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FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : HEALTH SERVICE EXECUTIVE
- AND - MS MARGARET HANNIGAN (REPRESENTED BY UNITE THE UNION) DIVISION :
SUBJECT: 1. Appeal of Adjudication Officer Decision No. ADJ-00017325 CA-00022436-001
Ms Carroll said that she contacted “Masterfire”, the fire alarm installers and was quoted a cost of €10,000 to adapt the system to allow the Complainant to read it. She said that she then spoke to Hospital Management, however as the Hospital was already €760,000 over budget and funding was significantly reduced that year, it was decided that it could not afford the costs involved in the adaptation. In any event, Ms Carroll said that technical adjustments were made to the switchboard which automated the system after 5pm, thereby eliminating the need for any cover beyond 5pm. Ms Carroll said that this would in any event have eliminated the need for the Complainant’s hours in reception at that point. Ms Carroll said that she informed the Complainant of the outcome of her research and advised her that she would have to be moved to another position in the Physiotherapy Department and assured her that the only reason she was being moved from reception was due to her inability to deal with fire alarm calls. She was initially placed on trial in the Physiotherapy Department from January to May 2016, however, her manager Mr E said that she was not capable of carrying out the full range of clerical duties therefore she was assigned limited clerical duties. Ms Carroll said that from June to August 2016 the Complainant was assigned work in the Outpatients Department and to work on audit duties. Mr E prepared a job specification and assigned her duties tailored to her capabilities. Ms Carroll was asked how the Complainant dealt with these duties, she responded that while there were no ongoing difficulties as she was assigned specific duties tailored to her capabilities, however, there were reports of some problems, e.g. not completing phone call logs and difficulties with the IMPS work. The Complainant was out on sick leave from October 2016 until April 2017. Ms Carroll said that she was assigned to the Diabetic Day Centre following the outbreak of Covid 19 where she completes questionnaires for patients.
Mr Kinch gave evidence on behalf of the Respondent. He outlined how when the Complainant’s disability was disclosed, he sought input from the Respondent’s Occupational Health Department who informed them she was incapable of carrying out her full range of catering duties. Therefore, she was assigned lighter catering duties. When these became a difficulty the Occupational Health Nurse recommended that alternative work areas should be explored if she could no longer be accommodated in the Catering Department. Mr Kinch said that the Complainant had been with the Hospital since 1996 and although there was no legal obligation to provide her with an alternative job, they decided to do so on humane grounds. He said that they explored every alternative. They also offered her ill-health retirement however, the Complainant expressed a desire to continue in employment and accordingly, created a role for her in the Physiotherapy Department, where she was assigned limited clerical duties to support the administration team. She was assigned 25 hours per week and allocated additional hours on reception. However, at a meeting with the Complainant in October 2016, Mr Kinch informed her that the only hours available for her were 25 hours per week in the Physiotherapy Department and that it would continue to seek alternative work for a further 11 hours per week. He said that he advised her to explore all options such as early retirement ill health which was available to her or to claim benefits for the days she was not working. However, he said that she was determined to stay at work. He said that in December 2016 the Respondent identified a role in the Cleaning Department which would have supplemented the shortfall in her weekly working hours. It sought an opinion from the Occupational Health Department on her capability to perform the role, the Complainant was examined and the report back from the Occupational Health Consultant deemed her unsuitable to carry out the role due to the extent of her visual disability. Mr Kinch told the Court that the difficulty in finding alternative work for the Complainant was due to her limited capability in carrying out certain duties. He said that she was capable of performing between 40% to 50% of clerical duties and therefore there was limited scope to find alternative hours for her. He said that he made enquires in Our Lady of Lourdes Hospital and in the Community Care services but there were no suitable roles for her capabilities. The witness was asked about agency workers being brought in by the Respondent to perform temporary roles and he was questioned as to why this type of work could not have been allocated to the Complainant. Mr Kinch accepted that the Respondent engaged a substantial number of agency workers to supplement temporary leave, however, he explained that the agency workers were capable of “hitting the ground running” and did not require induction or training, whereas the Complainant was not capable of performing many clerical tasks, regardless of training/induction. Mr Kinch said that when vacancies arise, they require full competency and accordingly it has been difficult to