving to itself a power of supervision or a power of revocation or cancellation (which would apply if the order had to be laid on the table of either House before it could have statutory effect) has vested in a joint labour committee and the Labour Court the conjoint power to fix minimum rates of remuneration so that non-payment thereof will render employers liable to conviction and fine and (in the case of conviction) to being made compellable by court order to pay the amount fixed by the order of the Labour Court. Not alone is this power given irrevocably and without parliamentary, or even ministerial, control, but once such an order is made (no matter how erroneous, ill judged or unfair it may be) a joint labour committee is debarred from submitting proposals for revoking or amending it until it has been in force for at least six months. While the parent statute may be amended or repealed at any time, the order, whose authors are not even the direct delegates of Parliament, must stand irrevocably in force for well over six months.” (pp. 358 and 359)
Later in the judgment he returned to this issue:
“As I have earlier observed, the delegated power that was vested in the Committee was of the most extensive nature. It enabled the Committee to formulate the proposals for an order fixing minimum rates of remuneration. All the Labour Court was to do was to refer the proposals back to the Committee with observations. The Labour Court is given no power of initiation or amendment. It could but make or refuse to make the order. Essentially, therefore, the order making body was the Committee. Apart from the skeletal provisions in the second schedule of the Act of 1946 as to its constitution, officers and proceedings, the Act of 1946 is silent as to how a committee are to carry out their functions in making orders.” (p. 361)
In the particular case, the court held that given what was described as the extensive nature of the delegation, it was necessary to conclude that the Oireachtas had intended that the power would be exercised within the terms of the relevant Act and based on fairness and reasonableness and good faith. In the circumstances, the particular order was quashed.
10 It is clear that the court was considerably exercised by the apparent scope of the law-making power conferred by Part IV. It is perhaps noteworthy that, although reported in different volumes of the Irish Reports, the Burke case was argued almost contemporaneously with the landmark case on the validity of subordinate regulation (Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381 (“Cityview Press”)) and the judgments delivered within a day of each other. It seems clear therefore that the observations made in Burke were influenced by, and reflective of, the consideration the court was giving at the time to the proper limits of the delegation of law-making authority.
11 Thereafter, a number of challenges were brought to the provisions of Part IV of the Act but most of them were compromised or resolved without reaching the issue latent in the observations made in Burke. Ultimately, in John Grace Fried Chicken v. The Labour Court [2011] 3 IR 211 (“John Grace”), the matter reached the High Court. Feeney J. held that the Act lacked any principles or policies for the exercise of the power of law-making conferred on JLCs and that accordingly, the provisions of Part IV were repugnant to the Constitution. That decision was not appealed to this court. Instead the Industrial Relations (Amendment) Act 2012 was introduced. The background to the that decision appears to be that the provisions of the 1946 Act and in particular those establishing the EROs had been under review not least as part of the Memorandum of Understanding under which structural reforms are to be made in return for funding to this country from the EU, ECB and IMF. The 2012 Act sets out much more elaborate principles and policies and indeed provisions for review and reconsideration by the Minister and the Oireachtas, and thus addresses (and appears to accept as correct) the decision in John Grace. Significantly for present purposes, the opportunity was also taken to made wide-ranging changes to Part III to similar effect to the changes introduced in respect of Part IV. This case concerns however the provisions of Part III in their unamended form.
These Proceedings
12 The proceedings involved in this appeal are an amalgam of a series of cases all of which relate to the provisions of the REA of the 24th of September 1990 made in respect of the electrical trade in the construction sector. That agreement has been the subject of repeated disputes in particular involving complaints by a group of employers organised in the National Electrical Contractors Association, the fourth named notice parties hereto. They have persistently complained that they have been bound by an agreement to which they were not a party, and in which the employers’ interests were represented by parties which they do not consider represent their interests.
13 The impetus for this latest round of litigation was a proposal made to the Labour Court by the employee representatives to vary the REA and to increase the minimum pay of electricians in the construction sector. At the same time, a District Court prosecution had been commenced against Camlin Limited for breach of the existing REA. On the 27th of May 2008 those proceedings were adjourned and a consultative case stated prepared for the High Court. The District Court proceedings and case stated did not raise, as they could not, any issue of the constitutional validity of Part III. Meanwhile, an application had been made to the Labour Court on the 22nd of May 2008 by, it was said, 500 contractors seeking a cancellation of the REA. Some procedural skirmishing took place and the Labour Court refused the applicant contractors’ request for an adjournment to await the outcome of the case stated proceedings. A large number of applicants then sought judicial review of the Labour Court decision and an injunction restraining further hearing. These proceedings (which were then known as the “Sullivan Proceedings” after the then first named plaintiff) were commenced, and leave to seek judicial review was granted on the 13th of June 2008 together with an interim injunction restraining a further hearing. However, on the 20th of October 2008 the injunction was lifted by O’Keeffe J. because, we are informed, of the unwillingness of the applicants to offer an undertaking as to damages, and also because of concerns about the constitution of the applicants. The proceedings nonetheless remained in being. Since there was now no injunction restraining the proceedings, the Labour Court proceeded with an eleven day hearing and on the 26th of February 2009 issued a determination which refused the initial application to vary the agreement by increasing the remuneration, but also refused the application made on behalf of the discontented contractors for a cancellation of the existing REA. Yet again the representatives of the contractors sought judicial review to challenge the decision refusing cancellation and a further set of proceedings (“the Bunclody Proceedings”) were commenced which ultimately were heard with these proceedings in the High Court. The respondents to these proceedings sought to clarify the identity of the multitude of applicants named, and that they were indeed electrical contractors and were not members of any body which was a party to the 1990 REA. Accordingly they raised this issue by way of particulars. This proved to be anything but a straight forward task. In the end the applicants’ response was not to provide particulars but to seek to reduce dramatically the number of named applicants. Even then, of the seven applicants remaining one was not an employer at the time of the institution of the proceedings and three had previously been members of organisations that were party to the REA. One further party, Camlin (which as already observed was the party to the case stated), had been struck off. In the High Court, Hedigan J. observed that:
“…it must be noted that throughout the evidence before this Court there has been some degree of confusion as to the identity of the applicants. Many of them were alleged not to be employers, thus calling into question their locus standi and their representativity. The drastic reduction in the number of plaintiffs still leaves open this question and it is a very undesirable aspect of this case to date.” (para. 10.2)
Undesirable is, if anything, a mild adjective in the circumstances. It is of the essence of any litigation, but particularly constitutional litigation, that it be firmly based on the ascertainable facts relating to real persons who can claim to have suffered a measurable and identifiable injury which requires a remedy which may even extend to the striking down of legislation enacted by the Oireachtas. It is the factual matrix of an individual’s situation which gives real focus and reality to a claim of unjust infringement of a constitutional provision and which justifies the court in addressing the validity of legislation of general application which in other circumstances, and for many other citizens, may conceivably be beneficial. A claim is not a classroom hypothetical and the identification of real claimants who have the identified complaint is not an optional extra. It is truly disturbing that a claim initiated in the names of a legion of parties could shrink so dramatically on the simplest inquiry and request for verification. In addition, passage of time and the economic downturn have had their own effect on the proceedings. The party to the case stated, Camlin Ltd., was struck off the register of companies for failing to make returns thus ending those proceedings. Similarly the Bunclody proceedings which were heard with these proceedings in the High Court were struck out in July 2012 in the Supreme Court following the appointment of a liquidator to the last remaining appellant in that case. The result is that what remains in this appeal is a far reduced number of applicants to the original Sullivan proceedings (now the McGowan proceedings) and which retain their original structure as a challenge to the Labour Court commencing a hearing even though in the event the hearing did proceed, and which became the subject of a separate challenge, which, itself although heard in conjunction with the Sullivan/McGowan proceedings, is not now before this court.
14 The foregoing is a necessarily truncated account of only some of the unsatisfactory aspects of these proceedings. Of even more significance is the fact that the issue which might have been thought to be central to this case, namely the question of alleged unauthorised delegation of legislative power contrary to Article 15 of the Constitution, was by no means central to the argument in the High Court either the Sullivan/McGowan proceedings, or indeed the Bunclody proceedings. In the light of the John Grace decision and the apparent acceptance of that decision by the State authorities that argument has certainly moved centre stage but it must be said that there was little trace of it in the voluminous pleadings in either the Sullivan or the Bunclody case. What did happen however was that the point was canvassed at some length in very comprehensive submissions exchanged between the parties both at the opening of the High Court case and at its closing. As a result, the position is that the question was undoubtedly argued in the High Court, and in some detail, and was addressed in the High Court judgment.
The Judgment of the High Court
15 The learned High Court judge dismissed the applicants’ claim on all grounds. He held that in so much as the claim was a challenge to the REA on non-constitutional grounds, it was out of time in that the proceedings had not been commenced within three months of the decision of which complaint was made. That decision is not under appeal and accordingly it is not necessary to express any view upon its correctness. The judge also rejected a series of other challenges to the Labour Court decision and which are now not before this court. In respect of the constitutional challenge he said the following:
“This aspect of the case has been brought in judicial review proceedings and I can see no reason why it should not be subject to the same requirement as to time limits as any other application. That being so, it is brought well outside the period of three months from the date when grounds for the application first arose and for that reason alone ought not to be allowed to proceed. It would also, I think be undesirable that the constitutional challenge should proceed alone in judicial review proceedings. There are many issues concerning the balancing of interests and, as noted above, the identification of the plaintiffs that need much greater elaboration than they have had in these proceedings. I will not therefore proceed to consider the constitutional issues raised herein. They should be brought if the applicants wish to do so by way of plenary proceedings.” (para. 11.10)
This Appeal
16 It may be appreciated that the appeal which arrived in the Supreme Court was one with myriad complications. As a result however of active case management by a member of this court, the parties ultimately agreed to narrow the issues that would be addressed on this appeal to two:
(a) Are the appellants entitled to raise the issue at (b) and; is the Supreme Court entitled to determine this issue in circumstances where although the issue was raised in the proceedings from which the appeal is taken, and argued before the High Court, the learned High Court judge expressly did not determine the issue?
(b) Does Part III of the Industrial Relations Act of 1946 or any section thereof contravene Article 15.2.1 of the Constitution by delegating the making, variation and cancellation of registered employment agreements to the Labour Court and the parties to such agreements?
The appellants agreed to abandon all other grounds of appeal and it is apparent from the formulation of issue (a) that the respondents also agreed not to rely on any of the other grounds mentioned in the High Court judgment for declining to hear the constitutional claim. The first issue raised here therefore, is the question of the entitlement of the appellants to argue, and this court to decide, the core constitutional issue as set out at (b) namely, the question of the alleged excessive delegation of legislative powers. Furthermore the issue to be considered is simply whether this court can, and should, hear an issue which was argued but not decided in the High Court.
17 It is indeed easy to sympathise with the High Court’s frustration with the manner in which the case has advanced and its belief that it would be better advanced in plenary proceedings with a full elaboration of facts and argument focussed on this specific issue. However, there is no doubt that the Supreme Court can hear and determine an appeal on an issue which for whatever reason, the High Court has heard but not determined. The respondents accepted that the views expressed by Keane C.J. in A.A. v. Medical Council [2003] 4 IR 302 at p. 308, represent a reasonable statement of principle:
“…the court is not automatically precluded in every case from considering such an issue simply because it has not been subject of a determination by the High Court Judge. Whether a party is to be precluded from advancing again arguments which were relevant to an issue in the case and on which he relied on in the High Court must, in the interests of justice be determined according to the circumstances of the particular appeal before this court.”
Keane CJ also said:
“This court is a court of appeal only and cannot exercise any jurisdiction other than an appellate jurisdiction, save under Articles 26 and 12.3 of the Constitution and then it is exercising the case stated jurisdiction vested in it pursuant to s. 38 of the Courts of Justice Act 1936 and s. 16 of the Courts of Justice Act 1947. For that reason, this court has consistently declined to consider an issue of constitutional law which, though arising in a case not yet determined by it, has not been fully argued and decided in the High Court, save in the most exceptional circumstances.” (p. 307)
This case, it should be said, is not one where the point was not argued or fully argued. It is one where the point was fully argued, but not decided. Chief Justice Keane also referred to the observations of Murray J. (with whom Denham and Murphy JJ. concurred ) in Dunnes Stores v. Ryan [2002] 2 IR 60 where he suggested that rather than remitting it again to the High Court where the common experiences of such issues are almost invariably further appealed to this court for final determination, the Supreme Court ought to have jurisdiction to determine a point which arose for resolution in proceedings but on which no decision on any disputed question of fact is required.
18 This is a sensible and pragmatic approach. In a perfect world it would undoubtedly be preferable to have meticulous and detailed argument in the High Court followed by a comprehensive judgment and a speedy appeal to this court, further comprehensive argument on the issue as addressed in the judgment of the High Court and, a final, as it is to be hoped, conclusive determination of all issues in this court. But the court cannot ignore the reality that the course of litigation is often very far from the ideal, and indeed this case is one example. Here there are a number of factors which suggest that the point should be considered and determined by this court. The issue is one which has been mooted for a considerable time, since at least the judgment in Burke. The relevant REA is still in full force and effect. Indeed, the third named appellant has been the subject of a District Court prosecution which was commenced in 2008 and which is awaiting the outcome of this decision. The REA will continue to have effect therefore and the uncertainty over its validity and indeed the validity of the underlying statutory scheme is undesirable. There have been three separate pieces of litigation in relation to this REA alone and a lengthy hearing both in the Labour Court and in the High Court. Considerable costs have been incurred on all sides. The point was fully argued and it was not adjudicated on not because, as sometimes occurs, the trial court had decided the case in the plaintiffs’ favour on non-constitutional grounds but rather because the court considered that it was preferable that the case be brought by plenary procedure. It is not at all clear that this is a valid ground for declining to address a point otherwise properly before the court. To decline to hear and determine this issue would mean requiring the parties to incur substantial costs without the issues between the parties being resolved, and exposing the plaintiffs to the possibility of ongoing criminal prosecution and a choice between having to recommence proceedings or submitting themselves to a regime which they consider unconstitutional. Such an outcome would not be consistent with the administration of justice. Accordingly, albeit reluctantly, the court considers it necessary to address the central issue raised in this appeal.
Article 15.2.1 of the Constitution
19 Article 15.2.1 of the Constitution is in very clear terms:
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
This Article while striking and emphatic, might appear almost tautologous. If the “sole and exclusive power” for making laws is vested in the Oireachtas, then it follows that no other body has power to make laws for the State. The interesting historical background to this Article, and its predecessor in Article 12 of the Free State Constitution, is set out both in Morgan, The Separation of Powers in the Irish Constitution, (Dublin, 1997) p. 261 and, Hogan, The Origins of the Irish Constitution: 1928-1941, (Dublin, 2012) pp. 335-339 (hereinafter “The Origins”). As Keane C.J. observed in Laurentiu v. The Minister for Justice [1999] 4 IR 26:
“Historically, this Article can be seen as an uncompromising reassertion of the freedom from legislative control by the Imperial Parliament at Westminster of the new State.” (p.83)
It is also (and perhaps in part for the same historical reason) an assertion of a core democratic principle. Since all power comes from the People, the only body with power to make legislation binding the People, is the Oireachtas containing as it does the chosen representatives of the people. As Keane C.J. continued;
“But it [Article 15] is also an essential component in the tripartite separation of powers which is the most important feature of our constitutional architecture and which is enshrined in general terms in Article 6.” (p.83)
As recorded in Hogan, The Origins, a specific question was raised by Gavan Duffy J. at the time of the drafting of the Constitution as to the necessity to include in Article 15.2.1 some saver in respect of statutory instruments and orders. The view was taken in a memo produced by Philip O Donoghue legal assistant to the Attorney General one the principal drafters of the new Constitution, and which received the express agreement of the Attorney General Patrick Lynch however, that such rules and orders were not “laws” within the meaning of the Article. Such rules and orders were;
“intimately related with legislative enactments. They are considered part of the law and have the force of the law but alone do not constitute legislation. They must always be referred back to the enabling statute under which they are made. Very little consideration will indicate the abuses which will grow up if the legislature contented itself with an enacting loose and indefinite principles adding that the Minister could give effect to such principles by rules and regulations.
Statutory Rules and Orders as the title suggests, are intimately related with legislative enactments. They are considered part of the law and have the force of law but alone do not constitute legislation. They must always be referred back to the enabling Statute under which they are made. Very little consideration will indicate the abuses which would grow up if the legislature contented itself with enacting loose and indefinite principles adding that the Minister could give effect to such principles by rules and regulations.”
Indeed the position in Ireland was contrasted favourably with the position in the United Kingdom where attention was drawn to the views of the then Lord Chief Justice Sir Gordon Hewart who in his book The New Despotism, (London, 1929) had recently expressed the view, trenchantly and possibly intemperately, that the proliferation of delegated legislation was a threat to democracy.
20 The understanding of Article 15.2.1 and the place of subordinate regulation within the constitutional scheme was illustrated by the thoughtful judgment of Hanna J. in an early case which arose after the coming into force of the Constitution, Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R.413 (“Pigs Marketing Board”). There a challenge was made to the price fixing function which had been delegated to the board by the Pigs and Bacon Acts 1935 and 1937. In rejecting that claim Hanna J. said:
“It is axiomatic that powers conferred upon the Legislature to make laws cannot be delegated to any other body or authority. The Oireachtas is the only constitutional agency by which laws can be made. But the Legislature may, it has always been conceded, delegate to subordinate bodies or departments not only the making of administrative rules and regulations, but the power to exorcise, within the principles laid down by the Legislature, the powers so delegated and the manner in which the statutory provisions shall be carried out. The functions of every Government are now so numerous and complex that of necessity a wider sphere has been recognised for subordinate agencies such as boards and commissions. This has been specially so in this State in matters of industry and commerce. Such bodies are not law makers; they put into execution the laws as made by the governing authority and strictly in pursuance therewith, so as to bring about, not their own views, but the result directed by the Government.
Now, what is the complaint here? What is the legislative power which it is suggested the Pigs Marketing Board exercises? It is the fixing of the hypothetical price. It has been submitted that, when the Pigs Marketing Board has constitutional power to fix the appointed price because they are directed to consider certain matters in determining it, as there is no schedule of topics to be considered by the Pigs Marketing Board in fixing the hypothetical price, they are in a position of legislators in that respect. But I cannot accept this view of the duties of the Pigs Marketing Board in reference to the hypothetical price, where the Legislature has directed them to fix, not any price, but the price which, in their opinion, would be the proper price under normal conditions. That is a statutory direction. It is a matter of such detail and upon which such expert knowledge is necessarily required, that the Legislature, being unable to fix such a price itself, is entitled to say: “We shall leave this to a body of experts in the trade who shall in the first place determine what the normal conditions in the trade would be apart from the abnormal conditions prescribed by the statute, and then form an opinion as to what the proper price in pounds, shillings and pence would be under such normal conditions.” The Pigs Marketing Board, in doing so, is not making a new law; it is giving effect to the statutory provisions as to how they should determine that price.” (pp.421 and 422)
21 The judgment in Pigs Marketing Board is an early and sophisticated analysis of the issue. The leading modern authority is Cityview Press. There the plaintiff challenged s.21 of the Industrial Training Act 1967 which empowered the defendant, An Chomhairle Oiliúna, to make a levy order fixing the amount of the levy to be collected from each enterprise in a specified industry and used for training recruits to that industry. The Levy Order for the printing industry which the plaintiff was refusing to pay imposed a levy of one per cent of total emoluments on all employees less £20,000. The argument was that the Act did not provide the defendant body with any precise guidelines as to the basis on which the levy should be made, i.e. whether by reference to turnover, total salaries and wages profits, or some other basis. This argument was rejected both in the High Court and Supreme Court. The test to be applied was identified in the judgment of O’Higgins C.J.:
“In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.” (p.399)
The principle has been stated by Casey, Constitutional Law in Ireland, 3rd edition, (London, 2000) p. 255:
“The Oireachtas, it seems, may delegate a power to put flesh on the bones of an Act; but anything going beyond this will be constitutionally suspect.”
22 It is said that the differences between those cases in which there has been held to be a breach of Article 15.2.1 and cases in which it is accepted that there has been no such breach is largely one of degree and that it is difficult to detect a precise dividing line between what is permissible and impermissible. That may be so on a case by case basis although there is a clear principle as set out above. However, it seems that the difference in this case is not just one of degree, rather it is structural in nature. In that respect it is instructive to compare the extensive area and nature of authorisation involved here with that in the Cityview Press case, itself considered by some commentators to be close to the limits of permissible rule making.
23 In the Cityview Press case, the delegation or authorisation under s. 21 of the Industrial Training Act 1967 may be said by some to be vague, but a number of important features were identified, particularly in contrast to the position which applies under the Industrial Relations Act 1964. The area of authorisation was narrow. It was the power to fix the amount of the levy, the Oireachtas having already made the decision that An Chomhairle Oiliúna was to be funded by a levy on the relevant designated industrial activity. The body which was authorised to fix the levy was itself public law body exercising powers constrained by statute. Accordingly any order made would be subject to consultation with the relevant industrial training committee (s.21(3)), review and approval by the Minister (s.21(4)) and laid before each house of the Oireachtas, either of which was entitled to annul it within 21 days (s.21(6)). Furthermore, as McMahon J. in the High Court observed:
“ There can be no doubt that s21 is so expressed as to as to confine the use of any money raised by a levy ordered to meeting any expense of AnCo in relation to the performance of its functions under the Act in respect of the designated industrial activity in respect of which the levy order was made”.
For that reason, and indeed for more general reasons of public law, there could be no question of the money raised being used for any other activity or for example, as a form of taxation or covert revenue raising. The area of decision making accorded therefore to An Chomhairle Oiliúna under s.21 was limited in a number of respects. Its power to fix the quantum of the levy was restricted by the object for which the levy was to be fixed. It retained a discretion as to the precise manner in which the levy should be raised as indeed was argued, whether by reference to turnover, profits, or otherwise. But given the broader constraints just identified, that is a very limited power and furthermore raises no obvious issues of policy. It was argued that this was still an excessive delegation but it was accepted by the court that this was akin to the price fixing function upheld in Pigs Marketing Board. For present purposes however, it is only necessary to identify the significantly limited scope of authorisation that was in issue in that case.
24 The contrast with the scope of power afforded under the 1946 Act is instructive. If the 1946 Act conformed to the same pattern as that established in the 1967 Industrial Training Act, then the relevant terms would be set by the Labour Court perhaps after consultation with other public bodies and subject to ministerial approval and Oireachtas review. Even if such a structure were in place the breadth of the power afforded would still be telling. An REA can make provision not merely for remuneration, as was the case in Burke, but can make provision for any matter which may be regulated by a contract of employment. Thus, it can determine wages, pensions, pension contributions, hours of work, health insurance, grievance procedures, discipline procedures, staffing levels, production procedures, approved machinery or equipment, and anything else in the employment relationship. It is in the words of Henchy J. in Burke, a delegation of a “most fundamental and far-reaching kind”. It involves a fundamental part of the person’s life (if an employee), and their business (if an employer).
25 The extent of the delegation is also of significance. What is unusual and possibly unique is that the law making power granted under the 1946 Act is granted over a broad area of human activity to private persons, themselves unidentified and unidentifiable at the time of the passage of the legislation. When an employer such as the third named appellant is the subject of prosecution for breach of a registered employment agreement, that amounts to a clear allegation that a part of the law of the State has been breached. In such a case the particular provision which it is alleged has been breached has been made by the private parties to the employment agreement which has been registered by the Labour Court. The Labour Court itself has no power of consultation or even (as is the case of an ERO made under Part IV of the 1946 Act) a power to comment and return the proposed order to the joint industrial council. Therefore, it is clear that this specific provision is being made, not by a subordinate public body governed by public law, but by participants in the industry who were empowered to make regulations for themselves and for all others within that industry who may be competitors and whose interests may not be aligned with the makers of the REA. This is not a grant of a power to make regulations over a limited area subject to explicit or implicit guidance and review. It is an unlimited grant of power in relation to employment terms, made to bodies unidentifiable at the time of the passage of the legislation and without intermediate review. On its surface therefore, this appears to be a facial breach of Article 15.2.1. “Law” is undoubtedly being made for the State, and by persons other than the Oireachtas. No direct statutory guidance is given for the exercise of the power. On its face, the Act does not define who might be parties to the agreement, or impose any limitation on the content of such agreement other than that it should relate to the conditions of employment. Such a far-reaching conferral of law making authority, can only be valid if it can be brought within the test outlined in Cityview Press. In the context of this case that can only be achieved if the process of registration by the Labour Court (which is essential to give statutory effect to an employment agreement) introduces sufficient limitation on the regulation making power granted by the statute to render that regulation no more than the filling in of gaps in a scheme established by the parent statute.
26 From a structural analysis of the Act , it is firstly significant that the power of approval and registration is itself delegated to an intermediate body, in this case the Labour Court. The degree of autonomy and discretion afforded to that body and the lack of a mechanism for appeal or review on the merits, means that any control of the exercise of the regulation making power is necessarily attenuated. A further noteworthy feature of s. 27 is that the only limitation imposed upon the regulating power is limited, indirect and negative. The structure of the section is such that registration is mandatory subject only to compliance with the subheadings of s.27. Section 27(3) provides that on an application being made to the Labour Court, that body “shall, subject to the provisions of this section, register the agreement”. There is therefore almost a double delegation: first of the power to set the terms; and second of the power to control those terms by refusing registration. Given the scope of any possible regulation, it is particularly significant that the power of the Labour Court in this regard is essentially limited and negative.
27 Thus the restrictions imposed by s.27 are critical if the scope of the power conferred by s.27 is to be brought within constitutional boundaries. However no express guidance is given to the Labour Court as to how it should exercise its powers, and any implicit guidance to be deduced from the provisions of s.27 is necessarily limited. Section 27(3) provides as follows:
“Where an application is duly made to the Court to register in the register an employment agreement, the Court shall, subject to the provisions of this section, register the agreement in the register if it is satisfied –
(a) that, in the case of an agreement to which there are two parties only, both parties consent to its registration and, in the case of an agreement to which there are more than two parties, there is substantial agreement amongst the parties representing the interests of workers and employers, respectively, that it should be registered.
(b) that the agreement is expressed to apply to all workers of a particular class, type or group and their employers where the Court is satisfied that it is a normal and desirable practice or that it is expedient to have a separate agreement for that class, type or group,
(c) that the parties to the agreement are substantially representative of such workers and employers,
(d) that the agreement is not intended to restrict unduly employment generally or the employment of workers of a particular class, type or group or to ensure or protect the retention in use of inefficient or unduly costly machinery or methods of working,
(e) that the agreement provides that if a trade dispute occurs between workers to whom the agreement relates and their employers a strike or lockout shall not take place until the dispute has been submitted for settlement by negotiation in the manner specified in the agreement, and
(f) that the agreement is in a form suitable for registration.”
Subparagraphs (a), (b), and (f) are essentially procedural and formal in nature and clearly therefore do not provide any principles or policies to guide the exercise of the power of registration by the Labour Court, still less the power to make the relevant agreement by the parties in question. While paragraph (e) is a matter going to the substance of the agreement, it provides no limitation on, or guidance for, the exercise of the power by the regulation making parties. Instead, it imposes a statutory requirement as a condition of registration. Subparagraph (c) does contain a condition, but it does not go to the substance of the agreement and is not itself guidance and does not set out any principle or policy for the content of that agreement. While it is directed towards the Labour Court, it provides no guidance on something which might be considered fundamental, being the representative nature of an agreement which will have the effect of binding persons who are not parties to it. Accordingly, most attention on this appeal was directed towards the requirements imposed by s.27(3)(d). There is no doubt that it imposes certain limitations of substance upon the Labour Court’s power to register an agreement, and therefore can indirectly be said to give guidance to the parties to the agreement as to the content thereof. The question is however, whether in the light of the extensive scope of the power conferred, such guidance is sufficient.
28 It is plain however that subs.27(3)(d) is not adequate to provide sufficient limitation on the regulation making power of the parties to an agreement the registration of which is sought pursuant to s.27, to render that exercise of power compatible with Article 15.2.1. It was sought to be argued on behalf of the respondents that the word “intended” should not be given its natural and ordinary meaning and that the Labour Court was empowered to refuse to register an agreement which it considered would have any of the effects set out in s.27(3)(d). There is no reason however to give a broad and artificial meaning to the phrase for the purposes of giving greater restrictive capacity to a section which is in its content extremely permissive. While the promotion of employment, and the avoidance of inefficiency and costly machinery, are laudable and desirable objectives, they do not constitute a sufficient restriction on an otherwise unlimited power of regulation to bring the power conferred by s.27 within the constitutional limits. In particular, there is no guidance given in relation to the concept of representativity. There is no obligation on the Labour Court or the parties to the agreement to consider the interests of those who will be bound by it and who are not parties to it. Furthermore, while the agreement once registered is binding on everyone in the sector, it may only be varied on the application of the original parties.
29 The provisions of s.28 relating to variation of an REA are a further illustration of what is absent from the scheme. Because the regulation made by the parties to the agreement is, and retains its character as, an agreement between private parties, s.28 is at least consistent in limiting the power of variation of the agreement to the original parties thereto. The logic of this position however ignores the fact that by registration, the agreement becomes part of the law binding on all present and future employers and employees within the sector. Parties who were not represented at the time of the making of the agreement are nevertheless at risk of enforcement by prosecution or civil claim, but cannot seek a variation of the agreement. Nor can the Labour Court itself initiate any process of variation even if that court considered that the agreement had become unduly restrictive of employment or now involves an inefficient and unduly costly machinery or mechanism of work, or was otherwise generally undesirable. The Oireachtas cannot vary the provision or direct that variation be considered. It was argued that the Labour Court had power to cancel the agreement and that non-parties to the agreement could invite the Labour Court to invoke the power of cancellation under s.29(2). It appears the Labour Court now takes the view that cancellation is not limited to the parties. Even if that is correct, that power is limited , and only exercisable if the Labour Court considers that there has been “such substantial change” in the circumstances of the trade or business that it is now undesirable to maintain registration. Even this power of cancellation highlights therefore rather than cures the absence of a similar power of variation.
30 There can be little doubt therefore that Part III of the 1946 Act raises serious issues of compatibility with Article 15.2.1. What appears to be law is being made by persons other than the Oireachtas. But this case does not really raise the troublesome questions of detail and degree that can sometimes arise in this area. There is not here a grant of a limited power to a subordinate body subject to review as there was for example in the Cityview Press case. Instead there is a wholesale grant, indeed abdication, of lawmaking power to private persons unidentified and unidentifiable at the time of grant to make law in respect of a broad and important area of human activity and subject only to a limited power of veto by a subordinate body. In effect, Part III allows the parties to an employment agreement to make any law they wish in relation to employment so long as the Labour Court considers them to be substantially representative of workers and employees in the sector, and does not consider the agreement itself to be unduly restrictive of employment or make provision for unduly costly or inefficient methods of work or machinery, and otherwise complies with the formal requirements of s.27. No guidance or instruction is given to the Labour Court as to how the matters of representativity or restriction on employment or inefficiency or costly methods of work, are to be gauged. The process permitted by Part III cannot be said to be merely the filling in of gaps in a scheme already established by the Oireachtas: in truth the Oireachtas which enacted the 1946 Act could have no idea of even those areas which may be subject to regulation in an employment agreement sought to be registered under the Act, and no conception still less control of the possible range of regulation that might be made in respect of each such matter. Nor did the Oireachtas retain any capacity for review either by the Oireachtas or by a member of the Executive responsible to it, of the agreements actually made. Whatever may be thought of a scheme which permits parties to an agreement to clothe that agreement with certain legal consequences including the possibility of enforcement by criminal proceedings, once such an agreement purports to become binding on non-parties pursuant to s.30 of the Act, it passes unmistakably into the field of legislation which by Article 15 is the sole and exclusive preserve of the Oireachtas. The limited and essentially negative limitations imposed by s.27(3)(d) are plainly inadequate to bring the exercise of such power within constitutional limits.
31 Finally, it may be worth considering the use of terminology in this area. The term “delegated legislation” is, as a description, perhaps unexceptional. It has entered our law from the law of the neighbouring jurisdiction. In a constitutional regime where a parliament is supreme, any provision may be made including presumably, the delegation to others of part of its law making function. But it is worth recalling however, that in the constitutional dispensation created in 1922 and extended in 1937, the position is somewhat different. As Hanna J. observed in the Pigs Marketing Board case and as the Gavan Duffy, O’Donoghue, and Lynch exchange in 1937 illustrates, if in truth any piece of regulation amounted to truly delegated legislation, it would offend Article 15, since it is plain from the very language thereof, and indeed the constitutional structure, that the function of legislation is one that cannot be delegated by the Oireachtas to any other body. Indeed the case law since that time can be understood as an attempt to seek to delineate the boundary between permissible subordinate regulation, and the abdication, whether by delegation or otherwise, of the lawmaking authority conferred on the Oireachtas by the People, through the Constitution.
32 Accordingly, this appeal will be allowed, and the court will make a declaration that the provisions of Part III of the Industrial Relations Act 1946 are invalid having regard to the provisions of Article 15.2.1 of the Constitution of Ireland.
A Worker (Mr O) v An Employer (No.1)
EDA0419
Labour Court
5 January 2005
[2005] 16 E.L.R. 113
Background
A Labour Court hearing took place on October 26, 2004. The following is the court’s determination:
Determination
Mr O (the complainant) claims that he was discriminated against on grounds of disability by his former employer, (the respondent). The complainant was employed by the respondent in a specialist occupation. On or about April, 2002, he was admitted to hospital suffering from a psychiatric illness. The complainant was discharged from hospital in June 2002, and was advised by his psychiatrist that he could return to work, preferably on a phased basis. The respondent did not allow the complainant to return to work. The complainant was referred to a psychiatrist nominated by the respondent and later to an occupational physician. He was eventually allowed to return to work on October 9, 2002.
The complainant contends that the respondent’s failure to allow him to return to work on a phased basis constituted a failure to accommodate his needs by providing special treatment or facilities, as required by s.16(3)(b) of the Employment Equality Act 1998 (The Act).
The complaint was referred to the Equality Tribunal pursuant to s.77 of the Act and was investigation by an Equality Officer who found that the respondent did discriminate against the complainant in the manner alleged. She awarded the complainant compensation in the amount of €8,000. The complainant also alleged that he had been harassed by the respondent, contrary to s.32 of the Act, and that he had been victimised within the meaning of s.74(2) of the Act when the respondent ceased paying him sick pay and making VHI contributions on his behalf. The Equality Officer found against the complainant on these issues.
The respondent appealed against so much of the equality officer’s decision *116 as found it liable for discrimination against the complainant on the disability ground. There was no cross-appeal by the complainant. Accordingly, the only matter for determination by this court is whether the complainant was discriminated against in the manner in which he was treated by the respondent, in respect of his return to work, following his discharge from hospital.
The complainant also brought a claim alleging that he had been constructively dismissed by the respondent on grounds of his disability. Since the claim heard by the Equality Officer and the dismissal claim being heard at first instance by the court are grounded on interrelated facts the court, with the consent of the parties, determined to hear both cases together. However, since they constitute separate referrals, and are subject to separate avenues of appeal, the court decided to issue separate determinations in each case. For the sake of completeness, all of the evidence and submissions relative to both issues are summarised in this determination.
This determination relates to the respondent’s appeal of the Equality Officer’s decision.
Complainant’s case
The complainant had been employed by the respondent for 14 years in a specialist occupation (details of which were provided to the court). On or about March 8 and 25, 2002, he became ill and was absent on sick leave until April 8 of that year. Following his return to work, his condition again deteriorated and on April 15, 2002, he spoke to Mr H (a partner with the respondent) about his illness. Mr H arranged for him to be examined by a doctor as a result of which he was admitted to a hospital. He remained as an in-patient in the hospital until June 6, 2002, when he was discharged. During this period he was under the care of Dr L a consultant psychiatrist.
The complainant was advised by his doctors that he should return to work on a phased basis. On or around June 14 he had a discussion with Mr H in relation to his possible return to work and he requested that he be allowed to do so on a phased basis, as proposed by his doctor. He told the court that this meeting had taken place outside working hours in a local pub. The complainant felt that Mr H was agreeable to his proposal. The complainant indicated to Mr H that he would visit the workplace informally on Friday, June 21, 2002 with a view to resuming work on a phased basis on the following Monday, June 24.
On June 18, 2002, Mr H advised the complainant by phone that the respondent wanted a written report regarding his condition prior to his return to work. This was confirmed in writing by letter of the same date. By letter dated June 20, 2002, a Dr F who was registrar to Dr L (the complainant’s consultant psychiatrist) issued a letter advising that the complainant was fit to return to work but should do so on a phased basis. The complainant delivered this letter to Mr H when he visited the workplace on June 21. The complainant *117 told the court that he was shocked by Mr H’s treatment of him on that date. The complainant said that Mr H had become hostile to the proposal that he would return to work on a phased basis and that his demeanour towards him was antagonistic.
