EDA218

1. Appeal Of Adjudication Officer Decision No(s) ADJ-00015888 -CA-00020537-002

BACKGROUND:

2. The worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section (83) (1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing in a virtual setting took place on 23 March 2021. The following is the Determination of the Court:

DETERMINATION :

Determination

This is an appeal by Maria Neary the Complainant against the Decision of an Adjudication Officer in a claim of discrimination on the grounds of disability by failing to make reasonable accommodation. The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act). The Adjudication Officer held that the Complainant had failed to establish a prima facia case of discrimination on the grounds of disability and failure to make reasonable accommodation.

At the commencement of the hearing the Court sought clarification as to whether the fact of the Complainant having a disability was in dispute and the Court was advised that it was. The Court advised the parties that it would hear them in the first instance on the issue of whether the Complainant had a disability as defined by the Act and whether there was a prima facia case of discrimination and failure to make reasonable accommodation within the cognisable period. The Court noted that in accordance with section 85A of the Act, the Complainant has to establish a prima facia case before the burden of proof shifts to the Respondent. The Complainant lodged her complaint with the WRC on the 13^th July 2018 therefore the cognisable period is 14^th January 2018 to 13^th July 2018.

Summary of Complainant’s submission.

The Complainant contends that she suffered from a depressive illness which is a disability within the meaning ascribed to that term by s.2 (1) (e ) of the Act. She contended that the Respondent discriminated against her on the disability ground in not providing her with reasonable accommodation when she was certified fit to return to work by her GP and the Chief Medical Officer (CMO). Ms Donovan the representative of the Complainant directed the Court to medical certificates that had been submitted which indicated that she suffered from depression and also to CMO case referral forms that noted that the certified reason for absence was depression

In support of the contention that the Complainant suffered from a disability Ms Donovan on behalf of the Complainant relied on the case of EDA094 Government Department v A Worker where the Court in considering whether a disability existed noted that:

• "disability" means—
  • (a) [ not relevant]

    (b) [not relevant]

    (c) [not relevant]

    (d) [not relevant]

    (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,”

  The Court went on to say;

  
  “It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal effect on the sufferer”

It was Ms Donovan’s submission that the Complainant’s disability more than met the de minimis rule referred to in that case. In terms of a breach of the Act within the cognisable period Ms Donovan directed the Court to the following interactions between the parties.

By letter dated 26/02/2018 Dr Sharon Lim Occupational Health Physician in the Civil Service Occupational Health Department advised that “the Complainant’s GP had certified her fit to resume work on the 03/03/2018 and that the GP noted that an exposure to her previous situation may well result in a recurrence of her difficulties. Dr Lim went on to suggest that a thorough return to work meeting with local management/HR to try and identify supports to minimise her perceived work stressors when she resumes work” Dr Lim went on to recommend that the Complainant should be facilitated with a resumption to work on a reduced hour’s basis initially. This letter was addressed to Ms Flanagan who works in the Respondent’s Human Resources Department. It was Ms Donovan’s submission that this was a clear indication that the Complainant required a reasonable accommodation to enable her to return to work.

A meeting took place on the 14^th March with the Complainant, it was her understanding arising from that meeting, that she could be facilitated to return to work in the camera room but after the meeting she never heard anymore from the Respondent in respect of working in the camera room.

By letter of the 13^th April 2018, the Complainant wrote to the Respondent in response to their letter dated 5^th April 2018, advising that although she had been certified fit to return to work it was not unconditional and that she trusted that the concern expressed by her Doctor and accepted by Dr Lim would be given the weight it deserved.

By letter of 9^th May the Respondent advised the Complainant that she should resume duty in her current post on Thursday 31^st May 2018 at 10.00 am, and advised that should she fail to return to work on that date or on an agreed alternative, the Respondent will take it that she does not intend to return to her post and this will be taken as her formal resignation from her post. It was Ms Donovan’s submission that this letter was contrary to the Doctor’s advice and a breach of the Act.