accommodate the 11 additional hours she seeks. He said that the creation of a role for her in the Physiotherapy Department was unique and was designed to accommodate her due to her long service. In relation to a question regarding the cost of adapting the fire alarm panel, Mr Kinch said that budget matters were issues for the Senior Management of the Hospital Group and that all of the Hospitals in the Group were under severe budgetary pressure. In any event he said that as a new automated switchboard system was introduced the hours she had worked were no longer needed. In relation to medical assessment of the Complainant, he said that he took his guidance from the Respondent’s Occupational Health Department and not from the Complainant’s own medical adviser. He said that having installed specialised hardware for her and having engaged in training for her, errors were still being made and the Respondent still has an issue with her capabilities due to her visual impairment. Mr Kinch told the Court that it was a mutual joint venture when the Complainant attended training at the National Council for the Blind in 2015. She was paid full pay for the three months she attended NCBI. Finally, the witness was asked about efforts made at a conciliation conference at the Workplace Relations Commission to accommodate the Complainant. He told the Court that on 29th May 2018 the Respondent offered to assimilate the Complainant on the Clerical pay scale and conditions of employment. This offer included a promotion to an increased pay scale, with the potential to rise to the maximum of the scale, adjusted on a pro rata basis to reflect her working hours. It also included an increase in her annual leave entitlement. Mr Kinch said that it was rare to make this offer of an adjustment in her pay and conditions, however, it was anxious to accommodate her. However, the offer made a conciliation was rejected by the Complainant on 11th June 2018. With regard to her pension entitlements, Mr Kinch said that she has and continues to be on the standard HSE pension scheme.
The Complainant explained that as a result of her disability she was seconded from the Catering Department to work on reception duties. She said that she was not used to dealing with the public or with documents. She attended the NCBI where she engaged in training for her condition, she undertook four modules in ECDL and was trained by the Respondent on switchboard duties. She had spent two years on the switchboard when the fire alarm went off. She explained how she could not physically see the details of where the fire was on the fire alarm panel. When it was brought to her attention that this was a critical issue, she said that she could not read the fire alarm panel even with her magnifying glass. She said that a manager called her into an office and said that they had a role for her in the Physiotherapy Department doing clerical work as it was not appropriate for the physiotherapist to do that work. She said that they could see that she was not capable of performing a clerical role however, she picked up some of the work. She said that after her sick leave from October 2016 to April 2017 she was not allowed to do many of her duties. She said that she had to ask a physiotherapist to deal with patients if the Clerical Officer was not present. When the Clerical Officer in the Department was on leave for three weeks the Respondent brought in an agency worker to carry out the clerical duties. The Complainant said that recently she has been working in the Diabetic Day Centre, due to the conditions surrounding Covid 19 and that she is capable of carrying out those duties. The Complainant said that her eyesight has deteriorated as she gets older. However, she said that she can manage to do the tasks assigned to her. She accepted that there were some difficulties in her work in the Physiotherapy Department and that she was blamed for files going missing, which she found very stressful and ended up on sick leave due to the stress of being told that she could not read. She said that she was willing to travel to Drogheda to avail of the additional hours she had been seeking and was willing to take on any suitable role. She said that she can read computer screens and paper when she has the appropriate magnification. She prefers to work in a team and enjoys her work in the Diabetic Day Centre. She rejected the suggestion that she was only 40% to 50% capable of performing clerical duties. The Complainant accepted that there were technical changes made to the switchboard which resulted in the requirement for the hours she had previously worked being eliminated. Preliminary Issue – Time Limits The Respondent contends that the within claim was presented to the Workplace Relations Commission outside the time limit specified at section 77(5) of the Acts. That section provides that a claim must be presented within six months of the date of the discrimination complained of or where the discrimination is continuing, the date of the last occurrence. The Complainant’s trade union representative submitted that what is in issue in this case is continuing discrimination arising from the Respondent’s failure to provide the Complainant with reasonable accommodation to accommodate her disability in order for her to fulfil her contracted hours and on that basis, he claims that the Complainant is being discriminated against. He centred the complaint on the enforced reduction in the Complainant’s hours of work and the Respondent’s failure to remedy this situation by refusing to provide suitable alternative duties to make up the 11 hours shortfall in her hours per week. It was submitted that the discrimination subsisted up to and beyond the date on which the within complaint was presented. There are two provision of the Acts which are relevant in considering this question. 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 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. Section 77(6A) provides: - For the purposes of this section — (a) discrimination or victimisation occurs—
