A Civil Servant(represented by the CPSU) -v- The Office of the Civil Service and Local Appointments Commissioners (Represented by Tony Kerr B.L., instructed by The Chief State Solicitor's Office)
The case concerns a claim by a Civil Servant that the Office of the Civil Service and Local Appointments Commissioners directly discriminated against him on the disability ground 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 a promotion competition for the post of Executive Officer.
2.1 The complainant passed an exam and interview in 2001 for the post of Executive Officer. By letter dated 29 November 2001, he was informed that his sick leave record did not fall within the limits specified in Department of Finance Circular 34/76 which requires that sick leave absences must not exceed 56 days sick leave and not more than 25 absences in four years. He was informed that his application had not been successful as he could not be regarded as qualified in terms of health under section 17(1)(c) of the Civil Service Commissioners Act, 1956. The complainant submits that the absences on sick leave were caused by a chronic illness which amounted to a disability and that in taking his sick leave into account, he was discriminated against. The respondent denies that it discriminated against the complainant and disputes that his sick leave amounted to a disability within the meaning of the Employment Equality Act, 1998.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 23 May 2002. On 13 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The case had previously been delegated to another Equality Officer. A submission was received from the complainant on 23 July 2003 and from the respondent on 6 October 2003. A joint hearing of the claim was held on 22 April 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant was deemed ineligible for the position of Executive Officer in the Civil Service in November 2001 under section 17(1)(c) of the Civil Service Commissioners Act, 1956.
3.2 Whilst the complainant accepts that his sick leave record exceeded the limits of Department of Finance Circular 34/76, he believes that the decision not to appoint him to Executive Officer was discriminatory having regard to Department of Finance Circular 33/99 and the terms of the Employment Equality Act, 1998.
3.3 The majority of the complainant's absences were related to just two illnesses, asthma and irritable bowel syndrome from which he has made a marvellous recovery thus enabling him to provide regular and effective service in the future. The discounting of both absences mean that he is within the limits set out in Circular 34/76.
3.4 It is also contended that these absences were the result of a disability within the meaning of the Employment Equality Act, 1998 and that the reliance on such absences to deem him ineligible for promotion to Executive Officer amount to an act of discrimination on grounds of disability.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the complainant accepts that his sick leave record exceeded the limits prescribed by Departmental Circular 34/76 but contends that his absences were as a result of a disability within the meaning of the Employment Equality Act, 1998 and that the respondent's decision to deem the complainant ineligible for the position of Executive Officer amounts to an act of discrimination on the grounds of disability.
4.2 The respondent denies that its decision was discriminatory on the disability ground and the respondent specifically denies that the complainant's sick leave was as a result of a "disability" as that term is defined under the 1998 Act.
4.3 Having regard to section 17(1) of the Civil Service Commissioners Act, 1956, the respondent cannot accept as qualified for appointment any serving officer who has taken part in any of their competitions if, because of his or her pattern of sick absences or present health, the officer cannot be relied on to give effective service in the future without interruptions by abnormal sick absences.
4.4 Under the scheme of conciliation and arbitration for the civil service, there was an agreed recommendation by the General Council regarding the arrangements for the clearance, by reference to sick absences and health considerations, of candidates for promotion or establishment. Comprehensive instructions in this regard are contained in Departmental Circular 34/76 as amended by Departmental Circular 32/91. Following the introduction of the 1998 Act, it was decided to review these provisions and, by Departmental Circular 33/99, Circular 34/76 was further amended.
4.5 The complainant's sick leave record showed that in the last four years, he had taken a total of 204 days sick leave in 25 absences. The limits prescribed by paragraph 3.4 of Departmental Circular 34/76 are not more than 56 days sick leave and not more than 25 absences in four years.
4.6 The complainant's sick leave record was referred to the Chief Medical Officer (CMO) who advised that the absence from 01/10/99 to 05/11/99 (36 days) might be viewed under Departmental Circular 33/99 (which provides for discounting of sick leave in exceptional cases where it is considered that certain illnesses will not detract from a candidate's suitability from a health point of view.)
4.7 The respondent took the view that, even if the absence of 36 days in 1999 was discounted, the complainant's sick leave record was still very high at 168 days in 24 absences and accordingly, the respondent decided that the complainant could not be deemed suitable on health grounds and therefore did not fulfil the requirements of section 17(1)(c) of the Civil Service Commissioners Act, 1956. The complainant was so advised by letter dated 29 November 2001.
4.8 The complainant appealed the decision (by letter dated 1 March 2002) and on foot of the appeal, the complainant attended Dr. Mc Sorley, CMO An Post on 27 May 2002. Dr. Mc Sorley supported the appeal and recommended the complainant as suitable for appointment. The complainant was so informed by letter dated 18 June 2002. By letter dated 11 July 2002, the complainant was assigned to the Department of Health and Children and the he took up duty on 19 August 2002. The respondent submits that in the circumstances as outlined above, there has been no discrimination.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant alleges that the respondent discriminated against him on the disability ground in relation to promotion to the post of Executive Officer. In this case, I will consider whether the respondent directly discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act when it refused to appoint him to Executive Officer on the basis of his sick leave record. I will consider (i) whether the complainant had a disability within the meaning of the Employment Equality Act, 1998, (ii) whether he has established a prima facie case of discrimination on the disability ground and (iii) in the event that he has so established a case, whether the respondent has rebutted the complainant's claim. 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
Claim of discrimination on the disability ground:
5.2 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 (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) provides that as between any two persons, the discriminatory grounds are, inter alia:
(g) 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"),
5.3 "Disability" is defined in section 2 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".
