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FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : IRISH HORSE RACING REGULATORY BOARD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS CAROL MURPHY (REPRESENTED BY TERRY GORRY & CO SOLICITORS) DIVISION :
SUBJECT: 1. Appeal of Adjudication Officer Decision No(S). ADJ-00014002 CA-00018399-001.
A further report was compiled in September 2017 with similar recommendations. The Complainant followed up with a meeting on 10th January 2018 with Ms Scally, HR who advised her she would have to have her impending surgery carried out and return to full duties as she was only doing “light duties”, and attend a further health assessment in order to be considered “for training in this role”. By email dated 31st January 2018, the Complainant enquired why her request to be trained as a judge was not acceded to. Ms Scally responded that it “was not feasible to change.. duties until such time as they are fully fit for work. We are aware of your request and once you have your surgery over and you are certified as fully fit for work, then we will be more than happy to consider your request again at that stage” Mr Gorry submitted that the Respondent’s insistence that the Complainant could only be considered for training in the work required of a Judge when she was fit for “full duties” and “fully fit for work’ was in contravention of the Acts. On the contrary, he submitted that the Respondent’s attention and focus should have been on the appropriate measures and reasonable accommodation as apprehended by section 16 of the Acts which could have been taken to allow the Complainant carry out other duties including judging rather than on making enquiries as to whether medication would have allowed her resume urine sampling. In support of his contention that the Respondent was in breach of the Acts, Mr Gorry cited the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 at paragraph 84 where it confirms:-
The Supreme Court referred to section 16(1) of the Acts which relates to the position, not to an alternative and quite different position. He said that the Complainant was not arguing for a new position to be created, she was arguing for the opportunity to be trained for judging work, work that is singularly suited to a person with a physical disability and opportunities to do such work had been provided to her colleagues. In that regard, he argued that the opportunity to train as a judge, which would have involved negligible cost, was itself a discriminatory act in breach of the employer’s obligation as set out in section 16 of the Acts. He contended that the Respondent repeatedly refused to allow the Complainant to avail of the training for judging work by reason of her inability to carry out the full range of duties of her job, was discriminatory. He submitted that the work involved in judging, specifically calling out race results at race meetings and so forth, involves little or no physical prowess and would have been ideal for an employee with a disability linked to use of her wrists, carpal tunnel, etc. Summary of the Respondent’s Case Ms Judy McNamara, Ibec, on behalf of the Respondent, refuted the allegation that it acted in a discriminatory manner but rather submitted that it has acted at all times in the best interests of the Complainant through the facilitation of her continuance at work in her area of expertise, often at additional cost. Furthermore, she contended that the Respondent had made every effort to ensure that any financial losses suffered by the Complainant were minimised which, had often been difficult to do without impacting on other employees. Ms McNamara stated that after the Respondent became aware of the Complainant’s medical condition in October 2015, she was accommodated in her existing role in conjunction with medical advice. This was to enable her the opportunity to return to full fitness in order to perform all her work in the veterinary box. This is predominately where the work is and, not being able to engage the Complainant to the fullest extent in her primary area of work caused difficulty for the Respondent. She said that the Complainant had not applied internally to be trained as a judge prior to the exacerbation of her medical condition as, if she had, then she would have been trained in that capacity if a training position arose and based on suitability and she was the best person to be trained for the role. However, no such opportunities were available since 2017. Ms McNamara maintained that there was no obligation on the employer to provide the employee with a new post if she is unable to perform her existing role due to an alleged disability. The purpose of section 16(3) of the Act is to provide a person with a disability with ‘appropriate measures’ or ‘reasonable accommodation’ in order to render the person fully capable to undertake the full range of duties associated with their post. Without prejudice to this argument the Respondent asserts that it took adequate measures and made adequate adjustments regarding the Complainant’s medical situation as advised by medical practitioners. Ms McNamara also cited the case of Nano Nagle where the Supreme Court provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of section 16 of the Acts. Ms McNamara also relied on MacMenamin J. at paragraph 84 (quoted above). Therefore, she submitted that it is clear from the Supreme Court judgement that the duty to provide reasonable accommodation cannot be infinite or remove all of the duties which a disabled person is unable to perform as that would almost inevitably become a disproportionate burden. In this regard MacMenamin J. held at paragraph 89 that:-