The complainant returned to work as agreed on Monday, June 24 and he continued to work as normal hoping to speak with Mr H (who was then absent on sick leave) on the following day about the detail of his proposed phased return to work. He did inform Mr M (a partner with the respondent) that he would be attending hospital on June 26, 27 and 28 and that he would be taking one week’s holidays the following week.
On June 25 Mr H meet with the complainant and expressed dissatisfaction with the fact that he would not be returning to work full-time. Following his return from holidays, the complainant resumed work on July 9. He met with Mr B (who is a partner with the respondent) who informed him that he would not be allowed return to work on a phased basis. The complainant recalled that Mr B also informed him that neither he nor Mr H considered the complainant fit to return to work. The complainant was instructed to attend for examination by a Dr S, a consultant psychiatrist, on July 11 and not to attend work again until after that examination. The complainant further recalled that Mr B indicated that the respondent could not continue paying him his wages while he was on sick leave. The claimant attended Dr S on July 11. On July 15 he referred a complaint alleging discrimination on grounds of disability to the Office of the Director of Equality Investigations arising from the respondent’s failure to allow him return to work. It is this complaint that forms the subject matter of these proceedings.
On July 18, the complainant received a letter from Mr B of the same date stating that Dr S had advised that he was not fit to return to work and that his salary would cease with effect from July 19. The complainant told the court that he was extremely distressed by the respondent’s treatment of him. He attended Dr L on July 19 who prescribed anti-depressants. He again attended Dr L on July 25 and on August 1. On August 1, Dr L certified the complainant fit to return work on a full time basis.
Having been so certified, the complainant contacted the respondent on the 2nd August and spoke to Mr M. He told Mr M that he had been certified to return to work on a full-time basis and that he would be doing so with effect from Monday, August 5. Later on the same day the complainant received a letter from the respondent (dated 2nd August) delivered by courier requesting that he agree to be examined by an occupational medical specialist nominated by the respondent. He was instructed not to return to work until this specialist had completed his report.
The complainant attended for examination by Dr D on August 13. By letter dated August 23, the respondents advised the complainant that because his *118 medication had been changed, it was Dr D’s opinion that he should not resume work until he had been reviewed again by Dr L.
The complainant again consulted Dr L, who confirmed that he was fit to resume work. He received a written certificate to this effect dated September 23 and posted it to the respondent on that day. By letter dated September 27 the respondent informed the complainant that he could return to work on October 9.
The complainant returned to work on October 9. He told the court that he was called to a meeting in the boardroom with Mr H and Mr B. He claims to have been subjected to aggressive and hostile treatment by them. He specifically recalled that Mr B raised issues concerning a job which he had undertaken the previous year. The complainant said that he was given a new job description and told that he would no longer deal with clients. He received no indication that this decision might be reviewed in the future. The complainant was also told that his work would be monitored. He had been shown a job description by Dr D but had not had an opportunity to study it. He had never agreed to its terms. The complainant was then given work with deadlines which he regarded as unreasonable.
The complainant told the court that he felt demeaned by the manner in which the respondent treated him on his return to work. By the second day he felt under stress and feared that he would suffer a relapse of his illness. Mr H and Mr B were ignoring him. He felt that the respondent did not want him back at work and he experienced feelings of apprehension. The complainant told the court that these events led him to a point where he believed that he had no option but to resign from his employment. He discussed the matter with his wife. She had recently been made redundant and it was not easy to contemplate both of them being unemployed. Nonetheless, the complainant came to the view the situation in which he had been placed was intolerable and would be detrimental to his health and well-being. He decided to resign and did so on October 11.
In cross-examination the complainant agreed that he had not raised the treatment about which he now complains with the respondent before his resignation. He said that this was because he had been advised by his doctors not to become involved in argument or confrontation. The complainant also agreed that he had taken almost two days to complete the project which he had been assigned on October 9 and that the respondent had not passed any remark in that regard.
Evidence was also received from Mr McQ who is a former colleague of the complainant. This witness worked for the respondent between 1996 and 2000 in a similar specialist occupation as that of the complainant. He told the court that he was treated well by his former employer. He found the complainant to be a good colleague and good at his job. His recollection was that the *119 complainant had no difficulty working with clients. He described the working environment with the respondent as very pressurised. He said that the relationship between the partners and their employees was productivity rather than people driven. The witness recalled that employees were required to meet high standards of performance and were often publicly dressed down by the partners. He said that some employees would answer back but that the complainant rarely did so. He described the management style as blunt and graphic. His recollection was that the complainant had particular difficulties relating to Mr B and it was decided that the complainant’s reporting relationship should be directed more towards Mr H. The witness told the court that he was aware that the complainant suffered from a stress-related illness and he thought that the management of the partnership were also aware of this fact.
In cross-examination the witness agreed that he had left his employment with the respondent on good terms. He also agreed that he had never made any formal complaint about the way in which the complainant was being treated.
Evidence was also given by Ms K who was employed by the respondent between 1993 and 1998. She said that the management style in the employment could be argumentative and that Mr B was given to shouting at and bullying employees. She said that this approach was adopted consistently with everybody. She said that Mr B ranted and raved at the complainant regularly when there was no need to do so. The witness knew that the complainant was ill but she didn’t know the nature of his illness.
In cross-examination the witness said she remained in the employment for four and a half years as she had just returned from Australia and needed a job. She agreed she had never made any formal complaint in relation to the behaviour of any member of management. She also agreed that she had never sought alternative employment during this time.
The complainant’s case is that the respondent failed to accommodate his needs by allowing him to return to work on a phased basis. This, he claims, resulted in him being out of work unnecessarily for over three months. The complainant further contends that another employee, with a different disability, was accommodated in returning to work on a part-time basis and that the less favourable treatment afforded to him constituted discrimination.
The respondent’s case
Evidence was given on behalf of the respondent by Mr B, Mr H and Mr M. who are partners in the business and also by Ms H who is also a partner and financial controller with the respondent. Evidence was also received from Dr S and Dr D.
The court was told in evidence that the complainant was absent on sick leave for protracted periods in the past. He went on sick leave on March 25, 2002, and returned on April 8, 2002. On April 15, 2002, the complainant *120 informed Mr H that he was extremely unwell. He further advised Mr H that his general practitioner had arranged an appointment for him at a hospital in the following month. Mr H was so concerned as to the complainant’s state of health that he informed Mr B immediately. Mr B arranged for the complainant to attend his own doctor on that day. This doctor was of the opinion that the complainant’s condition was sufficient to warrant his immediate admission to hospital.
After his discharge from hospital the complainant met with Mr H on June 14 to discuss his return to work. Mr H’s recollection is that the complainant was extremely agitated at this meeting and he informed Mr H that he was suffering from memory loss. At this meeting the complainant indicated his intention to return to work on June 21. Mr H was of the view the complainant’s condition had not ameliorated and was still severe. Mr H recalled the complainant mentioning that he wished to return to work part-time but he had given no commitment that this could be facilitated.
Subsequently, at the respondent’s request, the complainant gave his consent for the release of his medical records and information on his condition and prognosis. Mr B spoke to Dr F, a register to Dr L, by telephone and requested a report on the complainant’s condition. Dr F then issued a letter addressed “to whom it may concern” dated June 20, 2002, in which she stated that the complainant should be able to return to full time employment as in the past. She went on to say that it would be preferable if he could do so on a phased basis.
Mr H told the court that he discussed the complainant’s proposed return to work with the other partners of the firm. They were of the view that a phased return was not viable, having regard to the nature of the work at which the complainant was employed. Following this discussion, he telephoned the complainant and told him not to come into work on June 21. Notwithstanding this instruction, the complainant returned to work on June 21 at approximately 12.30 p.m. and remained at work for approximately two hours. Mr H spoke to the complainant at this point and said that he could not take responsibility for his return to work. Mr H indicated to the complainant that he had to attend a meeting and that they would speak again when the meeting concluded. However, the complainant departed before this meeting ended.
Later that evening, the complainant telephoned Mr H and apologised for leaving. He indicated his intention to return to full-time employment on the following Monday. The complainant also told Mr H that he (the complainant) would take full responsibility for his return to work full-time. The complainant attended for work on Monday, June 24 and also on the next day. The respondent formed the view that the complainant was incapable of performing any meaningful work on these occasions. The respondent also contends that the complainant posed a serious risk to their enterprise while simultaneously *121 exposing himself to an exacerbation of his symptoms.
Mr M told the court in evidence that the complainant was skilled at his occupation and that he was on friendly terms with him. He said that in the nature of the business in which the respondent was engaged, those in the position of the complainant frequently had to work to deadlines. He said that whilst the complainant generally worked to deadlines he occasionally panicked if his work fell behind. Mr M said that the only occasion on which he recalled the complainant making a complaint concerning his working conditions was when he asked that the requirement for him to report to Mr B be changed. This was addressed and from then on the complainant reported mainly to Mr H. In relation to his return to work on June 24, Mr M recalled that the complainant spent the time filing and appeared unable to do any work at his specialist occupation. He said that the complainant had seemed confused. The complainant told Mr M that he was taking holidays but appeared unsure as to where he was going.
The complainant was on holidays from 1 to 8, July. The respondent says that when the complainant returned to work on July 9 the partners decided to refer him to Dr S, a consultant psychiatrist. The complainant attended Dr S on July 11. It was Dr S’s opinion that the complainant was suffering from an illness (details of which were provided to the court) to the point that he was unable to do his job. Furthermore, Dr S was of the view that while the complainant had made some response to treatment, he had not activated a significant level of remission to return to his position with the respondent. Dr S did advise that the complainant be seen by an occupational health physician and, in accordance with that advice, the respondent referred him to Dr D. Dr D was of the opinion that as the complainant’s medication had been changed by his consultant psychiatrist he should not return to work until he was further assessed by his own psychiatrist.
The respondent acknowledged that the complainant had sought to return to work on a phased basis. It is their position that such an arrangement was wholly impractical having regard to the nature of the business in which they are engaged. The partners of the respondent told the court that the complainant’s job was such that it would not be practical for one person in his position to start a project and then pass it over to another. They said that any attempt at introducing part-time working in this area would be wholly disruptive of the business. They did accept that they had not discussed the complaint’s proposal for a phased return to work with him or with his medical advisors.
The witnesses for the respondent categorically denied that the atmosphere in the workplace or the respondents management style was as described by witnesses for the complainant.
Ms H gave evidence in relation to the complainant’s sick leave record (which was detailed in the respondent’s written submission). The record showed that in the year 2002 the complainant has 115 days sick leave, 45 days of which *122 were unpaid. He had varying levels of absence in other years due to illness. During 1995, 1997, and 1998 he also had periods of unpaid sick leave. The witness did, however, accept that on those occasions the complainant asked not to be paid. Ms H also told the court the complainant had withdrawn from the firm’s group VHI scheme in August 2002, while on sick leave. She said that had the complainant not withdrawn from the scheme the respondent would have continued paying his contributions. The respondent did continue to pay his pension contributions during the period in which he was on unpaid sick leave.
Ms H also referred to the evidence given by witnesses for the complainant in relation to the working atmosphere in the firm. She refuted the evidence given that the atmosphere was oppressive or unpleasant. She said that she had never found it so. This witness told the court that the evidence given by Ms K, which she totally refuted, shocked her.
This witness also referred to the position of another employee who was allowed time off to recover from illness. She recalled that this employee was recovering from alcoholism and was allowed to take half days off to attend counselling. This was on the basis that the time lost would be worked up at other times. Ms H also told the court that this employee worked in a different capacity to that of the complainant and his absences were less disruptive of the business.
Finally, the complainant returned to work on October 9, 2002, having been certified to do so by his consultant psychiatrist. He was asked by the receptionist to meet with Mr H and Mr B in the boardroom but he did not attend. Instead, he went to the kitchen to drink tea. The complainant was again invited to attend in the boardroom which he duly did. In their evidence, Mr H and Mr B recalled that the complainant was welcomed back to work and told of the respondent’s satisfaction that his doctor now considered him fit for work. The complainant was then furnished with a job specification and was told that it was expected that he would conform to its provisions. The court was told that this job specification had previously been presented to the complainant during his consultation with Dr D.
It was accepted that the complainant was told that he should have no further contact with clients and that queries should, in future, be channelled through another employee. It was the respondent’s evidence that contact with clients was a minor part of the complainant’s responsibilities and the change was necessitated by the complainant’s admission that he was suffering from memory loss. The respondent contends that this adjustment was in ease of the complainant. The respondent further accepts that the complainant was told that his work would be monitored. They say, however, that he did not demur from this proposal.
Mr M gave evidence of having assigned a small project to the complainant *123 which, he said, was to ease him back into his work regime. He was given a deadline of four and a half hours to complete the project, which would normally take two to three hours. It was Mr M’s recollection that the complainant accepted the deadline. The complainant failed to complete the project until 10.45 a.m. on the following day. The work which he presented was of poor quality and was not acceptable to Mr M. He was asked to rectify the work and he finally presented the completed project at 3.45 p.m. on October 10. On October 11 the complainant was assigned a project which he was asked to complete in one hour. This was double the time which a project of this type would normally take. The complainant passed this project to another employee without having undertaken any work himself.
The respondent says that at 11.45 a.m. on October 11 the complainant met with Mr H and Mr B, at his request. He presented a letter of resignation addressed to Mr B alleging unreasonable behaviour and referring to a hostile atmosphere in the office. When asked to elaborate on the content of the letter the complainant declined to do so and left the premises.
The respondent contends that there was no basis in fact for the complainant’s assertions and that he had not previously complained about the matters referred to in the letter.
It is the respondent’s case that the complainant was manifestly incapable of working at his occupation at all times material to his complaint concerning the respondent’s refusal to allow him to resume work. The respondent further contends that it acted responsibly in referring the complainant to specialist medical practitioners before allowing him to return to work and that he was treated with every consideration by the firm during his illness. In these circumstances, the respondent contends, there is no basis for his complaints of discrimination.
Medical evidence
Evidence was given by the complainant general practitioner Dr McM, and also by Drs L, S and D. In the case of the latter two doctors the substance of their evidence was contained in written reposts which were available to the court and fully considered by it. The court does not consider it appropriate to recite the content of these reports in this determination. However Dr McM, the complainant’s GP, and Dr L told the court that the respondent did not seek their advice on matters related to the complainant’s return to work. Dr S also told the court that he had not been specifically asked to advise on any special measures which should be taken in relation to the complainant’s return to work.
It was put to Drs McM and L in cross-examination that the complainant has been certified by Dr F (registrar to Dr L) as suffering from a particular illness which was not disclosed to the respondent at the material time or in earlier proceedings. Dr McM told the court that he had never diagnosed the complainant *124 as suffering from this illness. Dr L was also of opinion that the complainant did not have the condition referred to, notwithstanding the stated opinion of Dr F.
Findings of fact
Having reviewed all of the evidence adduced, which is summarised in the preceding paragraphs, the court has, as a matter of probability, reached the following findings of fact in relation to the complaint to which this determination relates:
The court accepts that the working environment with the respondent was pressurised and that a least one of the partners would, at times, publicly remonstrate with staff in robust language. The testimony of two independent witnesses, Mr McQ and Ms K who gave evidence on behalf of the complainant, supports this conclusion. Nonetheless, there is no evidence to suggest that the respondent was other than a reasonable employer in its overall dealings with its staff. In the case of the complainant, he appears to have been content in his employment for over 14 years. He had extended periods of sick leave in respect of which he received his full pay, except on those occasions on which he declined to accept his salary, believing that he would be under less pressure to return if he was no paid. No issue was taken with the complainant concerning the length or frequency of his absences on sick leave.
When the complainant indicated that he had difficulty in his reporting relationship to Mr B it was agreed that he should generally report to Mr H instead. Mr H befriended the complainant during times of personal difficulty for him and he did not disagree with the suggestion that Mr H had provided him with a shoulder to cry on. Further, when his state of health deteriorated in April, 2002, the respondent arranged for him to be admitted to hospital and one of the partners drove him there. The partners also remained in contact with the complainant’s wife to check on his progress.
The respondent contends that at all material times it treated the complainant sympathetically and with consideration in relation to his illness. The court accepts that at the commencement of his illness the respondent did provide commendable assistance to the complainant. However the respondent’s later treatment of the complainant could not be so characterised.
On his discharge from hospital, the complainant was advised by his consultant psychiatrist that he was fit to resume work but that his return should be phased. The complainant proposed to Mr H that he would return on that basis when they met on June 14, 2002. There appears to have been little in the way of detailed discussion between the parties as to what might have been involved in a phased return to work. Mr H regarded the complainant’s demeanour at this meeting as agitated and confused. Yet, what he said at this meeting were the only representations received from the complainant before the partners of the respondent decided that it was not practicable to accommodate *125 his request.
On the evidence before it, the court is satisfied that the respondent had a marked reluctance to accommodate the complainant in returning to work. He had been certified as fit to resume work (albeit on a phased basis) by his own doctors. Nonetheless the respondent, as was its right, sought a second opinion from Dr S. Dr S was furnished with a document detailing the full extent of the complainant’s duties and was asked if he was fit to discharge those duties. The consultant was not asked to advise on what, if any, modifications in those duties might facilitate the complainant in returning to work. On receipt of that consultant’s report, the respondent wrote to the complainant on July 18, 2002, to the effect that, in the consultant psychiatrist’s opinion, he (the complainant) was not fit to return to work. He was also advised that his salary would cease from the following day.
In fact, the consultant psychiatrist did not completely rule out the complainant’s return to work. He stated in his report that if there was a different job available to the complainant, whereby he could do some routine work which did not involve a high level of critical or analytical mental ability and which did not require him to be aware of other people’s emotional boundaries, then he would benefit from a gradual return to work in such a situation. The respondent never sought to develop that aspect of the consultant psychiatrist’s advice or to examine the possibilities of providing the type of work referred to in the report.
The complainant visited his own doctor on August 1 and was certified as fit to return to work on a full time basis. However this was not acceptable to the respondent who referred him to an occupational medical specialist, Dr D (as had been recommended by the respondents consultant psychiatrist) for further examination. This second examination was not conclusive, and the doctor in question simply recommended that the complainant return to his own consultant psychiatrist (who had already certified him as fit for a return to work) because his medication had been changed. Again, Dr D’s opinion was sought on the complainant’s capability to perform the full range of duties specified in the job description which the respondent provided. He was not asked to advise on what adjustments might facilitate the complainant’s return to work.
The partners of the respondent told the court that it was not practical to allow the complainant to return to work part-time having regard to the nature of the work in which he was involved. However, the court is satisfied that little serious consideration was given to what, if any, adjustment could be made so as to accommodate the complainants request. In that regard, the court notes that the job description provided to the complainant on his return to work states that projects may need to be completed in a matter of hours or can take months to complete. It is noteworthy, moreover, that when the complainant finally returned to work in October 2002, he was assigned projects of short duration.
*126
The court is satisfied, as a matter of probability, that he respondent did not seriously consider whether arrangements could be devised whereby the complainant could return to work on a phased basis. Moreover, it is clear from the evidence that the respondent did not seek professional advice from either the consultants which it nominated, or from the complainant’s own doctors, concerning possible adjustments which could be made in the work regime of the complainant so as to ameliorate his difficulties and facilitate his early return to work, nor did they discuss the matter with the complainant in any serious sense.
The respondent said that the complainant suffered from a particular personality defect (details of which were provided) which had a lasting effect. They rely on the discharge note issued by the registrar of the complainant’s consultant to suppose this submission. They say that the content of this note was not disclosed and that the complainant had concealed the true nature of his illness. The consultant told the court that the complainant was never diagnosed with this condition. In the court’s view little turns on this issue. However, for the sake of completeness, the court has considered this matter and has come to the view that the complainant does not suffer from the type of disorder referred to by Dr F.
The complainant also referred to the treatment of a former colleague who was allowed to take a series of half days off work while he was recovering from illness. This individual was in a different occupational category to that of the complainant and it is the respondent contention that the work pattern agreed with him did not disrupt the business of the respondent. The arrangements put in place to facilitate this person were devised in discussion with him and were implemented on a mutually acceptable basis. By contrast, the respondent never engaged in discussion with the complainant in respect of his request for a phased return nor did it seek to identify an acceptable basis upon which it could be accommodated.
The law
The complainant’s case is based on the assertion that the respondent did not do all that was reasonable to accommodate his needs by providing special treatment or facilities so as to facilitate his return to work on or after July 9, 2004. The complainant also contends that he was discriminated against in being treated differently than another employee of the respondent who was facilitated in phased return to while coping with a different disability.
This latter point can be shortly addressed. Section 6(1)(g) of the Act provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability. The respondent contends that the other employee with whom the complainant draws comparison was capable of doing the job *127 for which he was employed part-time whereas the complainant was not. Whether or not this is a good defence turns on the interpretation and application of s.16 of the Act.
The duty to provide special treatment or facilities, for which the complainant contends, is derived from s.16 of the Act. It provides as follows:
“16.—
(1) 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) [Not relevant]
(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.”
The nature and extent of an employer’s duty to an employee with a disability was recently considered by this court in An Employer v A Worker Labour Court Determination EDA0413 ( November 15, 2004). In this case the court stated as follows:
“Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the recent House of *128 Lord decision in Archibald v Fife Council [2004] I.R.L.R. 651:
‘But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment ….’”
Later in the determination, in relation to the effect of s.16, the court stated as follows:
“Prima facie, subs.(1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.
Subsection 1(b) is, however, qualified by subs.(3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a *129 disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull [2001] I.R.L.R. 60).”
The court adopts that reasoning in its approach to the instant case.
Consequence of failure to provide reasonable accommodation
In this case it is necessary to consider the legal consequences of an employer’s failure to fulfil the duty imposed by s.16(3). It is clear from the Act as a whole that a failure to provide reasonable accommodation in accordance with this section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Act, is defined by s.6. That definition does not include any reference to a failure to fulfil the duty imposed by s.16(3). Further, there is nothing in the Act which gives an independent cause of action for an employer’s failure to provide special treatment of facilities in accordance with that subsection.
It appears to the court that the purpose and effect of s.16(3) is to be found in a reading of s.16 as a whole. As was pointed out in An Employer and A Worker, s.16(1)(b), prima facie, allows an employer to treat a disabled employee less favourably than others in respect to access to employment if he or she is not capable of fully carrying out the duties of the post in question. Thus, in an appropriate case, this subsection can provide a full defence to a claim alleging discrimination on the disability ground. That defence is, however, qualified by s.16(3)(a). This subsection, in effect, provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties. Section 16(3)(b) then goes on to impose an obligation on employers to do what is reasonable to provide such treatment or facilities.
Considered in this context, the effect of a failure to fulfil the duty imposed by s.16(3)(b) is to negate reliance on s.16(1)(b) as a defence to a claim of discrimination to which that subsection relates rather than to provide a separate cause of action for the failure itself.
*130
Scope of the duty imposed by s.16(3)
In Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566 the EAT for England and Wales considered an appeal from the decision of an employment tribunal in which it was held that the obligation imposed on an employer by s.6(1) of the Disability Discrimination Act 1995 (which corresponds to s.16 of the Act) included an obligation to carry out a proper assessment of the disabled employee’s needs. In the headnote of the report the following statement of the law appears:
“A proper assessment of what is required to eliminate a disabled person’s disadvantage is a necessary part of the duty imposed by s.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on s.6(1) could not be accepted. The making of that assessment cannot be separated from the duty imposed by s.6(1), because it is a necessary precondition to the fulfillment of that duty and therefore part of it ….”
That reasoning is based on the corresponding UK statutory provision which is somewhat differently worded to its Irish equivalent. It is, however, authority for the proposition that an employer must make adequate enquires so as to be in possession of all material information concerning the needs of an employee with a disability before taking decisions which are to the employee’s detriment. It is persuasive in the context of the instant case and the court adopts it as equally applicable in identifying the scope of an employer’s duty to a disabled employee under s.16(3) of the Act.
Conclusion
It is clear that when the complainant returned to work he was not fully capable of undertaking the duties attached to his occupation on a full-time basis. In these circumstances, the respondent would, prima facie, be entitled to rely on s.16(1) in defending its decision not to allow the complainant back to work. However, that defence could not be relied upon if, with the assistance of special treatment, the complainant would have been capable of resuming work.
Both his own psychiatrist and Dr S believed that the complainant would have benefited from certain adjustments in his normal work arrangements. His own doctors were of the view that a phased return would be desirable. Dr S was of the view that if his duties were modified the complainant would benefit from a gradual return to work. Whilst Dr S went on to say that since this was not available the complainant could not return to work at that time. However, the possibility of providing such a facility was never considered by the respondent.
*131
It is clear that the respondent wanted the complainant to return to work fulltime and fully fit or not at all. It believed that a phased return was impractical. Yet it is clear from the evidence that the respondent had no clear understanding of what was meant by a phased return or of the duration over which it might extend. The decision in Mid-Staffordshire General Hospital Trust indicated that the duty of an employer to do all that is reasonable to accommodate the needs of an employee with a disability includes the obligation to make an adequate assessment of what is required to meet those needs. That necessarily involves ascertaining the detail of what is required and giving bona fide consideration to how it might be achieved.
On the facts found and set out elsewhere in this Determination, the court cannot accept that the respondent gave any adequate consideration to providing the complainant with the type of special treatment which would have allowed him to resume work following his discharge from hospital. In these circumstances the respondent cannot rely on s.16(1) of the Act in defending the complainant claim. Consequently, the court holds that the complainant was discriminated against on grounds of his disability when he was treated differently to employees without a disability, and an employee with a different disability, in not being allowed to resume work following his return from holidays on July 9, 2002. Accordingly, the complainant is entitled to succeed.
It is noted that the equality officer also had regard to the events surrounding the complainant’s return to work on October 9, 10 and 11, 2002, and held that the conduct of the respondent on those dates constituted a further infringement of s.16(3) of the Act. In the courts view these events should, more properly, be considered in the context of the complainant’s claim that he was constructively dismissed on grounds of his disability, which is the subject of a separate Determination (EED0410) of the court.
Determination
The court finds that the respondent did discriminate against the complainant on grounds of his disability when it refused to allow him to resume employment between July 9, 2002, and October 9, 2002. The Equality Officer awarded the complainant compensation in the amount of €8,000 for the effects of the discrimination. Whilst the determination of the court is based on findings which are somewhat different to those reached by the Equality Officer, the court is none the less satisfied that the award made by the Equality Officer is appropriate.
Accordingly, the decision of the Equality Officer is affirmed and the appeal is disallowed.
Division of the Labour Court: Mr Duffy (Chair), Mr Doherty, Ms Ní Mhurchú
Occipital Limited v Joseph Hayes
DEC-2017-049 EDA184
Labour Court
10 January 2018
[2018] 29 E.L.R. 155
Subject
An appeal of an Adjudication Officer’s Decision No: Dec-E2017-049.
Background
The appellant appealed the decision of the Adjudication Officer to the Labour Court on 3 July 2017. Two Labour Court hearings took place on 22 November and 14 December 2017. The following is the court’s determination.
Determination
This is an appeal by Mr Joseph Hayes against the decision of an Adjudication Officer in a claim that his former employer Occipital Limited had failed to provide appropriate measures to accommodate the complainant’s disability and had discriminatorily constructively dismissed him on the ground of disability contrary to the Employment Equality Acts 1998 to 2015 (the “Acts”). The Adjudication Officer found that the complaint was not well-founded and dismissed the complaints under the Acts. A number of related complaints were not upheld by the Adjudication Officer and were not appealed to this court.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Joseph Hayes will be referred to as “the complainant” and Occipital Limited will be referred to as “the respondent”.
The complainant referred his claim under the Acts to the Director of the Equality Tribunal on 18 March 2015, a hearing was held on 12 April 2017 and the Equality/Adjudication Officer’s Decision was issued on 15 June 2017.
*158
The court was informed that in addition to the complaints made pursuant to employment equality legislation, the complainant also instituted a constructive dismissal claim pursuant to the Unfair Dismissals Acts and a personal injuries claim. The Unfair Dismissals case was withdrawn on the day of the hearing before the Employment Appeals Tribunal and the personal injuries claim, which related to a back injury sustained at work, was settled by the parties in advance of any hearing with no admission of liability.
Background
The complainant was employed by the respondent initially as a general operative at its Ballymun site. In April 2012, the complainant was promoted to the positions of de-kitting supervisor at its logistics and outsourcing business, located at its customer base in Donabate. By letter dated 30 December 2014, the complainant tendered his resignation to take effect from 9 January 2015.
De-kitting involves the loading and unloading of heavy goods vehicles with cages which are on wheels and which are then moved from place to place. The court was told it was a physically demanding role where a number of cages are nested together before their removal from the vehicle. Each cage weighs approximately 42 kilos. The complainant had a supervisory role which involved much of his time pushing and pulling cages and being on his feet for extended periods.
The complainant suffered an injury at work on 2 July 2012, which necessitated a number of extended periods of absence over the following years. In or around October 2012, the complainant was also diagnosed with early onset Multiple Sclerosis.
On 21 September 2013, the complainant reported a second workplace injury that was alleged to have occurred on that date when he injured his back while pulling cages off a trailer.
The complainant was absent from work for the following periods:
10 February 2013 to 15 April 2013;
4 June 2013 to 11 June 2013;
13 July 2013 to 27 August 2013;
20 October 2013 to 11 November 2014.
By email dated 21 October 2014, the complainant wrote to his manager, Mr Boylan, stating:
“I am inquiring about my medical with the company doctor. I have been given the all clear to return and am only waiting on a date. I would be grateful if you would give this your immediate attention as 1 am looking forward to getting back to normal life as soon as possible.”
*159
In response, Mr Boylan stated: “I have requested a medical appointment with the company doctor last Friday and again this morning I am awaiting for them to give a suitable appointment time for you.”
By email dated 23 October 2014, the complainant stated:
“Sorry to bother you again, but could you get on to your doctor again about an appointment as I am anxious to get back to work. As from tomorrow I am being taken off illness payments as I have been deemed fit for work.”
On 29 October 2014, the complainant attended Dr Deirdre Gleeson, occupational health specialist of the Medwise Occupational Health Clinic, for the purposes of an occupational assessment. By medical report dated 3 November 2014, Dr Gleeson noted that the complainant had made a: “remarkable recovery” and that: “his symptoms of back pain, hip pain and neck pain have completely resolved.” Dr Gleeson noted that the complainant’s GP and physiotherapist had declared him fit for work before making the following recommendation:
“Joe has recovered from back pain. It appears his symptoms were multifactorial in aetiology. There is some degeneration in the spine and joints, which is age-related and any soft tissue injuries have healed over time and with the intervention of rehabilitation physiotherapy. There is no evidence of serious underlying ongoing musculoskeletal or spinal disease today. I find Joe to be in excellent physical and mental health.
In my opinion Joe is fit to return to full normal duties without restriction. He is fit to perform any manual work, providing he adheres to safe work practices, including good manual handling and ergonomic standards.
I have not arranged to review Joe again but would be happy to do so at your request. I do not anticipate any further health problems.”
Position of the parties
Summary of the complainant’s case
Mr Lars Asmussen, BL, instructed by Séan Ormonde & Co, Solicitors on behalf of the complainant claimed that the complainant was constructively dismissed by the respondent on the grounds of his disability and that the respondent had failed to provide appropriate measures to accommodate him contrary to the Acts.
Mr Asmussen stated that following his accident the complainant had a number of absences from work due to difficulties arising from his injury. He said that these absences arose due to a failure on the part of the respondent to provide reasonable accommodation to the complainant in failing to facilitate his return to work and/or his return to work on lighter duties.
In August 2012, the complainant raised a grievance with Mr David O’Flaherty, service delivery manager, regarding the workplace injury and his *160 wish to be accommodated through a transfer. At a meeting with Mr O’Flaherty in September 2012 the complainant stated that due to the injury that he had suffered and the ongoing damage that performing de-kitting duties was causing to his back, he wished to step down from his position as de-kitting supervisor and be returned to his post as hygiene supervisor at the Ballymun site. In response, Mr O’Flaherty refused his request to transfer back to Ballymun as a hygiene supervisor and told him that if he stepped down from his role as de-kitting supervisor his salary would be reduced to minimum wage; and that if he was not up to the job, he could leave the respondent’s employment.
On 6 December 2012, the complainant attended an occupational health review with Dr Jacqueline Furlong McCarthy, occupational health physician of the Meridian Clinic. By letter dated 6 December 2012, Dr Furlong McCarthy wrote to Mr O’Flaherty outlining her opinion on the fitness of the complainant to return to work, it read as follows:
“Following my consultation today I have formed the opinion that Mr Hayes is currently fit to return to work. However, given the nature of his symptoms it is possible that Mr Hayes may have one of the relapsing illnesses such as MS. This will need to be further evaluated. While he is currently fit to work, I cannot state without further evaluation of his intended investigations that he will be fit to attend for all duties on a regular long-term basis.”
Mr Asmussen said that the complainant returned to work as a de-kitting supervisor shortly thereafter without any alterations or accommodations being made to his role. However, from 10 February 2013 to 15 April 2013 the complainant was absent again due to difficulties arising from his injury. By email dated 8 April 2013, Mr O’Flaherty wrote to the Meridian Clinic arranging an appointment for an occupational assessment for the complainant. Mr O’Flaherty attached a form describing the roles allegedly available within the respondent and the manner in which all were allegedly physically demanding roles requiring performance of some tasks that were physical in various manners. Mr Asmussen submitted that the respondent had failed to consider whether any such problematic tasks could be redistributed from the complainant’s portfolio; whether shift or break lengths could be altered; or whether the workplace environment could be altered or further equipment provided in order to accommodate the complainant’s disability. Further, he contended that the respondent failed to inform or consult with the complainant regarding this alleged assessment. The complainant had his assessment the following day. By letter dated 11 April 2013, Dr Furlong McCarthy wrote to Mr O’Flaherty and outlined that in her opinion the complainant was fit to return to work, however, until a definitive diagnosis was made she said that a prognosis for relapse could not be given. The complainant returned to work *161 on 15 April 2013.
Mr Asmussen said that the complainant was absent again from 4 June 2013 to 11 June 2013, on his return he attended a return to work meeting and was asked if he was fully fit to work and to perform all of his duties. The complainant responded by stating that he was “not fit to do normal de-kitting duty”. Mr Asmussen stated that despite providing a report from his treating GP the complainant was asked at if he understood that “future occasions of absence may lead to investigation up to dismissal”.
The complainant had a further absence from 13 July 2013 to 27 August 2013. On 23 July 2013, he attended an occupational assessment as to his fitness to return to work with Dr Deirdre Gleeson, Occupational Health Specialist of Medwise Occupational Health Clinic. On 26 July 2013, Dr Gleeson submitted a medical report in which she noted and concurred with the complainant’s treating doctor’s view that the complainant required an MRI scan to determine an appropriate diagnosis and treatment programme. Regarding the complainant’s fitness to work, Dr Gleeson recommended as follows:
“Joseph reports intolerance of normal work activity and is likely to complain of increased symptoms if he returns to the role of de-kitting supervisor. It is reasonable to accept his claim that he is unfit for this role until the results of the MRI scans are available.
In my opinion Joseph is currently fit for work of a light physical demand and for sedentary work. He is fit for work that allows him to sit, stand and mobilise. He is fit to safely mobilise around the work place. He is fit to lift product weighing 4.5kg on a frequent basis and 9.1kg on an occasional basis. He is fit for administrative and managerial tasks. I understand that modified duties are not available; therefore Joseph should remain on sick leave.
I would like to review Joseph with the results of the MRI scan to give further advice regarding his fitness to work. Please arrange for a follow up appointment in due course.”
Mr Asmussen stated that despite the contents of this medical report and Dr Gleeson’s opinion, no alterations or accommodations were made to the complainant’s working conditions. The respondent failed to furnish this medical report to the complainant. The respondent failed to carry out any assessment as to whether Dr Gleeson’s opinions could be implemented. The respondent failed to organise a meeting with the complainant to discuss Dr Gleeson’s opinions or to allow the complainant to make an input into any considerations being made.
Mr Asmussen said that the complainant asked Mr David Boylan, who replaced Mr O’Flaherty as service delivery manager, if he could do lighter work as a supervisor. He said that Mr Boylan refused this request out of hand without any consideration. The complainant returned to work on 27 August 2013.
*162
By letter dated 18 September 2013, the complainant wrote to Mr David Boylan and Mr David O’Sullivan stating as follows:
“I wish to inform you that I intend to step down as de-kit supervisor on medical advice from my Hospital Consultant Dr Paul O’Connell. It will cause irreparable damage to my spinal cord if I continue to de-kit at the rate I have been. I request that I be transferred to hygiene duties in Ballymun or Donabate as I want to remain in the company. I have invested nearly three years to Occipital and want to continue to grow with them but maybe in a different role.”