The Complainant went into evidence in respect of her meeting on the 14th March with Ms Flynn who would be her line manager and Ms Cullen who works with Ms Flynn. It was the Complainant’s evidence that at that meeting she had suggested that she could work in the camera room as it was off the main floor. It was her evidence that she did not look for an external transfer as she was aware that she would not get one because of her sick leave record. It was the Complainant’s evidence that it was mentioned at the meeting, that there was a Temporary Clerical Officer (TCO) who was due to finish up and that the TCO was working in the camera room. After the meeting the Complainant was waiting for Ms Flynn to confirm that she would be working in the camera room when she went back to work, but Ms Flynn did not contact her about returning to work in the camera room. It was the Complainant’s evidence that she received a letter dated 9^th May which stated that she was going back to the same role in the same office in the same location and that she did not believe that letter, complied with what her doctor and Doctor Lim had stated should happen.

It was put to the Complainant in cross examination that Ms Flynn would give evidence that the Complainant was told she was going back to a similar role to that which she had previously held. The Complainant was directed to a note of the meeting where no mention of a move to the camera room was recorded and in fact, the note states that when asked during the meeting if she had any thoughts on going back to work, the Complainant declined to engage on the basis that she wanted to see what HR were doing.

The Complainant was also directed to an email she had sent on the 14^th March after the meeting to Ms Flynn and the fact that there was no mention of a transfer to the camera room in that email. In response to a question the Complainant confirmed that neither herself nor as far as she knew, her Union representative who accompanied her to the meeting wrote to the Respondent and asked about the transfer to the camera room. The Complainant also confirmed that she did not take Ms Flynn up on her offer of going to visit the office in advance of her return to work. The Complainant did not dispute that she had received an email from Ms Flynn which had a sample rota attached showing the duties of a clerical officer in the office.

Ms Guinness on behalf of the Respondent took the Complainant through a serious of correspondence starting with an email dated the 22^nd of March 2018 headed ‘resumption of work’ which noted that the Complainant had met with Ms Flynn and asking her to indicate the date on which she would be available to resume work. Ms Guinness put it to the Complainant that she had not responded to that email. It was the Complainant’s evidence that she could not recall if she had responded as she did not have her papers with her at the hearing to check.

The next correspondence was a letter of 5^th April 2018 advising her that failure to make contact would result in the Respondent considering that her to have abandoned her post. The Complainant accepted that by email of the 13^th April she responded to that letter but she did not indicate a date when she would resume duty. Ms Guinness put it to her that the Respondent by return email on the same day acknowledged receipt of her email and reminded her that a return-to-work date, had to be agreed by that day to avoid the Respondent considering her to have abandoned her post and that she had not responded to same. It was the Complainant’s evidence that she could not recall if she had responded to that email. Ms Guinness put it to her that the Respondent wrote to her again on the 9^th of May 2018 advising that if she failed to return to work on the 31^st May 2018 or an agreed alternative date that it would be taken that she did not intend to return to her post, it would be taken as her formal resignation and that she had not responded to same. It was the Complainant’s evidence that she could not recall if she had responded. The Complainant was taken to a letter of the 18^th June 2018 from the Respondent which advised that as she had failed to resume duty on the 31^st May 2018 she was being regarded as having resigned from her post as of 1^st June 2018. The Complainant confirmed that she responded on 2^nd July acknowledging receipt of the letter and advising that she did not return to work as she had not been offered reasonable accommodation.

In response to a query from the Court the Complainant confirmed that she had not highlighted any particular supports other than she did not want to return to her previous position.

Summary of Respondent’s submission.

Ms Guinness on behalf of the Respondent submitted that the Complainant’s medical certificate that certified her fit to resume work did not mention that the Complainant had a disability, nor did it request any reasonable accommodation be provided. In relation to the medical certificates that the Complainant is now seeking to rely on Ms Guinness submitted that they only run to 2017 and there is no medical certificate after 2017 suggesting that the Complainant has depression or is suffering a disability. Ms Guinness referenced Case C-13/05, Chacon Navas v Eurest Colectividades SA[22006] E.C.R. I-6467 Court of Justice which held that the concept of disability for the purpose of Directive 2000/78/EC “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.” It was her submission that no evidence had been adduced that the Complainant had depression at the time she was certified fit to resume work.