Ms McNamara said that two Medwise Reports indicated that the Complainant had significant medical issues which the Respondent must be cognisant of in exercising its duty of care. It was indicated to the Complainant in January 2018 that she would be considered for training once she was fully fit to resume her full duties post-surgery which, the Respondent believed to be imminent. She said that such training is undertaken to meet business requirements and offered where opportunities to train in various areas arise. She said that there had been no requirement for judging training from an operational perspective since 2017. Ms McNamara outlined the events leading to the claim being referred to the WRC. On 27th October 2015, the Respondent was notified by the Complainant that, due to a medical condition pertaining to her hands she would be unable to carry out her scheduled sampling duties (VA2) at Down Royal that weekend. Sampling involves the use of apparatus which was causing discomfort to the Complainant’s hands. The Complainant requested that she be placed on microchipping duty (VA1) in the alternative. The request for this change of duty was facilitated by the Respondent. In November 2015, on the advice of the Respondent’s Senior Medical Officer, the Complainant was taken off all sampling duties and was instead rostered on microchipping duties. However, as there wasn’t always a microchipping duty at each fixture it wasn’t always possible to swap the Complainant unless both duties were rostered. To minimise any losses incurred by her, the Roster Manager created additional microchipping duties at some fixtures within the parameters of the available budget. This change impacted on all her colleagues as Veterinary Assistants prefer microchipping of horses rather than sampling urine so, the preferred duty was not available for other assistants when the Complainant was working. On or about 19th November 2015, it was agreed with the Complainant that a Functional Capacity Evaluation (FCE) be carried out to evaluate her ability to carry out work in the veterinary unit. However, as the Complainant’s Consultant advised the Respondent that the Complainant was due to commence Biological Therapy which should significantly improve her condition and level of functioning, therefore it was not an appropriate time for the FCE to be carried out. On 4th April 2016, a letter was received from the Complainant’s consultant, Dr Ronan Mullan, Rheumatology Department, Tallaght Hospital, stating that it was “inappropriate for the Complainant to carry out ‘sampling duties’ any longer” and requesting that she be exempt from same. On 8th April 2016, Mr Egan wrote to Dr Mullan acknowledging receipt of his request and seeking clarification on any prospect of the Complainant’s condition improving as indicated by her GP in December 2015. That same day Mr Egan issued a Memo to veterinary assistants informing them that a colleague was having difficulty with facets of the veterinary unit due to a medical condition and that they may be required to switch duties in order to facilitate this. On 18th April 2016 a letter of response was received by the Respondent from Dr Mullan which stated that it was not possible to say at that point whether she will respond to new medication, or even if she does whether she will be able to return to her full duties and recommended that she be continued to be exempt from sampling duties. On 26th April 2016, a letter was sent to Dr Mullan asking him to keep the Respondent updated on the Complainant’s medical condition. On 18th May 2016, a letter was received from the Complainant’s Trade Union Mandate expressing concern that the Respondent was not affording the Complainant the ‘reasonable accommodation’ requested by her medical team and requesting a meeting to discuss same. This was responded to by the Respondent, expressing surprise at how premature their concerns were and informed them that, if any decision was made that they would be consulted in this regard. Ms McNamara said that at the time the Complainant was being fully accommodated. On 15th November 2016, a letter was sent to Dr Mullan requesting an update for the purposes of sending the Complainant for the FCE so as to facilitate the preparation of a roster for 2017. On 22nd November 2016, Dr Mullan responded stating that the Complainant now had a separate issue regarding severe Carpal Tunnel Syndrome which was causing significant ongoing problems with the Complainant’s hand function and, in particular, grasping and holding which may require surgical intervention. Dr Mullan could not provide a date for further review in relation to same. On 6th January 2017, a Memo was issued by the Respondent to all veterinary assistants confirming that the arrangements in place for the swapping of the VA2 and VA1 duties would continue. On 7th December 2016 a meeting took place, with the Complainant and an Independent HR Manager, Ms Scally who was engaged by the Respondent to assist with facilitating the Complainant to continue in her role. The Complainant raised issues in relation to loss of earnings, her pension and training with a view to becoming a judge, all of which were addressed in a reply from Mr Egan dated 18th January 2017. On 8th February 2017, an occupational health assessment was carried out on the Complainant by Dr Deirdre Gleeson of Medwise Clinic, at the request of the Respondent. Dr Gleeson’s recommendation was that “modified work duties would be required for a year” and that if “the employer is not in a position to reasonably accommodate [the Complainant] with modified work duties she will require sick leave until she has recovered from surgery” On 1st March 2017, Mr Egan wrote to the Complainant acknowledging the assessment and confirming that the Respondent would facilitate her in her role for the specified time outlined in the report without any requirements to take urine samples