Mr Asmussen said that the respondent refused to consider this request and did not facilitate the complainant in the change of his role. Despite the contents of this letter and the complainant’s request that he be transferred, no alterations or accommodations were made to the complainant’s working conditions. The respondent failed to carry out any assessment as to whether this request could be implemented. The respondent failed to organise a meeting with the complainant to discuss the complainant’s stepping-down or request for a transfer or to allow the complainant to make representations as to his accommodation regarding same.
On 21 September 2013, while at work, the complainant suffered a further injury to his back while pulling cages off a trailer.
By letter dated 11 October 2013, the complainant wrote to Mr Boylan, stating:
“I am writing to you to allow me to return to work either in Ballymun or Donabate with reasonable accommodation to my disability I incurred while working on de-kitting in July 2012.”
Mr Asmussen said that the respondent failed to reply to this letter or consider any accommodations. The complainant was then absent from work from 20 October 2013 to 11 November 2014 on the grounds that he was under medical advice that he could not fulfill the role of de-kitting supervisor and it was alleged that there was no suitable alternative employment available to him.
By letter dated 28 April 2014, Dr Gleeson wrote to the respondent stating:
“My opinion remains that Joseph is fit to return to work of a light physical demand and may be fit to increase his work demand further as part of a rehabilitation program.”
By letter dated 16 October 2014, Ms Caroline Treanor, clinical specialist physiotherapist of Beaumont Hospital, wrote to the respondent, stating:
“In recent weeks he has significantly increased his level of physical activity and *163 is now in a position to return to work to full duties.”
On 29 October 2014, the complainant attended Dr Gleeson for the purposes of an occupational assessment. By medical report dated 3 November 2014, Dr Gleeson noted that the complainant had made a “remarkable recovery”, and that “his symptoms of back pain, hip pain and neck pain have completely resolved”. Dr Gleeson stated the complainant was fit to return to full duties without restriction. He returned to work on 11 November 2014.
Mr Asmussen described the events of 15 to 18 December 2014. He said that on the 15 December 2014 the complainant had a problem with his car and was required to leave it with his mechanic for two days. The complainant contacted his floor supervisor, Mr Trevor Deegan, and informed him that he had agreed to swap shifts with a co-worker. Mr Deegan was satisfied with the arrangement and requested to be informed when he was back in work. When the complainant’s car was not ready on 16 December 2014 he telephoned Mr Deegan who said that this was not a problem and that he would let Mr Boylan know.
On 17 December 2014, the complainant informed Mr Deegan that he would be in later than his rostered shift time of 2 p.m., due to his car difficulties and was given permission to do so. When the complainant rang Mr Deegan at 3.30 p.m. to inform him he was on his way to work, Mr Deegan asked him to report to his office for a return to work meeting. The complainant queried the purpose of this as such meetings were usually for employees returning to work from sick leave, however, Mr Deegan refused to answer. He was requested to complete a return to work form and asked what his GP had said. The complainant told him that he did not attend a doctor, he said that he was out with a car problem and showed Mr Deegan a receipt from the garage. Mr Deegan stated that the complainant was to be sent home and that he was required to see the company doctor before he would be allowed to return to work. The complainant inquired as to why he needed to see the company doctor when his absence had not been caused by sickness. Mr Deegan said that when the complainant was on the phone to him the complainant had said that he was going to see a doctor about a back problem. Mr Asmussen said that the complainant maintained in the strongest terms that he never said anything to Mr Deegan or Mr Boylan about attending a doctor. Mr Boylan then attended the meeting and said that Mr Deegan had told him that the complainant was seeing the doctor with back problems and that this was why the complainant had been out of work. The complainant stated that that was untrue and showed him the receipt from the garage. Mr Boylan stated that his decision was final and that he would talk to the company doctor to arrange for an assessment. The complainant was sent home for the rest of the day.
Mr Asmussen described the events of the following day. Mr Boylan *164 contacted the complainant and stated that if he got a doctor’s note from his own GP as to his fitness to return to work, it would be accepted and the complainant would be allowed to return to work. The complainant contacted his GP and asked for such a note for work, however as the GP had not given him a sick certificate in the first place he could not provide him with a return to work note. He said that if the respondent rang him, he would explain the situation to them. Later, Mr Boylan contacted the complainant and stated that the complainant could return to work if he signed a return to work form. The complainant stated that he would not sign a return to work form if it stated anything about a back injury or doctor’s appointments. The complainant remained out of work for four days until Mr Boylan finally accepted that the complainant was not ill and he was allowed to return to work. Mr Asmussen said that at the time the complainant was not paid for the days he was unilaterally and unfairly kept out of work. Such payment was made at a later stage. The complainant returned to work and signed a note saying he was happy to return to his position as de-kitting supervisor.
Mr Asmussen outlined the events which lead to the complainant’s claimed constructive dismissal. He said that in the days that followed the complainant was ignored by both Mr Deegan and Mr Boylan. They did not salute him, talk to him or respond to his requests for a copy of the minutes of the meeting. As the days passed, Mr Deegan kept asking the complainant at the end of shift as to his health and his back condition. The complainant felt as if he was being watched and being pushed out of his job. The complainant maintained that no other employee was forced to attend meetings of this kind, to complete return to work forms or to attend medical practitioners for occupational assessment before being allowed to return to work, when their absences were not linked to their health, disability or condition.
By letter dated 30 December 2014, the complainant wrote to the respondent, advising them that he was left with no choice but to resign his position because of the manner in which he had been discriminated against by the respondent because of his health.
The definition of disability
Mr Asmussen stated that the complainant suffered from a disability within the meaning of s.2 of the Acts. At the relevant time covered by the cognisable period while the complainant may have been certified as having made a remarkable recovery, and his symptoms of back pain, hip pain and neck pain had completely resolved, however, his claim of discrimination was grounded on the basis of his previous or imputed disability.
In support of his case, Mr Asmussen cited a number of authorities for the complaint of discrimination by the respondent. He said that it has been established that the treatment of a complainant following his return or *165 attempted return from sick leave may carry weight in the determination of whether a complainant was directly discriminated against on the ground of disability and relied upon the case of A Worker (Mr O) v An Employer (No. 2)[2005] E.L.R. 132 where the Labour Court found that the employer had failed to treat the employee in a sympathetic manner upon his return to work from a psychiatric illness and was instead intent on making his working life difficult. On this basis, the Labour Court upheld the complainant’s claim for constructive dismissal, despite the complainant never having raised the respondent’s grievance procedure.
Reasonable accommodation
Mr Asmussen referred to the respondent’s obligation to provide reasonable accommodation to the complainant and to conduct itself in a proactive manner in making adequate enquiries in order to be in possession of all material information concerning his needs and to consider all appropriate measures that might be necessary in order to allow him be capable of performing his role and to present information and evidence and make representations and suggestions to be considered by the respondent.
In this regard, Mr Asmussen held that the respondent had failed in its obligations and had failed to retain any records of its decisions regarding reasonable accommodation. He referred to the cases of the High Court, Labour Court and the Equality Officers who dealt with this issue; Humphries v Westwood Fitness Club[2004] E.L.R. 296; Kennedy v Stresslite Tanks LimitedDEC-E2009-078, 9 September 2009; Mr O v Industrial Waste Management Company[2014] E.L.R. 106; Nano Nagle School v Daly[2015] IEHC 785; An Employee v A Telecommunications CompanyDEC-E2009-073.
Mr Asmussen contended that despite various medical practitioners, on a number of occasions stating that the complainant was not fit for his role as de-kitting supervisor and was only fit for lighter duties, the only document the respondent produced which makes any record of any enquiry vis-à-vis reasonable accommodation, was Mr O’Flaherty’s attachment document to an email sent to Meridian Clinic on 8 April 2013. This is the only document produced by the respondent that gives evidence of any discussion vis-à-vis reasonable accommodation.
Constructive discriminatory dismissal
Mr Asmussen said that the tests for constructive dismissal in the context of claims for discrimination based on disability are the traditional contract and reasonableness tests. He cited A Worker (Mr O) v An Employer (No. 2)[2005] E.L.R. 132, where it was held that a complainant had been constructively dismissed due to the treatment he experienced from the respondent when he returned to work following a period of sick leave due to a disability. In *166 particular, the Labour Court found that the respondent had failed to treat the complainant in a sympathetic manner and was instead intent on making his working life difficult. Mr Asmussen said that in the decision it was crucial that the misconduct had been perpetrated by a person of high rank within the organisation who knew or ought to have known that their behaviour would have a negative effect on the health of the complainant and the misconduct was perpetrated in a manner likely to destroy the relationship of mutual trust and confidence having regard to the complainant’s emotional and psychological vulnerability. He said that in that case, it was interesting that the complainant was not penalised for failing to invoke the respondent’s grievance procedure.
He also cited Reilly v United Parcels Service CSTC Ireland LimitedDEC-E2013-077, 23 July 2013, where the Equality Tribunal endorsed the Mr O decision in holding that a complainant had been discriminatorily constructively dismissed on the basis of disability discrimination, a failure to provide reasonable accommodation and a satisfaction of the reasonableness test.
Finally, Mr Asmussen submitted that applying either the reasonableness test or the contract test, the complainant in the within case, was discriminatorily constructively dismissed due to the manner in which he was discriminated against by the respondent and the manner in which the respondent failed to provide him with reasonable accommodation.
Summary of the respondent’s position
Mr Tiernan Lowey BL, instructed by DWF Solicitors, on behalf of the respondent submitted that the relevant period for consideration runs from 19 September 2014 to 18 March 2015, the date on which the complainant’s complaint was lodged with what was then the Equality Tribunal. Therefore, it submitted that any claims which pre-date 19 September 2014 are out of time.
At the material time of the complainant’s resignation, the medical advice provided to the respondent on behalf of the complainant stated that he had made a complete recovery and was fully fit for work. Therefore, on the date the contract of employment ended the complainant was not suffering from a disability for the purposes of the Acts. Consequently, the claim in respect of reasonable accommodation must of necessity relate to another time.
Without prejudice to the above preliminary objection, Mr Lowey said that the respondent strongly denied the complainant’s claims and submitted that they were unmeritorious, misconceived and wholly without foundation. He maintained that the complainant’s contract of employment terminated as a result of a voluntary decision to resign from his employment for his own reasons. He told the court that it is established company policy that after a period of certified absence, employees are required not only to attend a return to work interview but also to provide medical certification to confirm their fitness to work.
Mr Lowey said that at all material times, the respondent had always sought *167 to fully accommodate the complainant’s return to full duties. In addition to a review of alternative roles, on each occasion the respondent considered whether the complainant’s job as de-kitting supervisor could be modified in any way that would meet the medical advice, it concluded that modification of the type necessary to meet with the medical advice was not possible. He said that the complainant regularly expressed his view to the respondent that his job was more suitable “for a younger man”.
Following a period of absence, in December 2012, a medical report confirmed that the complainant was fit to return to work following an assessment of his medical condition. While there were no conditions attaching to such a return, the doctor could not state without further evaluation that the complainant was fit to attend for all duties on a regular long-term basis. Following a period of further absence, on or around April 2013, the complainant sought to return to work. The respondent made enquiries into the nature of roles that were available at the time. It was confirmed that all the roles required significant amounts of physical strain. This assessment was communicated to the Meridian Clinic to assist in the context of a medical assessment concerning the complainant to take place on 9 April 2013. On 11 April 2013, the respondent obtained a medical report which confirmed that the complainant was fit to return to work duties. The report also stated that, until a definitive diagnosis was made, a prognosis for relapse could not be given. On 15 April 2013, the complainant returned to work. As per company policy, he attended a return to work interview and confirmed that he was fully fit to work and to do all his contractual duties.
On or around this time, the complainant asked to be provided with assistance in relation to weekend work. This represented the only occasion during the complainant’s entire employment that any request for such assistance was made by the complainant. Without hesitation, the respondent agreed to the complainant’s request and arranged for another member of staff to provide him weekend assistance to enable him to ease back to his normal work duties.
Following a period of absence, on 11 June 2013, the respondent received a medical certificate from the complainant’s GP stating that the complainant was fully fit to work. The complainant confirmed that he had furnished the respondent with a medical certificate to this effect but, notwithstanding same, suggested that he was not, in fact, fit to do normal de-kitting duties. Then in July 2013 Medwise reported that the complainant was fit only for work of a light physical demand and for sedentary work. The report concluded that in circumstances where such work was not available the complainant should remain on sick leave pending the results of an MRI scan.
Mr Lowey said that the respondent had undertaken to identify whether or not there existed any jobs that met the report’s recommendation but was unable to identify anything suitable. This was communicated to the complainant who continued on paid sick leave at this time.
*168
By 27 August 2013, the complainant confirmed as per his GP’s certification that he was fit to return to work. It was agreed at this meeting that the complainant would undergo necessary health and safety retraining. Yet within a couple of weeks, the complainant advised the respondent that he intended to step down as de-kit supervisor on the advice of his consultant, Dr Paul O’Connell. However, no report from Dr O’Connell was furnished to the respondent.
The respondent considered the feasibility of the complainant’s request and conducted health risk assessments taking into account the relevant medical advice. Ultimately, the respondent concluded that there was no suitable role available at that time and that the role specifically identified by the complainant (hygiene supervisor) had in fact physical demands commensurate with his existing role. On 21 September 2013, the complainant reported a second workplace injury.
By email dated 2 October 2013, Mr Boylan, wrote to Medwise expressing his view that he did not think that there was light work available at the time and expressing his concerns that by permitting him to return to work the respondent could be complicit in aggravating any existing injury of the complainant. Mr Boylan requested a full assessment of the complainant in relation to the duties that were available at the time. In this regard, Mr Boylan attached a document referring to the duties available at the time.
On or around 5 October 2013, Mr I.Y. Sharif, consultant orthopaedic surgeon carried out an assessment of the complainant which found that he was not able to do the heavy work he had doing before and he recommended an MRI scan.
Mr Lowey referred to a letter dated 11 October 2013 from the complainant where he again sought to be returned to work in either Ballymun or Donabate. The respondent again considered the feasibility of his request and concluded that there was no suitable role available at that time.
Following another period of absence, in April 2014, the respondent received a further medical report which provided that the complainant was only fit for work on light duties. Once again, following a review of the roles available, the respondent concluded that there was nothing suitable at that time.
By letter dated 16 October 2014, Ms Caroline Treanor, Clinical Specialist Physiotherapist in Beaumont Hospital, confirmed that the complainant had “made excellent progress with rehabilitation and reports a complete resolution of his symptoms.” The complainant sought to be returned to work with immediate effect. The respondent sought confirmation from Dr Gleeson on his fitness to return to work and given his absence, to arrange for retraining. By a report dated 3 November 2014, Dr Gleeson confirmed that the complainant was “fit to return to full normal duties without restriction.” The complainant attended a series of retraining classes and duly returned to work as de-kitting supervisor.
Mr Lowey stated that on 18 December 2014, following an absence of a *169 few days, at a return to work meeting the complainant stated that he had lied about his back being the cause of his absence and now said that it was due to car problems and advised Mr Deegan that he was not going to jeopardise his health. In a further meeting on that same day the complainant confirmed that he was suffering from pins and needles in his arms and legs and that he was not physically able for the job in the long term. The complainant made reference to the job being more suitable for a younger man. It was agreed that Mr Boylan would speak with Dr Gleeson as soon as possible. Subsequently, at another return to work meeting on 23 December 2014, the complainant stated that he was fully fit to return to complete his daily duties and that he was 100 per cent happy to act as de-kitting supervisor. The complainant duly returned to work in his role.
Mr Lowey disputed the complainant’s contention that he was overmonitored on his return to work in November 2014. He said that any enquiries made regarding the complainant’s health were in the nature of care and to facilitate his return to work, taking into account his long period of absence. However, by letter dated 30 December 2012, the complainant tendered his resignation identifying his proposed departure date as the 9 January 2015. The complainant made reference to the respondent’s alleged breach of contract to support his decision to resign. The complainant referred to “undue and harsh treatment” on the 18 December 2014 when the respondent had refused to allow him to return to start work without medical certification concerning his fitness.
On 8 January 2015, at a final meeting with the complainant, the respondent confirmed its regret that he had decided to resign. The complainant expressed regret that it had come to this and reiterated his view that his role was more suitable for a younger man and he was not prepared to put his health in jeopardy.
Mr Lowey said that as the complainant had made a claim concerning an alleged injury to his back, it would have been wholly irresponsible for the respondent if it had not raised a doubt about his fitness to work and thereby requested him to obtain medical certification to prove his fitness for work.
Mr Lowey said that at no stage did the complainant seek to invoke the respondent’s grievance procedure. His decision to resign from his employment was made without first seeking to have the matter dealt with in accordance with the respondent’s grievance procedures.
The complainant’s evidence
The complainant stated that on the commencement of this employment he had not received a contract of employment or a copy of the company handbook, which included a grievance procedure. He said that it was November 2014 before he was presented with a contract of employment to sign, however, as it referred to his job title as “general operative” he refused to sign it and was not presented with a revised one.
*170
He said that he raised a grievance with Mr David O’Sullivan, his line manager, about the difficulties in carrying out his role due to his disability and he sought to be transferred to the role of hygiene duties in Ballymun.
He said that on his return to work following his accident in July 2012, he also raised the issue with Mr David O’Flaherty, service delivery manager between 2012 and 2013, who told him that nothing could be done about it as there was no hygiene job vacancy in Ballymun and no vacancy that did not entail physical work. He said that there was no discussion or meeting with management about possible tasks/roles that he might be able to undertake due to his disability following his injury. He said that at a return to work meeting on 11 June 2013 he informed management that he was not fit to do normal de-kitting duties, as recorded in its “return to work” form.
The complainant was questioned about a Medwise occupational health assessment which was carried out on him on 23 July 2013. The assessment report stated that he was currently fit for work of a light physical demand and for sedentary work. The physician, Dr Deirdre Gleeson, said that it was her understanding that modified duties were not available for him, therefore he should remain on sick leave. Furthermore, Dr Gleeson stated that she wished to review him when the results of an MRI scan were available to give further advice regarding his fitness for work. The complainant told the court that he was not on notice of any accommodation being considered for him, that the report was never discussed with him. He said that to the best of his recollection, after he got the report, he sought a meeting with Mr David Boylan.
The complainant told the court that he wrote a letter to both Mr Boylan and Mr O’Sullivan on 13 September 2013 (copy supplied to the court) asking to be transferred to hygiene duties in Ballymun as he had received advice from his consultant that to continue in his current role could do irreparable damage to his spinal cord. He said that he got no response to the letter. He said that shortly afterwards he had a second accident at work.
He wrote again to Mr Boylan on 11 October 2013 (copy supplied to the court) seeking to return to work, as he was no longer certified ill and was no longer on social welfare disability benefits.
The complainant was questioned about a letter from Dr Gleeson to Mr Boylan dated 28 April 2014 which stated that he was fit to return to light physical duties and recommended that he be referred for an occupational health review. Dr Gleeson asked Mr Boylan to confirm the options for returning to work to modified duties on a long and short-term basis. The complainant said that he had not seen this letter and was not aware of its existence until the hearing before the Adjudication Officer. He said that no assessment was carried out as recommended in the letter.
The complainant said that following intensive physiotherapy and rehabilitation at Beaumont Hospital, he was deemed fit to return to his full *171 duties by both his physiotherapist based in Beaumont Hospital on 16 October 2014 and by Medwise (Dr Gleeson) on 29 October 2014, who stated that he was fit to perform any manual work, providing he adhered to safe work practices, including good manual handling and ergonomic standards. He said that when he returned to work on 11 November 2014 he was treated differently by management and his colleagues. He said that management did not speak to him.
The complainant gave evidence of the events of 15 to 18 December 2014 when he said that due to car trouble he required time off which he cleared with Mr Trevor Deegan, his supervisor. However, he said that when he enquired about his roster, he was informed that he needed to attend a return to work meeting and was being sent to the company doctor for an assessment of his fitness to return. He disputed this as he said that he had not been out ill, but had had car trouble. He sought a fitness to return to work certificate from his own doctor who refused to give him one as he had not diagnosed him as ill, the doctor offered to speak with management to explain the situation, it was at that point that management accepted his return to work, which was four days later. He was not permitted to work for the next four days for which he was not paid at the time. He said that the company subsequently paid him for these days the following week after he protested.
The complainant was questioned about a “return to work” form completed by Mr Deegan and signed by him at a return to work meeting held with Mr Deegan at 4.30 p.m. on 18 December 2014, which stated the following:
“Problem with car, not with back, doctor has advised me long term; meantime ok; didn’t make an appointment.”
The form also stated:
“Joe informs me that he is not going to jeopardise his health.”
The complainant disputed the contents of the form, he stated that the latter point was not on the form when he signed it.
At a meeting with Mr Boylan held at 5.03 p.m. on the same day, 18 December 2014, the minutes of the meeting state as follows:
“Next step: (David Boylan to speak ASAP with Dr Gleeson)
Mr Boylan had 2 concerns
A. Pins and needles in arm, legs.
B. Longevity of job, physically not able to do the job long term. Mr Hayes
[The complainant]:
‘I know it’s a young man’s job, I’m physically not able for the job in the long term.’”
The minutes were not signed.
*172
The complainant told the court that this was a compete fabrication, that he never made the above comments and that he had never seen the minutes.
With regard to his resignation letter, the complainant said that he wrote the letter on 30 December 2014, as he felt that he was being isolated in the workplace by management. He said that staff were making comments about his return to work after a long absence. He said that they referred to the person who was covering for him during his absence and were accusing him of forcing him out of his job. He said that they were saying things like that he had forced the man out of his job.
The complainant said that at the time he was feeling ostracized, he was suffering from his nerves, he was unhappy in work and hated going to work and decided that he could not do it anymore. He said that he did not get to speak to Mr Boylan until the day he was leaving, when Mr Boylan held an exit interview with him. He said that the company had made no efforts following his resignation letter to address any of the concerns he raised in the letter.
Under cross-examination the complainant was asked if he knew where the company handbook, containing the grievance procedure, was available for inspection. He said that not until November 2014 was he aware that it was available in the recoup area of the Ballymun site. He said that he knew how to raise a grievance and had done so.
In response to questions concerning the efforts he made to raise his grievance with management, the complainant said that he had raised his grievance with Mr O’Sullivan with HR in Flexscource, with Mr Boylan and with Mr O’Flaherty but to no avail.
The complainant disputed the respondent’s contention that when he contacted Mr Deegan in the period 15 to 18 December 2014, that he said the reason for his absence was related to his back and denied that he attributed the back problem with changing a tyre on his car.
The complainant’s recollected a document outlining job descriptions for the various roles in the company, which the respondent said was attached to an email to him from Mr O’Flaherty on 29 March 2013, following his request for same. The email stated: “As you know all of these roles are of a manual nature and will involve lifting, bending, carrying pushing, etc. Hopefully your physician will review and you get the green light to return.” The complainant said he was not sure when he received it, however, he had requested it as part of a Medwise assessment and had passed it to his consultant in Beaumont Hospital. He said that at no point was there ever a meeting with management to discuss the roles/job descriptions.
The complainant was asked to explain why on 11 June 2013 in a return to work interview following an absence did he state that he was not fit to do normal de-kitting duties when he had a certificate from his GP declaring him fit to return. He said that he knew the physicality of the job and he wanted it *173 recorded that he was not fit to carry out that job. In doing so he was accused of usurping the views of his doctor as he did not have a report from his consultant on his fitness. He responded by saying that he could not afford the cost of getting such a report as he was on social welfare disability benefits at the time. He said that he wanted to get back to work and would have fully engaged with the company if given the opportunity to do so.
He accepted that the company paid for his MRI scan which took place in November 2013. Following the scan he undertook intensive physiotherapy which had very positive results making him eligible to return to work.
The complainant denied that his absence between 15 and 18 December 2014 was in any way related to his health, but insisted that it was wholly related to his car problem and that he had requested and being given sanction to swap shifts as a result. He accused the respondent of fabricating the story about it being related to his health. He disputed the respondent’s assertion that he had chastised Mr Deegan for relaying the hurt back story to Mr Boylan. He said that when he signed the return to work minutes of the meeting held with Mr Deegan at 4.30 p.m. on 18 December 2014 which stated: “Problem with car, not with back,” it had nothing to do with his back, meaning the problem was with the car and not with his back. He said that he had had no discussion with Mr Deegan about his back during the days in question.
When questioned about the respondent’s letter to him in response to his resignation letter, when it states the respondent’s disappointment in denying it the opportunity to try to resolve any issues that he had with his employment and stating that he had never raised any issues/complaints, despite being in continuous contact and meeting management on numerous occasions in the months leading up to his resignation.
Evidence of Mr David O’Flaherty
Mr David O’Flaherty, on-site service delivery manager, gave evidence on behalf of the respondent. He was employed by the respondent as the complainant’s immediate manager from 2009 until mid-2013 when he was transferred to other operations within the company. He said that he had been involved in the complainant’s induction process when he commenced employment and had requested his supervisor to supply him with a copy of his contract of employment including the company handbook. He said that the company handbook containing details of all company policies, including its grievance and disciplinary procedures was also available for all employees in the recoup station, where it was regularly inspected by employees.
He said that following his accident, the complainant was referred to Meridian who were supplied with details of all jobs within the company and a copy of which was forwarded to the complainant on 29 March 2013. This document gave a breakdown of the various job descriptions for each job *174 and outlined the tasks involved in each (hereinafter referred to as the PDF document). These were positions which could have been made available to the complainant if required.
The witness said that he had had a number of telephone calls with the complainant following his accident and on a number of occasions he came into the warehouse. Mr O’Flaherty said that he was concerned at how the complainant’s condition had deteriorated, however, he was anxious to give him details of the job roles and to get him back on the team. However, he said that he did not receive any response back from the complainant on the PDF document and accepted that he did not seek such a response. He said that he was expecting the complainant to come back to him to discuss the various roles but he had not done so.
Mr O’Flaherty said that the complainant’s job as a de-kitting operative was a very physical job that required a lot of pulling and pushing a number of cages weighing up to 42 kgs bunched together. He said he had spent time examining the various tasks involved in each of the roles to determine their physicality. He said that it was not possible to modify or redistribute some of the tasks involved to others. The various components of the jobs had been devised through “standard operating procedures” by its customers. Any change to working hours could not have altered the basic components of the jobs.
The only position which had a sedentary aspect to it was his own job as manager of the area. Otherwise all jobs required a significant physical input. He said that it was a fast-paced environment. When questioned about the possibility of transferring the complainant to another location, e.g. the hygiene operative position in Ballymun as requested by the complainant, the witness said that it was at least as arduous and similarly demanded substantial physical efforts.
Mr O’Flaherty said that he had a number of discussions with the complainant about the various roles, however, he accepted that he did not keep a record of such discussions, he said that they were informal, at a human level, the complainant came into the warehouse and they had a chat.
Evidence of Mr David Boylan
Mr David Boylan, service delivery manager, gave evidence on behalf of the respondent. He said that he took over the role of managing the warehouse from Mr O’Flaherty around mid-2013. He had started in April 2013 and after a four to six-week lead in period Mr O’Flaherty had transferred to another location. He described the physical nature of the de-kitting role and said that the warehouse operations were determined by its customer’s podium managers and was constantly moving. He said that the complainant’s role comprised of approximately five per cent administrative work, and the remainder was physically demanding.
Mr Boylan said that in determining the complainant’s ability to return to *175 work, he worked off the PDF document devised by Mr O’Flaherty. He said that it was not possible to reduce the physical demands of the job and shorter hours would not have reduced the weight factor involved in the job. He said that the complainant, and all other operatives, had undergone extensive training on manual handling/pulling/pushing techniques. Mr Boylan said that he was the only person on site who did not have a physical role.
Mr Boylan said the he liaised with Dr Gleeson, the occupational physician regarding the nature of the complainant’s disability and discussed the physicality of the roles with her. When Dr Gleeson recommended that the complainant needed to have an MRI he sought approval from HR to pay for it as the complainant could not afford the costs. He said that the complainant had had three scans which the respondent paid for.
Mr Boylan said that after July 2013, when he took over as manager, he was in constant telephone contact with both the complainant and Dr Gleeson. However, due to the numerous different symptoms the complainant was suffering from it was difficult to assess his level of fitness. In October 2013, the PDF document was sent to Meridan again for a further assessment and following the complainant’s MRI scans Dr Gleeson recommended that the complainant should attend an orthopaedic consultant and should remain on sick leave. At this point Dr Gleeson was suggesting that it would be six to twelve months before the complainant would be fit to return to work.
Mr Boylan said that the complainant attended the orthopaedic consultant who indicated that there were psycho-physical factors influencing his subjective complaints and concluded that he had developed chronic pain syndrome. In a letter dated 28 April 2014, Dr Gleeson outlined the consultant’s prognosis and stated that both he and she recommended that the complainant was fit for light manual duties. Mr Boylan said that when he received this letter he telephoned Dr Gleeson and explained that nothing had changed in the workplace, that the roles had not changed, and there were no roles suitable for the complainant in his current state. He said that Dr Gleeson had said that as the complainant was suffering from multifaceted problems it was impossible to determine what he could and could not do and she did not specify any modification to his role. Mr Boylan said that Dr Gleeson had been on site and was familiar with the various roles on site.
Mr Boylan said the complainant visited the building with reports from his GP and they had had several conversations about alternative roles. He said that the first time the complainant had identified an alternative role was in September 2013 when he mentioned the hygiene job in Ballymun or Donabate, when he was deemed fit to return to light manual duties. Mr Boylan said that he considered this request, however, having assessed the Hygiene role, he was of the view that due to its physical demands, it was not suitable. Mr Boylan said that he spoke to Dr Gleeson, as he was concerned because the complainant’s *176 injuries had occurred at work, he was diagnosed with a number of problems and the respondent could not seem to get a grip on what he could do.
He said that following his rapid improvement, in October 2014 when the complainant was deemed fit to return to full duties by his physiotherapist, Mr Boylan said that he referred him to Dr Gleeson for an assessment. On 3 November 2014 Dr Gleeson deemed the complainant was fit to return to his normal duties providing he adhered to safe work practices. Mr Boylan said that on receipt of this report, he contacted its customer to request further manual training for his return to work. The complainant returned to his normal duties on 10 November 2014.
With regard to the second meeting held on 18 December 2014, Mr Boylan said that Mr Deegan has informed him that the complainant has injured his back when he was changing a wheel on his car, that he had had pins and needles in his arm and legs. Mr Boylan said that the complainant had also referred to the longevity of the job, that it was a young man’s job and that he was physically not able to do the job long-term. Mr Boylan said that considering the complainant’s back injuries, he advised him to attend a doctor. He said that these points were recorded in the minutes of the meeting but the complainant refused to sign them, however, he was given a copy of them.
Mr Boylan said that the complainant objected to attend a doctor to obtain a certificate deeming him fit to work, which he felt was necessary considering his medical history. Mr Boylan said that in the end he waived the requirement and he was permitted to return and did so on 23 December 2014. He said that there were no complaints from the complainant, he had numerous conversations with him and denied that the complainant was ignored by the respondent.
Mr Boylan said that he was most surprised when he received the complainant’s letter of resignation and organised a meeting with him to seek his feedback. He said that at that meeting the complainant used the words recorded in the record of the meeting when it reported that he said that the de-kitting aspect of his job was very much a young man’s job; it was nice to work with the respondent; give his best to its customer and that he was not going to run off to the Labour Court. Mr Boylan disputed that the complainant’s contention that these minutes were fabricated.
Mr Boylan told the court that following receipt of the resignation letter, he took advice from HR. He said that the complainant had said that he was looking forward to coming back to work and he was surprised when this letter came out of the blue, he could not see the reason for it. Mr Boylan said that he sat down with the complainant and had a long conversation with him and reminded him that he had only just returned after a long absence. He assured him that his colleagues were not talking about him but the complainant had said that he was clear that he was resigning.
*177
Evidence of Mr Treavor Deegan
Mr Treavor Deegan, Supervisor, gave evidence on behalf of the respondent. He took over as the complainant’s supervisor on 13 April 2013. He was questioned about the company handbook and said that it was held in the recoup section, everyone referred to it, it was being constantly quoted from.
Mr Deegan recalled the events of 16 December 2014, when he said that the complainant telephoned him to say he was having trouble with the clutch in his car and needed to bring it to a mechanic. The complainant explained that he would not be in work and had swapped his shift with a colleague. Mr Deegan said that the following day the complainant telephoned to say that he had picked up the car and while driving into work he encountered a further problem with the car, and while attempting to fix it he had hurt his back, therefore he would be late in. Mr Deegan said that he reported this to Mr Boylan, who suggested a return to work meeting with the complainant the following day.
At 4.30 p.m. the following day Mr Deegan had the meeting with the complainant at which he explained that when he hurt his back the previous day that he had pins and needles in his arm and legs. However, Mr Deegan said that the complainant was perturbed that he had informed Mr Boylan that the complainant had further back problems. At the meeting the complainant said that the problem was with his car not his back. He also said that he was not going to jeopardise his health. When questioned about the authenticity of this statement, as the complainant had refuted it, the witness was adamant that he recorded the minutes accurately.
Mr Deegan said that due to the injury concerns he decided to invite the complainant to a further meeting with Mr Boylan present, this was held at 5.03 p.m. that same evening. Mr Deegan said that at this second meeting Mr Boylan had two concerns regarding the complainant. The first concerned the complainant’s reference to the pins and needles in his arm and legs and the second concerned his reference to his physical ability to do the job long-term. Mr Deegan said that in the meeting the complainant said that he knew it was a young man’s job. Mr Deegan refuted the complainant’s allegation that he had “doctored” the minutes of the meeting.
Findings of the Court
Is the claim statute-barred?
Counsel for the respondent objected to the hearing of any alleged complaints of discrimination that pre-date 19 September 2014 as he submitted that there were out of time and therefore statue-barred.
On the other hand, counsel for the complainant submitted that the alleged discrimination extended over a period of time from the date of the complainant’s injury in July 2012 until the date of his dismissal in January 2015. He submitted that as the events which predate 19 September 2014 were sufficiently connected *178 to acts of discrimination occurring within the time period specified by the Acts as to be within the jurisdiction of the court in the within appeal.
Section 77(5)(a) of the Acts provides:
“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
Section 77(6A) provides:
“For the purposes of this section —
(a) discrimination or victimisation occurs—
(i) if the act constituting it extends over a period, at the end of the period,
(ii) [not relevant]
(iii) [not relevant]”
It is settled law that in order for alleged acts of discrimination to be considered by the court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Acts for the making of a complaint.
The application of these provisions was extensively considered by this court in Hurley v Co Cork VECLabour Court DeterminationEDA1124, 26 July 2011. It is appropriate to set out the relevant passage in that Determination in full:
“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur[1989] I.R.L.R. 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the complainant’s complaint may not be taken into account when determining whether there was a continuing act (see the decision of the Court of Appeal for England and Wales in Robertson v Bexley Community Centre[2003] I.R.L.R. 434, at para 21).
Subsection (5) of s.77 deals with a situation in which there are a series of *179 separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. The circumstances in which a corresponding provision of UK law can come into play was considered by the Court of Appeal in Arthur v London Eastern Railway Ltd[2007] I.R.L.R. 58. Here the court was concerned with a claim of victimisation in the form of a series of acts directed against the complainant, some inside the three-month time limit provided at s.48 of the UK Employment Rights Act 1996, and some outside that limit. In considering if the time limit in respect of all of the acts relied upon stated to run from the last such act Mummery L.J. said:
‘The provision in s.48(3) regarding a complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.’”
It should be observed that the approach of this court incapsulated in the passage just quoted was approved by McKechnie J. in the Supreme Court case of County Louth VEC v Equality Tribunal[2016] IESC 40. Here the judge stated, at para.23 of the judgment:
“At the outset it is important to understand that both ss.77(5)(a) and (6A) are intended to capture quite different circumstances (County Cork VEC v Hurley (Labour Court DeterminationEDA1124, 26 July 2011)).Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist”.
The complainant relied on s.77(6A) of the Act in advancing his claim that the respondent continued to fail to provide him with reasonable accommodation *180 for his disability from September 2012 when he sought to step down from his de-kitting duties and return to hygiene duties until his claimed constructive dismissal in January 2015. Counsel for the complainant contended that these events could be regarded as extending over a period in accordance with s.77(6A) as it demonstrated a practice of discrimination by the respondent.
The court accepts that the claimed failure of the respondent to accommodate the complainant in respect to his disability can constitute a practice within the meaning ascribed to that notion by s.77(6A) of the Act in Hurley v Co Cork VEC. Consequently, the cognisable period for this aspect of the within complaint extends up to the date on which the complainant’s employment came to an end.