In respect of the alleged breach of the Act during the cognisable period Ms Guinness stated that in evidence Ms Flynn would say that no request for a transfer was made at the meeting of the 14^th March 2018. It was Ms Guinness submission that the Complainant stating that she did not want to return to her previous position could not be considered a request for a transfer. The notes of the meeting of the 14^th March show that that the Complainant did not engage with the issue of a date for her return to work. Following on from that meeting the Complainant never raised any query in respect of a transfer nor did she request any reasonable accommodation. Neither the report from her own GP or Dr Lim contained any reference to reasonable accommodation. Dr Lim suggested that there should be a meeting with the Complainant prior to her return to work and this happened on the 14^th March 2018. In respect of Dr Lim’s proposal that the Complainant should be offered a phased return to work this was available and the details could have been worked out once the Complainant indicated a return- to- work date.

Ms Flynn the Manager of the section where the Complainant worked submitted in evidence that she had brought Ms Cullen to the meeting to explain to the Complainant the changes that had happened in the workplace since she had last been there. It was her evidence that she could not make any progress on the issue of the Complainant’s return to work date as she could not get the Complainant to indicate when she would come back to work. It was Ms Flynn’s evidence that they discussed the roster that was in place for clerical officers and the fact that clerical officers were rotated around different duties. There may have been a mention of the camera room, but it would have been in the context of the rota as it was an element of the rota. Ms Flynn’s evidence was that she was not aware of the Complainant’s previous issues and that she was happy to discuss a phase return to work. However, that conversation never happened as the Complainant would not engage around a return-to- work date. Ms Flynn’s evidence was that the Complainant was invited to visit the office and see how the office had changed but there was no follow up on that invitation. In response to a question under cross examination it was Ms Flynn’s evidence that she had no recollection of the Complainant saying that she did not want to return to her previous job. Ms Flynn also confirmed that the meeting that took place was not a return to work meeting as required by the Respondent’s policies but was a precursor to same. A return- to-work meeting would have been arranged if a date for her return to work had been confirmed.

The applicable law

2.— (1) In this Act, unless the context otherwise requires…

“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;

Section 16 (3) 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.

  “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;

Discussion

The Complainant complained that she was discriminated against on the disability ground in breach of the terms of Section 6(2)(e) and in contravention of Section 8 of the Act.

It is disputed by the Respondent that the Complainant had a disability as defined by the Act at the time she returned to work.
The Court relying on the following extract from section 2 of the Act

• “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”

The Complainant in her evidence sought to rely on her GP’s certificate and Dr Lim’s report to the Respondent certifying her fit to return to work in support of her contention that she required reasonable accommodation. The Court notes that the only actions required of the Respondent in Dr Lim’s report was that a return-to-work meeting take place with the Complainant in advance of her return to work and that she be accommodated with a phased return to work. It was the undisputed evidence of Ms Flynn that the meeting on the 14^th of March was an initial meeting and that once a date was set for her return to work a further meeting would have been arranged. The Court also notes that by email or letter of 22^nd March 2018, 5^th April 2018, 13^th April and 9^th May 2018 the Respondent informed the Complainant that a return- to- work meeting would take place and that a phased return to work would be facilitated. However, the Complainant failed to engage with the Respondent in respect of a return-to-work date.

Based on the undisputed facts in respect of the Complainant’s failure to engage with the Respondent around a return- to- work date, the Court is satisfied that the Respondent did not discriminate against the Complainant due to her disability. The Court finds that the Respondent was prepared to make reasonable accommodation in accordance with Dr Lim’s report in respect of the Complainant’s return to work. However, the Complainant never engaged with the Respondent around these proposed accommodations and never returned to work. Therefore, the Court finds that the Complainant is not entitled to succeed in her claim of discrimination on the disability ground and failure to make reasonable accommodation. The Complainant’s appeal fails.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
14 April 2021	Deputy Chairman