pending the carrying out of surgery and subsequent review. Again, that same day a Memo was issued by Mr Egan to Veterinary Assistants stating that the arrangements regarding the swapping of duties would continue until at least the end of the year. On 26th September 2017, a further occupational health assessment was carried out by Dr Gleeson, Medwise at the Respondent’s request which indicated that the Complainant’s condition was getting worse and, that she was still awaiting surgery. On 5th February 2018, Ms Scally responded to the Complainant and a colleague following a meeting which took place on 10th January 2018. Ms Scally outlined the Respondent’s policy that full time appointments are not made on the basis of seniority but rather on skills, knowledge and suitability for a role. An opportunity was given to both to discuss skills development and training. On 6th July 2018, Ms Scally informed Mr Egan that the Complainant had an interest in training for Post-Licensing Inspections and Out-of-Competition testing. The Complainant was subsequently trained in these duties . Ms McNamara said that in August 2018 the Respondent introduced a Job Shadowing Policy and pilot programme. This programme provided staff with the opportunity to shadow in areas which may have been of interest to them, should future opportunities in these areas arise. This programme would have included that of shadowing the role of a judge and the said policy would have been communicated to the Complainant and to Mandate Trade Union. No expression of interest was received from the Complainant in partaking in the programme. Witness Evidence Summary of the Complainant’s Evidence The Complainant told the Court that she sought to be trained in judging work since 2008 in order to carry out that role as it would suit her abilities, however, she was not accommodated with such training. She said that in March 2016, two new Veterinary Assistants were recruited and by June 2016 both had received training in judging and were given Judging Licences. One other Veterinary Assistant was trained and given a Judging Licence at this time also. She said that she was anxious to do judging work as it was easier and provided her with the opportunity to work full time until her retirement, i.e. 170 days per annum. The witness said that despite the Respondent’s assertion regarding her reasonable accommodation and removing her urine sampling duties (VA2 duties), she continued to be rostered for such duties. She said that the annual duty rosters prepared for 2016 and 2017 included her carrying out VA2 duties. In cross examination, it was put to the witness that the first occasion when she sought judging work was in December 2016, when she met with Ms Anne Scally, HR consultant to the Respondent. She said that she had a meeting with Mr Denis Egan, CEO in April 2016 and mentioned it to him at that time. The Complainant accepted that the first time she put this in writing was in December 2016. The witness was asked about a letter sent from her Trade Union official to Mr Egan on 18th May 2016 on her behalf which makes no reference to her wish to have training in judging work, yet it refers to the issue of reasonable accommodation. The witness said that she has asked her Trade Union official to contact the Respondent due to the loss of her sampling duties and her loss of earnings as a result but had not raised the matter of judging training/duties with her Trade Union official. The witness said that the last time she was required to do VA2 work was in 2015, however, she said that she was still rostered for such work in 2016 and 2017. When asked if she had received any further training, she said that she was trained in Steward’s Secretary role in 2016. The witness was asked about the Medwise report, dated 26th September 2017 which stated that she was unfit for Point-to-Point work in 2017. She said that she was removed from that work in 2017. When questioned about the events during the cognisable period covered by the claim, i.e. 11th October 2017 to 10th April 2018, she accepted that there was no requirement for training in judging work as there were no judging jobs available to be filled during this time. She said that the reason there was no requirement was due to the fact that three Veterinary Assistants had taken on that role in 2016 so there was no vacancy. She accepted that in her existing role, she was accommodated with the removal of VA2 duties as a result of her disability but sought training in judging so as to enable her to carry out that role which is paid on a daily fee basis. She said that other colleagues carried out the VA2 duties, however, she said that she had a loss of earnings as a result. The witness was asked about a new revised roster which came out in March 2017, she accepted that she was no longer rostered for VA2 duties on that roster. Finally, the witness was asked why she did not submit her claim under the Act until April 2018 in circumstances where she was aware that her colleagues had been given training in judging and Judging Licences in June 2016, in circumstanes where she was alleging that she was being discriminated against. She said that in 2016 she was diagnosed with skin cancer and it had been a difficult year for her. Summary of the Evidence of Mr Denis Egan, Chief Executive Officer Mr Denis Egan, CEO gave evidence on behalf of the Respondent. He said that the Complainant’s title is Veterinary Assistant, the position’s global title is called Racing Official. He said that the title does not automatically entitled her to do judging work, that is a separate role. Mr Egan said that the first time the Respondent became aware of the Complainant’s medical condition was in October 2015 and he immediately removed her from VA2 work. He said that rosters are