There is no dispute that the alleged constructive dismissal claim is within time and accordingly the court will proceed to examine that complaint under the Acts. The court must now consider the allegation that the respondent failed to comply with its obligation to take appropriate measures to enable the complainant to participate in employment in the period within the cognisable period, i.e. from 19 September 2014 to 18 March 2015.
Counsel for the complainant submitted to the court that the respondent had failed to provide the complainant with appropriate measures in respect of his disability after it had received a medical report from Dr Gleeson, Medwise, dated 28 April 2014, which reported that the complainant was fit for work on light duties. While counsel accept that this period was not within the cognisable period, he submitted that as the complainant was out of work at this time and continued to be so until his return on 11 November 2014, the respondent’s failures were encompassed by this period. The court accepts this assertion. The court is satisfied that the complainant has established sufficient connection between the actions of the respondent towards its obligations to provide him with appropriate measures and in responding to his requests for reasonable accommodation, to support his contention that events prior to 19 September 2014 should be viewed as alleged acts of continuing discrimination, within the meaning of s.77(6A) of the Acts.
The substantive case
While the respondent made the point that at the time of his resignation, the complainant was deemed fit and well, it is not disputed that he suffered from a disability within the meaning of the Act prior to his affirmative diagnosis. The court must consider the submissions made on the complainant’s behalf that even if he was not suffering from a disability at the date of his resignation one was imputed to him.
The term “disability” is defined by s.2 of the Acts and includes a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
*181
Suffice it to say that based on the facts of this case the court has no hesitation in concluding that a disability was imputed to the complainant by the respondent at the relevant periods covered by the claims.
Constructive dismissal
It is submitted by the complainant that he was entitled to terminate his employment as the respondent had repudiated his contract of employment and had acted unreasonably in his dealings with the complainant.
In his letter of resignation, the complainant said that he had no choice but to resign in light of the breach of his contract, he felt discriminated against on the grounds of his health and age and alleged that he was subject to undue and harsh treatment. He specifically referred to not being allowed to start work on 18 December 2014 and said that he was sent home on grounds of hearsay, when the respondent had no proof of his ill health at that time. He proceeded to say that the respondent was in breach of trust and confidence in causing damage to his reputation and career prospects. The complainant made no claim of discrimination on age grounds.
In arriving at its determination in this appeal the court has taken account of all the evidence adduced including various documents with which it was furnished.
There was a conflict of evidence tendered by the complainant and that of Mr Boylan and Mr Deegan concerning the events of18 December 2014, which the complainant maintained led to his decision to resign. The main evidence given of note was that the complainant had hurt his back while working on his car and it was this which lead to the respondent conducting a return to work interview and in seeking medical advice on his fitness to work. The complainant had a long history of medical issues. An examination of the medical evidence reveals to the court that at different times he was diagnosed with back pain, neck pain, thoracic back pain, lumbar back pain, left shoulder and right hip pain, osteoarthritis and possible MS symptoms. In Dr Gleeson’s report dated 26 July 2013, she states that the complainant was adamant that this health problem related to his work demands as a de-kitting supervisor. In evaluating the evidence the court found Mr Deegan’s evidence credible and consistent when he said that the complainant had told him that he hurt his back while working on his car and that he had relayed this information to Mr Boylan. Mr Boylan then acted on this information.
In such circumstances, the court is of the view that it was not unreasonable for the respondent to seek assurances from the complainant that he was fit to return to work in December 2014.
No evidence of over-monitoring, isolation or ignoring the complainant or damage to his reputation by the respondent was submitted. The court is of the view that even if the complainant was of the view that such had occurred, there *182 was nothing to prevent him from raising these issues with the respondent as he had done so on more than one occasion in the course of his employment.
Section 2(1) of the Acts defines a dismissal as including:
“[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so ….”
This definition is practically the same as that contained at s.1 of the Unfair Dismissals Acts 1977-2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp[1978] I.R.L.R. 27 as follows:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance.”
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
Having evaluated all the evidence, the court has come to the conclusion that the complainant’s resignation in December 2014, had more to do with his frustration with being unable to deal with the physical aspects of his job, as he described at the meetings on 18 December 2014 than with any alleged breach of trust and confidence in the respondent.
The court cannot find that the conduct of the respondent amounted to a repudiatory breach of the complainant’s employment contract nor was it so unreasonable as to justify his resignation. Consequently, the circumstances in which the complainant’s employment came to an end could not properly be classified as a dismissal within the meaning of s.2(1) of the Act, therefore the court finds that the claim of constructive dismissal is not well-founded.
*183
Scope of the duty on employer to provide reasonable accommodation
The within claim is grounded on the alleged failure of the respondent to take appropriate measures to allow the complainant to participate in employment. The requirement that the law imposes on employers in that regard is generally referred to as the duty to provide reasonable accommodation, and is referred to as such in this Determination. The case, therefore, turns on the correct application of s.16 of the Act. That section provides:
“(1) 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
(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.
*184
(4) In subsection (3)—‘employer’ includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—
(a) such a person who is seeking or using any service provided by the employment agency,
(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
(c) such a person who is a member of or is seeking membership of the regulatory body.
‘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.”
The Act gives effect in domestic law to Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupations. It is well settled that domestic courts and tribunals are obliged to interpret and apply domestic law, as far as possible, in light of the wording and purpose of a Directive so as to produce the result envisaged by the Directive. This general principle has been restated by the Court of Justice of the European Union on many occasions in a line of authorities starting with the decision in case Marleasing SA v La Comercial Internacionale de Alimentacion SACase C-106/89[1990] E.C.R. I-4135. Article 5 of the Directive provided:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”’
That provision is given effect in national law by subs.(3) of s.16 of the Act.
There are a number of recitals contained in the preamble to the Directive which provide assistance in identifying the purpose which it is intended to pursue
Recital 17 provides:
“This Directive does not require the recruitment, promotion, maintenance in *185 employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.”
Recital 20 provides:
“Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.”
Recital 21 provides:
“To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.”
As was pointed out by the Advocate General Ruiz-Jarabo Colomer in case Maruko v Versorgungsanstalt der Deutschen Bühnen[2008] I.R.L.R. 450 (at para.76 of his opinion) recitals do not form part of the Directive and have no binding force, notwithstanding their usefulness as criteria for interpretation, a role which the CJEU has frequently cited. Accordingly, they merely assist with the interpretation of the provisions of the Directive.
These recitals have, however, been taken into account by the drafters of the domestic statute. Recital 17 of the Directive is reflected in s.16(1)(b) of the Act although it should be noted that whereas that provision refers to a person being fully capable of undertaking the duties of a position recital 17 refers to a person being capable of performing the essential functions of the post [emphasis added]. It must also be noted that Recital 17 is expressly stated as being without prejudice to the obligation to provide reasonable accommodation for persons with disabilities.
The import of Recital 20 is reproduced at para.(b) of the definition of “appropriate measures” contained at s.16 (4) of the Acts and provides that the term includes, inter alia, adapting working time and the distribution of tasks.
The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate. As was pointed out by this court in Humphries v Westwood Fitness Club[2004] E.L.R 296 and in A Worker v An Employer[2005] E.L.R. *186 159 a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.
Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. This court in the two cases mentioned above, adapted the reasoning of Baroness Hale of Richmond who stated the position thus in relation to the corresponding UK provisions in the House of Lord decision in Archibald v Fife Council[2004] I.R.L.R. 651 as follows:
“But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment.”
The court then continued:
“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull[2001] I.R.L.R. 60).
The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent[sic]of a disabled employee. As was pointed out by the EAT for England and Wales in Mid-Staffordshire General Hospitals NHS Trust v Cambridge[2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to *187 know what facilities or special treatment may be reasonable, possible or effective.
This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee.”
The court has considered the decision of the CJEU in joined cases HK Denmark – acting on behalf of Ring v Dansk Almennyttigh Boligselskab and HK Denmark, acting on behalf of Werge v Danks Arbejdsgiverforening, acting on behalf of Pro Display A/s[2013] I.R.L.R. 57. In these conjoined cases, an issue arose concerning the extent of the duty imposed on an employer to provide a disabled worker with reasonable accommodation and whether that duty included an obligation to offer a disabled worker a facility to work part-time. The CJEU held that Directive 2000/78 (the equal treatment directive) must be interpreted in light of the UN Convention on the Rights of Persons with Disabilities. The court pointed out at para.53:
“In accordance with the second paragraph of Article 2 of the UN Convention, ‘reasonable accommodation’ is ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’.”
While the case related specifically to the provision of reduced hours as a means of accommodation, the underlying rationale of the decision applies equally to the allocation of tasks as a mode of accommodating people with disabilities as this is also referred to in Recital 20 of the Directive and at s.16(4) of the Acts. Finally, at para.59 of the judgment the court held that it was for the national court to assess whether the reduction in working hours represents a disproportionate burden on the employer. By parity of reasoning it is also for the national court to assess if a redistribution of tasks represents a disproportionate burden on the facts of a particular case in which that question arises.
In Nano Nagle School v Daly[2015] IEHC 785, the High Court affirmed the consistent construction of s.16 of the Act in the determinations of this court and this court’s interpretation of the scope of the obligation placed by s.16 of the Act on an employer to consider what reasonable accommodation can be made for an employee with a disability within the meaning of the Act. While that case is under appeal to the Court of Appeal it remains good law unless and until it is changed on appeal.
In Nano Nagle this court considered the general principles that can be extracted from HK Denmark. It held that it must first be: *188
“recognised that the law in relation to discrimination on grounds of disability operates differently to that in relation to other forms of discrimination. Other forms of discrimination occur where people whose circumstances are the same are treated differently. So, as Baroness Hale pointed out in Archibald v Fife Council, difference in gender, race or sexual orientation must always be regarded as irrelevant. But the law recognises that the difference between people who are able bodied and those who are disabled are not irrelevant in the context of employment. The duty to provide reasonable accommodation to people with disabilities is imposed so as to diminish as far as possible the relevance of those differences so as to achieve for the disabled person substantive equality and to assist their integration in the working environment. The law in relation to disability requires a measure of positive discrimination in that an employer may be obligated to treat a disabled worker more favourably that an able-bodied person.
The provision of reasonable accommodation is a means by which people with disabilities can enjoy and exercise their fundamental human right to work and earn a livelihood. The duty which the UN Convention on the Rights of Persons with Disabilities, Article 5 of Directive 2000/78 and s.16(3) of the Act imposes on employers is a means to that end. While s.16(4) of the Act and Recital 20 of the Directive are illustrative of the type of measures that can be taken they do not provide an exhaustive list.
It is also clear from the authorities that the law does not require an employer to employ a person in a position the essential functions of which they are unable to perform. But that principal is without prejudice to the obligation to provide reasonable accommodation where it is needed. That may involve making adjustments in the allocation of tasks amongst the workforce so as to assign to a person with a disability those tasks that he or she can perform while allocating tasks beyond their capacity to others. But that duty is not unlimited. In that sense the reference to the ‘essential tasks’ of a position can be understood as referring to the essential tasks of a reorganised position. It is true that reorganising the work associated with a particular job may involve a significant change in the contractual position of the parties. But altering working hours also involves a considerable interference with the legal relationship between employer and employee, as was recognised by Advocate General Kokott in HK Denmark, at para.59 of her opinion.
However, the duty on an employer must remain within the boundaries of what is reasonable and proportionate, including the financial implications that may be involved. The question of whether a disabled person has the capacity to perform the essential tasks associated with a position obviously goes to the question of reasonableness and proportionality. Moreover, if the requisite reallocation of tasks involves the employment of additional staff, it goes to the question of cost. The standard to be applied is that of a reasonable employer who understands his or her legal duty and wishes to uphold the right of a disabled employee to work and earn a livelihood.”
The approach of the UK courts on this point is instructive although the relevant legislation in that jurisdiction is differently worded. In Archibald v Fife Council the House of Lords held that the duty to make adjustments was linked to the *189 employee’s particular employment and did not arise if there was nothing that the employer could do to prevent the disabled person from being placed at a disadvantage.
A similar question arose before the UK Employment Appeals Tribunal in Chief Constable of South Yorkshire Police v Jelic[2010] I.R.L.R. 774. The EAT held that a tribunal is not precluded, as a matter of law, from deciding that swapping roles would be a reasonable adjustment, or from holding that it would be a reasonable adjustment to create a new job for a disabled employee, if the particular facts of the case supported such findings.
These cases are not congruent on their facts with the instant case, and the legislative framework within which they were decided was different. They nonetheless illustrate the breadth that can be ascribed to the notion of reasonable accommodation.
Application to the instant case
The duty on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment must be determined by the application of objective standards of reasonableness in the circumstances of each particular case. In the instant case, the complainant’s claim is grounded on the alleged failure of the respondent to take appropriate measures to allow him to participate in employment.
It is common case that, as a result of his disability, the complainant was not capable of discharging the full range of duties associated with his employment. At no stage did he argue that the respondent should have restricted aspects of his de-kitting job or reassign certain duties to other colleagues. The complainant contended that with reasonable accommodation he could have undertaken lighter duties in a different post. The post he sought to be assigned to was the hygiene post. He submitted that the respondent did not engage with him to ascertain if he could undertake the duties of that post.
The court is satisfied that the respondent did obtain independent professional advice on the complainant’s capacity, however, it seems to have formed the opinion it could not make the necessary adjustments in work organisation so as to accommodate the complainant. It is clear from the decision of the CJEU in HK Denmark that the duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality.
As in British Gas the court is of the view that it was incumbent on the respondent to consider adjusting certain tasks which others doing similar work are expected to perform, the scope of which is determined by what is reasonable.
It appears that the respondent’s consideration of alternative roles was confined to an assessment of its existing roles which were all deemed to have *190 a physical element to them, and limited examination was given to considering if an adjustment could be made to the roles. The respondent carried out an analysis of the various roles in the company and determined that none were suitable. This analysis was done without any participation by the complainant.
The complainant wrote two letters to the respondent, one on 18 September 2013 and the second on 11 October 2013 in which he informed management that he intended to step down from the role as de-kitting supervisor on medical advice and sought to be reengaged in a different role. In the second letter he sought to be allowed to return to work with reasonable accommodation in order to earn a living. The respondent did not respond to these letters.
In an email dated 8 April 2013, the respondent submitted an analysis of jobs in the company to the Meridian Clinic. The email included the PDF attachment and stated that “all roles require large amounts of standing, turning, pulling and pushing, general twisting bending, etc.” Medical advice which followed (prior to October 2014 when he was deemed fit to return to fill duties), stated as follows:
“11 April 2013: currently fit to return to work.”
The complainant returned to his normal duties four days later. However, he went out on sick leave again on 4 June 2013 until 13 July 2013.
“26 July 2013: fit for work of a light physical demand and for sedentary work,fit for work that allows him sit, stand and mobilise, to lift product weighting 4.4kg on a frequent basis and 9.1kg on an occasional basis,fit for administrative and managerial work.”
The complainant returned to his normal duties on 27 August 2013. He had a second injury at work on 21 September 2013. On 2 October 2013 the respondent wrote to Meridian Clinic requesting an assessment of the complainant and the duties available to have full clarity on his fitness and what duties he could perform (list of duties were attached).
“5 October 2013: medical report from Mr Sharif, Consultant Orthopaedic Surgeon, opinioned that the complainant was not able to do the heavy work that he was doing before.
28 April 2014: … fit to return to work of a light physical demand and may be fit to increase his work demand further as part of a rehabilitation program. Please inform the options for returning to modified duties on a long and short-term basis.”
The evidence before the court suggests that the respondent did not consider the practicality of returning the complainant to work as described above or to work *191 in the hygiene role, even for a trial period. The complainant had previously worked in that role and was clearly familiar with its tasks, however, the court is not convinced from the evidence given that the matter of alternative roles/ adjustment to tasks was ever discussed in a serious manner with the complainant where his input was considered.
In accordance with its findings in Humphries the court is of the view that the respondent might reasonably have sought an input from the complainant before coming to its conclusion. Instead the complainant was given no option but to remain on sick leave, at a time when he felt he was fit to return to work in an adjusted capacity, and was medically certified as such. The evidence would suggest that the respondent did not consider the consequences for the complainant of not giving adequate consideration to providing the accommodation required. The court accepts that had adequate consideration been given, the complainant may not have been capable of carrying out any role within the company, however, the court is of the view that the examination carried out was too narrowly focused without an input from the complainant to come to that conclusion. Therefore, the court finds that the respondent failed to discharge the onus it bears to engage with the complainant when considering his medical condition and when determining whether or not reasonable accommodation to enable him to return to work was being examined.
In the court’s view, it is significant that the respondent presented no records of the consideration of alternative roles, adjusted roles or trail arrangements, other than the PDF document. On that basis the court must conclude that the respondent had only given partial consideration to these possibilities and therefore its obligation to provide appropriate measures to enable the complainant to participate in work was not fully discharged.
Therefore, the court finds that the complainant has established a prima facie case that the respondent failed to provide reasonable accommodation to facilitate his return to work while not fully fit.
Redress
In the circumstances of this case the court believes that the appropriate form of redress is an award of compensation. In the circumstances the court awards the complainant compensation in the amount of €8,500.
Determination
The Decision of the Equality Tribunal is set aside and substituted with the terms of this Determination.
[Reporter’s note: Daly v Nano Nagle School [2015] IEHC 785 has been recently overturned by the Court of Appeal ([2017] IECA 11).]
A Former Employee v A Government Department
DEC-E2016/083
Workplace Relations Commission
30 May 2016
[2016] 27 E.L.R. 281
A Health and Fitness Club v A Worker Labour Court Determination EED037, 18 February 2003
A School v A Worker Labour Court Determination EDA0721, 12 August 2014
A Worker v A Hotel Labour Court Determination EDA0721, 18 December 2007
County Cork VEC v Hurley Labour Court Determination EDA1124, 26 July 2011
Department of Defence v Barrett Labour Court Determination EDA1017, 30 September 2010
The full text of the Equality Tribunal Determination was as follows:
1. Dispute
1.1 This dispute concerns three interrelated complaints under the Employment Equality Acts (hereinafter also referred to as “the Acts”) by the complainant and *283 hence are being investigated together as follows: (1) as a person with a disability within the meaning of s.2 of the Acts, the respondent failed to provide the complainant with reasonable accommodation contrary to s.16(3) of the Acts; (2) the complainant was subjected to adverse treatment amounting to victimisation contrary to s.74(2) of the Acts arising from the making of this and previous complaints under the Acts and; (3) the complainant was discriminated against by the respondent in relation to her employment on the grounds of disability contrary to s.6(2)(g) and s.8 of the Acts in relation to conditions of employment and training.
1.2 The complainant referred the aforesaid complaints under the Acts to the director of the Equality Tribunal and they were received on 8 April 2014, 15 April 2014 and 11 July 2014 respectively. On 8 October 2015, in accordance with his powers under s.75 of the Acts, the director general of the Workplace Relations Commission delegated the case to me, Aideen Collard, an adjudication/equality officer, for investigation, hearing and decision and for the exercise of other relevant functions of the director general under Pt VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the parties. As required by s.79(1) of the Acts and as part of my investigation, I proceeded to a preliminary hearing on 23 October 2015 and conducted a substantive hearing on 1 and 2 December 2015.
1.3 The complainant confirmed that although she previously had representation she was happy to represent herself, and the respondent was represented by the Chief State Solicitor’s Office and counsel. A number of witnesses gave evidence on behalf of the respondent. All written and oral evidence and submissions presented to the tribunal including documentation submitted during the hearing have been taken into consideration when coming to this decision. I also indicated that I would be relying upon relevant statutory provisions and case law relating to disability discrimination. Given the sensitivities of these complaints, I confirmed that I would be exercising my discretion to anonymise this decision.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an adjudication officer who was an equality officer prior to 1 October 2015, in accordance with s.83(3) of the Workplace Relations Act 2015.
2. Preliminary issue
2.1 Unfortunately, there is a long and troubled history to these claims. In support of the complaints herein, the complainant submitted a statement detailing acts of alleged discrimination, victimisation and failure to provide reasonable accommodation from 2007 until her date of early retirement on the grounds of ill-health on 28 February 2015. Counsel for the respondent submitted that the complaints herein were vexatious and res judicata (already decided) as the complainant had already litigated these matters in four previous complaints submitted to the Equality Tribunal in 2009-10 and which referred to a series of *284 allegations between the end of July 2007 and end of February 2010. After a full day of hearing on 21 June 2012 before the then director of the Equality Tribunal, those matters were adjourned for a further three day hearing on 6, 7 and 8 November 2012. By letter dated 22 October 2012 to the Tribunal, the complainant’s union on her behalf withdrew these complaints confirming that she had been given a new role which was working out very well for her and that: “She is most anxious to regard her new assignment in the Department as representing a fresh start for her and an opportunity to put behind the considerable difficulties she has had in recent years. Having regard to all of these issues, (the complainant) has advised me that she no longer wishes to pursue her complaints any further.” Counsel for the respondent submitted that it would be unduly onerous for the respondent to have to revisit these previous complaints at this juncture. I was also informed that the complainant had a claim of constructive dismissal received by the WRC on 18 August 2015 and yet to be heard by the EAT. The complainant accepted that the previous complaints had been withdrawn voluntarily and as far as she was concerned, matters had resolved at that stage. It is commoncase that all was relatively well in terms of the complainant not raising any further discriminatory issues including reasonable accommodation for approximately a year but these re-emerged when she returned to an office-based role.
2.2 In relation to the applicable time-limits, s.77(5)(a) of the Acts provides: “Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”, extendable to 12 months for reasonable cause under s.77(5)(b). Section 77(6A) deals with the different forms of continuing discrimination or victimisation under the Acts. Essentially, where the complaint of discrimination or victimisation refers to a series of separate acts or omissions sufficiently connected so as to constitute a continuum as asserted in the instant case, there must be such acts or omissions that fall within the requisite time-limit in order for acts or omissions outside the time-limit to be taken into account. (County Cork VEC v Hurley Labour Court Determination EDA1124 26 July 2011.)
2.3 Having considered this issue carefully, I am satisfied that the prior complaints were resolved between the parties as at 22 October 2012. However, the fact that matters had resolved previously does not necessarily mean that they could not be repeated and re-emerge giving rise to further causes of action. I therefore indicated that I would hear evidence of any allegations arising from 23 October 2012 up until the date of the last complaint received on 11 July 2014, on the basis set out in County Cork VEC v Hurley EDA1124. Any evidence heard outside of this time period was heard strictly for the purposes of putting the current complaints in context. For the avoidance of doubt, I have not made any findings in relation to the complainant’s early retirement on the grounds of ill-health or related application process.
*285
3. Summary of the complainant’s evidence and position
3.1 The complainant confirmed that she was employed in various higher level administrative and technical roles within the civil service since 1981. She suffered from a disability within the meaning of s.2 of the Acts. She was diagnosed with photosensitive epilepsy in July 2007 and also suffers from severe classical migraine and depression in respect of which she has been hospitalised, has had to take periods of sick leave and requires medication. She described how the side effects of these conditions including light, noise and smell sensitivity impacted on her work. She acknowledged that these side effects may have contributed to interpersonal difficulties with colleagues. She explained that when she was in the office environment in buildings which were primarily constructed with large glass windows, she was unable to deal with the bright light and glare caused by light reflecting off the glass. Artificial light also aggravated her conditions especially overhead lighting. As a result of these conditions, she required specific lighting requirements and adjustments to her workstation to ensure these issues are controlled. On occasion, she also has to wear special glasses to manage when lighting is too bright. Prior to her diagnosis, she contends that she had been progressing well in her career and had received an award.
3.2 Turning to the time period in relation to the complaints herein, the complainant explained that when she had an outdoor role from the end of October 2012 until January 2014, she had control of her working environment and was less affected by natural light. She also rarely required use of her desk space. However, as a result of other difficulties arising from this role, she had to return to an office-based role in the same modern glass constructed building where she had worked previously to a similar open plan office on a different floor. The building is facing due south. The blinds throughout are metal, white venetian blinds. The sun shines directly into the building at all times with secondary reflection rebounding from the surrounding glass wings. The office is lit throughout by strip lighting overhead. All the stairwells are south-facing and have ceiling to floor glass without any shielding blinds. The complainant’s main issues during the relevant period included the glare from the window beside her desk, unsuitability of overhead lighting, the lighting/seating arrangements when she attended meetings in her manager’s office and the rest-room not being appropriately set-up. She explained that a rest-room was provided as somewhere staff could go to rest if they are feeling unwell or managing a disability.
3.3 Further to her return to the office setting, by email dated 3 February 2014, the complainant contacted the disability liaison officer, Ms D, with a view to discussing “the small accommodation I will need as regards lighting”. In response, Ms D asked her to confirm the address of her new office and name of her manager, to complete a “Workplace Accommodation Form” with respect to her new office and to give her permission to contact her manager and the facilities management unit (hereinafter “FMU”) about any workplace accommodation needed. Ms D confirmed that once she received the completed form, she would *286 arrange a meeting with her and the concerned parties. The complainant emailed Ms D back on 4 February 2014 stating that she had never seen this form before and confirming her position as reiterated in her evidence, that as all the relevant departments had all the necessary information, she did not feel that this was necessary and also cited her concerns regarding privacy. In particular she stated: “I wasn’t anticipating yet another big formal re-inventing of the wheel and all the ensuing trauma. I simply hoped that a liaison officer would just assist me in communicating the importance of caution lighting with photosensitive epilepsy.” Ms D replied by email dated 10 February 2014 stating that she was sorry that she felt this way and asked her to confirm that her current details of manager and location on “My Site” were accurate so that she could liaise with the correct team in the FMU stating: “I will await your reply and then will organise a visit to your new office.” The complainant emailed the following in reply to Ms D the same day: “I understand that you needed my permission to liaise, and just to be clear, I would not like things arranged or discussed without my consent. I’ve had this condition made known to HR for more than seven years now. I didn’t ask for facilities management teams to be involved. I don’t think the DLO resource/approach will be of any use in my particular case. Please do not approach others on my behalf.” She explained that she had not completed this form despite further requests as it entailed the trouble and expense of obtaining a medical report and a report from 2009 had previously been furnished to the FMU, detailing the necessary adaptations to her workplace and she simply wanted the same again. 3.4 During the material period, the complainant contended that no adaptations were made to her work environment. Upon returning from sick leave on 7 April 2014, she discovered that the rest-room for her floor had been decommissioned. On foot of this incident and a general feeling that despite exhaustive discussions between herself, the CMO, trade union, her neurologist, Brainwave, Brainstorm and her employer, she was not afforded reasonable accommodation in the workplace, she submitted the complaint regarding the respondent’s failure to provide her with reasonable accommodation received by the Equality Tribunal on 8 April 2014. The rest-room was replaced with another rest-room on another floor which was unsuitable and required access via the glass stairwell. Although the original rest-room was subsequently reinstated, it did not sufficiently meet her requirements. Further to raising a query about previous disciplinary action leaving her in a state of limbo, she received a letter dated 17 April 2014 from HR confirming that an ongoing disciplinary process had discontinued owing to lapse of time. However she felt that matters were still left hanging over her as adverse findings against her had not been set aside. On foot of this, she submitted her compliant of victimisation, received by the Equality Tribunal on 15 April 2014. In general, the complainant felt she was unable to do anything in the workplace such as asking a colleague to adjust a blind without being accused of bullying. She felt that various meetings with her line manager and divisional manager were also disciplinary in nature.
*287
3.5 In May 2014, there was an exchange of correspondence between the complainant and the chief medical officer (hereinafter “CMO”) regarding her difficulties in obtaining reasonable accommodation in the workplace despite previous reports and recommendations from her consultant neurologist. She also made a complaint to the Health and Safety Authority on 19 May 2014 regarding her workplace situation. On 26 May 2014, a standard assessment was undertaken on her workstation by an outside contractor. She felt that its recommendations had not been properly adhered to by the respondent. In particular, it recommended discussion with her medical team around managing and reducing her risk factors in the workplace which she felt had not been done. Additionally she interpreted the report as finding that lighting levels were found to be above the recommended lux (measurement of light) levels. She contacted the FMU on foot of same asking what the next stage was. Despite the FMU commissioning a light study to test the lux levels (measurement of lighting), she was unable to identify her optimum luminance levels as it had requested. In a letter dated 11 June 2014 to her line manager, the complainant’s consultant neurologist stated: “The level of luminance in the room is definitely leading to an increase in migraines. I feel that if appropriate changes could be made to her work environment this would obviate the need for further medication changes.” The complainant submitted emails confirming that when she asked her consultant to confirm the optimum luminance levels as requested, he replied that it was whatever she was comfortable with and he could not assist further. This left an impasse and the only thing she could control was her overhead light which she got disconnected.
3.6 The complainant outlined the basis for her claim of discrimination on the grounds of disability in relation to her conditions of employment and training received by the Equality Tribunal on 11 July 2014. She confirmed that whilst there were many examples of less favourable treatment owing to her disability going back years, the main issues that fall within the time period subject to this investigation related to receiving a poor annual review owing to her inability to attend for training due to the unsuitability of the accommodation where the training was being conducted and ongoing disciplinary issues. Specifically on 23 May 2014, there had been an incident with her line manager, when she was disciplined as a result of not sitting down during a meeting even though she had repeatedly said that the particular seat was facing an unprotected window facing due south and having full sunshine.
3.7 The complainant contended that her line manager had circulated a letter dated 30 June 2014 behind her back stating that it was not possible to accommodate her in the workplace. An expert in dispute resolution who was also representing her in these matters at the time had also sought to mediate and had written to the Head of the FMU, Mr F, seeking to address her various difficulties. This was to no avail as the respondent had objected to her representative’s involvement in the process. She had had further interactions with her line manager around reasonable accommodation in November 2014 but again to no avail as this did not comprise *288 of a formal assessment. She also objected to an email he had circulated regarding same to other parties. She had a meeting with the HR Manager in October 2014 regarding her situation accompanied by her representative. She was forced to take a further period of sick-leave and thereafter an internal process led to her early retirement on grounds of ill-health on 28 February 2015.
3.8 The respondent’s position was put to the complainant. It was put to her that previous disciplinary action had been delayed by her previous complaints to the Equality Tribunal and were discontinued owing to the lapse of time after she withdrew those complaints on 21 October 2012. She had cited a number of other reasons for not attending required training and had not sufficiently flagged any difficulties in advance of same. It was put to her that at least one of the buildings in Dublin where she had missed training was suitable and adjustments had been made to the lighting when flagged to the respondent. It was put to her that it was her refusal to avail of required training that had led to her unsatisfactory annual review. The complainant also said that she had arranged her own training with a senior colleague which was in her view sufficient. She accepted that the reason why she had been asked to complete a workplace accommodation form may have been because she had returned to work in an office with a different layout. It was also put to her that she had seen this form previously as she had similarly refused to complete same when asked by Ms D in 2012. She accepted that she had not completed the form at that time for similar reasons. She also stated that she had experienced resistance to external parties assessing her workplace. It was also put to her that when she had made the respondent aware of the issue with the rest-room in April 2014, it was restored within a week and she accepted that she had thanked her line manager for same. She disagreed that the workplace assessment conducted had addressed her particular difficulties and that the respondent had complied with same. The complainant accepted that she did not pass on information regarding her required lighting levels in a timely manner when requested but this was as she was due to meet the CMO and it was not possible to identify same. It was further put to her that in November 2014, her line manager had met with her to understand her needs but she was unhappy with an email he had circulated on foot of same. She did not accept the respondent’s contention that her difficulties in the workplace predated her disability diagnosis and she was never happy despite exhaustive efforts to accommodate her particular needs in the workplace. She accepted that she had previously been provided with her own office where lighting could be controlled but this was not a satisfactory solution either as she had felt isolated.
3.9 The complainant submits that despite exhaustive discussions, she was not afforded reasonable accommodation in order to address her various difficulties in the workplace. Overall, she feels that her various managers over the years never took her disability seriously and never consulted her properly in relation to her specific accommodation needs. She had been forced to take various periods of sick leave off work. She also complained that her disability had a negative effect on her *289 training and conditions of employment. She had received a poor annual review because she had not attended training even though she had previously indicated that it was held in unsuitable buildings. She had also been subject to disciplinary action over the years and in particular, arising from issues around her disability. She felt that adverse disciplinary findings previously made against her had been allowed to hang over her because the process had never been concluded following her withdrawal of the previous complaints. She submitted that this amounted to victimisation as a result of raising issues around her disability and seeking reasonable accommodation pursuant to the Acts. The complainant believes that disclosing her disability to the respondent destroyed her chances of promotion and effectively put an end to her career as well as causing considerable stress to her and her family. She confirmed that at the time of leaving her employment she was on a salary of €53,500 and was seeking monetary compensation as a remedy.
4. Summary of the respondent’s evidence and position
4.1 The respondent accepts that the complainant has a disability within the meaning of the Acts. However, the respondent rejects all the complainant’s allegations of discriminatory treatment on the grounds of disability and failure to provide reasonable accommodation along with her claim of victimisation.
4.2 It is the respondent’s position that owing to difficulties arising in the complainant’s outdoor role taken up after the withdrawal of her previous claims in October 2012, she returned to an office position in or around January 2014. Further to a history of difficulties around accommodating the complainant’s disability, she had raised no issues during this period. Disciplinary action against the complainant which had been suspended pending the previous complaints was discontinued owing to the lapse of time. However, unfortunately, the prior difficulties re-emerged when she returned to the office based setting.
4.3 The complainant’s area manager, Ms A, gave evidence confirming the new location of her workstation upon her return to work in January 2014 and of the various attempts by the respondent to accommodate her needs arising from her disability over the years including disabling her overhead light, placing greenery in the open plan office and providing special lighting in an interview room she used. She confirmed that training assigned to employees was a compulsory requirement to enable them to properly discharge their duties with the requisite competence, expertise and skills, particularly as the work involved the interpretation of ever-changing legislation. When the complainant had indicated a difficulty with the accommodation in relation to training in April 2014, she had directed her to the staff development unit and was unaware of any further issues. It subsequently came to her attention that she had not contacted that unit and had cited personal reasons for not attending the training. When this had affected her annual review, she was unhappy and further to modifying the review, the complainant was invited to a meeting which she declined and therefore it was finalised with her line manager. The complainant put it to Ms A that she had been pressurised to *290 agree to a final draft annual review and was under threat of further disciplinary action for not doing so but Ms A was unaware of such an issue.
4.4 The complainant’s last line manager, Mr L, gave evidence confirming that when the complainant had returned to the office environment in January 2014, she had initially sat at the desk of an employee on long-term sick leave as it had been identified as the best location for her within the open plan office. She had moved as the other employee was returning to work and he had organised the workplace assessment for that employee and the complainant to take account of their particular needs in the workplace. He also confirmed that the rest-room had been stocked up with new linen at her request and upon becoming aware of an issue with another department using the room for storage, he had immediately reinstated the room and personally attended to all of the complainant’s requirements. He confirmed that she had thanked him and told him that she had really appreciated his efforts. On numerous occasions he had consulted with the complainant as to her accommodation needs and had tried to accommodate her in any way possible including sitting parallel during meetings. Subsequent to undertaking the workplace assessment and the lighting studies, she was still unhappy with her workplace arrangements. Mr L described how on 18 November 2014 he had personally gone and sat at her desk and asked her to talk through her issues and how they could be addressed. In particular, he identified that the provision of a black-out blind would assist the complainant and feeling somewhat of a breakthrough on foot of that meeting which he believed was positive, he emailed the other persons concerned making a number of suggestions including installation of a blackout blind. However, the complainant circulated a reply taking offence to this proposed action which did not progress as a result. He also outlined the stress caused by interpersonal difficulties with the complainant and detailed a number of incidents whereby she had been disrespectful and had challenged his authority. In relation to the incident of 23 May 2014 when she had refused to sit down during a meeting, she had not mentioned lighting as an issue. The complainant put it to Mr L that he never fully understood her disability and needs in the workplace and had never really sought to address them with her. He refuted this and stated that he had consulted with her frequently and had read up on her disability but she had never properly identified her difficulties.
4.5 The disability liaison officer, Ms D, gave evidence outlining her interactions with the complainant around her requests for accommodation in relation to her disability. Her first contact in her new role was in 2012 when the complainant had rung her with accommodation issues. However when she had furnished the complainant with a workplace accommodation form, she had refused to complete same. Neither had she furnished her with the necessary medical reports or recommendations regarding her accommodation requirements from a previous plan drawn up in 2009. This information could not be obtained directly from the CMO as it was private and confidential. Likewise when the complainant had returned to the office setting in January 2014 and requested accommodation issues *291 to be addressed, she had again refused to complete the Form as furnished or give her consent to contact the necessary departments for the purposes of arranging for any accommodations. It was not easy to contact the complainant by telephone and she had also declined a meeting which had been arranged with Ms D to discuss her needs. She confirmed that she had previously arranged for lighting to be adjusted and liaised with the complainant’s line manager and the FMU in relation to the restoration and restocking of the rest-room as requested. She also had various interactions with the complainant in late November 2014 including requesting again that she complete the form. She refuted the complainant’s suggestion that given the large number of staff who required her assistance, she had not always had the time to deal with her particular issues, confirming that she had always reverted quickly and dealt with any issues properly.