Findings of the Court on the Preliminary Issue There can be no doubt that the act of discrimination which the Complainant alleged to have occurred in January 2016 when the Respondent refused to adapt the fire alarm panel near the switchboard due to the costs involved is outside the time limit provided under Section 77 (5) of the Acts and is statute-barred unless it can be saved as being part of a continuum of discrimination. The decision of the Court of Appeal for England and Wales in Robertson v Bexley Community Centre [2003] IRLR 434, concerned a similarly worded provision of UK legislation to section 77(5)(a) of the Acts. This case is authority for the proposition that the subsection (5) of section 77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of a regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. The decision of the Court of Appeal for England and Wales in Cast v Croydon College [1998] IRLR 318 is also of assistance in considering the issues arising in the instant case. Here it was held that the mere fact that an act or omission has continuing consequences does not make it a continuing act for the purpose of applying a time limit. The case is also authority for the proposition that where an original decision is reviewed, and a decision taken based on new considerations a fresh cause of action can accrue. The circumstances in which a complaint that a Respondent had in place a discriminatory regime, rule, practice or principle which discriminated against a person with a disability were extensively considered by this Court in Ann Hurley v County Cork VEC. As was pointed out in that case, Subsection (5) and Subsection (6A) of Section 77 deal with different forms of continuing discrimination. Subsection (5) deals with situations where there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. Therefore, in order to take into account acts of discrimination outside the time limit there must be a finding that a related act of discrimination occurred within the time limit. Under Subsection (6A), an act will be regarded as extending over a period, and so treated as having been 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, viz Barclays Bank plc v Kapur [1989] IRLR 387. It should be observed that the approach of this Court as outlined above 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 par 23 of the Judgment: -
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. In advancing her claim the Complainant alleged that the Respondent continued to fail to provide her with reasonable accommodation for her disability from January 2016 when it failed to adapt the fire alarm panel thereby causing her to have a reduction in her working hours and that such reduction continued due to the Respondent’s failure to find alternative duties for the Complainant. Therefore, the gist of the Complainant’s complaint was that these events could be regarded as extending over a period constituting a practice of discrimination by the Respondent. Consequently, it was contended that the cognisable period for this aspect of the within complaint extends up to the date on which the Complainant made her complaint to the Workplace Relations Commission on 4th October 2018. The decision not to adapt the fire alarm panel due to the costs involved was made in January 2016. As pointed out above, if that was the discrimination complained of then the claim was clearly out of time when it was presented in October 2018. However, the Complainant’s case is that the Respondent failed to ensure her salary was maintained at its previous level and failure to do so constituted discrimination. That involves a claim that the Respondent failed to fulfil its statutory duty to provide her with reasonable accommodation for her disability. The nature and extent of that duty will be considered later in this Determination. However, the Court is satisfied that the Respondent’s duty subsisted while she continued to be employed and continued to have a disability. It is also clear from the evidence that the Respondent continued to review the decision on where to locate the Complainant over an extended period, the latest being at conciliations conferences in May and August 2018. On the authority of Cast v Croydon College that could also prevent time from running against the Complainant in relation to the original decision. Having regard to these considerations the Court is satisfied that the within claim was within time when it was presented to the Workplace Relations Commission on 5th October 2018. The Substantive Case