produced in December each year and the reason she continued to be rostered for this duty was due to the medical reports received which indicated that with medication and/or surgery she may be in a position to resume her normal duties. However, after it received the Medwise report of her condition in February 2017, which indicated that her condition had worsened, it decided to amend the roster to remove her from VA2 duties. Mr Egan disputed the Complainant’s assertion that she had looked for judging training prior to December 2016. He said there was nothing on record to show this. He was asked about the process of training employees for judging work and stated that there were two avenues to such training, (i) all newly recruited Veterinary Assistants since 2015 are trained in all roles, including judging and (ii) where such training is specifically requested. He said that it was not part of the Complainant’s induction process when she started. Mr Egan was asked about the preparation of rosters. He said that they are prepared in December for the following year. There are 379 racing fixtures in the year and 12 positions for each day's racing, therefore there are over 5,000 duties to be rostered each year and it’s important that officials know their rosters in advance. He said that as the Complainant could not carry out VA2 duties the Respondent had to put in an extra Veterinary Assistant into the roster to accommodate her, this involved additional costs. When questioned about the Complainant’s assertion that she had a loss of earnings due to the loss of her VA2 duties, Mr Egan said that she was contracted to work 120 days per annum and continued to be paid for 120 days. He said that the reduction in her earnings related to the loss of work which was additional to her core work and which she volunteered to take, some of which was no longer available after 2015 (microchipping at the Curragh and she had withdrawn from Point-to-Point work in 2016 after her medical, and due to her absence on sick leave from 11th February to 3rd April 2016. The witness said that judging work is generally conducted in a location high up at racecourses, where accessibility may pose a risk for the Complainant. In cross examination, Mr Egan said that a risk assessment had not been carried out to determine the possible risks involved, however, her medical assessment held that she had difficult with her work due to wrist and hand pain and weakness caused by carpal tunnel syndrome. He said that he did not include her in judging training as he had had no request from her when such training was being carried out. Mr Egan said that the Complainant was a very valued employee who was very good at her work and continues to work at least her 120 days per annum that she has been contracted to do. She also does additional work which she volunteers for and is paid a fee. He said that there had not been a vacancy in judging work since 2017 and therefore there was no need for training in that role, there are four judges and each has their allocation of judging duties, if the Complainant were to be given a judging role then the incumbents would lose their allocation and she would have to be replaced in her current role to accommodate this. He said that there was a cost involved in training for judging work, and while it may not have been disproportionate, there was no need as there was no vacancy. The witness said that the Complainant had been accommodated with regard to her disability as the VA2 duties had been removed from her and taken up by other Veterinary Assistants, yet she continued to work at least her contracted 120 days per annum. He said the VA2 duties were not very popular as it required the Veterinary Assistant having to wait an hour or so after the last race of the day to carry out the sampling. The witness was asked about the Respondent’s policy entitled “Capability and Competence” which encompasses a policy on how an employee will be treated if their circumstances prevent them from carrying out their normal duties (e.g. a lack of dexterity or general ill health). In essence this policy provides that such a person will be placed in a more suitable role, where circumstances permit. Mr Egan said that this policy was adhered to as the Complainant was given reasonable accommodation to carry out her normal duties so that she could continue in her role and continue to work her full contracted days. Summary of the Evidence of Ms Anne Scally, HR Manager Ms Anne Scally, HR Manager, gave evidence on behalf of the Respondent. She was appointed as HR Manager of the Respondent in 2019. She told the Court that she was originally requested as an Independent HR Consultant in 2016 to meet with the Complainant to discuss her situation vis a vis her disability and her work duties. She met with the Complainant in December 2016. She said that the Complainant raised a number of issues with her and the witness promised to bring them back to Mr Egan for consideration. Among the issues raised were her loss of earnings, her pension entitlements and the issue of judging work. She said that the subject of redundancy was raised by the Complainant, however, she did not offer her redundancy and did not raise this issue with the CEO. The witness said that at the meeting, she told the Complainant that the accommodation given to her with the removal of VA2 duties could not last forever and that she asked the Complainant to attend an Occupational Health Physician in order for an assessment of her capabilities to be carried out. She told the Court that, as a proper health assessment had not been conducted by that stage, it was then necessary to ensure that she was been reasonably accommodated. Ms Scally said that as VA2 work was required at Point-to-Point meetings, she asked the Complainant to