4.6 The head of the FMU, Mr F, gave evidence confirming the functions of his department which includes overseeing the maintenance of the respondent’s buildings and dealing with requests for reasonable accommodation. He had dealt with previous issues pertaining to the complainant’s requests for accommodation and had read up on her disability needs including a document entitled “Employment and Epilepsy-An Employer’s Information Resource’ from Epilepsy Ireland. In light of exhaustive efforts by his colleagues to resolve the issues around her accommodation on her return to the office setting, in or around mid-2014, he had taken over responsibility for dealing with same. He outlined his various interactions with the complainant and commissioning of the lighting study on foot of the workplace assessment at considerable trouble and expense. A specialist had attended at the office during both the daytime and the nighttime to measure the lux levels and determine the luminosity or brightness of the lighting. As the lighting levels change continually throughout the day, this exercise was of limited assistance in identifying optimum levels. He wrote to the complainant on a number of occasions including a letter dated 31 July 2014 requesting more information about her needs both in terms of addressing her health and safety concerns and arising from her disability. He was of the view that she should have completed a workplace accommodation form which he had also requested for the purposes of identifying her needs as a starting point and before proposed engagement with the external dispute resolution expert who was representing her interests. He also sought confirmation of her optimum luminance levels based on her consultant neurologist’s advice that this was her main difficulty but she objected based on the costs of a report involved and contended that the information already provided was sufficient. Feeling that this was going nowhere, Mr F reiterated his requests in an email dated 24 October 2014 and set a deadline for the complainant to revert in relation to providing the requisite information. When she emailed him back by return stating that she did not intend reading his letter and she was going to do as previously stated (i.e. to pursue these complaints), he reverted stating that he would take that as bringing the matter to a conclusion. He copied his email to the other persons involved in relation to her requests for accommodation for the *292 purposes of informing them of the position.
4.7 The complainant’s former line manager and divisional manager during the period in question gave evidence confirming that he had had a formal meeting on 19 June 2014 with the complainant to discuss completion of her review, issues with her current line manager who was on stress-related sick leave, and her capability and future role. He confirmed that although she had been invited to have a union representative and colleague attend as a witness, this was not a disciplinary meeting and its purpose was to hear her side of things. He had written a confidential note on 30 June 2014 to HR and his superior about the future of the complainant’s role and capability in light of what he viewed to be a repeat of previous issues, ongoing interpersonal difficulties and impossibility of meeting her multiple and ever-changing accommodation requirements. This was later referred to the CMO and appears to have set in train the process leading to her early retirement and beyond the remit of this investigation. He wholly refuted that this meeting and email amounted to victimisation in circumstances where he was acting properly in response to issues raised by Mr L and in the interests of the health and safety of all concerned. He refuted the complainant’s assertion that he had not been concerned about her welfare. In relation to the issues around reasonable accommodation in the workplace, he confirmed that even when the complainant had been offered an office on her own in the past, she had been unhappy.
4.8 Overall, the respondent submits that the complainant has not established a prima facie case of a failure to provide reasonable accommodation, of victimisation or of discrimination on the grounds of disability in relation to her conditions of employment and training contrary to the Acts and she has therefore failed to discharge the requisite burden of proof. In particular and based on the aforesaid, counsel submitted that an objective test of what a reasonable employer should do in the material circumstances applied and relied upon the Labour Court decision of A School v A Worker Labour Court Determination EDA1430, 12 August 2014. In this respect, the respondent had acted reasonably but all efforts to provide accommodation including reinstatement of the rest-room and undertaking a workplace assessment had been rejected by the complainant at every turn leaving it in an impossible situation. The complainant had refused to engage and cooperate with the process and in particular refused to complete the workplace accommodation form and give her consent to contact other departments for the purposes of adhering to any request for accommodation.
5. Findings and conclusions
5.1 It is accepted by both parties that the complainant has a disability within the meaning of s.2 of the Employment Equality Acts at all times relevant to these complaints and I concur with that view. In chronological order of date of submission of her complaints, the issues for decision are (1) whether as a person with a disability within the meaning of s.2 of the Acts, the respondent failed to *293 provide the complainant with reasonable accommodation contrary to s.16(3) of the Acts, (2) whether she was subjected to adverse treatment amounting to victimisation contrary to s.74(2) of the Acts arising from the making of this and previous complaints under the Acts and (3) whether she was discriminated against by the respondent in relation to her employment on the grounds of disability contrary to s.6(2)(g) and s.8 of the Acts in relation to her conditions of employment and particularly training.
5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. As well established by the Equality Tribunal and Labour Court, this requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. When investigating a complaint, the role of the Tribunal includes undertaking an examination of any conflicts of fact in the evidence presented by the parties to arrive at reasoned findings of fact.
5.3 Having heard all the evidence in this matter over a number of days and having read through a copious volume of documentation, it is clear that there is a complex and difficult history between the parties that extends far beyond the parameters of this investigation and indeed my remit. For my part, I found the complainant to be eminently polite in the manner in which she presented her own case and she was clearly very disappointed at the untimely manner in which her lengthy career in the civil service had ended. I therefore only propose addressing the evidence material and relevant to the complaints herein.
5.4 Turning to the first complaint of a failure by the respondent to provide the complainant with reasonable accommodation in the workplace, the legal position in summary is as follows: s.16(1)(b) of the Acts provides that an employer is not obliged to retain an employee in a position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is then subject to 16(3)(a) of the Acts which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of “appropriate measures”, more commonly referred to as “reasonable accommodation”. This is subject to the proviso that such measures would not impose a disproportionate burden on the employer. In practical terms, s.16 of the Acts as interpreted in the seminal case of A Health and Fitness Club v A Worker Labour Court Determination EED037, 18 February 2003 upheld by the Circuit Court, requires the employer to undertake a two-stage enquiry. First, the employer has to establish the employee’s capacity to undertake their duties and secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “… an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition *294 …” and “The employee must also be allowed an opportunity to influence the employer’s decision.” The proactive nature of this process was confirmed by the Labour Court in A Worker v A Hotel Labour Court Determination EDA0721, 18 December 2007. However, intrinsic to this bilateral process is the employee’s duty to engage and cooperate with the employer. As observed by Walsh in relation to the caselaw on the equivalent duty under the Equal Status Acts: “Where a service provider seeks medical evidence or other certification and the service recipient chooses not to comply with that request it may relieve the service provider of their duty to reasonably accommodate.” (Walsh, Equal Status Acts 2000-2011 – Discrimination in the Provision of Goods and Services (Lonsdale Law Publishing, 2012), para.6.4.4.3).
5.5 In this respect, there was very little in issue between the parties in terms of the factual background but there was a huge chasm in terms of what each side felt was reasonable in the circumstances. On the one hand, the complainant felt that the respondent had fallen far short of what was required to accommodate her needs. On the other hand, the respondent felt that she had not engaged and cooperated in terms of identifying her needs and its best efforts based on the information to hand was never enough. I have carefully considered and weighed up the evidence from both parties. After a day of hearing the complainant’s evidence, it was still unclear as to what precisely the respondent should have done in terms of assessing her needs and accommodating them. As against this, numerous witnesses for the respondent gave evidence of the measures taken to assess and accommodate her needs for the period in question and in particular, following her return to the office setting in January 2014. This included the reinstatement of the restroom, the undertaking of the workplace assessment and adherence to its recommendations including commissioning the lighting studies to establish the requisite levels of luminance along with various efforts by her line manager and the head of the FMU to address her requests for accommodation. In particular, I am satisfied that the rest-room had been sufficiently reinstated and accept that she thanked her line manager for same. I also note that an office of her own where she could control the lighting as suggested by the dispute resolution expert and consultant was not a feasible option for the complainant as she had previously felt isolated when allocated a separate office.
5.6 I might have been more understanding of the complainant’s reasons for refusing to complete the workplace accommodation form upon her return to the office setting had she previously furnished a completed workplace accommodation form. However I note that she had refused when requested previously. Whilst I can understand her frustrations at the trouble and expense of providing medical information, a more cooperative approach might have enabled the respondent to find solutions to these issues. I find the complainant’s refusal to complete the form and expect the respondent to rely on information furnished some years previously unreasonable, particularly as the complainant had been unhappy in respect of previous efforts to accommodate her needs. Also she was now in a *295 different office setting on a different floor and there was every possibility that her needs could have changed since any previous assessments. In circumstances where only the complainant’s consultant neurologist had the requisite knowledge regarding her disability and related needs, I am satisfied that it was appropriate for the FMU to seek his recommendation regarding appropriate lighting levels. I also note that the complainant had regular contact with the CMO who was well aware of her disability and needs. Likewise, I find that withholding her consent to the necessary departments being contacted was unreasonable in circumstances where she was seeking accommodation. I also find the complainant’s responses to Mr L and Mr F’s efforts to identify her accommodation needs unreasonable. Overall, I am satisfied that the respondent did all that was reasonable to accommodate the complainant’s needs in the workplace and if there were any shortcomings in relation to the accommodation provided, this was due to her reluctance to properly engage with the respondent’s attempts to assess her accommodation needs.
5.7 In relation to the second complaint of victimisation arising from the making of the aforesaid complaint and previous complaints under the Acts, s.74(2) of the Acts provides: “For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to: (a) a complaint of discrimination made by the employee to the employer,…” A complaint relating to disability discrimination made to an employer could constitute “a complaint of discrimination” within the meaning of this Section. In Department of Defence v Barrett Labour Court Determination EDA1017, 30 September 2010, the Labour Court set out the three components which must be present for a successful claim of victimisation under s.74(2) of the Acts as follows: “(1) The complainant had taken an action of a type referred to at s.74(2) of the Acts; (2) the complainant was subjected to adverse treatment by the respondent, and; (3) the adverse treatment was in reaction to the protected action having been taken by the complainant.” Whilst I am satisfied that the complainant meets the first component of that test having pursued a number of complaints of disability-related discrimination and harassment against the respondent under the Acts, I am not satisfied that she has been subjected to any adverse treatment during the material period. I have considered all of the evidence in terms of any treatment that could be considered adverse and the complainant’s evidence in this regard related to disciplinary issues and a less than satisfactory annual review. In this respect, I note that the complainant was not subjected to any formal disciplinary action during the period in question. Specifically, I am satisfied that meetings called by her managers were in line with their duties and obligations and that her unsatisfactory review arose from issues unconnected with her disability including her refusal to attend training on other grounds.
5.8 Finally, I cannot find any evidence supporting the complainant’s third complaint of discrimination on the grounds of disability by the respondent in relation to her conditions of employment and particularly training. This complaint primarily related to her contention that the training centres she was expected to *296 attend were unsuitable in terms of her lighting requirements. In this respect, I am satisfied that first, when any such issues were properly raised with the respondent, they were addressed and secondly, the complainant accepted that there were other unrelated reasons as to why she did not attend the training. Overall, I am unable to find any evidence of discrimination in relation to her conditions of employment.
6. Decision
6.1 I have concluded my investigation of the complaints herein and based on the aforementioned, I make the following findings pursuant to s.79(6) of the Employment Equality Acts:
(1) The complainant has not made out a prima facie case that as a person with a disability within the meaning of s.2 of the Acts, the respondent failed to provide her with reasonable accommodation contrary to s.16(3) of the Acts and therefore this complaint is not upheld;
(2) The complainant has not made out a prima facie case that she was subjected to adverse treatment amounting to victimisation contrary to s.74(2) of the Acts arising from the making of this and previous complaints under the Acts and therefore this complaint is not upheld;
(3) The complainant has not made out a prima facie case of discrimination by the respondent in relation to her employment on the grounds of disability contrary to s.6(2)(g) and s.8 of the Acts in relation to training and conditions of employment and therefore this complaint is not upheld.
A Worker v A Hotel
EDA0721
Labour Court
18 December 2007
[2008] 19 E.L.R. 73
Determination
This is an appeal by the hotel (herein after called “the respondent”) against the decision of an Equality Officer in a claim alleging discrimination on the disability ground brought by the worker (herein after called “the complainant”).
The complainant complained that she was discriminated against on the gender and disability grounds in relation to her conditions of employment and furthermore that she was dismissed on the disability grounds, in breach of terms *75 of s.6(2)(a) and (g) of the Employment Equality Acts 1998 and 2004 (the Acts) and in contravention of s.8 of the Acts. She also claimed that the respondent did not make sufficient efforts to accommodate her disability and thus facilitate her to carry out her duties. Furthermore, she claimed that she was victimised by the respondent.
Having investigated the complaint, the Equality Officer found that there was insufficient evidence to establish a prima facie case of discrimination on the gender grounds. This finding was not appealed by the complainant.
The Equality Officer found that the respondent discriminated against the complainant in relation to her conditions of employment and dismissed her on grounds of her disability in contravention of the provisions of s.8 of the Employment Equality Act 1998. The Equality Officer awarded the complainant compensation in the total amount of €15,000 for the effects of the discrimination. Counsel on behalf of the hotel appealed to the court against that decision.
The Equality Officer did not make a finding on the claim that the complainant was victimised contrary to the provisions of the Acts.
Background
The complainant was employed by the respondent as a sales executive and commenced on Monday, May 30, 2005. It is accepted by all parties that the complainant suffers from a mild form of osteoarthritis. According to a medical report furnished to the court:
“Ms X has a condition of mild osteoarthritis of the right knee. From my knowledge of the patient this can cause swelling in circumstances where the patient is obliged to climb stairs on a constant, continual and repetitive basis.”
Early in 2005, when the complainant applied for a position with the respondent as a sales executive she went through a lengthy interview process and was appointed with effect from the May 30, 2005. She states that she informed the respondent of her disability during the interview process. This is strongly disputed by the respondent.
On the first day of her employment she discovered that instead of having a single office as she had in her previous positions she was now required to share an office which she found to be wholly unsuitable, in her own words:
“The physical environment of this office, the constant traffic of other hotel personnel, the heat, the overcrowding was certainly not conducive to an efficient and productive working environment. It was extremely stressful. In my two previous places of employment, I had worked solely from my own office and felt that I had been deceived into accepting these substandard conditions which were only revealed to me after I had left my old job on the strength of the assurances of [Mr S].”
*76 Her office was located up 22 steps of stairs and there was no lift. This caused difficulties for her due to her disability. On the second day of her employment when she arrived at work she reported to the general manager that due to the conditions she endured on the first day she had suffered pain and discomfort overnight. She enquired about alternative office accommodation downstairs. The following morning June 1, 2005, at a meeting between the general manager and the complainant, he informed her that he could not find a solution. The complainant left the premises and the employment ceased from that day. The complainant submitted a claim under the Acts to the Equality Tribunal on July 6, 2005.
The respondent’s case
In it’s submission the respondent denied that it discriminated against the complainant on the gender or disability grounds and denied that she was dismissed.
Counsel for the respondent Mr John Eardly BL, stated that the hotel had opened for business in September 2003 and was built in compliance with building regulations and planning permission. The complainant had been recruited as a sales executive after a lengthy interview process. Mr Eardly BL stated that on the complainant’s first day of employment she discovered that her office location was up a flight of stairs, she would be sharing it with a number of people, it was a very busy office with people coming and going and there were no lift facilities. The complainant had not previously made it known to the respondent that she had a knee injury or that she would have a problem climbing stairs. This problem did not become known until she informed the general manager’s secretary of her reservations about the office space and the stairs on the first day of her employment. The general manager explained to her that there was no alternative office accommodation available. The complainant suggested that she might work in an office located behind the reception desk. He informed her that this office, which measured two metres by three metres, was not available as it was already in use by other staff. He asked her to give the matter some thought overnight. He told the court that he was not dismissive of her medical condition or of people with disabilities.
The next day he met with the complainant to discuss the situation. She told him that she had suffered difficulties with her knee overnight and forcefully presented him with “an ultimatum” categorically stating that she was not prepared to carry out her duties suffering such severe consequences.
He enquired why she had not mentioned this problem at interview. She replied that as it was a modern hotel she expected her office would be located on the ground floor or be serviced by an elevator.
Her conclusion was that there was no point in staying for the duration of the day and she went home.
*77
Mr Eardly BL submitted to the court that at the interview process, the complainant had misrepresented her ability to do the job by not mentioning her disability and she had misled them by listing “walking” as one of her hobbies on her curriculum vitae. It had been made clear to her at interview that her job with the hotel would entail a significant amount of mobility. It was by no means a “desk bound” job.
He submitted that such actions served to frustrate the statutory rights of the employer as it was lawfully entitled under s.16 (1) of the Acts, to refuse the complainant employment. It would have been only in that context that the respondent had to consider the question of reasonable consideration (in the Act referred to as “appropriate measures”) in order to allow her to undertake her duties. Instead due to the complainant’s failure to inform it of her disability, the respondent was forced into a situation in which it had insufficient time to consider its options and at a time when it needed her to carry out her duties. He submitted that to all intents and purposes the respondent had only 24 hours to consider the situation before the complainant resigned and this placed an unfair onus on the respondent.
Mr Eardly BL submitted that the failure of the complainant to provide the respondent with all material facts in the course of a selection process pertaining to her capability to do a job may be impugned as a misrepresentation and/or breach of contract law and may also be impugned, inter alia, under s.13(2) of the Safety, Health and Welfare at Work Act 2005.
In relation to the question of what the respondent should have done to reasonably accommodate the complainant’s disability, Mr Eardly BL submitted that even if an alternative office had been provided she would still not have been able to carry out her duties fully as her job at the hotel entailed a significant amount of mobility and this was made clear at the interview. She would also have had to travel to trade shows etc. as part of her job description; she would not have been fully capable of undertaking the duties attached to the position. He referred to the provisions of s.16 (3) of the Act and stated that the provision of a lift to enable the complainant access to the office would have placed a disproportionate financial burden on the hotel to accommodate her disability. The hotel simply did not have any office accommodation at a level suitable for the complainant and that the provision of such an additional workplace specifically for her would also have placed a disproportionate burden on the respondent.
Mr Eardly BL submitted that there was no absolute requirement under the Acts to obtain a medical assessment of the complainant’s disability in seeking to reasonably accommodate her in the workplace. Instead the correct approach is to establish whether what is necessary to accommodate an employee is reasonable in terms of being a disproportionate burden.
The respondent never challenged her assertion that she suffered from a disability or the fact that she may have required to work from a ground floor *78 office to accommodate it. The issue was whether the degree of accommodation she stated was medically required was reasonable in the circumstances of this case.
The special facilities required of the employer to accommodate her would be unreasonable and a disproportionate burden in terms of cost and disruption to the business. To accommodate her needs a substantial portion of the workplace would need to be restructured in order to make it accessible for her; otherwise she would be substantially confined to a ground floor office. The scale of the accommodation required to be restructured would be such that the employer would be entitled and competent to conclude:
— that the degree of re-organisation and expenditure was unreasonable, and
— that she was no longer capable of doing the job she was engaged to do.
Mr Eardly BL further submitted that the complainant was at the time of the hearing working in an office, located on the first floor of a building, 18 steps upstairs, with no lift facility. He stated that these circumstances were not significantly different than those pertaining to her employment at the Hotel.
Mr Eardly BL submitted that the complainant had failed to establish a prima facie case of discriminatory treatment on the ground of her disability. The complainant has failed to adduce any evidence of her economic loss and therefore the Equality Officer was not entitled to award a sum of €5,000 for such loss.
The complainant’s case
The solicitor on behalf of the complainant, Mr Cullen, held that she was discriminated against on the grounds of her disability when the respondent refused to accommodate her by not providing adequate accommodation to take account of her disability. He maintained that alternative arrangements could have been made to ensure that her knee disability did not constitute a bar to her employment in the hotel. It would not have been necessary to introduce lift facilities to accommodate her. He maintained that there was an onus on management to ensure so far as practicable that such disabilities were accommodated within the workplace. He disputed the respondent’s contention that she should have informed them of her disability beforehand and that she was misleading in her inclusion of “walking” as one of her hobbies. He held the view that there was nothing inconsistent with walking and being unable to climb stairs.
Mr Cullen denied that that she would not be able to walk or carry out her job as alleged by the respondent and described it’s view as being “far-reaching and exaggerated” and formed without medical evidence. He contended that if alternative office accommodation could have been found all parts of the hotel would be accessible to the complainant with the exception of the plant room *79 which she would have had no need to access.
He told the court that the complainant was dissatisfied with the office she was required to work from, she had described it as “very small and overwhelmingly hot”, without air conditioning or ventilation, and designed to accommodate four staff. There were two skylight windows, which were not working properly — “the office door had to be left open in a vain attempt to deal with the unbearable temperature which made working there extremely oppressive” and the door had to be closed whenever there was a conference in the adjoining Leitrim Suite. The room was like a “thoroughfare” with staff from various departments continuously trailing through. The general manager had explained that all the equipment and telephones etc were to be regarded as ‘communal’, that other staff members could use the P.C. and telephone at her desk and access all her documents — “there was no privacy”.
He disagreed with the respondent’s view that special arrangements to accommodate the complainant’s disability would be prohibitively costly and stated that such matters were never considered, discussed or justified with her. He held the view that the respondent failed to advise the complainant at the outset of the substandard unauthorised, poorly ventilated and overcrowded room.
He stated that the previous incumbent in the complainant’s job worked from a first floor office, accessible by lift and used a laptop computer and that the general manager had a first floor office, accessible by lift. The small office behind the reception desk was reserved exclusively for the reservation manager who was the general manager’s stepson.
Mr Cullen further submitted that no time restriction was placed on the Hotel to find a solution; by the respondent’s manager asking her to give the matter some thought overnight, it was clear they:
— were not going to carry out any further factual investigation;
— were not going to afford her any opportunity to consider or comment on the details of the alleged financial or administrative costs;
— would not countenance any re-arrangement, and
— would give her overnight to consider her alternatives — take it or leave it.
Mr Cullen disputed the various arguments made by the respondent regarding the mitigating factors, which the court might consider if it found that the complainant was discriminated against.
On the issue of whether the complainant mentioned her disability before been employed, he stated that the employer did not want to know about any problems. He had said to her on her first day that he would “always find a solution by making space available elsewhere” when asked how the hotel would cope with clients who wished to book a conference room with wheelchair access.
*80
Mr Cullen stated to the court that her disability had not rendered her unemployable in any other workplace she had previously worked. She had been out of work from June 2005 to January 2006 and her annual salary would have been €27,000, the actual loss of income therefore was €5,000.
The evidence
Evidence of Mr S
Mr S the general manager of the hotel explained that the complainant was successful in a competition for the position of sales executive after an interview process which involved three separate interviews held over one and a half hours, one hour and 45 minutes duration respectively. He told the court that she did not mention her disability or any mobility restrictions she may have had and that the first time he became aware of the difficulties was after the complainant had commenced employment.
He explained that he met with her at 4.30 p.m. on Tuesday, May 31, 2005, her second day of employment, to discuss the problem of her office being located on the first floor, with no lift facilities. He explained that at the conclusion of that meeting it was agreed that both would give the matter some thought overnight.
When they met the following morning, she told him that her knee had been swollen the previous evening and she had to apply an ice pack. He said that certain options had crossed his mind to address the difficulties, such as a chairlift, change of bedroom use, etc., however, he did not mention these to the complainant. He said that the only option she had come up with was to use the reservations manager’s office located behind the reception desk. This was a very small office, used by the reservations manager and by front desk staff and for cash repository. It required frequent access and it contained screens for monitoring security and the hotel’s radio system. He explained that the duties of the job would have required her to be located in the hotel 60 to 70 per cent of the time with the remainder being located outside and that once her computer system was installed she would have full access to all files from her office and full access to emails, therefore she would only need to come downstairs to meet clients. He told the court that when he explained this to her that she had replied in a very forceful manner that she was not going to put up these conditions. At the time it was not the frequency of climbing the stairs, which was mentioned, but the use of the stairs in itself.
He told the court that at all times he had no reason to believe that she would not have been able to carry out her duties as she had being doing a similar job in a hotel for the previous six years. He refuted her estimation that the job would entail using the stairs 30–40 times per day, and said it would be nonsense to expect her to use the stairs that often in her role as sales executive — “it would break *81 continuity and concentration, and would not be effective time management”. He denied that she was dismissed and maintained that he had no intentions of dismissing her.
At the meeting on Wednesday, June 1 he told her that having examined the reservations manager’s rosters and due to the major difficulties it would present for other staff he had decided that it would not be feasible for her to occupy that office. She replied in a forceful manner that she was not going to put up these conditions, and gave him “an ultimatum” a “fait accompli” — if he did not provide her with an alternative office there and then she would not stay. He told her he had no other options available, it was her decision to leave the job.
She made the comment that the job “was not worth it”. He said that due to the forceful manner in which she behaved he did not dissuade her. He said that she had been given an opportunity to influence matters but decided to walk out of her own accord. He held the view that the conditions in the office had a more major influence on her decision to leave rather than the use of the stairs.
He denied that he told her to go to Accounts and pick up her P45; he said that this was a statement he would never use. He said that he was “bitterly disappointed” when she decided to leave, as he had invested time and energy in recruiting her.
He gave evidence that the previous incumbent in the sales executive job had used a laptop and had operated partially from home and partially from the Hotel. However, this arrangement was operated on a trial basis and had not been satisfactory, as she did not have access to hotel’s computer systems. As a result they were anxious not to repeat that experience. Since that time the job had evolved even further and now required full access to all of the hotel’s computer systems.
Evidence of Ms B
Ms B, the general manager’s secretary and head of department in her evidence told the court that she had been responsible for the complainant’s induction. She stated that the complainant’s office was located on the first floor in the administration office. The office had five workstations with two skylights which were not working properly. It had no windows and no air conditioning. In addition it was a very busy office with people coming and going all the time.
On Monday morning, May 30, 2005, when she was showing the complainant around the hotel, she asked whether there were lift facilities available to her office. Ms B had replied that there was no lift access to that part of the hotel. In the afternoon the complainant complained about the substandard conditions of the office, saying it was extremely hot and stuffy and told her that she suffered from an old knee injury, which was aggravated by using stairs. Ms B was surprised with this, as she looked fit and healthy. The complainant asked whether she could use the office located behind the reception desk and Ms B explained that the front of *82 house/reservation manager worked from that office at evenings and weekends. The complainant moved into that office for the remainder of that day.
Ms B told the court that Mr S was flexible with all staff and allowed them take time off to cater for personal needs. Ms B told the court that at around 5 p.m. she brought the matter to Mr S’s attention. He said that he would talk to the complainant the following day. Ms B told him that the complainant had been using the reservation’s manager office and suggested that it may be a possible solution to the complainant’s problem. Ms B told the court that Mr S was out of the office on business for most of the following day and when he returned at around 5 p.m. he spoke to the complainant. After the meeting on June 1, 2005 with the general manager, Ms B said that she met the complainant who was upset and told her she was leaving, she said she had “been let go, there’s nothing here for me”. She said she was “tearful and emotional”, but it was not her place to drag any information out of her.
The complainant’s evidence
The complainant told the court that she when she accepted the offer of the job as sales executive to the hotel, she did not expect to have any difficulties with the layout of the hotel, as it was a new building. She had previously worked in a similar position in two different hotels. At the interview she mentioned to Mr S that she had a problem with her knee due to an old injury, however, she was not shown her office prior to starting.
On her first day she was given an induction by Ms B who showed her around the hotel. During the induction she discovered that her office was located on the first floor with no lift facilities. Computer access facilities were not installed for her until the second day. As she needed to gain access to the reservations system on her first day she worked from the reservations manager’s office. Late that afternoon she met with Ms B and complained about the substandard conditions in the administration office and explained to her that she had expected that the hotel would be compliant with building regulations and that due to a knee injury she had a problem using stairs.
The following day the computer engineer came to install computer facilities at her desk in the administration office.
She met with Mr S at 5 p.m. on Tuesday, May 31, and told him that due to her knee problems she would not be able to use the stairs 15 times or more per day and suggested that she might work from the reservations manager’s office located behind the reception desk. She suggested that she could work around his hours, which usually commenced at 4 p.m., and would visit clients after that time. He did not offer any solutions and said that they should both think about it overnight. Next morning they met in the Leitrim Suite. She told him that she had suffered such severe pain in her knee overnight that she had had to apply an ice pack. Mr S said that he had thought about the issue overnight and that he *83 could not come up with an alternative work location for her. He told her that if she did not like it then there was no point in her being there and she could pick up her P45 from Accounts.
The complainant told the court that she felt bitterly disappointed with the whole experience, she felt cheated and humiliated.
When questioned about the number of times she climbed the stairs during her employment with the hotel on the two days in question, May 30 and 31, 2005, she indicated that it was approximately 10 times each day, however, in her view she estimated that the role of sales executive could entail having to use the stairs up to 30–40 times per day.
She told the court that she is currently employed in an office, located on the first floor of a building which has no lift facilities, and climbs the stairs (18 steps) between four and 15 times per day without difficulty.
Burden of proof
It is now trite law that in cases of discrimination the complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. If that burden is discharged then the probative burden of establishing that the principle of equal treatment was not infringed in relation to the complainant shifts to the respondent.
The complainant carried the onus of proving the primary facts upon which she relies in advancing her claim of discrimination. If she succeeds in discharging that burden and the facts so proved are regarded by the court as being of sufficient significance to raise an inference of discrimination, the onus is then on the respondent to prove, as a matter of probability, that his conduct was not motivated by considerations related to the complainant’s disability or alternatively he successfully avails of defences under s.16 (3).
Findings of the court
The court has given careful consideration to the submissions made by both parties to this case and has examined the evidence given at the hearing. It is accepted by all parties that the complainant suffered from a mild disability as described by her doctor. The court notes that the respondent accepted that the complainant’s disability would make it difficult for her to access the office allocated to her. The court has been made aware that the conditions in this office were a considerable source of dissatisfaction to her. This was evident from the submissions made and is borne out by the fact that she now works in a single occupancy office accessible only by a flight of 18 stairs. However, these facts were not known to the respondent at the time of the complainant’s termination of her employment and it is well established case law that facts which were not known at the time cannot later be used to retrospectively justify a decision taken.
*84
The law
The appeal before the court concerns the complainant’s allegations of unfavourable treatment in terms of her conditions of employment and dismissal on discriminatory grounds. However, the court notes that the one aspect of her complaint concerned the conditions of employment related to the “substandard office that indirectly discriminated against female workers”, including herself. The Equality Officer found that there was insufficient evidence to establish a prima facie case of discrimination on the gender grounds, this finding was not appealed.
Therefore, the claim before the court concerns the allegation that she was discriminated against on the grounds of her disability and the respondent’s failure to do all that was reasonable to accommodate her needs by providing office accommodation either on the ground floor or accessible by lift facilities.
Section 6(1)(g) of the Act provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability.
Section 77(2) of the Acts provides that if a person claims to have been dismissed in circumstances amounting to discrimination by another in contravention of the Act then a claim for redress for the dismissal may be served.
The complainant’s case is based on the assertion that the respondent discriminated against her due to her disability when it refused to accommodate her by not providing adequate accommodation to enable her carry out her duties, thereby preventing her from continuing in her employment with the hotel.
There is no dispute that at the time of events complained of, the respondents accepted that the complainant had a disability and that the disability prevented her from carrying out her duties.
The duty to provide special treatment or facilities, for which the complainant contends, is derived from s.16 of the Act, provides as follows:
“16.—(1) 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) [ Not relevant]
(a) For the purposes of this Act, a person who has a disability is fully competent *85 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.”
The nature and extent of an employer’s duty to an employee with a disability was considered by this Court in An Employer v A Worker [2005] E.L.R.159
In this case the Court stated as follows:
“Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the recent House of Lord decision in Archibald v Fife Council [2004] 4 All E.R. 303
‘But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment ….’”
Later in the Determination, in relation to the effect of s.16, the court stated as follows:
“Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for *86 training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.
Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment they would be fully capable and fully competent to do so.
The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services v McCaull [2001] I.R.L.R. 60).”
The court adopts that reasoning in its approach to the instant case.
Consequence of failure to provide reasonable accommodation
In this case it is necessary to consider the legal consequences of an employer’s failure to fulfill the duty imposed by s.16(3). It is clear from the Act as a whole that a failure to provide reasonable accommodation in accordance with this section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Act, is defined by s.6. That definition does not include any reference to a failure to fulfill the duty imposed by s.16(3). Further, there is nothing in the Act, which gives an independent cause of action for an employer’s failure to provide special treatment or facilities in accordance with that subsection.
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability. In Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566
The EAT for England and Wales considered an appeal from the decision of *87 an Employment Tribunal in which it was held that the obligation imposed on an employer by s.6(1) of the Disability Discrimination Act 1995 (which corresponds to s.16 of the Act) included an obligation to carry out a proper assessment of the disabled employee’s needs. In the headnote of the report the following statement of the law appears:
“A proper assessment of what is required to eliminate a disabled person’s disadvantage is a necessary part of the duty imposed by s.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on s.6 (1) could not be accepted.
The making of that assessment cannot be separated from the duty imposed by s.6 (1), because it is a necessary precondition to the fulfilment of that duty and therefore part of it …”
The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances.
Conclusion
The court must consider whether the complainant was discriminated against on the grounds of her disability when her employment ceased on June 1, 2005 and in such circumstances whether the respondent failed to provide her with appropriate measures to enable her participate and advance in employment thereby rendering it liable for unlawful discrimination.
The general manager told the court that he was presented with an ultimatum, in a very forceful manner that she was not going to put up with the working conditions. Whereas the complainant said that management could not come up with an alternative work location and she was told her that if she did not like it then there was no point in her being there and she could pick up her P45 from Accounts.
Based on the evidence, the court has concluded that matters were decided in a very abrupt fashion at the meeting on June 1, 2005. The court is of the view that the unsatisfactory office conditions she described were clearly a factor, which influenced her at the time and may have been the cause of her impatience with management. The respondent said that it was “forced into a situation in which it had insufficient time to consider its options and at a time when it needed her to carry out her duties”.
It is clear to the court that when the complainant notified hotel management of her difficulty with climbing stairs, the respondent would, prima facie, be entitled to rely on s.16(1) in defending its position that she was not capable of performing her duties. However, that defence could not be relied upon if, with the assistance of special treatment, the complainant would have been capable of performing her duties. The scope of an employer’s duty is determined by what *88 is necessary and reasonable in the circumstances.
Article 2 of Directive 2000/78 on a Framework for Equal Treatment in Employment and Occupations provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on, inter alia, grounds of disability (emphasis added). In Wong v Igen & Ors [2005] 3 All E.R. 812 Peter Gibson L.J. considered the scope, which should be ascribed to the notion of “no discrimination whatsoever”. He held that if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority, which the court readily adopts.
The court is satisfied that her disability was more than a “trivial influence” in the reasons behind the termination of her employment and in those circumstances the respondent fell short in its duty.
Furthermore, the court is satisfied that had special facilities been made available to her she would have been capable of doing the job. There is no evidence to show that management made any appropriate enquiries as to what measures might be taken to enable the complainant to continue with her employment. There is no evidence that he discussed the matter with his staff to see if alternative arrangements could be made. He did not seek to define the exact extent of the complainant’s disability. He did not seek further information from the complainant or in any way ask her to postpone her decision pending further enquiry.
The court is satisfied, as a matter of probability, that the respondent did not give sufficient consideration to the issue of whether the complainant could continue to work with the provision of special arrangements to accommodate her disability. Having so found, as the court is satisfied that the respondent did not meet the criteria set down in s.16(3) then it has not discharged that burden. Accordingly, the complainant is entitled to succeed.
The court is satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable in the circumstances the Court has taken account of the fact that the complainant is capable of working elsewhere in an office located on the first floor, without lift facilities, and is of the view that this should be taken into account in terms of mitigation. Accordingly the court awards the sum of €10,000.
Determination
The court finds that the respondent discriminated against the complainant on grounds of her disability. In all the circumstances of this case, the court awards a sum of €10,000 which amount is in respect of the affects of discrimination.
Accordingly, the decision of the Equality Officer is varied.
Division of the Labour court: Ms Jenkinson (Chairman), Mr Doherty, Mr Nash
Nano Nagle School -v- Daly CA
[2018] IECA 11 (31 January 2018)
Finlay Geoghegan J, Birmingham J.
Finlay Geoghegan J
Link
Ryan P., Birmingham J.