Section 16 requires an employer to “do what is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities” However, an employer is not required to retain an individual in a position that the individual is not “fully competent and available to undertake” the duties attached to that position. The section provides, in effect, that an employer is not obliged to retain a person in a position with a disability unless that person is fully capable of performing the duties of the position at issue. It goes on to provide that a person with a disability is to be presumed to be fully capable of discharging their duties if by the employer making some reasonable accommodation, they can continue in their employment. The duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicability of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required. HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S [2013] I.R.L.R. 571 considered this point. The nature and extent of an employer’s duty to an employee with a disability was considered by this Court in A Worker v An Employer [2005] ELR 159. In relation to the effect of section 16, the Court stated as follows:
The Law The Court must examine whether the Respondent did do all that was reasonable to accommodate/facilitate the Complainant’s retention in employment. The duty to provide special treatment or facilities, for which the Complainant contends, is derived from section 16 of the Acts. 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—
Application of Section 16 Duty It is for the Respondent to raise and make out a defence to a claim of discrimination on the disability ground in accordance with Section 16. The Supreme Court in Nano Nagle School v Daly [2019] IESC 63 held, inter alia, that the primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where required in a particular case, to enable the employee to, inter alia, continue in employment. The duty to provide reasonable accommodation does not extend to an obligation to create an entirely new job and the duty to provide reasonable accommodation is not freestanding in nature. It arises, where required in a particular case, to enable the employee to, inter alia, continue in employment. It is not disputed that the Complainant has a visual impairment which the Respondent’s Occupational Health Advisor, having consulted with her treating physician, physiotherapist and the NCBI, diagnosed as a permanent disability that requires workplace adjustments where she must avoid certain working conditions. It is clear to the Court that the decision to relocate the Complainant from the Catering Department was because of her disability, this is not in dispute. As far as the Respondent was concerned, it was thus affording the Complainant special treatment which allowed her to continue in employment. In this case, the Complainant was accommodated with alternative positions to suit her needs, however, she contends, that the Respondent has failed to ensure she has sufficient hours of work to maintain her salary at its previous level. In that context this case can more properly be seen as turning on the Court’s conclusions as to the extent to which the Respondent fulfilled its duty to provide the Complainant with reasonable accommodation for her disability. That involves an objective test and an employer’s duty is fulfilled where the measures taken have the effect of allowing the disabled person to continue in employment on the same terms as others. The evidence tendered on behalf of the Respondent was given by Ms Carroll and Mr Kinch. Their involvement commenced after the Complainant was transferred from the Catering Department. It is clear that the Respondent consulted with the Complainant and with the advice of the Occupational Health Advisor it agreed to refer her to the NCBI for retraining and upskilling, following which it accommodated her in two clerical roles which maintained her previous salary and hours of work. The Respondent also provided her with the tools necessary to carry out her duties. However, due to circumstances outside of the Respondent’s control this situation could not continue. When the Complainant was unable to read the fire alarm panel efforts were made by the Respondent to evaluate how the system could be adapted to suit the Complainant’s visual impairment. Having decided that the costs involved were disproportionate, they accommodated the Complainant in an alternative role where she continued to work 35 hours per week until June 2016. Her role in the Physiotherapy Department was a surplus role which included specific clerical duties tailored to accommodate her capabilities. Mr Kinch told the Court in evidence that the Complainant was not capable of carrying out the full range of clerical duties due to her visual impairment. From June to September 2016, she was allocated temporary work in the Outpatients Department for two days per week and continued to work 24 hours per week in the Physiotherapy Department. However, when the temporary work came to an end the Respondent, in conjunction with the Complainant’s trade union, identified additional hours in the Cleaning Department. However, the Respondent’s Occupational Health Advisor assessed the task involved and decided that the Complainant was incapable of performing this role. This finding was not disputed. Conclusion and findings of the Court The Complainant submits that she was treated less favourably than her colleagues who do not have a disability. She submits that the Respondent’s failure not to maintain her previous hours of work and thereby reduce her salary amounted to less favourable treatment. She also submits that the Respondent failed to make reasonable accommodation for her disability. Section 8(1) of the Acts, inter alia, prohibits discrimination of an employee by his or her employer, on any of the grounds specified in section 6, in relation to access to employment, conditions of employment etc. The only example of alleged less favourable treatment cited by the Complainant in this case was the Respondent’s failure to increase her working hours. Unlike the other discriminatory grounds prescribed by the Acts, 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 House of Lord decision in Archibald v Fife Council [2004] IRLR651:
In this jurisdiction, the nature and extent of an employer's obligations to people with disabilities is prescribed by section 16 of the Acts. In response to the Occupational Health Advisor’s assessment of the Complainant the Respondent made alterations to her working conditions to facilitate her, it provided her with training and upskilling, placed her in an number of different roles when such roles became available, including creating a new position tailored to her capabilities. The Respondent told the Court that it continues to attempt to identify alternative places of work which met the Complainant’s capabilities in order to supplement her income. Furthermore, the Respondent made an offer in May 2018 to enhance the Complainant’s earning potential which could have placed her on a promotional salary scale, affording her incremental increases over a number of years to come. This offer was made in conjunction with the Complainant’s trade union. However, the Complainant rejected the offer. At the hearing before the Court the Respondent stated that this offer was still open to the Complainant. Furthermore, the Court notes that as a large organisation, every effort will be made to assess her capabilities for additional hours which may become available. The Court fully endorses the Respondent’s commitment to such a course of action. In effect, the import of the Complainant’s position is that she is entitled under the Acts to have her normal pay restored. That raises a question as to the ambit of the obligation imposed on an employer by section 16(3)(b) of the Acts. Implicit in the submissions made on behalf of the Complainant is the contention that the Respondent was not only obliged to provide the Complainant with duties that she is capable of performing but that it was also obliged to preserve her previous level of earnings. It is appreciated by the Court that the Complainant wished to restore her previous level of earnings and made every effort to do so, including training and upskilling, however, she rejected the offer made which while not restoring her previous earnings had the potential to increase her current levels and provide additional increments into the future. The offer also had the effect of altering her status from a Catering Assistant grade to a Clerical Officer grade with the appropriate pay scale and terms and conditions of employment of the latter, which in the event of additional hours becoming available to her in the future, could substantially enhance her position. What is obligated by the relevant statutory provision is that reasonable accommodation be provided where necessary for the purposes referred to in the subsection. This imports into the obligation considerations of objective fairness and proportionality. While it could readily be said that section 16(3)(b) of the Acts places an obligation on an employer to seriously consider such a request it would be unreasonable to hold that having facilitated the employee the employer is statutorily obliged to maintain his or her previous level of earnings where an employee is not working full time hours. In that regard the Court has considerable doubt that the requirement of reasonableness could be relied upon so as to oblige the Respondent to pay the Complainant for work which is not available. The Court is of the view that the efforts made by the Respondent allowed her to continue in employment with the Respondent when her original working conditions were found to be entirely unsuitable due to her disability. The Court does not accept that in the circumstances, the Respondent’s alleged failure to increase her working hours amounted to discriminatory treatment contrary to the Acts. Furthermore, the Court is satisfied that the Respondent’s response to the Complainant’s disability comes within the ambit of reasonable accommodation and appropriate measures as envisaged by section 16 of the Acts. Against that background, the Court has come to the view that the Respondent did not breach its statutory duty under section 16 of the Acts in relation to the Complainant and did not discriminate against her. Accordingly, it must hold that the Respondent is entitled to succeed in this appeal. Determination For all of the reasons set out herein the Court is satisfied that the Complainant was not, as a consequence of her disability, treated less favourably with regard to her conditions of employment and therefore finds that the Respondent did not discriminate against the Complainant on the disability ground. The Court finds the Respondent had a duty under section 16 of the Acts to make reasonable accommodation for the Complainant and is satisfied that that it discharged its duty to her in this regard. It is the Determination of the Court that the Respondent’s appeal herein is allowed, and the Decision of the Adjudication Officer is set aside.
NOTE Enquiries concerning this Determination should be addressed to Heather Murray, Court Secretary. |