bring a screw top jar, used for urine sampling, when she was attending the medical assessment, to demonstrate the duties required. Ms Scally said that the Complainant withdrew from Point-to-Point duties prior to the medical assessment. She had two assessments by Medwise in 2017, both of which refereed to the need for surgery and the second, held on 26th September 2017, indicated that the Complainant’s condition had deteriorated at that time. Ms Scally said that she had a second meeting with the Complainant, along with another Veterinary Assistant, on 10th January 2018. She said that at that meeting, she informed the Complainant that she was being accommodated for her disability and she was continuing to work her full contracted hours and additional hours that she volunteered for. In cross examination, the witness was asked about an exchange of emails between the Complainant and herself which were sent following the meeting on 10th January 2018. In the Complainant’s email, it refers to her request to be trained as a judge and that the CEO had informed her that after she had her medical assessment her request would be considered at that point. However, this had not happened, and that Ms Scally had told her she had to have her impending surgery first and be fully fit to return to do her full duties. The witness was questioned by Mr Gorry as to whether or not this constituted a discriminatory act? The witness replied that the Complainant was being accommodated with her disability and regard had to be taken of her medical condition, as the Respondent had a duty of care to her. It was denied by Ms Scally that she was the person who brought up the subject of redundancy. The Law Section 16(3) of the Acts provide:
The duty imposed on an employer by Section 16 of the Acts, is to allow a person with a disability to work on an equal basis with others. That duty is limited only by what is reasonable and proportionate and whether it would place a disproportionate financial cost on an employer. There is no doubt that the Complainant had particular needs arising from her disability. The manifestations of her disability placed her at particular disadvantage in employment relative to workers without that disability. The main disability suffered by the Complainant is compounded by her restricted mobility due to arthritis and carpal tunnel syndrome, the combined effects of which rendered her unable to carry out the urine sampling work, VA2, as certified by the medical profession. The question that then arises is whether the action taken by the Respondent, namely, removing the VA2 duties from her, discharged its statutory duties under Section 16 (3)(b) of the Acts. In considering this question the Court has taken account of the contention by the Complainant to the effect that the removal of duties impacted on her level of earnings, and the Respondent’s refusal to provide her with the opportunity to undergo judging training prevented her from doing a job with full time hours which she contended she was capable of doing despite her disability. Conclusions of the Court In light of the evidence before it, the Court is satisfied that the Complainant’s VA2 duties (urine sampling) were removed from her and redistributed to other Veterinary Assistants on the advice of the Respondent’s Senior Medical Officer in November 2015 and instead she was only rostered on microchipping duties, VA1. The Court notes the Respondent’s rationale for her retention on the roster in 2016 and until March 2017 to carry out both VA1 and VA2 duties and is of the view that such action was not unreasonable in circumstances where the medical reports advised that she was awaiting surgery and was on medication which could assist her condition to allow her to perform the full range of duties. However, once the Respondent received the Medwise report in February 2017, which indicated that she was unfit for the task of taking urine samples and that modified duties would be required for a year, then those duties were removed from the roster from March 2017 onwards. The Court notes that the removal of the VA2 duties enabled her to continue to work, her contracted duty days per annum were not impacted, and she continued to avail of additional work which she volunteered for thereby essentially maintaining and also increasing the number of duty days she worked per annum, as can be seen from the number of days worked from 2015 onwards (the Complainant informed the Court that due to her cancer diagnosis and treatment, her duty days in 2016 were impacted). Turning to the question of the Complainant’s claim for training in judging in order to provide her with a job she feels she is capable of performing which could enhance her employment opportunities and provide her with full time duty days, the Court finds as follows:-
In summary, the Court is satisfied that the Complainant’s role as a Veterinary Assistant was modified so as to reflect her disabilities thereby enabling her to fully discharge the duties attached to her role as modified without impacting on her contracted annual days of work. On that basis the Court is satisfied that the action taken by the Respondent amounted to providing her with reasonable accommodation so as to allow her to continue in employment notwithstanding her disability. Therefore, the Court does not uphold the Complainant’s claim that she was not provided with reasonable accommodation for her disability. Determination For all of the reasons set out herein the Court is satisfied that the Respondent has discharged its duty to provide the Complainant with reasonable accommodation in terms of section 16(3)(b) of the Acts. It follows that the decision of the Adjudication Officer must be affirmed and the appeal disallowed. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