THE COURT OF APPEAL
Neutral Citation Number: [2018] IECA 11
[2016 No. 67]
The President
Finlay Geoghegan J.
Birmingham J.
IN THE MATTER OF THE EMPLOYMENT EQUALITY ACTS 1998-2011 ON THE APPLICATION OF NANO NAGLE SCHOOL
AN APPEAL PURSUANT TO SECTION 90(1) AGAINST TERMINATION EDA 1430 BY THE LABOUR COURT DATED 12TH AUGUST 2014
BETWEEN
NANO NAGLE SCHOOL
APPELLANT
AND
MARIE DALY
RESPONDENT
JUDGMENT of the President delivered on 31st January 2018
Introduction
1. This appeal by Nano Nagle School from the judgment of the High Court delivered by Noonan J. on 11th December 2015 is episode four of a saga of litigation arising from an unfortunate dispute concerning the capability of an enthusiastic disabled employee to work in a school providing essential services to children who face physical, intellectual and behavioural challenges.
2. Ms. Marie Daly was a Special Needs Assistant on the staff of the Nano Nagle School in Killarney from 1998 until she sustained severe injuries in a road traffic accident in 2010. After a long period of treatment and rehabilitation, she achieved a partial recovery, but she was left with significant disability, being confined to a wheelchair because of paraplegia. She was keen to get back to work and believed that she would be able for it and her doctors encouraged her to do so. She approached the school in January 2011 with a view to doing that. The school sought advice from experts, including an occupational health physician and experts in risk assessment and occupational therapy/ergonomics. In light of these reports, the Board of the school concluded that Ms. Daly did not have the capacity to undertake the duties associated with a Special Needs Assistant and that it would not be possible for her to return to work at the school. Ms. Daly complained to the Equality Tribunal on the ground that the school had failed to provide appropriate measures to enable her as a person with a disability to return to work contrary to the Employment Equality Acts 1998 to 2011.
3. The appeal concerns the interpretation and application of s. 16 of the Employment Equality Act (as amended) which provides statutory protection against discrimination in the workplace. The 2004 Amending Act brings into legislative form the provisions of Council Directive 2000/78/EC which declares in Recital (16) that such measures play an important role in combating discrimination on grounds of disability.
4. Section 16 of the Employment Equality Act 1998, as amended, provides as follows:
(1) 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 section, 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) An 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 and advance in employment,
(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)—
“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12 (1) and a regulatory body; and accordingly references to a person who has a disability include—
(a) such a person who is seeking or using any service provided by the employment agency,
(b) such a person who is participating in any such course or facility as referred to in paragraphs (a) to (c) of section 12 (1), and
(c) such a person who is a member of or is seeking membership of the regulatory body;
‘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;”
5. The dispute has been considered in turn by the Equality Tribunal which dismissed Ms. Daly’s claim; by the Labour Court, which allowed her appeal and awarded compensation; by the High Court, which upheld the Labour Court and now by this Court on appeal from the judgment of Noonan J.
The Equality Officer’s Decision
6. Ms. Daly’s case was that the school failed to take reasonable or appropriate measures to facilitate her return to work and that she was quite capable of fulfilling a role with the school as an SNA and a secretary. The school’s case was that SNAs had to work in pairs in the school because of the sort of pupils that it catered for. The bulk of the jobs of the SNA position were beyond Ms. Daly’s ability and so the only option for her to remain in employment with the school was if funding could be obtained for a floating SNA in addition to the staff complement funded at the time. The school submitted that it made enquiries to see if such funding for a floating SNA could be obtained, but the response was that SNAs are provided for the benefit of the pupils and not for the benefit of the staff, and accordingly, funding for a floating SNA could not be sanctioned.
7. The Equality Officer was satisfied that the school is a special needs school, caring for students with moderate, severe and profound disability. The number of students with severe or profound disability, including elements of behavioural difficulties, is high. The role of an SNA in this type of environment is not exactly comparable to the role of an SNA in a more mainstream school.
8. The Equality Officer noted that there were no areas of contention surrounding the relevant issues. When the complainant sought to return to work, the school sent her for assessment by an occupational health physician, who recommended an independent risk assessment. He was not satisfied with the details in the risk assessment and suggested that a second risk assessment be carried out. The school conferred with Ms. Daly and engaged an ergonomics/occupational therapist consultant nominated by her to undertake the second risk assessment. This consultant was familiar with the complainant disability, having worked with her during her recuperation period. This is a reference to Ms. Ina McGrath and the fact that she knew Ms. Daly because she had worked with her during her period of recuperation. Ms. McGrath’s report to the school and evidence to the Labour Court are important features of the case as later appear.
9. The Equality Officer recorded the evidence of the Principal of the school that she had sought funding for a floating SNA, but had been informed that SNAs were provided to enable the care of children, not of adults. The school’s budget was externally controlled and the Principal was not able to fund a floating position. The Officer considered a recent determination of the Labour Court in Shannon Regional Fisheries Board and A Worker (Determination EDA 1318) from which he cited the following passage:
“The general principles set out in Humphries v. Westwood Fitness Club require an employer to make a bona fide and informed decision concerning a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive.”
The Officer concluded: “In the instant case, I consider that the respondent has fully and properly assessed all of the medical evidence available and that upon obtaining further medical advice that evidence is conclusive.” His decision accordingly was expressed as follows: –
“Having considered all the written and oral evidence presented to me, I find that the medical evidence indicates that the complainant is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to the position to which she was recruited for, having regard to the conditions under which those duties are, or may be required to be, performed. Accordingly the provisions of Section 16 (1) of the Acts applies in relation to this complainant and therefore this complaint must fail.
Additionally, notwithstanding the foregoing, I have considered all the written and oral evidence presented to me, and I find that the respondent has given consideration to the provision of appropriate measures to enable the complainant to return to work but that these measures give rise to a cost other than a nominal cost. Therefore the respondent is entitled to rely on the provisions of Section 16 (3) of the Acts and accordingly this complaint must fail.”
10. Ms. Daly appealed to the Labour Court which conducted a hearing into the matter on oral evidence and delivered its determination dated 12th August 2014, allowing the appeal and ruling in her favour. The grounds of this decision are the essence of the appeal to this Court and require detailed examination. Either party could appeal that determination to the High Court on a point of law and the school challenged the interpretation of the law and the findings of fact. In his judgment delivered on 11th December 2015, Noonan J. rejected the challenge, holding that the school had failed to demonstrate any error of law or absence of factual ground in the determination of the Labour Court.
11. The issue for this Court is whether the High Court was correct in law in endorsing (a) the Labour Court’s interpretation of s. 16 and (b) its application of the law to the facts.
The Directive and HK Denmark
12. The legal context of the case has as its foundation Directive 2000/78/EC establishing a General Framework for equal treatment in employment and occupation. The preamble at Recital (16) declares that the “provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability”. Recital (20) says: “Appropriate measures should be provided i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources”. Article 5 mandates provisions to facilitate persons with disabilities to obtain employment and to participate as fully as possible in it:
“Reasonable accommodation for disabled persons
In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”
13. In cases C-335/11 and 337/11, shortly identified as HK Denmark which judgment is relied on by both parties in the appeal, the Court of Justice opens its judgment with reference to the United Nations Convention on the Rights of Persons with Disabilities of 13th December 2006 which was ratified by the European Union on 23rd December 2010, citing paragraph (e) of the Preamble, which says that:
“Disability is an evolving concept and the disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”
14. The case was a request for a preliminary ruling on the issues with which we are not concerned in this appeal but in addressing a question of a different, shortened dismissal notice period in cases of disability, the Court of Justice held that a reduction in working hours may be regarded as an appropriate accommodation measure for an employee with a disability. In its conclusions, the Court of Justice held:
“Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer.”
15. Other Recitals in the preamble to the Directive cited by the court included numbers 16, 17, 20 and 21 which are as follows in the Preamble to the Directive:
“(16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.
(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.’
(20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
(21) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.”
The Labour Court
16. The Labour Court conducted a hearing into the matter on oral evidence and delivered its determination dated 12th August 2014. Ms. McGrath, the occupational therapy assessor who had provided a report to the school also gave evidence to the Labour Court. One of the school’s grounds of appeal is that the Tribunal ignored her testimony in reaching its determination. The court heard the evidence of Dr. Madden, the occupational health physician who had furnished three reports to the school. The Principal and Deputy Principal of the school and the head of a similar school also testified.
17. The Deputy Principal described the then current pupil roll. 28 children had complex needs meaning that they had more than one disability and 46 pupils had significant care needs and required total support. Many of the pupils presented challenging behaviour and required one-to-one assistance. 18 pupils suffered from Epilepsy; four required peg feeding; two had specific toileting needs and four required regular medication during the school day.
18. The Labour Court held that Ms. Daly was entitled to succeed in her appeal because the Board of management of the school failed to discharge its statutory duty to take adequate measures to provide her with reasonable accommodation so as to allow her to continue in employment. The Labour Court did not find that Ms. Daly was competent to carry out the duties of a Special Needs Assistant at the school, but rather that the school had a duty to fully consider the viability of a reorganisation of work and a redistribution of tasks among all of the Special Needs Assistants so as to relieve Ms. Daly of those duties that she was unable to do. It might have transpired that it was not possible to make the necessary adaptations. However, in circumstances where the Labour Court held that the school had failed to carry out such exploration, it found that the school was in breach of its statutory duty and Ms. Daly was entitled to succeed.
19. The Determination of the Labour Court dated 12th August 2014 is a detailed 35-page analysis of the European and Irish legislation with references to case law including HK Denmark above cited, English and Irish court judgments and some previous determinations of the court itself. I will endeavour presently to identify the key legal and factual findings the Labour Court made in coming to its conclusions. Before doing that it is convenient to set out the Conclusion and Summary with which the determination ends. The Conclusion is as follows:
“There is no doubt that Ms. Daly was severely limited by her disability and the range of tasks that she could perform. She could not carry out all of the duties attaching to the role of an SNA. But she could undertake many of those tasks. It appears from the evidence adduced that the school’s response to that position was based on the belief that its duty was confined to providing Ms. Daly with such accommodation as might enable her to undertake the full range of tasks expected from a SNA. Regrettably, no amount of accommodation could produce that result. In that respect the school construed its duty to narrowly and took a mistaken view of what the law required in the prevailing circumstances. The school has a duty to fully consider the viability of a reorganisation of work and a redistribution of tasks among all of the SNAs so as to relieve Ms. Daly of those duties that she was unable to perform. That, in effect, was what had been proposed by Ms. McGrath. At the material time, Ms. Daly’s interest was being represented by her trade union. The school might reasonably have sought an input from Ms. Daly herself and her trade union before making its decision. Furthermore, as was proposed in the first assessment report, the school could have considered returning Ms. Daly to work with modified duties for a trial period. However, on the evidence the court is satisfied that the school did not give any real consideration to these possibilities. The court cannot speculate as to what the outcome might have been if the school’s board of management had given proper and adequate consideration to these or any other options that Ms. Daly may have advanced if given the opportunity to make submissions in defence of her position. Had the school given full and proper consideration to these possibilities it might or it might not have concluded they were viable, reasonable and proportionate in the circumstances prevailing.
It is also significant that the school never considered offering Ms. Daly a renewal of her secretarial role, which she could plainly perform with little or no adjustments, or consider the feasibility of providing her with part time employment.”
The summary says:
“In this case, the school did obtain independent professional advice on Ms. Daly’s capacity. That advice did not rule out the possibility of Ms. Daly returning to work if certain adjustments were made to the range of tasks that she would be expected to perform Ms. Daly was not consulted on the question of how effect have been given to the recommendation made by the professional advisors. Nor did the school’s board of management properly or adequately consider that question. It simply concluded that because Ms. Daly was manifestly unable to undertake the full range of duties attaching to the job of an SNA she could not return to work. Had the school given full and adequate consideration to all the possible options it might or it might not have reached a different decision. That, however, is not a matter on which the court can speculate.”
20. Regarding the law, the Labour Court set out its interpretation of section 16. The court understood the requirement in s. 16 to make adjustments that represent reasonable accommodation as including allocating tasks that the person is unable to do among other staff members. The court declared: “[t]here is no reason to exclude in principle extending that duty [the duty on an employer] to include the redesign of a position so as to include those duties that a disabled person can perform if that is a reasonable and proportionate means by which the disabled person can be facilitated in exercising their right to work”. The court rejected a submission by the school that the wording of the legislation meant that it was not required to continue the person in employment if she could not fully discharge the duties of the job that she held before she had the disability.
21. The Labour Court said that the law does not require an employer to employ a person in a position “the essential functions of which they are unable to perform”. It introduced the concept of the essential functions of the position, which it found in Directive 2000/78/EC. It proposed, erroneously, that if there is a difference between s. 16 of the Act and the Directive, the latter takes precedence. The Labour Court and this Court are bound by the law as enacted by the Oireachtas. If a person maintains that the State has not properly or fully brought into effect a Directive, he can raise that claim in a number of procedures. But that is not the issue here. The Act is to be interpreted in light of the Directive, but the statement made by the Labour Court is not correct. The issue in this case is the meaning of the section of the Act as passed by the Oireachtas. However, I do not think that this point is actually significant because s.16 expressly envisages some distribution of tasks: see subsections (4)(b).
22. The Labour Court said that the essential tasks that it spoke of might actually refer to a reorganised position. In other words, an employer may be required on this principle, firstly, to reorganise the work, including allocating tasks that the person is unable to do among other staff members. The person with a disability may still be unable to perform all the tasks of the newly defined position for him or her but only the essential tasks thereof. That would leave a new residue of tasks for distribution to others.
23. The Labour Court held as a matter of law that the employer’s duty to provide reasonable accommodation carried with it “a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate”. This expression has its source in English employment litigation decisions. The court referred to previous decisions that the Labour Court had reached to the effect that “a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes”. On this analysis, it is the quality of the enquiry process that determines compliance with the statutory obligation.
Factual Findings of the Labour Court
24. The Labour Court rejected the school’s contention that employing Ms. Daly as a floating SNA, as recommended by Ms. McGrath, would mean creating an entirely different job in order to accommodate her needs. The expert had explained in evidence that “what she meant was that the work of all the SNAs could be reorganised so as to confine Ms. Daly to performing those tasks that she was physically able to perform safely across a number of classes while distributing those tasks that she could not undertake amongst the other 26 SNAs”. Although doing that would “undoubtedly have involved a significant change in how the care needs of those attending the schools could be met”, the court held that “it cannot be fairly characterised as expecting the school to create a wholly new job”.
25. The Labour Court criticised the principal for not exploring the option by consulting the other SNAs. Her evidence was that it would involve the other SNAs in undertaking additional lifting and other physically demanding work. It would be unfair to them and could pose a health and safety risk for them. She did not discuss the matter with them and had not had an assessment undertaken of the possible impact on their health and safety. The court held that the school had not adequately considered this option.
26. The Labour Court found that Ms. Murphy’s involvement was decisive in influencing the conclusion of Dr. David Madden, the occupational health physician, who carried out three assessments of Ms Daly, culminating in his third report, prepared following consultation with the principal of the school, in which he expressed a different opinion to his earlier views. In the final assessment, Dr. Madden referred to the report of Ms. McGrath and said:
“The report suggests that she may be suitable for the position of floating SNA. I note no such position exists. I reviewed the risk assessment and acknowledge that there are many tasks that Ms. Daly is not fit to participate in. I understand from discussing with her school, the level of accommodation required is not possible to meet to ensuring the safety of all those involved. I acknowledge the number of roles that Ms. Daly would need accommodation would be significant.
Conclusion:
Ms. Daly is in satisfactory health and fit for some work. I acknowledge she has a medical issue that renders her unsuitable to perform many of the roles critical of a special needs assistant. I note that the level of accommodation is significant and her employer is not in a position to facilitate such a level of accommodation in the workplace.
I feel Ms. Daly is not medically fit for the position of special needs assistant. I feel Ms. Daly’s medical condition is genuine and permanent. I feel she is likely to remain unfit for the position of SNA permanently.”
27. In his previous reports, the first of which was in March 2011, Dr. Madden considered that Ms. Daly was fit to return to many of the duties of a SNA, but there were some she could not undertake. He was “happy to support her return to work once a risk assessment has been completed”. On 15th August, 2011, he held the same opinion but he was not satisfied with the risk assessment report that the school had obtained and he advised the school to procure another report. The report recommended that Ms. Daly’s return to work be accommodated by implementing a number of measures including rearranging her work practices so her role would be less challenging. The report further advised that Ms. Daly be consulted on all matters relative to her reintegration in the workplace. Ms. Ina McGrath was identified as a suitable expert occupational therapist to carry out the fresh risk assessment.
28. Ms. Murphy was of the opinion that Ms. Daly could only return to work if she was able to perform all of the duties of an SNA and told that to Dr. Madden. She said it would be difficult for the school to relieve her from some duties. Dr. Madden’s recollection was that Ms. Murphy told him that there were a significant number of issues around the proposals contained in the risk assessment and that the school could not provide the level of accommodation needed to facilitate Ms. Daly’s return. Dr. Madden understood from this conversation that Ms. Daly could only return to work if she could perform the work of an SNA in its entirety.
29. The Labour Court said that the school Board was influenced in its decision by Dr. Madden’s conclusion that Ms. Daly was medically unfit to work as an SNA. However, there was no evidence that the board was made aware that Dr. Madden formed that opinion on the understanding that the school would not or could not make the necessary adjustments in work organisation so as to accommodate Ms. Daly. Nor was the Board of management made aware that if those arrangements were made she would be fit to return to work.
30. The Labour Court noted that the Board of management of the school reached its decision without seeking any input from Ms. Daly:
“The decision not to pursue the possibility of reorganising duties among the SNAs was based on the import of a conversation reported to it between Ms. Murphy and a named official of NCSE concerning the feasibility of such an approach. This named official of NCSE did not give evidence and the court was not made aware of the details of the opinion expressed by this official or the basis upon which it was formed. Furthermore, the court finds the minute of record of the report made to the board somewhat puzzling. It reports that Ms. M. was informed that NCSE appoints staff for children with disabilities and not for adults. There was never any suggestion that Ms. Daly should work with adults.”
The High Court
31. Noonan J. upheld the Labour Court’s rejection of the school’s interpretation of s. 16 and implicitly endorsed the test applied to decide the issue. He also dismissed the school’s protest in regard to the oral testimony that the Labour Court had not had regard to the evidence given by Ms. McGrath, a case which it supported by evidence from her on affidavit, by the school’s solicitor’s note of the evidence and of the court’s secretary’s note, which the solicitor exhibited in another affidavit. The judge was satisfied that there was more than ample evidence available to support the Labour Court’s findings. The notes of the evidence from the school’s solicitors and the secretary of the Tribunal and Ms. McGrath’s affidavit did not go anywhere near establishing that the Labour Court ignored or misinterpreted Ms. McGrath’s evidence or reached a conclusion that was perverse. Indeed, the trial judge was prepared to endorse the criticisms made by the court of the engagements by the principal of the school with the experts. It is clear that the judge would have accorded significant deference to the Labour Court’s findings of fact which he felt were within its area of expertise.
32. The High Court’s findings included the following:
“The school’s position at the Labour Court was that reasonable accommodation and appropriate measures in subs. (3) and (4) applied only to such measures as would render Ms. Daly capable of fulfilling all the duties of the job. The definition of “appropriate measures” in subs. (4) includes the adaptation of both patterns of working time and distribution of tasks. As held by the CJEU in Ring, the adaptation of patterns of working time must include the elimination of some of that working time, subject always to the caveat that the measures must not impose a disproportionate burden on the employer. The adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the section would fail to achieve the objective for which the legislation was enacted.
Whether, and to what extent, a reduction in tasks is required to comply with s. 16 must necessarily depend on the facts of each case. It may or may not be relevant to consider whether a point is reached when the appropriate measures transform the job into something entirely different from that which originally existed. Some of the English authorities appear to go as far as suggesting that under the equivalent, and admittedly different, English legislation which pre-dates the Directive, the requirement to reasonably accommodate a disabled employee may extend to transferring him or her to an entirely different position within the same organisation – see Archibald v. Fife Council [2004] UKHL 32 and Chief Constable of South Yorkshire Police v. Jelic [2010] IRLR 774.
While the school in its submissions criticises what it submits are various errors of law in the Labour Court’s interpretation of the national and European case law, even if same were made, which I do not determine, these do not appear to me to undermine the ultimate outcome. The fundamental determination of the Labour Court here was that the school failed to engage with its duty to consider whether or not Ms. Daly could reasonably be accommodated by the implementation of appropriate measures. The Labour Court did not conclude that Ms. Daly could be so accommodated but rather it was the failure to even consider a redistribution of her tasks as a SNA that rendered the school in breach of s. 16. It seems to me that on the evidence, the Labour Court was perfectly entitled to reach the conclusion that there had been no adequate consideration or evaluation of these issues by the school and a phone call to the NCSE about funding, the content of which was never precisely determined, was an insufficient effort on the part of the school to comply with its statutory obligation.
These are all conclusions which in my view were open to the Labour Court on the evidence and it could not in any realistic sense be suggested that these were irrational or based on an erroneous interpretation of the law.”
The Appeal to the Court of Appeal
33. The school appeals to this court on grounds of appeal that it formulated into four compressed and summarised issues as follows, claiming that the learned High Court judge erred:
(i) In his determination and application of the standard of appeal on incorrect findings of fact in appeals on a point of law and failed to overturn the findings of the Labour Court in relation to the evidence of Ms. Ina McGrath on the basis of the error in the determination and application of the said principles;
(ii) in his interpretation of s. 16 of the Employment Equality Act 1998, in his analysis and application of the EU case law and Directives in relation to the interpretation of this section and in upholding the analysis of the Labour Court in relation to this section;
(iii) in his finding and in upholding the finding of the Labour Court that the appellant failed to consider reorganising the role of SMAs and
(iv) in his interpretation of the Irish case law in relation to reasonable accommodation and in relation to his analysis of the attempts of the appellant to afford same to the respondent and he erred in his upholding of the Labour Court determination in relation to these issues, particularly in relation to the interpretation of the Humphreys v. Westwood case.
34. Ms. Daly’s essential case is summarised in her submissions as follows:
“In summary, the School never considered in any meaningful or serious way making any adjustments to the actual nature of the role being performed by Ms. Daly. They were unwilling to and/or believed that they were not legally required to engage in the necessary process.
This would have involved meaningful industrial relations and human resources discussions with the other SNA’s and their trade union representatives and the school’s funders to explore making adjustments to the duties performed by Ms Daly. This should have been done to properly investigate whether her return to work could be accommodated by for example assigning to her more of the types of tasks which she could perform and potentially re-allocating to other SNAs some of the tasks she could not perform.
In truth, the School took a misinformed view of its legal obligations and believed wrongly, that if Ms Daly was unable to perform (with physical or mechanical assistance) all of the duties which traditionally attached to the role of SNA in that school, then they were under no obligation to consider accommodating her.
The Labour Court’s finding was correctly upheld by the High Court and the succinct ratio of the learner to Trial Judge at paragraph 61 of the Judgment is, it is respectfully submitted, correct: –
Noonan J. decided that the fundamental determination of the Labour Court was that the school failed to engage with its duty to consider whether or not Ms Daly could reasonably be accommodated by the implementation of appropriate measures. The Labour Court did not decide that she could be accommodated but that the school failed to consider redistributing her tasks as an SNA, which constituted a breach of section 16. The High Court held that the Labour Court was entitled to reach that conclusion.”
Discussion
Factual Context
35. Did the Labour Court apply the law correctly? Was the court’s view of the interpretation of the section correct? Did the court correctly apply the law to the known or ascertained facts? Was the High Court correct to endorse the Labour Court’s approach and decision?
36. The best place to begin consideration of the appeal is with the facts. As Noonan J. held: “Whether, and to what extent, a reduction in tasks is required to comply with s. 16 must necessarily depend on the facts of each case. It may or may not be relevant to consider whether a point is reached when the appropriate measures transform the job into something entirely different from that which originally existed”.
37. We have to look at Ms. McGrath’s report in ascertaining the factual background to the Labour Court’s decision. The Labour Court relied in its determination on the views of Ms. McGrath, an ergonomics/occupational consultant, whose report is dated 29th September 2011. Ms. McGrath’s conclusion that Ms. Daly could act as a floating SNA in the school forms a prominent part of the Labour Court’s consideration. It is important to understand the report as a whole to see this recommendation in context. The school also raises an issue about the evidence given by Ms. McGrath at the Labour Court hearing and the alleged failure of the Labour Court to record it or take note of it, but that is a separate consideration.
38. Ms. McGrath’s qualifications are a BSc. in Occupational Therapy from Trinity College Dublin. She worked in rheumatology, neurology and rehabilitation in Ireland and America. She returned to university to complete a Masters in Science in Ergonomics from Loughborough University in 1999. She works in private consultancy as an ergonomist and also works for the HSE as an occupational therapist.
39. The report beings with information about the school. It is a Special Needs school with approximately 70 students with moderate, severe and profound disability. The staff included 12 teachers and 26 Special Needs Assistants as well as a caretaker, secretary, bus staff and ancillary therapy staff. The school also relied on help from volunteers. There are ten classes in total: a reception class for the younger children; a junior class; two middle classes; two senior classes; classes for children with Autism Spectrum Disorder and for children with severe/profound disability.
40. The report has an Appendix with details of the role of a Special Needs Assistant which includes duties of preparing and tidying up classrooms; helping children to get on and off school buses; travelling with them as required; giving special assistance as necessary for pupils with particular difficulties, such as helping physically disabled pupils with typing or writing; helping with clothing, feeding, toileting and general hygiene; helping on out-of-school visits, walks and similar activities; helping teachers supervising pupils with special needs during assembly and other times; accompanying children or groups who may have to be withdrawn temporarily from the classroom; general assistance to the class teachers and where specifically assigned to an individual pupil, catering for his or her needs. SNAs do not act as substitute or temporary teachers.
41. Ms. Daly is wheelchair-dependent for mobility and she can transfer independently from the wheelchair. She is able to get around the school. She has passed her Driving Test as a wheelchair user. She has good upper extremity range of motion and strength and she demonstrated, on the occasion of Ms. McGrath’s visit, that she could pick up items from the floor when she leaned to the side. She is independent in all her own care needs, but needs assistance with getting items from higher shelves and for using sinks because they are at standing height.
42. On the second day of Ms. McGrath’s visit, 9th September 2011, she observed Ms. Daly in two classes that were deemed as potentially most suitable for her. On the date of her first visit, 2nd September 2011, Ms. McGrath assessed the other classes beginning with the one in which Ms. Daly had taught prior to her accident which was the junior special class. Ms. McGrath concluded that Ms. Daly would not be suitable for work as an SNA in this class. The children are physically dependent and need to be physically assisted for mobility, transfers, feeding, medication and safety. Bending, pushing, pulling, physical manipulation of children’s limbs is required throughout the day. The SNAs switch between the children so there is equal distribution of workload. Ms. McGrath and the junior special class teacher, Ms. Gabrielle Browne, discussed the suitability of the other nine classes. In seven of those classes, the children needed physical assistance or had to leave the classroom and be accompanied or were inclined to act out and needed physical attention to help control outbursts or needed assistance in going to the toilet or using facilities or leaving the school for one reason or another. It was clear to Ms. McGrath that Ms. Daly would not be suitable for work as an SNA in any of those classes. That left two classes that were possible locations where Ms. Daly might be accommodated as an SNA and so, on the second day, 9th September 2011, Ms. McGrath accompanied Ms. Daly in those classes and spent half a day in each.
43. In one class, three of the children had Autistic Spectrum Disorder. Two children needed close supervision. One child required assistance with changing a nappy for toileting. Another needed close supervision because of acting out. A child had Dyspraxia resulting in clumsiness leading to accidents and falls. A new child who had joined the class recently was observed hitting out during assembly and had to be stopped by the SNA in the class and removed to the Sensory Integration Room. That happened again and the child required hands-on intervention and was removed from the classroom by two SNAs. Ms. Daly was able to bring a child with Dyspraxia to the Sensory Integration Room to work on therapy exercises which she did by giving verbal direction to the child, but she was limited to minimal physical assistance. The other SNA who was present in the Sensory Integration Room said she did not feel safe at the time because she felt that there was a need for two physically able SNAs because the children had the capacity to act out.
44. The other class was the middle class which had eight children and two fulltime SNAs and a further SNA that the class shared with the reception class. In effect, there were 2.5 SNAs available in this class. Three children needed assistance with mobility. One child had Epilepsy and needed physical assistance when walking, which meant that two SNAs escorted the child to the bus. One with Autistic Spectrum Disorder needed to be escorted to a quiet room. Another child had stiff and shuffling gait and needed assistance. Children needed assistance with toileting. Ms. Daly was able to give good assistance with a child who was able to lift her feet up so Ms. Daly could take her clothes off and put them on over her feet, but another child was less compliant because of not being as physically flexible. Ms. Daly could not assist the SNA with taking one of the children to a quiet area while the others were being disruptive. The result was that there was no class in which Ms. Daly could participate in any physical sense with the principal duties of an SNA.
45. Ms. McGrath then provided a Job Demands Analysis in tabular form in which she listed particular SNA duties and in each case, having listed the duty in turn, she tabulated the task demands and whether there was a fit with Ms. Daly, and finally, whether adaptations or equipment were required to facilitate Ms. Daly in dealing with the particular duties. This is the source of the claim on Ms. Daly’s behalf, that of the 16 tasks that are associated with the job of an SNA, she is unable to do seven of them, but is able to perform some nine functions wholly or partly. In regard, for example, to a duty entitled ‘Supervision in Assembly’, the demands of which are described as “walk with students to assembly, sit with student group in assembly, say prayers with group”, Ms. McGrath commented that Ms. Daly was able to do this by giving verbal direction or physical prompt to children who are independently mobile and not at risk of absconding and that she could sit and encourage input from children. Obviously, she was not able to assist with dancing. Neither could she help to prevent hitting out and acting out behaviour.
46. Ms. McGrath turned to a question of safety. She said that Ms. Daly is in a more vulnerable position in a wheelchair than other staff in instances where a child is acting out by throwing items etc. She cannot move as quickly to get herself out of the way, if required, or to intervene to protect a child or a staff member. There is a requirement for two physically-able SNAs with children who act out or need physical assistance. She said that there may be a concern that Ms. Daly would not be able to support the other SNA in the instance of a physical outburst that put that SNA at risk. There may also be a concern regarding division of labour i.e. would an SNA working in tandem with Ms. Daly get all the heavy jobs and therefore be at greater risk of injury?
47. Ms. McGrath’s conclusions referred back to her table of duties and said that:
“It is clear that she is limited from assisting with children with physical care needs. Safety, however, is the main concern for Ms. Daly, staff and the children. Both classes assessed had children who can act out and need hands-on intervention and/or escorting. This suggests that these classes would need two physically-able SNAs to assist with these children.”
Accessibility was not a limitation for Ms. Daly while some relatively minor adjustments might be required. She then added the following paragraph which is central to the determination of the Labour Court:
“The recommendation is that Ms. Daly could act as a floating SNA. The Risk Assessment/Care Need Sheets (Appendix 2) used to assess children could be used to identify children that Ms. Daly could work with. She can perform SNA duties with children who need verbal or physical prompts. It is not recommended that Ms. Daly work with children who act out physically.
I hope that Nano Nagle School have resources to support Ms. Daly as it is evident that she is very motivated to return to work.
If I can be of any other assistance, please do not hesitate to contact me.”
48. I have set out this report in some detail because it is important to understand the process that Ms. McGrath engaged in; the nature of the school; the needs of the pupils and the requirements of the job of an SNA. Ms. McGrath made later comments in her evidence about the suggestion of a floating SNA, but taking the report as it stands it is clear what Ms. McGrath means. Ms. Daly is unable to perform the normal tasks of an SNA. She would not be suitable to work in any of the ten classes that there are in the school. She could not deal with children who have any physical needs, which is a large proportion of the children. Some of them have clear physical needs and disabilities that require hands-on assistance on a regular and predictable basis. Many of the others are subject to episodic acting out that is not predictable, but which calls for rapid intervention by a fully able-bodied SNA or possibly two such persons. A person with a severe disability, such as Ms. Daly, could be a danger to herself as well as to others, whether children or colleagues. The parts of the job that she can do are those parts that do not require physical involvement, such as giving verbal instructions or encouragement, but that is only one part of the job of an SNA.
49. It is clear that Ms. Daly is a committed worker and her record before the accident was exemplary. However, enthusiasm is not enough in a situation where there are vulnerable children who are in need of special care that involves hands-on attention at a quite intense level at times.
50. It is clear without considering the evidence that Ms. McGrath and the other witnesses gave at the Labour Court hearing, that Ms. McGrath’s report indicates that the redistribution of tasks to accommodate Ms. Daly as an SNA in the school would take out all of the elements of the job consisting of physical involvement with children. That would include dealing with children who might require physical restraint or accompaniment, as well as those whose behaviour could be anticipated. The suggestion made by Ms. McGrath was that Ms. Daly might act as a kind of supernumerary SNA, operating in any part of the school where she might be able to do something useful. It is apparent that Ms. McGrath hoped that the school would have the resources to accommodate Ms. Daly in this manner.
51. This report furnishes the factual background against which we have to assess the practicality or otherwise of the factual assessment made by the Labour Court. The legal issue is the interpretation of the section.
Legal Context: Interpretation of Section 16
52. As appears above, the Directive mandates that employers make reasonable accommodation for disabled persons:
“This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.”
In its conclusions in HK Denmark, cases C-335/11 and 337/11, the Court of Justice held:
“Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer.”
53. Subsection (3) (b) of section 16 requires an employer to
“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 and advance in employment,
iii. To undergo training, unless the measures would impose a disproportionate
burden on the employer.”
Subsection (4) defines ‘appropriate measures’, in relation to a person with a disability as including, inter alia, distribution of tasks.
54. It follows from these citations that section 16 does not require any special construction because interpretation of its meaning is available in the ordinary meaning of its words. The section does envisage some distribution of tasks, just as it also specifies time adjustments, as HK Denmark found was the case with the Directive. It is correct to infer that the requirement to be able to perform all the tasks of the position means the tasks after adjustment or distribution. Adjustment to access and workplace and hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16 (1) must be respected. The section does not in its terms make the process of enquiry a ground of default, neither does a failure to consult constitute breach of the duty imposed.
55. In this case, the employer was obliged to give objective consideration to Ms. Daly’s capacity to perform the tasks of a Special Needs Assistant in this school. On that question, the facts as reported by Ms. McGrath were not in dispute.
The Labour Court’s Conclusion
56. Was the Labour Court entitled to hold that the school did not comply with its statutory duty under s. 16? Did the school comply fully or substantially or not at all?
57. The school obtained expert reports. On the advice of the occupational health physician, it engaged Ms. McGrath who had worked with Ms. Daly on her recovery. The Principal followed up the floating SNA idea, as suggested by Ms. McGrath, by contacting the school’s funding body, the NCSE, but that proposal was not approved. The official who dealt with the request was named in the Labour Court so the school was specific as to the refusal of funding. The point that he made to the Principal was that SNAs were provided for care of children, not to support adults i.e. adult workers, so the Council would not fund a position of floating SNA who would not be doing the work required of such a worker. The Labour Court and the High Court appear to have had some difficulty in deciphering the shorthand message conveyed by the NCSE official, but it was clear to the Equality Officer and the school.
58. The Labour Court was in error in dismissing the school’s argument that the floating SNA position required the creation of an entirely new position. That is just what it involved. Such a job would be a new position in the school; there was not a floating SNA working in different classes from time to time. It would be entirely different from the work of the other SNAs. Classes in which two assistants were needed would continue to need them and Ms. Daly would not be able to replace one person, as the report made clear. Ms. McGrath expressed the hope when making the recommendation that the finances of the school would permit its implementation. In the result it is hard to reconcile this finding of the Labour Court with the known facts. Ms. McGrath’s report confirms the school’s argument that this was a new job being created, for which the writer hoped the school would have funds, namely a supernumerary SNA position with all the physical elements removed.
59. The criticism of the Principal for not approaching the other SNAs to take on between them the physical aspects of the job is not justified. The school had a decision to make about Ms. Daly’s capacity to work as an SNA. The Principal was not required to canvas with the other SNAs whether they would be willing to take on the work that Ms. Daly could not do. Even if they were willing, the school Principal and the Board would still had the decision to make. It was not sufficient to have a majority vote of the SNAs.
60. The fact that the occupational health physician discussed with the Principal the situation in the school in regard to Ms. Daly’s proposed return to work is not a matter for criticism of that expert or of the Principal. The impact on the school and the facilities available to accommodate Ms. Daly were proper points for consideration as the expert saw fit. It was his report to the school and he was entitled to obtain relevant information. The fact that Ms. Murphy was of the view that Ms. Daly would have to be able for all the SNA tasks is in the circumstances of this case of no significance because of the extent of the reorganisation that would have been necessary. If the case had been that some non-essential tasks which could be distributed among other employees were stopping Ms. Daly from getting back to work, the mistaken belief as to the need for full capability might be relevant but the situation here was entirely different.
61. The school Board made its decision based on the reports and in light of the refusal of funding for the new position. The school management had to decide in the interests of the whole school community, but primarily the children whose care was entrusted to the school. They needed physical, hands-on SNA care work. Parents were entitled to insist on a full complement of capable care staff. Safety is a major concern: of children from children who act out; of the children who act out; of the SNAs; of other staff; and of Ms. Daly herself. The school was not in a position to take chances with care and safety obligations towards the whole school community; it was entitled to say that it needed all of its complement of SNAs to be fully capable. All of this was in the McGrath report expressly or impliedly and was not in dispute. The failure of the Labour Court to address these matters not only undermines the validity of its analysis but also serves to highlight the error of its approach in focussing on the position of Ms. Daly to the exclusion of the other legitimate interests that the school had to accommodate.
62. The High Court discounted the school’s complaints about the Labour Court’s analysis of the law, holding that the ultimate conclusion in the determination concerned the process of evaluation and that any such errors as might have been found, which the court did not find it necessary to decide, did not impact on the decision made in the end. For the reasons I have stated above, I do not agree with that conclusion, but I want to say why I also do not consider that the ultimate decision is valid as a matter of law. The proposition that there is a freestanding obligation on an employer to carry out an evaluation, irrespective of the other circumstances of the case and without regard to the fundamental question as to whether the employee is actually capable of doing the job, is starkly stated as a matter of law by the Labour Court. This is ultimately the basis for its conclusion that Ms. Daly was entitled to compensation on the basis that the employer failed in its duty under the Act to make reasonable accommodation for the employee. The Labour Court said:
“If all of the options that may be available are not adequately considered, the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court in Humphreys v. Westwood Fitness Club and in A Worker v. An Employer, a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an inquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.”
63. There is nothing in s. 16 to justify this rule. The argument has its origin in English employment law decisions on their disability legislation, culminating in the case cited by the Labour Court in Mid-Staffordshire General Hospital NHS Trust v. Cambridge [2003] IRLR 566. That case, however, has been disapproved and not followed in cases decided from as early as 2006 until recent judgments. See Tarbuck v. Sainsbury Supermarkets Ltd [2006] IRLR 664. The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting. It is not a matter of review of process but of practical compliance. If reasonable adjustments cannot be made, as objectively evaluated the fact that the process of decision is flawed does not avail the employee.
64. I find myself in agreement with the Equality Officer’s conclusion in this matter. He applied the terms of the Act to the facts of the case. The facts are incontrovertible and the Labour Court paid insufficient attention to them. The central reality is that Ms Daly is unable to perform the essential tasks of a Special Needs Assistant in this particular school. No accommodations can change that, unfortunately. Neither is it suggested otherwise. Instead, the Labour Court thought that the employer’s obligation was to strip away the things she could not do and then to ask whether she was able to perform the essential tasks that remained. It discounted the consideration the school gave to the new position arising from Ms. McGrath’s report, which in my judgment was erroneous.
65. In view of these conclusions, it is not necessary to consider the ground of appeal based on the evidence given by Ms. McGrath to the Labour Court. My judgment is that the court did not correctly apply the law to the undisputed facts contained in that expert’s report. In other circumstances, I would be concerned if a Tribunal were to make no reference to relevant evidence on a central issue or to appear to reach conclusions that were not grounded in evidence.
66. For the reasons I have given, I would allow the appeal and set aside the determination of the Labour Court.
Judgment of Ms. Justice Finlay Geoghegan J. delivered on the 31st day of January 2018
1. This appeal raises difficult and important questions of construction of s.16 of the Employment Equality Act, 1998 as amended by the Equality Act, 2004. The section has subsequently been further amended but it was the section as amended by the 2004 Act which applied at the time of the decision of the Labour Court which gave rise to these proceedings.
2. The judgment delivered by the President has set out in full the background to the proceedings, the decision of the Labour Court, of the Equality Officer and of the High Court which I gratefully rely upon and do not propose repeating save as necessary.
3. I am in agreement with the President that the appeal should be allowed and the construction of s.16 of the 1998 Act by the Labour Court and upheld by the High Court was not correct.
4. In this judgment I only wish to make some additional comments on the proper construction of s.16 of the 1998 Act (as amended).
5. Section 16 of the 1998 Act as amended by the 2004 Act insofar as relevant provides:
“(1) 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) . . .
(3)(a) For the purposes of this section, 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) An 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 and advance in employment,
(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 –
. . .
(4) In subsection (3)—
“employer” includes . . .
‘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;”
6. The Equality Act, 2004, which inserted the provisions under consideration as appears from its long title was enacted inter alia for the purpose of giving effect to the State’s obligations pursuant to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (“the Directive”). Section 16 gives effect to Art. 5 of Directive 2000/78. Article 5 provides:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”
7. The dispute in relation to the construction of s.16 and this appeal arose from the following facts. Ms. Daly was employed by the Nano Nagle School (“the School”) as a Special Needs Assistant (“SNA”) from 1998. Unfortunately in 2010 she suffered serious injuries in a road traffic accident as a result of which she is confined to a wheelchair by reason of paraplegia. She is obviously a remarkable person. She was a well respected and admired SNA. She was anxious to return to work and approached the School in January 2011 with a view to returning to work. The School is one which caters for children with profound disabilities, extreme care needs and for challenging children on the autistic spectrum. It had approximately 77 pupils, 12 teachers and 27 SNAs.
8. Following Ms. Daly’s request to return to work as an SNA the School had her initially assessed by Dr. Madden, the School’s occupational physician and subsequent risk assessments were conducted, as recommended by Dr. Madden by Ms. McGrath an occupational therapist. The report of Ms. McGrath sets out in table 1 “the duties an SNA performs in Nano Nagle’s School” which as in a note she explains “is not a finite list of SNA duties but the main duties determined by this assessor from the information and reports provided to her”. There does not appear to have been any dispute that the 16 duties identified by Ms. McGrath were main duties of an SNA in the School. In relation to each of the 16 duties Ms. McGrath then identifies one or more task demands relating to the duty and states whether such task would be suitable for Ms. Daly and finally whether in relation to those which were suitable whether adaptations or equipment were required. Her finding was that there were seven duties which were not suitable for Ms. Daly or to put another way were duties which Ms. Daly was unfortunately now unable to perform. There were nine duties which she could either fully or partially perform some of which required some adaptations of the physical environment or equipment.
9. Ms. McGrath recommended that Ms. Daly “could act as a floating SNA”. There was at the time no such position or job in the School. The report made clear unfortunately that Ms. Daly was unable to perform a significant number of the duties or main duties of the position of an SNA in the School and no adaptations or equipment could make her capable of doing so.
10. Dr. Madden subsequently advised that she was unfit to return to work and the School so informed her.
11. Ms. Daly made a complaint to the Equality Tribunal that the School failed to provide her with reasonable accommodation for her disability so as to allow her to continue in employment. That complaint was rejected and she thereafter appealed to the Labour Court.
12. The decision of the Labour Court which gives rise to the dispute between the parties as to the proper construction of s.16 of the 1998 Act is evident from the commencement of its conclusion on p.33 of its decision. There the Labour Court stated:
“There is no doubt that [Ms. Daly] was severely limited by her disability and the range of tasks that she could perform. She could not carry out all of the duties attaching to the role of an SNA. But she could undertake many of those tasks. It appears from the evidence adduced that the [School’s] response to that position was based on the belief that its duty was confined to providing [Ms. Daly] with such accommodation as might enable her to undertake the full range of tasks expected from a SNA. Regrettably, no amount of accommodation could produce that result. In that respect the [School] construed its duty too narrowly and took a mistaken view of what the law required in the prevailing circumstances.
The [School] has a duty to fully consider the viability of a reorganisation of work and a redistribution of tasks among all of the SNAs so as to relieve [Ms. Daly] of those duties that she was unable to perform. That, in effect, was what had been proposed by Ms. McGrath. At the material time [Ms. Daly’s] interest was being represented by her trade union…”
13. As appears from the above and a full consideration of the determination, the Labour Court concluded that the School was under an obligation to consider redistributing certain of the tasks attached to the job of an SNA amongst other SNAs so as to remove from job in which Ms. Daly would return to work those duties she was not capable or competent to perform and in substance permit her to return to a modified job which Ms. McGrath had termed “a floating SNA”.
14. The School disputed that it has any such obligation pursuant to s.16 of the 1998 Act (as amended) and appealed to the High Court. In the High Court Noonan J. upheld the Labour Court’s construction of section 16. He did so in part in reliance upon the judgment of the Court of Justice of the European Union in HK Danmark, acting on behalf of Ring (Applicant) v. Dansk Almennyttidt Boligselskab (Respondent) & ors (Cases C-335/11 and C-337/11) of 11th April 2013 to which he referred as “Ring”.
15. Noonan J. referred to the change in position by the School in its submissions and its ultimate submission to him that s.16 only required the School to consider and implement appropriate measures as defined in s.16(3) as would render Ms. Daly capable of fulfilling all the duties of the job of an SNA and that since no amount of reasonable accommodation or appropriate measures could ever achieve that situation the School had no further obligation to Ms. Daly by reason of s.16(1)(b). Having referred to the judgment of the CJEU in Ring he stated at paras. 59 – 62:
“59. At first blush, a literal interpretation of s.16 (1) (b) considered on its own appears to support the position adopted, initially at least, by the School. However, when read in conjunction with s. 16 (3) and (4) insofar as they apply to this case, it is clear that a person with a disability is, for the purposes of the Act, to be regarded as fully competent to undertake and fully capable of undertaking the duties of a given job if such person would be so competent and capable on the distribution of tasks associated with that job being adapted by the employer. As held by the CJEU in Ring, the adaptation of patterns of working time must include the elimination of some of that working time, subject always to the caveat that the measures must not impose a disproportionate burden on the employer. The adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the section would fail to achieve the objective for which the legislation was enacted.
60. In considering Ring, the Labour Court concluded that by parity of reasoning it is also for the national court to assess if a redistribution of tasks represents a disproportionate burden on the facts of a particular case in which that question arises. I can find no fault with that logic. The adaptation of the distribution of tasks must in an appropriate case include a consideration of whether a reduction of those tasks may be necessary in order to comply with s. 16. Indeed the School has acknowledged as much in conceding that it may be necessary to strip out some peripheral tasks from the job. Of course whether, and to what extent, a reduction in tasks is required to comply with s. 16 must necessarily depend on the facts of each case. It may or may not be relevant to consider whether a point is reached when the appropriate measures transform the job into something entirely different from that which originally existed. Some of the English authorities appear to go as far as suggesting that under the equivalent, and admittedly different, English legislation which pre-dates the Directive, the requirement to reasonably accommodate a disabled employee may extend to transferring him or her to an entirely different position within the same organisation – see Archibald v. Fife Council [2004] UKHL 32 and Chief Constable of South Yorkshire Police v. Jelic [2010] IRLR 774.
61. While the School in its submissions criticises what it submits are various errors of law in the Labour Court’s interpretation of the national and European case law, even if same were made, which I do not determine, these do not appear to me to undermine the ultimate outcome. The fundamental determination of the Labour Court here was that the School failed to engage with its duty to consider whether or not Ms. Daly could reasonably be accommodated by the implementation of appropriate measures. The Labour Court did not conclude that Ms. Daly could be so accommodated but rather it was the failure to even consider a redistribution of her tasks as a SNA that rendered the School in breach of s. 16. It seems to me that on the evidence, the Labour Court was perfectly entitled to reach the conclusion that there had been no adequate consideration or evaluation of these issues by the School and a phone call to the NCSE about funding, the content of which was never precisely determined, was an insufficient effort on the part of the School to comply with its statutory obligation.
62. These are all conclusions which in my view were open to the Labour Court on the evidence and it could not in any realistic sense be suggested that these were irrational or based on an erroneous interpretation of the law.”
16. Before this Court, the School as appellant, maintained its submission that s.16 of the 1998 Act (as amended) did not oblige the School to consider removing from the position or job of an SNA in the School certain of the duties which Ms. Daly, unfortunately, was unable or not competent to perform by reason of her disability and redistribute those duties or all the tasks associated with those duties to other SNAs within in the School. The submissions made on behalf of Ms. Daly sought to uphold the opposing construction adopted by the Labour Court and upheld by the High Court that s.16 did oblige the School to consider the redistribution of those tasks or duties.
17. The School also submitted that the Labour Court and High Court incorrectly approached the construction of s.16 by making reference to and considering the recitals to the Directive.
Conclusion on interpretation of Section 16
18. Section 16 of the 1998 Act (as amended) is enacted to give effect to the Directive. It must therefore be construed insofar as its wording permits in a manner consistent with the Directive which it seeks to implement: Marleasing SA v. La Commercial Internacional de Alimentation SA [1990] ECR 4135. That principle as correctly submitted on behalf of the School has limitations and cannot serve as a basis for an interpretation of national law contra legam: Albatross Feeds Ltd v Minister for Agriculture [2007] 1 IR 221 per Fennelly J at 243-244.
19. The relevant obligation imposed on the School as Ms. Daly’s employer is imposed by s.16(3)(b) to take “appropriate measures, where needed in a particular case, to enable a person who has a disability… to participate … in employment … unless the measures would impose a disproportionate burden on the employer.” There are, however, in s.16 of the 1998 Act two limitations to the obligation on the employer to take such appropriate measures to enable a person with a disability participate in employment. The first is specified in sub-s.16(3)(b) itself namely that the measures would not impose “a disproportionate burden on the employer.”
20. The second limitation is in s.16(1) to the effect that nothing in the Act is to be construed as “requiring any person to … retain an individual in a position … if the individual … is not (or, as the case may be, 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.” The question is how to construe that limitation on the obligation placed on the employer in a manner consistent with the obligations imposed by s.16(3)(b) to take appropriate measures, where needed, to enable a person who has a disability to participate in employment and having regard to s.16(3)(a) which provides that a person who has a disability is to be considered as fully competent to undertake, and fully capable of undertaking, any duties if, the person would be so fully competent and capable on appropriate measures being provided by the person’s employer..
21. As already stated s.16(3)(b) is intended to implement Art. 5 of the Directive. The extent of the obligation imposed by Art. 5 of the Directive may be interpreted taking into account the recitals to the Directive. As correctly pointed out by the Labour Court the recitals do not form part of the Directive and do not have binding force but may be considered in the interpretation of the Directive.
22. Recital 17 of the Directive provides:
“This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligations to provide reasonable accommodation for people with disabilities.”
23. It appears probable that Recital 17 informed the approach of the Oireachtas in enacting s.16(1) of the 1998 Act. Hence while s.16(1)(b) provides that a person be fully competent and capable of undertaking “the duties attached to that position” such “duties” may only be intended to include the duties attached to a position which may be considered to be “essential functions” of the position in question.
24. It is not necessary to consider further this aspect of the construction of s.16 on the facts of this appeal. It was not in dispute before the Labour Court that the sixteen duties identified by Ms. McGrath as being the main duties attaching to the position of an SNA held by Ms. Daly prior to her accident and to which she was seeking to return formed part of the essential functions of such SNA position in the School.
25. The question of construction is what the School is obliged to do before it decides whether or not Ms. Daly, with her disability, is or is not fully competent and capable of undertaking the duties attached to the position of SNA having regard to the conditions under which those duties are, or may be required to be performed. On the facts of this appeal the duties of an SNA must be performed under conditions which include that the pupils of the School are themselves persons who suffer from physical or mental or behavioural disabilities.
26. It is correctly not in dispute that the School as employer was obliged, subject to it not being a disproportionate burden, to take appropriate measures, where needed and available, which would enable Ms. Daly undertake the duties of the position of an SNA in the School. This follows from s.16(3)(a) and (b). The question is do those appropriate measures include the removal from the position of an SNA (by distribution of tasks to others) those duties which regrettably Ms. Daly with no amount of adaptation or provision of equipment is now unable to perform.
27. That question must be resolved by the wording of the section when considered in the context of its purpose to implement Article 5 of the Directive. On behalf of Ms. Daly particular reliance is placed upon the inclusion amongst the “effective and practical measures” referred to in the definition of appropriate measures in s.16(4) “patterns of working time and distribution of tasks”. Again in this definition it appears that the Oireachtas had regard to Recital 20 of the Directive which describes appropriate measures as “effective and practical measures to adapt the workplace to the disability” and then states “for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources”.
28. As appears from the decision of the Labour Court and judgment of the High Court and submissions made on behalf of Ms. Daly reliance is also placed upon the judgment of the CJEU in Ring in which it decided that “a reduction in working hours may constitute one of the accommodation measures referred to in [Art. 5 of Directive 2000/78]”.
29. By parity of reasoning it was contended and held that the School as employer on the facts herein was obliged to consider a distribution of tasks as one of the appropriate measures to enable Ms Daly return to work in the position of an SNA.
30. My conclusion on the interpretation of s.16 is that it is correct to construe the obligation placed on an employer to take appropriate measures as potentially including an obligation to consider a distribution of certain tasks. However, whether it is obliged to do so in any given situation will depend upon the facts and in particular whether the tasks in question are or are not all the tasks demanded of a particular duty attached to the position in question. The School was not, in my judgement obliged to consider a distribution of tasks on the facts herein for the reasons next stated.
31. The obligation imposed on an employer by s.16 (3)(b) in the context of the limitation in s.16(1) means that an employer is only obliged to retain in a position a employee with a disability who is fully competent and capable of performing all the duties (subject probably to such duties being properly considered as essential functions) of the position concerned. However, in accordance with s.16(3)(a) the employee is considered as fully competent to undertake, and fully capable of undertaking, any duties if, the employee would be so fully competent and capable on appropriate measures being provided by the employer. Hence the employer is obliged, where an employee with a disability is unable or not competent or capable of performing certain duties attached to a position to consider whether there are appropriate measures which may be taken which would enable the employee be considered as fully competent and capable of performing the duty or duties in question attached to the position. That consideration, depending on the duty involved might include the distribution of one or more tasks associated with the duty to another employee.
32. Put simply the obligation imposed by section 16 of the 1998 Act (as amended) in relation to a particular position or job is to consider appropriate measures including, a redistribution of tasks associated with one or more duty or duties attached to the position such that it enables the disabled person be fully competent or capable of undertaking the duties attached to the position. However it does not extend to considering the removal from a position or job a duty or duties which may properly be considered as a main duty or essential function of the position concerned by the redistribution of all tasks demanded by that duty.
33. On the facts of this appeal, regrettably from Ms. Daly’s point of view, it was not in dispute that there were seven main duties attached to the position of an SNA in the School, which she had previously occupied and to which she sought to return, which she was no longer competent and capable of undertaking even with appropriate measures. It was never contended that a redistribution of one or more tasks demanded of those seven duties would render Ms. Daly competent or capable of undertaking those duties. For the reasons stated, the section falls short of obliging the School to remove from the existing position of an SNA in the School those main duties, which Ms. Daly is, regrettably no longer capable and competent to undertake and redistribute them to others or in effect create a new position in the School to which Ms. Daly may return. It follows that if the School is not under an obligation to do so it cannot be under an obligation to consider doing so.
34. Mr. Quinn, S.C. on behalf of Ms. Daly submitted that if the Court were to so construe s.16 that it would enable employers in effect create positions and specify duties attached thereto which persons with a disability would be unable to perform and thereby preclude their employment. I do not accept that submission. As indicated the limitation imposed in s.16(1)(b) that a person be “fully competent” or “fully capable” of undertaking the “duties attached to that position” must be construed and interpreted, as far as possible, in the light of the wording and purpose of the Directive. As decided by the CJEU in Ring the Directive itself must be interpreted taking into account the recitals and as far as possible in a manner consistent with the United Nations Convention on the Rights of Persons with Disabilities which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009. If challenged, an employer may have to justify the inclusion of any duty which an employee with a disability cannot be considered fully competent or capable of performing regardless of appropriate measures as being an essential functions or main duty of the position concerned. No such challenge was made at any stage in these proceedings to the identified main duties of an SNA in the School. I simply draw attention to this in relation to the perceived consequences of my conclusion on the interpretation of s. 16 of the 1998 Act (as amended).
Relief
35. It follows from the above that the Labour Court erred in law in the obligation it considered that s.16 of the 1998 Act (as amended) imposed on the School as employer and that the High Court erred in upholding that decision. The appeal must be allowed and the order of the High Court vacated. The next question is what order should be substituted therefore.
36. The Labour Court in its decision determined that Ms. Daly was entitled to succeed in her appeal to it from the decision of the Equality Tribunal. The only basis it did so was the School’s failure to discharge an obligation under s.16 of the 1998 Act (as amended) which this Court has now decided did not exist. The Labour Court set aside the decision of the Equality Tribunal, substituted its determination and granted as redress an award of compensation in the amount of €40,000. The School appealed that decision to the High Court as an error of law. It appears to follow that the further order of this Court should be to substitute for the order of the High Court an order to set aside the determination of the Labour Court and vacate the award of compensation in the amount of €40,000.
A Cleaning Operative v A Facilities Services Company
ADJ-00016299
Workplace Relations Commission
12 November 2019
[2020] 31 E.L.R. 1
(12 November 2019)
Background
The complainant contends that she was discriminated against by the respondent in relation to her employment on the ground of disability contrary to ss.6(2)(g) and 16 of the Employment Equality Acts (also referred to as “the Act/s”), owing to the respondent’s failure to provide her with reasonable accommodation whilst recovering from elective surgery. The complainant sought compensation for the discrimination complained of, or in the event of being unsuccessful, an award under s.13 of the Industrial Relations Act 1969 for the manner in which she had been treated by the respondent. The respondent opposed this complaint and dispute, contending that it had provided the complainant with reasonable accommodation and had acted reasonably at all times.
CA-00021143-003 – Complaint under the Employment Equality Acts
Summary of complainant’s case
The complainant gave evidence with reference to supporting documentation as furnished and supplementing detailed written submissions made on her behalf. It is common case that she had commenced employment with the respondent on 10 December 2012 as a cleaning operative and as at the date of hearing remained in its employment. Her base of work for the past four years was a city centre building (hereinafter “Location A”) where she reported to Mr A. She worked 65 hours fortnightly on an hourly rate of €10.05 in respect of which she earned €653 gross. The respondent is a large facilities services company who provide various services including cleaning to third parties. The complainant had a good record with the respondent without any issues with her work arising.
The complainant outlined the background to her complaint and dispute herein. She confirmed that on 6 November 2017 and during her annual leave, she availed of gastric band surgery in her home country of Lithuania to address a weight problem and related medical issues. As confirmed with a medical certificate from her Irish GP dated 13 November 2017, she was certified as being unfit for work for a one-month period whilst she recovered. On its expiry on 11 December 2017 and following a further visit, the complainant’s GP issued a medical certificate certifying that she was fit to return to work on light duties, stating: “She underwent abdominal surgery in November 2017 and while she is now fit to return to light duties she has been recommended not to do any heavy lifting or pulling/pushing until three months after surgery.” On the same date, the complainant attended at her workplace at Location A to furnish this certificate to her supervisor. Whilst there, she met with her manager, Mr A, who advised her that she would be contacted in relation to lighter duties.
The complainant did not hear anything further until 21 December 2017 when a manager from another site (hereinafter “Location B”), Ms B, contacted her by text message and asked whether she would be interested in a housekeeper/tea lady position at that site from 2 January 2018. The text also confirmed that her *5 working hours would be from 10.30am—4pm (it appears that 10am-4pm was latterly agreed), meaning a reduction in her normal rostered working hours. The complainant confirmed that she would take up the position offered and commenced this new role on 2 January 2018. She was shown where to work on the canteen floor by Ms B and site supervisor, Ms C. She contended that there had been no consultation with her including any assessment of the tasks that she was capable of undertaking or any special measures that would be required to accommodate her current physical condition. She also contended that the position was more akin to that of a cleaner and kitchen porter. Although she was not required to sweep or mop floors, her duties included dusting and cleaning meeting rooms, doors and glass panels, washing dishes and lifting heavy trays and bags of waste. The building block in question was also under construction at the time and required additional cleaning. She had tried to adapt to the role but struggled with some of the duties particularly carrying bags of waste and felt that the role was too heavy and unsuitable. As she needed the work she did not bring these difficulties to the immediate attention of the respondent. On 10 January 2018, the complainant received a text message from Ms B raising a few issues with her work albeit noting some good feedback from Ms C, and informing her about extra duties as follows: “Today can you make sure you are walking the floors, checking coffee docks and dusting/glass cleaning and checking meeting rooms, these duties are all part of your role too.”
Shortly after commencing this role, the complainant also noticed that she was not being paid for all of the hours worked. On 25 January 2018 she sent a text message to Ms B about her wages being short and also questioned why her time-sheet (attached to her payslip) incorrectly referred to Location A instead of Location B. In response and by text message, Ms B confirmed that her hours were 55 hours fortnightly as she did not get paid for her 30-minute break, being 10 hours less than her normal hours. The complainant continued to text Ms B about the underpayment of her wages and incorrect time-sheet until Ms B responded by text on 12 February 2018 stating that she would address both issues and repeating that her 30-minute break was unpaid. On 16 February 2018, Ms B spoke to the complainant and advised her that she was no longer required to work at Location B and would be contacted the following week with other work. She said that there had been a mistake and that a daytime cleaner and not a housekeeper/tea lady was required at Location B. Accordingly, the complainant did not attend for work at Location B again. It was not in dispute that she was unpaid for the three-week period before that position or the five-month period thereafter. Nor had she received a contract or written statement of terms and conditions of her employment.
The complainant heard nothing further from the respondent about her work status or further work. In a text message exchange on 20 February 2018, Ms B confirmed that she had sent her a letter. Having heard nothing further, on 15 *6 March 2018, the complainant unsuccessfully tried to contact Ms B by telephone and texted: “I’m wondering what about letter and my new work. Also I would like to know how will be pay for days that I’m not working? Thanks.” Having received no response, she texted Mr A on 18 and 22 April 2018, looking for Ms B’s full name but received no response. She wrote to Ms B on 30 April 2018 about the lack of contact and sought clarification as to her work status and pay for the time that she had not been working. On the same date, she wrote to the respondent’s head office as follows: “I have been working for [the respondent] more than six years. I would like you to find out about my problem. I worked in [Location A] until November 2017. Then in November, I had an operation. I could not carry out my work in [Location A] because of that work was too heavy for me. I was offered the work as a tea lady in [Location B] but it was not a work tea lady it was a work daytime cleaner with all the duties of cleaner. My manager, [Ms B] told me that the mistake happened and I will have a work as a tea lady and I have to leave that work in [Location B] it happened 16 of February 2018. I have not had any work in [the respondent] ever since. I have been trying to contact the manager [Ms B] but she ignores me. I decided to write the letter to clarify the situation. I hope full-time work will provide me in the near future and paid money for that period of time that I am not working. If the situation is not clear I’m forced will apply to the relevant authorities.” In response to receipt of her letter, on 3 May 2018, Ms B texted the complainant offering a tea lady cover shift for four days from 8-11 May 2018 but not addressing the issue of her work status or pay. The complainant replied: “Thank you for the offer but I don’t want cover I want permanent work.” Ms B texted back: “OK I will let HR know.” However, the complainant did not receive any further communication from the respondent or confirmation of her work status.
Having contacted her SIPTU trade union, thereafter the complainant was provided with assistance. A representative emailed the HR manager for the respondent on 11 June 2018 inquiring about her work status and asking that he contact the Representative to discuss the matter. Following a number of telephone conversations between the SIPTU representative and the HR manager, on 1 July 2018, the complainant received a text message from Mr A, her manager at Location A asking whether she had received his text about trying to phone her over the weekend to confirm her attendance with the respondent’s doctor the following day. She responded confirming that she had not received any phone calls and her phone had been on all the time. She also confirmed that she would attend but pointed out that this request was only now being made eight months after her operation and the outstanding issue of pay for the intervening five-month period without work still had to be addressed. The complainant duly attended the respondent’s doctor on 2 July 2018 who certified her as being fit to return to work on full duties. She recommenced her employment in her role as a cleaning operative at Location A from 23 July 2018 without further issue other than that *7 she now works 60 hours fortnightly resulting in a five-hour reduction in her working hours. It was also common case that her surgery had been successful and her health had greatly improved.
On 17 July 2018, the complainant attended a meeting with the HR manager accompanied by her representative. She voiced her concerns about the manner in which she had been treated by the respondent including not being offered any suitable work over a lengthy period of time despite repeated efforts to contact the respondent. During the meeting, a copy of a letter dated 15 May 2018 which Mr A had apparently issued to the complainant was furnished headed: “Request for fit to work cert” and stating: “I am writing today in response to your letter received 2 May 2018. You are currently absent on sick leave following a medical cert which you provided on 11 December 2017 confirming that you were only fit to return to work on light duties for a period of three months. A tea lady position was sourced for you on a temporary basis at [Location B] to facilitate your request for light duties however, you confirmed that this role was not satisfactory. At present [the respondent does] not have any full-time tea lady roles available. If you are now fit for work on full duties please supply a fit to return cert from your doctor. As you have been absent on sick leave for a prolonged period I feel it would be beneficial to refer you to [the respondent’s] occupation health provider for an assessment. I will be in contact once I have a confirmed appointment for you.” The complainant confirmed that she had never received any correspondence and also that her address had never changed. No proof of postage in respect of this letter was furnished on behalf of the respondent at any stage including this hearing. In the absence of a satisfactory resolution, SIPTU referred these complaints/dispute on the complainant’s behalf to the WRC on 14 August 2018.
The complainant confirmed that whilst she had been in receipt of illness benefit for the initial month off work on sick leave, she had not applied for any illness benefit of other social welfare payments for the subsequent periods immediately before and after the housekeeper/tea lady position and was financially at a loss for these periods. She explained that this was owing to the lack of clarity regarding her work status and/or knowledge of her statutory entitlements. She was also unaware of any internal procedures outlining her obligations and entitlements as to sick leave. Although she had resumed employment in her original role albeit with a shortfall in hours, the complainant was clearly still very upset and aggrieved by the unjust manner in which she felt she had been treated.
Under questioning, the complainant accepted that she had not informed the respondent of her intention to avail of elective surgery during her annual leave. She also accepted that on the first morning of her work in the temporary housekeeper/tea lady position, she had been shown what was required and had not indicated that she was incapable of undertaking the role. She further agreed that she had not complained to the respondent at the time about any difficulties. *8 She maintained that she had been given additional duties after the commencement of the role as outlined in the text from Ms B on 10 January 2018. When asked to identify which of the duties involved heavy lifting or pushing/pulling, she referred to having particular difficulty lifting the kitchen waste which was heavy. It was put to her that lighter roles within the company were rare and she had accepted the job and had remained there. The role was for one person on the site at Location B and as she was the sole employee there, it could not have been altered without employing a second person to assist her and this was financially unviable. It was further put to her that there had been a complaint about her work by the client at the same time that she had decided to leave the role as being unsuitable. She maintained that Ms B had told her to leave the position. It was also put to her that she had not communicated with the respondent regarding her sick leave or furnished a fitness to return to work certificate as requested. She said that she was unaware of the request or any procedures. It was put to her that she had declined further work offered (the temporary tea lady position for four days) in response to her request for work. She said that this work was only offered after her letter of 30 April 2018 and maintained that she had required more long-term work. Nothing new arose from further questioning. It was not in issue that she was unable to undertake her regular role as a cleaning operative for the three-month rehabilitation period.
In written and oral submissions, the complainant’s representative outlined the relevant statutory provisions including ss.2, 6 and 16 of the Employment Equality Acts and ensuing obligations imposed upon employers and case-law as it applied to the facts herein. It was not in issue that the complainant had a temporary disability within the meaning of s.2 of the Acts. It was submitted that the respondent had discriminated against the complainant on the ground of disability by failing to provide her with reasonable accommodation during her recovery from surgery. At a minimum, an employer is required to fully and properly assess all available evidence to decide what appropriate measures can be put in place to meet the needs of a disabled employee. These are effective and practical changes required to enable retention of an employee in a position. In addition to the well-established case law on the provision of reasonable accommodation in the workplace including Humphries v Westwood Fitness Club [2004] E.L.R. 296, reliance was also placed upon the Labour Court decisions in Dunnes Stores v Guidera Labour Court Determination EDA1838, 30 July 2018 and A Store v A Worker Labour Court Determination EDA1629, 7 October 2016 upholding decisions of the WRC and Equality Tribunal. The complainant’s representative also updated its submissions in light of the Supreme Court judgment in Daly v Nano Nagle School [2019] IESC 63; [2019] E.L.R. 221. In that case, the Supreme Court confirmed that s.16 of the Acts required an employer to provide appropriate measures to a disabled employee in order to enable them to remain in employment and that fair procedures were required *9 for assessing same.
In the instant case, it was contended that the respondent had failed to discharge its duties towards the complainant under s.16 of the Acts. In particular, it had failed to sufficiently consider her GP’s recommendations that she not do any heavy lifting or pulling/pushing until three months after surgery, make adequate enquiries as to her medical condition or take appropriate measures to enable her to perform her work to her ability. Instead, the complainant had been asked to move from her base in Location A to a position at Location B where she was told that lighter duties would be available to her. She had been made to wait until the housekeeper/tea lady position had become available and was left without income for that period. Upon the commencement of that position, the complainant did not receive any induction and was simply brought to the canteen and asked to work, effectively doing the work of a cleaner and kitchen porter. Over the ensuing six weeks, there had been no conversations or meetings with management to establish her role. The only communication in this respect was Ms B’s text of 10 January 2018 giving her additional duties. When it became clear that the position was unsuitable, instead of supporting the complainant, she was suspended without pay and forgotten about. The respondent further failed to respond to her enquiries about her work status and pay, or address her written grievance of 30 April 2018 and only had her assessed by its doctor when the trade union became involved on her behalf. Particular issue was taken with the respondent’s contention that the onus rested with the complainant to engage regarding her sick leave in circumstances where she had not been furnished with any internal procedures and the respondent had failed to respond to her communications over a prolonged period. Compensation was sought by way of remedy for the discrimination suffered.
Summary of respondent’s case
The background facts to this complaint were not materially in issue and the complainant’s employment history, position as a cleaning operative at Location A, hours and salary as outlined above were confirmed. It was also accepted that the complainant was under a temporary disability within the meaning of s.2 of the Employment Equality Acts following her elective surgery.
Ms B, the manager at Location B gave evidence with reference to supporting documentation as furnished and supplementing detailed written submissions on behalf of the respondent. She confirmed that she was not based at Location B all of the time and attended there on a weekly basis. She had been approached by Mr A, manager at Location A to see if she could provide a housekeeper/tea lady role to the complainant who required light work. Accordingly, she had offered the complainant the role of housekeeper/tea lady at Location B which she had accepted as per the text message exchange referred to above. Ms B confirmed that on 2 January 2018, she had met with the complainant to show her the role *10 and introduce her to Ms C, the supervisor at that site. The complainant had not indicated any difficulty with the duties as outlined above and seemed happy to be getting back to work. She had communicated with the complainant on a regular basis. She had seen her at the site on a weekly basis and had also communicated by way of telephone and text. She confirmed that at no stage during the six-week period that she worked there did the complainant indicate that the role was too onerous or that she had any other issues with the role.
Ms B further confirmed that the client (business-holder at the site) had contacted her to complain about the complainant’s work and said that things were not being done, it was not working out and someone to do the job properly was required. On 15 February 2018, she met with the complainant and told her that she did not think that she was suitable for the role and would let her know when something suitable became available. Ms B said that she then went on leave for a period at that stage. She confirmed that in response to the complainant’s requests, on 3 May 2018 she had offered her the tea lady cover role from 8-11 May 2018, being the only suitable position available. However, the complainant had refused this role and she had no further contact with her thereafter.
Under questioning from the complainant’s representative, Ms B contended that the housekeeper/tea lady role still required an element of cleaning including wiping surfaces and disposing of waste. The complainant had been aware of what was required from day one and had not indicated any difficulty including with lifting the waste. Ms B was asked what assessment she had conducted in light of the complainant’s medical certificate recommending that she not do any heavy lifting or pulling/pushing until three months after surgery. She said that she had sat the complainant down and explained the duties and had also shown her around the building which she felt was adequate. The complainant had indicated that she was happy to perform the role and never came back to her once to say that she had any difficulties. When Ms B had passed on the complaints from the client including that the waste was not being collected to the complainant, she had not indicated any difficulty undertaking this task. When it was put to her that she had not in fact been meeting the complainant in person and had asked her to perform additional duties in her text of 10 January 2018, Ms B contended that these were reasonable duties. She confirmed that the complainant had been removed for not completing her tasks. It was put to her that the complainant’s difficulties in the housekeeper/tea lady role were not a training issue given her spotless record. In response, Ms B said that the client had felt that the complainant was unsuitable for the role and she had informed her accordingly. She had further informed her that she would ask other managers if there was a suitable role and contact her if such a role became available. She had also spoken to Mr A about the complainant’s situation but could not confirm when. Despite not having responsibility for the complainant’s employment she had tried to offer her further work in May 2018 which she had declined. She confirmed that she *11 was not trained in human resources or employment equality issues and would revert to HR when any such issue arose. In relation to the complaint that she had failed to respond to the complainant’s text messages and efforts to contact her as outlined above, Ms B said that she had been on a month’s leave from 20 February until 20 March 2018 and had hundreds of messages to deal with on her return. She said that she had sent a letter confirming that the complainant was not working for social welfare purposes although no copy was produced. She denied receiving any phone calls or voicemails from the complainant. Ms B further confirmed that light roles were rare and the complainant had been offered the only two light roles available over the 70 sites serviced by the respondent. There was only the one role at Location B which could not have been altered without employing another person to assist, had such a request been made.
Mr A gave evidence outlining his role, experience and the complainant’s employment history with the respondent. He confirmed that he was the area manager for various sites including Location A. He said that after the complainant had submitted the medical certificate recommending lighter duties following her surgery whilst on annual leave, she had been accommodated with the housekeeper/tea lady role at Location B. He had no contact with her during January and February 2018 as she had been under Ms B’s management. He could not be specific about dates but sometime after the complainant had left that role, he had discussed the matter with Ms B. However, there were no other suitable positions available. He had understood that she wanted to return to work and in conjunction with HR, issued his letter of 15 May 2018 which was posted to the complainant as outlined above. However, she had never confirmed that she was ready to return to work with a fitness to work certificate. Whilst he may have missed her text messages looking for Ms B’s full name, he had got her back to work. He confirmed that the complainant had resumed her role as a cleaning operative at Location A and remained working there without further issue.
Under questioning, Mr A confirmed that the only other positions available were cleaning roles and if there had been any suitable roles they would have been offered to the complainant. When it was put to him that the respondent had failed to communicate with the complainant, he maintained that she had never reverted to say that she was fit to return to her position as a cleaning operative. He agreed that HR should have issued a letter to the complainant after she left the housekeeper/tea lady role confirming her employment status, but she had known that her job remained open.
It was submitted that the respondent had acted reasonably towards the complainant who had a “transient” disability and provided her with reasonable accommodation in the only available light role of housekeeper/tea lady at Location B. In this respect, the respondent had complied with the complainant’s doctor’s recommendations regarding the provision of tasks that did not involve heavy lifting or pushing/pulling for a three-month period. Thereafter, the *12 respondent’s written submissions digressed somewhat from the factual position presented by Ms B in oral evidence to ground its legal submissions as follows:
“The respondent complied with this request and offered the claimant temporary work as a housekeeper (tea lady), however after a period of time the claimant felt that the role was unsuitable, as the claimant believed the duties were not light enough following her surgery. Her last day working as a housekeeper was the 16 February 2018. Additionally, there was a request from the client on site to have the claimant removed, but this was not addressed as it coincided with the claimant’s request that the duties were not suitable. There was no other role within the organisation, that the claimant was capable of completing, due to her fitness to work, and as such the claimant was again placed on sick leave, until such a time that she would be fit to return to work.”
It was further submitted that the housekeeper/tea lady role was the only role lighter than a cleaner within the company.
“Yet the respondent had one available in December 2017 and supplied it to the claimant until such a time as the claimant felt it was no longer suitable, and was not reasonable and was incapable of completing the duties due to her surgery.”
It was further submitted that the respondent was not contractually or statutorily obliged to pay the complainant whilst she was on sick-leave following her elective surgery. When she indicated that she was not getting work, she was offered cover work which she refused and when asked to provide a fitness to return to work certificate, she never provided same. When it was determined by the respondent’s doctor that she was fit, she returned to work in her role as cleaning operative at Location A.
In written submissions as updated on behalf of the respondent, it was submitted that it had met its obligations under s.16 of the Employment Equality Acts as interpreted by case-law including the Court of Appeal and Supreme Court judgments in Daly v Nano Nagle School, and had done everything reasonably possible to accommodate the complainant’s temporary disability. As she was the sole employee at Location B, it would not have been possible to reassign some of her duties to another employee. Therefore, the only manner in which she could have been further accommodated would have been to employ another staff member to assist her with completing her duties. This would have been unreasonable and created an entirely disproportionate burden upon the respondent by doubling employees and the consequent cost of wages. In this respect, reliance was placed upon s.16(3)(c) of the Acts which provides that when determining whether the measures taken would impose a disproportionate burden upon an employer, particular account shall be had to the financial and other costs, scale of the resources of the business and possibility of obtaining public funding. In *13 an industry where profit margins are tight and no public funding is available, this would have rendered the entire contract unfeasible. Also relying upon para.106 of the Supreme Court judgment in Nagle, it was submitted that s.16(3) of the Acts does not place such a high burden on an employer as to create an “entirely different job” or accommodate at all costs, an employee with a disability. Overall, it was submitted that the respondent had complied with its obligations under the legislation and accordingly this complaint should be dismissed.
Findings and conclusions
It is necessary to apply the factual matrix to the applicable statutory provisions as interpreted by case law to determine whether or not the respondent discriminated against the complainant on the ground of disability in terms of ss.6(2)(g), 8 and 16 of the Employment Equality Acts by failing to provide her with reasonable accommodation during her rehabilitation from elective surgery. It was not in issue that the complainant had a temporary disability within the meaning of s.2 of the Acts. Section 85A of the Acts sets out the burden of proof which applies to complaints of discrimination and requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Section 6(2)(g) prohibits discrimination by employers against existing or prospective employees by less favourable treatment on the ground of disability and s.8 prohibits discrimination in relation to specific areas of employment including access to employment. Aligned to these provisions, s.16(1) provides that an employer is not obliged to recruit, promote or retain an existing or prospective employee in a position or provide training or experience in that position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is subject to s.16(3) which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of “appropriate measures”, more commonly referred to as “reasonable accommodation” by his/her employer “… unless the measures would impose a disproportionate burden on the employer”. Section 16(4) outlines the meaning of “appropriate measures” and provides a non-exhaustive list of what they may entail including “… effective and practical measures, where needed in a particular case …” including the “… adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources.” Section 16 of the Acts provides as follows:
“16(1) 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 *14 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.”
[Section 16(2) is omitted as being irrelevant to the instant case.]
(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 …”
The law on the interpretation of s.16 of the Acts and extent of an employer’s obligations was in a state of flux during the course of this case. At the time when the complainant sought to return to work on 11 December 2017 on the lighter duties outlined in her medical certificate, the High Court had upheld the Labour Court decision (overturning a decision of the Equality Tribunal) in Daly v Nano Nagle School [2015] IEHC 785. In this case, Ms Daly was employed by the respondent school since 1998 as an SNA. Unfortunately she suffered serious injuries in a road traffic accident in 2010 and remained wheelchair bound after her rehabilitation. She was anxious to return to work but expert reports found that she could only undertake, wholly or partly, nine of the 16 tasks required of an SNA. Based upon these reports, the school concluded that as she did not have the capacity to undertake her full duties regardless of the “appropriate measures” taken, it was not possible for her to return to her job. On an appeal on a point of law against the Labour Court which held in her favour, the High Court considered the CJEU decision of Case C-335/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab EU:C:2013:222 and concurred with the *15 Labour Court’s finding that as “appropriate measures” as defined by s.16(4) of the Acts included the adaptation of both working time and tasks with the caveat that it did not impose a disproportionate burden on the employer, it followed that there was no requirement that the employee concerned be capable of fulfilling all of the duties of her job. It also found no fault with the Labour Court’s findings that the school had failed to engage with its duty to consider whether or not Ms Daly could reasonably be accommodated by the implementation of “appropriate measures” before deciding to dismiss her. By the time that the complainant in the instant case had left the temporary position of housekeeper/tea lady from 16 February 2018, in a judgment delivered on 31 January 2018 ([2018] IECA 11), the Court of Appeal had overturned the High Court and by distinguishing between “core duties” and “tasks”, concluded that s.16 does not impose a legal requirement upon an employer and the school in this case, to strip away essential tasks of a position which an employee was no longer able to perform or to redistribute these tasks to other employees. Accordingly, it was alleviated of its obligations towards Ms Daly given the particular circumstances.
Post-hearing of this complaint, the Supreme Court overturned the Court of Appeal in a judgment delivered on 31 July 2019 ([2019] IESC 63) and the parties herein updated their submissions accordingly. The Supreme Court provided clarity as to what is required in practical terms by s.16 of the Acts. It adopted a holistic approach to its interpretation and applied a reasonableness and proportionality test to an employer’s primary duty to provide reasonable accommodation to an existing or prospective employee with a disability. As summarised by MacMenamin J. in the majority judgment (noting that the minority judgment only varied as to remedy): “The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought is an entirely different job. Section 16(1) of the Act refers specifically to ‘the position’, not to an alternative and quite different position.” Specifically, MacMenamin J. observed that “… the term ‘distribution of tasks’ must be read in a manner which is consistent with the entirety of s.16, and the purpose of the Act.” After rejecting the Court of Appeal’s distinction between “core duties” and “tasks”, he held that the duty to provide reasonable accommodation “… cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a disproportionate burden”. He further clarified that “It is a matter of degree, capable of being determined objectively.” He also confirmed that the meaning of full competence by an employee in a position as required by s.16(1) of the Acts has “… to be assessed as contingent upon there having *16 been reasonable accommodation and appropriate measures.”
There had also been disagreement between the various courts as to the level of consultation with an employee seeking accommodation required by an employer following on from the two-stage enquiry test set out by the Labour Court in A Health and Fitness Club v A Worker Labour Court Determination EED037, 18 February 2003 and upheld by the Circuit Court in Humphries v Westwood Fitness Club [2004] E.L.R. 296. In this respect, MacMenamin J. observed: “In this State … our courts have always attached importance to fair procedures where employment is at stake. (See Bolger v Showerings [1990] E.L.R. 184, Lardner J., and the recent judgment of Ní Raifeartaigh J. in Dublin Bus v McKevitt [2018] IEHC 78)” before noting “I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.”
Turning to the facts in the instant case, it is not in dispute that the complainant would have been unable to undertake her regular role as a cleaning operative during her rehabilitation from elective surgery regardless of what adjustments were made to that role. Approximately three weeks after her GP’s confirmation that she was fit to return to lighter duties that did not involve any heavy lifting or pulling/pushing for a three-month period, the role of housekeeper/tea lady became available and she readily accepted this position. For the avoidance of doubt, I do not consider this to be a redesignation or creation of a different position as alluded to in Nagle such that the respondent could be alleviated from its obligations under s.16 of the Acts. The overriding test is one of reasonableness and proportionality having regard to the facts of the particular case and employment context and the “distribution of tasks” must be read in a manner which is consistent with the entirety of s.16, and the purpose of the Acts. Therefore, there may be situations whereby the redistribution of tasks extends to accommodating a disabled employee with a different but existing role within the organisation depending upon the employer’s particular circumstances with the proviso that this does not impose a disproportionate burden. Given that the nature of the respondent’s business is to provide cleaning/related services to third parties, the work involved was of a generic nature requiring a degree of interchangeability and flexibility. The temporary housekeeper/tea lady role was essentially a variation of the complainant’s existing cleaning operative role requiring similar tasks. Furthermore, there was nothing particularly costly or onerous about offering this position to the complainant once it became available and would have to be filled in any event and indeed the respondent did not seek to argue otherwise. In this respect, a distinction can be made between creating a wholly new job for *17 an employee who acquires a disability such that he/she cannot undertake any of the duties of their existing position and accommodating such an employee in a pre-existing role which would otherwise have to be filled. Invariably each situation will turn on its own particular facts subject to the reasonableness and proportionality test in Nagle and the tribunal in question has to objectively assess the point at which the duty to provide reasonable accommodation imposes a disproportionate burden on an employer.
It is also quite clear from the wording of s.16(3) of the Acts that the respondent’s obligations do not end with simply offering a lighter or varied role and it was required to “… take appropriate measures where needed in a particular case to enable a person who has a disability …” to participate in employment. Although the various fora and courts in Nagle varied their views as to the level of obligation imposed by s.16(3) upon an employer, the law required some level of engagement and adherence to fair procedures regarding taking “appropriate measures” when an employee became unable to fulfil their role owing to a disability as defined by the Acts. Regardless of what application of the law is applied to the facts in the instant case, there is no evidence of any engagement by the respondent in relation to its obligations under s.16 of the Employment Equality Acts at any stage of the process by way of its own direct evidence, minutes or otherwise. By way of practical example, Ms B who by her own admission did not have any training on the application of the Employment Equality Acts should properly have reverted to HR for appropriate advice on how to accommodate the complainant in the temporary housekeeper/tea lady role. Although the complainant did not expressly indicate any difficulty undertaking the role, the respondent was on notice of her physical limitations from her GP’s medical certificate. Given that the complainant was to avoid heavy lifting and pushing/pulling actions, in my view it was simply not sufficient to show her the role in a general sense without breaking down the tasks required to ascertain whether or not she could perform them and if not, investigating what adjustments were required. If expert assistance was required to assist, then I do not consider this disproportionate for a company of the respondent’s size to have employed same. Whilst I regard Ms B’s text message of 10 January 2018 to the complainant to be more of a reminder of her duties rather than an assignment of new duties, I find it indicative of the casual attitude adopted to accommodating her.
Whilst the respondent has presented differing factual accounts as to the circumstances in which the complainant left the temporary role, it is not in dispute that she had been struggling with her duties and in particular with lifting waste which had apparently led to a complaint about her work by the client. It may well have been the case that the complainant was just not suited to the temporary role. However, the fact that she had an impeccable work record should have set off alarm bells as to why she was unable to properly perform her duties. At this stage, rather than simply letting her go from the role on foot of a complaint from *18 the client, it would have been prudent for the respondent to have had her assessed by its doctor or an occupational therapist to ascertain the cause of her difficulties and how they might be overcome. In circumstances where there were clearly communication difficulties as evident from the various text message exchanges, engagement with her union at this stage would also have been prudent. However, it appears that there was no clear line of communication between Mr A, Ms B and HR or coordinated response to address the complainant’s situation, either to confirm whether she could be properly accommodated within a role or to enable her to be certified on sick-leave so that she could claim appropriate social welfare for the period in which she was out of work. The offer of work from 8–11 May 2018 by text message from Ms B was a wholly inadequate response. What is also evident throughout is that the respondent offered flexibility when it suited the company including adjusting the location and hours of work for the complainant when the housekeeper/tea lady role became available but when it came to accommodating her temporary disability, there was no degree of flexibility afforded.
The absence of fair procedures and prudent HR practice is evident throughout including any paperwork confirming her employment status at the various junctures, handbook confirming sick leave procedures and proof that it was furnished to the complainant or proof of postage regarding the correspondence relied upon. It was clear that she had attempted to contact the respondent on numerous occasions regarding her predicament and received no meaningful response until her union made representations on her behalf. Whilst a letter dated 15 May 2018 from Mr A was produced implying that the onus rested with the complainant to provide certification that she was fit to return to work, it also stated that she should undergo an assessment with the respondent’s doctor and that Mr A would be in contact once he had a confirmed appointment. Even if I accept the respondent’s evidence that the letter was sent to the complainant, there was no follow-up to arrange an appointment with the respondent’s doctor until the union became involved several months later. In the interim, the complainant who was a long-standing loyal employee with an impeccable record was left in a limbo without income. I do not accept the respondent’s contention that the onus rested with her to prove that she was fit to return to work given its obligations under the Acts and absence of any evidence that she had been furnished with sick-leave procedures. Whilst I have no doubt that the respondent’s management believed that they were doing what was required of them at the material time, a general lack of knowledge and awareness as to the respondent’s obligations under the Employment Equality Acts was evident throughout. Whilst I also have some concern about the casual manner in which the complainant apparently had her hours reduced upon her return to her role as a cleaning operative and the absence of a written statement of terms and conditions of employment clearly confirming her role and hours, this was not pursued as part of this complaint and *19 no other complaints under the relevant legislation were pursued.
Finally, I reject the respondent’s arguments to the effect that the accommodation required by the complainant would have imposed a disproportionate burden on the respondent because it would have required another member of staff to assist the complainant in undertaking the temporary housekeeper/tea lady role and find it to be speculative at best. As set out above, without engaging in any meaningful way with the complainant at the material time, it is impossible to say in hindsight and after the fact that she could not have been reasonably accommodated within the meaning of the Acts and/or that any such accommodation would have imposed a disproportionate burden on the respondent. For instance, there is the possibility that alternative ways of undertaking the tasks giving rise to the complainant’s difficulties could have been found at the time that they arose.
Decision
Section 79 of the Employment Equality Acts 1998–2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under s.82 of the Acts. Based upon the aforementioned reasoning, I find that pursuant to s.79(6) of the Acts, the complainant has made out a prima facie case that the respondent failed to provide her with reasonable accommodation in terms of s.16 of the Acts which has not been rebutted. In accordance with s.82(4) of the Acts, I order the respondent to pay the complainant €7,500 in compensation for a breach of the Employment Equality Acts. The maximum applicable award for an employee is 104 weeks’ remuneration or €40,000 (whichever is greater), the latter being applicable to this case. This award is arrived at having regard to the requirement pursuant to art.17 of the Framework Directive as interpreted by case law that the sanction be “effective, dissuasive and proportionate”. To further elaborate, I consider this award to be an effective penalty in terms of meeting the intention of the legislature to remedy breaches of the Acts, and to be dissuasive in that it represents more than a nominal sum to the respondent such that it will have a deterrent effect in the future. I consider this award to be proportionate in circumstances where some efforts were made by the respondent to provide accommodation albeit not in compliance with the Acts. I have also considered the effect of the discrimination on the complainant who was clearly upset at what she perceived to be unfair treatment given her loyal and lengthy service and also suffered six months’ loss of earnings after the temporary role was terminated. For the sake of completeness, I do not consider the criticism made of the respondent for taking three weeks to find the temporary role to be justified in circumstances where the complainant had not given notice of her elective surgery and requirement for reasonable accommodation and have factored this into the award accordingly.
In accordance with s.82(1)(e) of the Acts, I further direct that the respondent provides appropriate training to its management to ensure future compliance with *20 its obligations under the Employment Equality Acts, particularly regarding the provision of reasonable accommodation to employees with disabilities and puts in place procedures to ensure adherence to same.
CA-00021143-002 – Dispute under the Industrial Relations Act 1969
Recommendation
The aforesaid industrial dispute was pursued under s.13 of the Industrial Relations Act 1969 on behalf of the complainant as an alternative to the other complaints and was essentially based upon the same factual circumstances as set out above and met with a similar rebuttal on behalf of the respondent in both evidence and written submissions. In circumstances where I have fully addressed and sought to remedy all the issues complained of herein under Complaint Reference CA-00021143-003, I do not propose recommending anything further under this Act at this juncture.
Williams v The Trustees of Swansea University Pension & Assurance Scheme & Anor
[2018] UKSC 65 (17 December 2018)
LORD CARNWATH: ( with whom Lord Kerr, Lord Hodge, Lady Black and Lord Kitchin agree)
Introduction
1. Section 15(1) of the Equality Act 2010 (“the 2010 Act”) provides that –
“A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
The central issue in this appeal is the meaning of the expression “treats … unfavourably”.
2. The facts can be shortly stated by reference to the agreed statement. Mr Williams was employed by the second respondent (“the University”) from 12 June 2000 until he retired for ill-health reasons with effect from 30 June 2013, at the age of 38. He suffers from Tourette’s syndrome and other conditions which satisfy the definition of “disability” under section 6 of the 2010 Act. He had been an active member of the second respondent’s pension scheme (“the Scheme”) throughout his employment, and had over 13 years’ pensionable service at the date of termination.
3. For the first ten years of his employment, he had worked full time (35 hours per week). Thereafter, he worked anything from 17.5-26 hours per week when he was fit to work. By June 2013 his agreed working hours were half of his full-time hours (17.5 hours per week) and had been so for nearly two years, even though he was not at work for approximately 11 months. It is agreed that each reduction in hours of working arose from his disabilities. The variations in his working hours were made at his request as a “reasonable adjustment”, with the University’s agreement.
4. Between June 2012 and April 2013, he took unpaid leave so that he could undergo specialist brain surgery, which took place in late November 2012. He commenced a phased return to work in late April 2013. However, in May 2013 he applied for ill-health early retirement (“IHR”) under the Scheme, and his application was successful, the agreed medical view being that he was likely to be permanently incapable of efficiently discharging the duties of his post with the University or in relation to any comparable post. He retired with effect from 30 June 2013.
5. The Scheme provided for accrual of benefits on a final salary basis up until 1 August 2009, from which time the Scheme was amended so that accrual of benefits on and after that date was on the basis of Career Average Revalued Earnings (“CARE”). Under the IHR provisions of the Scheme, Mr Williams is and was entitled to, and received, the following:
i) A lump sum and annuity, payable immediately, based on his accrued benefits without any actuarial reduction for early receipt. The annuity and lump sum were calculated on the basis of his actual salary at the relevant times, whether full time or part time;
ii) An enhancement to both his lump sum and annuity (the “enhanced element”), again payable immediately and without any actuarial reduction for early receipt. The enhanced element was calculated on the basis of his actual salary at date of retirement and a period of deemed pensionable service, as though he had continued to be employed in active service to his Normal Pension Date (“NPD”) under the Scheme (age 67).
6. The dispute relates solely to the enhanced element. Mr Williams contends that the reduced figure, resulting from its calculation by reference to his part-time rather than full-time salary, constitutes “unfavourable” treatment because of “something arising in consequence of his disabilities”, that is his inability to work full time. It therefore involves discrimination within the meaning of section 15(1)(a), unless shown under section 15(1)(b) to be a proportionate means of achieving a legitimate aim, or in other words justified.
7. This contention was upheld by the Employment Tribunal, but rejected on appeal by the Employment Appeal Tribunal (Langstaff J) [2015] ICR 1197 and by the Court of Appeal (Arden, Briggs and Bean LJJ) [2018] ICR 233. It is common ground that if the appeal succeeds, the appeal will have to be remitted to the Employment Tribunal to consider the issue of justification under section 15(1)(b).
Comparison with the previous law
8. It is accepted by both sides that section 15 needs to be considered in the context of the previous law, as interpreted by the House of Lords in Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399 . We have been referred to the words of the Solicitor General in a Public Bill Committee on what was then clause 14 of the Equality Bill (Hansard (HC Debates), 16 June 2009, col 275):
“Like the provision in the 1995 Act, clause 14 is intended to provide that the disabled person demonstrates that they have been subjected to detrimental treatment because of something connected with their disability and, secondly, that the duty holder should be able to justify that treatment. However, we have revised the wording from the 1995 Act because we cannot simply carry it forward as the finding in the courts said that we did not achieve the protection that we intended. We therefore dropped the requirement for a comparator.”
Similarly, the Explanatory Note to section 15 of the Act states:
“This section is a new provision. The Disability Discrimination Act 1995 provided protection from disability-related discrimination but, following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. This section is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.”
9. The direct predecessor of section 15 was section 3A of the Disability Discrimination Act 1995:
“(1) For the purposes of this Part, a person discriminates against a disabled person if –
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in question is justified.”
10. Malcolm itself had been concerned with section 22 of the 1995 Act, directed at disability-related discrimination in the management of property, including in that case by eviction. Section 24(1) defined discrimination for that purpose in similar terms to section 15. It required consideration of whether, on the assumption that the eviction was for a reason related to a person’s disability, it involved treating him “less favourably than … others to whom that reason does not or would not apply”. In Malcolm a council tenant who suffered from schizophrenia had sublet his flat in breach of the tenancy agreement. When the council sought to determine the tenancy, he argued that the reason for his action related to his illness and that the eviction constituted discrimination contrary to section 22.
11. It is convenient to refer to the helpful summary of the background and substance of the decision by Elias LJ in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265; [2017] ICR 160 (a case directly concerned with “reasonable adjustments” under section 20 of the 2010 Act). As he explained (paras 52-54), one of the issues for the House was how the relevant comparison should be made:
“Who were the ‘others to whom that reason does not or would not apply’? This had been considered in detail by Mummery LJ giving judgment in the Court of Appeal in Clark v Novacold Ltd [1999] ICR 951. He illustrated the two competing constructions by taking the example of a blind man who wished to take his guide dog into a restaurant which had a ‘no dogs’ rule. Should the comparison be with an able bodied man who wished to take his dog into the restaurant? If so, there would be no less favourable treatment because all are treated the same. The able bodied man too would be refused entry for the same reason, namely that he wished to take his dog into the restaurant. Or should the comparison be with an able bodied man who did not need to take a dog into the restaurant and would not therefore be excluded? In that case there would be unfavourable treatment. In the context of Malcolm the first approach would require the comparison with an able bodied man who had sublet, and the second with someone who had not sublet.
The problem with the first analysis was that it effectively rendered disability-related discrimination a dead letter and equated it for practical purposes with direct disability discrimination as Lord Brown of Eaton-under-Heywood recognised in terms. … The problem with the second analysis was that it effectively did away with the comparison exercise altogether, as all their Lordships accepted. It requires a comparison with persons to whom the reason for the treatment does not apply; logically the claimant will always be treated less favourably than such persons.
The Court of Appeal in Clark v Novacold Ltd had preferred the latter approach on the grounds that it was what Parliament had intended, but in Malcolm their Lordships held, by a majority on this point … that the former was the proper comparison. So, in the view of the majority, the comparison is a like for like exercise; the comparator must be similarly placed to the disabled claimant in all relevant respects save for the disability. This is precisely what is required in direct discrimination cases.”
12. Although it is not in dispute that the wording of section 15 was intended in broad terms to reverse the ruling in Malcolm , our task is not to try to re-construct the pre- Malcom law. It is to the section itself, interpreted in accordance with ordinary principles, that we must look for the applicable tests in the present case. The most obvious feature, in line with the Solicitor General’s explanation, is the removal of any element of comparison. Instead, section 15 appears to raise two simple questions of fact: what was the relevant treatment and was it unfavourable to the claimant?
The judgments below
13. The Employment Tribunal (para 32) accepted as correct the case as presented on behalf of Mr Williams. Its essence appears from the passage quoted by the tribunal at para 23 of their judgment. It was argued that, in line with previous authority on the equivalent term “detriment”, the expression “unfavourable treatment” should be given a broad meaning, including “any financial or economic disadvantage”. The submission continued:
“A simple reasonable and logical analysis of the pension rules leads to the inevitable realisation that a person who retires suddenly following a heart attack or stroke would receive their deemed years of service at their full-time salary whilst a disabled employee who before retiring is forced to work part-time due [to] an increasing disability only receives their deemed years of service at their part-time salary. The disabled employee is consequently at a substantial financial disadvantage.” (para 23)
14. On its face, that formulation appeared to re-introduce a form of comparison which the new section was intended to eliminate, but this time by reference to a hypothetical comparison with the treatment of someone with a different form of disability. In the EAT Langstaff J (President) held that in this respect the tribunal had been in error (para 30). I do not understand that aspect of his reasoning to be under challenge before us. As Ms Crasnow QC says (in her “speaking note” for Mr Williams): “Comparing Mr W to others who have different medical histories (stroke/heart attack) is the wrong approach.”
15. At the beginning of Langstaff J’s judgment, he had commented on the effect of the scheme for Mr Williams, which he described as “immensely favourable”:
“Under the rules of the pension scheme applicable to him employees were entitled to a pension on retirement at age 67, but not earlier, unless retiring when their ill-health was such that they were plainly incapable of continuing in work. In the latter case, employees would be entitled not only to the immediate payment of pension – without actuarial reduction – in respect of the work they had already done (accrued pension) but also to an enhanced pension. This was also paid without actuarial reduction for early receipt as if they had continued working until normal retirement age (in the claimant’s case 67) continuing to receive the salary they had been receiving when they retired. This was plainly an immensely favourable arrangement for anyone eligible for it. Those eligible for it were necessarily disabled (within the meaning of the Equality Act 2010). Any other 38-year-old who left the service of the university at that age would have no prospect of receiving the payment of any accrued pension entitlement until they reached what would have been their normal retirement age, nor any prospect of receiving any enhanced pension.” (para 1)
16. In a section under the heading “Unfavourably”, he gave his own view of the meaning of the term (paras 27-29). He did not think the word could be equated with the word “detriment” used elsewhere in the Act; nor, as was agreed, did it require a comparison with an identifiable comparator, actual or hypothetical. It was to be measured “against an objective sense of that which is adverse as compared with that which is beneficial”. He noted that the same word was used elsewhere in the Act, in provisions “which have a longer pedigree”, in relation to discrimination on the grounds of pregnancy (section 18(2)). In that context it had the sense of “placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person …”. It was likely to be intended to have “much the same” sense in section 15.
17. It was “for a tribunal to recognise when an individual has been treated unfavourably”, and it was not possible to be prescriptive. However, in his view –
“… treatment which is advantageous cannot be said to be ‘unfavourable’ merely because it is thought it could have been more advantageous, or, put the other way round, because it is insufficiently advantageous. The determination of that which is unfavourable involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life. Persons may be said to have been treated unfavourably if they are not in as good a position as others generally would be.”
He cited Malcolm as an “obvious” example of “a life event which would generally be regarded as adverse”.
18. He also disagreed with the tribunal’s reasons for rejecting the respondents’ case on justification (paras 40ff). However, he was unable to say that there was necessarily only one result to which a properly directed tribunal could come. Accordingly he ordered that the appeal should be remitted to a different panel for a full rehearing (paras 50-51).
19. In the Court of Appeal, the leading judgment was given by Bean LJ. He adopted a similar approach to that of Langstaff J, although he also considered the application of the competing interpretations to different hypothetical examples. For the substance of his reasoning it is sufficient to refer to two passages. In the first (paras 42-43) he distinguished decided cases, including Malcolm , in which there had been an act which in itself caused disadvantage:
“ In the leading cases cited to us the ‘treatment’ complained of has been an act which itself disadvantages the claimant in some way. In Clark v Novacold Ltd the claimant was dismissed. In the Lewisham London Borough Council case Mr Malcolm was evicted. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 the claimant chief inspector had part of her duties as a manager (the appraisal of subordinates) removed. The House of Lords held that it was not necessary for her to show financial loss in order to establish a detriment; it was enough that she might reasonably feel demeaned by this decision in the eyes of those over whom she had authority.
Ms Casserley [counsel for Mr Williams] placed the Shamoon case at the forefront of her argument, but I do not consider that it assists her. Mr Williams’ case does not turn on a question of reasonable perception. His pension is undoubtedly less advantageous or less favourable than that of a hypothetical comparator suddenly disabled by a heart attack or stroke. But it is far more advantageous or favourable than it would be if he had not become permanently incapacitated from his job. The Shamoon case is not authority for saying that a disabled person has been subjected to unfavourable treatment within the meaning of section 15 simply because he thinks he should have been treated better.”
20. In the second (paras 48-49) he rejected what he saw as counsel’s implicit comparison with the treatment of different disability:
“Ms Casserley’s argument begins by treating ‘unfavourable’ as not requiring any comparator but in reality it does depend on a comparator, namely another disabled member of the scheme with a different medical history.
No authority was cited to us to support the view that a disabled person who is treated advantageously in consequence of his disability, but not as advantageously as a person with a different disability or different medical history would have been treated, has a valid claim for discrimination under section 15 subject only to the defence that the treatment was a proportionate means of achieving a legitimate aim. If such a claim were valid it would call into question the terms of pension schemes or insurance contracts which confer increased benefits in respect of disability caused by injuries sustained at work, or which make special provision for disability caused by one type of disease (for example cancer). The critical question can be put in this way: whether treatment which confers advantages on a disabled person, but would have conferred greater advantages had his disability arisen more suddenly, amounts to ‘unfavourable treatment’ within section 15. In agreement with the President of the Employment Appeal Tribunal I would hold that it does not.”
21. He differed from Langstaff J only in respect of the disposal of the appeal, having taken the view, shared as he thought with the EAT, that “the undisputed facts of this case cannot amount to unfavourable treatment within section 15” (para 52), the issue of justification did not arise, and accordingly he saw no purpose in remitting to the tribunal. Accordingly the court substituted an order simply dismissing Mr Williams’ claims.
The submissions in this court
22. For Mr Williams, Ms Crasnow’s submissions, as I understood them, had a somewhat different emphasis from the case below. I have already noted her rejection of the comparison (drawn before the tribunal) with a person with a different disability. Although her case was developed at considerable length, both in the appellant’s written case and in a speaking note presented to the court, her central submission can be shortly stated. In the words of her speaking note, it was “unfavourable” to calculate the enhanced element of his pension using his final salary (that is, the lower part-time salary) given that he had been working part-time:
“… only because of his disabilities. Had he not been disabled he would have continued to work full-time.”
The same point was expressed slightly more fully in the written case (para 51):
“It is submitted that if the Court of Appeal had correctly understood the meaning of ‘unfavourable’, as advocated by the appellant, it would have been bound to find that Mr Williams was treated unfavourably, suffering detriment. The ‘unfavourable treatment’ was the adoption of his part-time salary as the multiplier when calculating the enhanced element of his pension, when at all times he was on a full-time contract and his hours had been reduced solely as a temporary reasonable adjustment by way of a phased return. The ‘detriment’ was that he was unable to achieve the full payment under that scheme. The two concepts are very similar and here one is an inevitable consequence of the other.”
23. Her supporting submissions took issue with various aspects of the reasoning of the EAT and the Court of Appeal, including the suggestion of Langstaff J that the word “unfavourably” must be taken to have a different meaning from the word “detriment” as used elsewhere in the Act. She referred to the guidance given in the Equality and Human Rights Commission’s Code of Practice (2011), which she said adopts a more flexible approach. Under the heading “What is ‘unfavourable treatment’?”, the Code states:
“5.7 For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.”
The reference in that passage to “disadvantage” took her to an earlier passage dealing with the word “disadvantage” as it appears elsewhere in the statute (section 19):
“4.9 ‘Disadvantage’ is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about – so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently.”
Those passages, Ms Crasnow submitted, show that words such as unfavourably, disadvantage, and detriment are similar in effect. The last sentence also supports a test which is not purely objective; regard may be had to what is reasonably seen as unfavourable by the person affected. In this connection she relied also on the UN Convention on the Rights of Persons with Disabilities, which was said to require a broad interpretation of discrimination, and in particular to support the need to have regard to “the subjective experience” of the person concerned, “albeit tempered by a reasonableness test”.
24. For the respondents, Mr Bryant QC generally supported the reasoning of the EAT and the Court of Appeal. In particular he adopted Langstaff J’s interpretation (paras 28-29) of the word “unfavourably”:
“… it has the sense of placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person … The determination of that which is unfavourable involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life.”
25. This “objective” test, he submitted, was to be contrasted with “the mixed subjective/objective test” held to apply when determining whether an individual has been subjected to a “detriment” under section 39 of the Act, that is whether the treatment is “of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” (per Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337, para 35).
26. However, as he submitted, whichever test is adopted the conclusion is the same. Mr Williams had not been treated unfavourably. He had not received a lower or lesser pension than would otherwise have been available to him if he had not been disabled. If he had not been disabled, and had been able to work full time, the consequence would not have been calculation of his pension on a more favourable basis, but loss of entitlement to any pension at all until his normal retirement date.
Discussion
27. Since I am substantially in agreement with the reasoning of the Court of Appeal, I can express my conclusions shortly, without I hope disrespect to Ms Crasnow’s carefully developed submissions. I agree with her that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section. It is unnecessary to refer to more remote sources such as the United Nations Conventions. Nor do I find it useful to speculate about the application of the section or the Code in hypothetical cases which are not before the court.
28. On the other hand, I do not think that the passages in the Code do anything to overcome the central objection to Mr Williams’ case as now formulated, which can be shortly stated. It is necessary first to identify the relevant “treatment” to which the section is to be applied. In this case it was the award of a pension. There was nothing intrinsically “unfavourable” or disadvantageous about that. By contrast in Malcolm , as Bean LJ pointed out (para 42), there was no doubt as to the nature of the disadvantage suffered by the claimant. No one would dispute that eviction is “unfavourable”. Ms Crasnow’s formulation, to my mind, depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. As Mr Bryant says, had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was “immensely favourable” (in Langstaff J’s words). It is enough that it was not in any sense “unfavourable”, nor (applying the approach of the Code) could it reasonably have been so regarded.
29. For these reasons I would dismiss the appeal.