Issue whether complainant's illnesses amounted to a disability
5.4 The complainant in any case of disability discrimination would firstly have to prove that he has/had a disability within the meaning of the Act and I will consider this issue first. The complainant submits that he suffered from asthma and irritable bowel syndrome and that the majority of his sick leave absences related to the two illnesses. On the face of the table of illnesses presented to me which was drawn up by the Department of Enterprise, Trade and Employment at the request of the respondent, it is not clear that the majority of the complainant's absences were due to these two illnesses. The record consists of a table indicating the duration of the illness, whether certified or uncertified and a brief description of the illness, e.g., flu, abdominal pain, bronchitis/viral infection, viral fatigue, and acute gastritis etc. Further elaboration on the point by the complainant and medical guidance on the matter would have been helpful. However, for the purposes of this particular case only and for reasons which are obvious at the end of this decision, I will accept the complainant's argument and I will proceed to examine whether both asthma and irritable bowel syndrome could amount to disabilities within the meaning of the Act. I must point out that in another such case, I would expect adequate evidence on the issue which would be a matter of proof for the complainant. I have noted that it is disputed by the respondent that both of the complainant's illnesses amounted to disabilities within the meaning of the Act. The complainant submits that his illnesses fell within subsection (b) of the definition of disability in section 2(1) of the Act. He submits that his illnesses related to 'the presence in the body of organisms causing, or likely to cause, chronic disease or illness'.
5.5 The respondent submitted a definition of 'asthma' from the Butterworths Medical Dictionary (1978). That definition provides in respect of asthma that it is:
"The term used for a syndrome characterized by paroxysmal attacks of dyspnoea of
expiratory type. These are caused by a narrowing of the smaller bronchi and
bronchioles due to spasmodic contraction of the circular muscles of the bronchi together with swelling of the mucous membrane and later an exudation of mucus. It is a manifestation of the allergic state, and occurs in persons who have become sensitized to some foreign substance usually of protein nature or a bacterial toxin. The predisposition to become sensitized is in many cases, if not in all, inherited. The offending substances or allergens may enter by inhalation, ingestion or injection, the first being the most important. ....."
Black's Medical Dictionary states in relation to the cause of asthma that genes seem to be associated with the condition of hypersensitivity in which subjects have a predisposition to form antibodies against allergens they encounter, especially inhaled allergens.
I have also considered the definition of 'organism' in the New Oxford Dictionary and it provides as follows:
1. Organic structure; organization.
2. An organized or organic system; a whole consisting of dependent and interdependent parts, resembling a living being.
3. An organized living body; esp. (the material structure of) an individual animal, plant, bacterium etc.
I have considered the various definitions and I am not satisfied that asthma (which according to Butterworths Medical Dictionary is, inter alia, a narrowing of the smaller bronchi and bronchioles of the lungs) amounts to a disability within the definition of subsection (b), i.e. the presence in the body of organisms causing, or likely to cause, chronic disease or illness.
5.6 I will now consider the definition of irritable bowel syndrome. The respondent submitted that a definition of irritable bowel syndrome was not included in Butterworth's Medical Dictionary (1978). The definition in Black's Medical Dictionary provides:
"A motility disorder of the intestinal tract. .... The cause is not fully understood but the main abnormality seems to be a disturbance of involuntary muscle movement in the large intestine. ....."
I have considered the above definition and in particular, that it is caused by a disturbance of involuntary muscle movement in the large intestine and therefore, I am not satisfied that irritable bowel syndrome is a disability which falls within subsection (b) of the definition of disability and relates to the presence in the body of organisms causing, or likely to cause, chronic disease or illness.
5.7 As stated in the preceding paragraphs, I find it difficult to reconcile the complainant's illnesses with subsection (b) of the definition of disability. However, I will proceed to examine whether the illnesses could fall within any of the other subsections of the definition of disability. Section 2(1) of the Act defines disability in broad terms. It provides at subsection (c) that disability includes "the malfunction, malformation or disfigurement of a part of a person's body," I have considered a number of Labour Court cases of discriminatory dismissal on the disability ground which concern illnesses such as diabetes, epilepsy, a congenital neuro muscular disease, a hearing difficulty and injuries sustained in a car accident. The Court has stated:
"Section 2 defines disability in broad terms and, in the Court's view, epilepsy is covered by the definition contained at Section 2(c)."1
The Court in the case of Customer Perception Limited v. Gemma Leydon considered in that case whether injuries sustained by the complainant in a road traffic accident amounted to a disability within the meaning of the Employment Equality Act, 1998. It held:
"Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition."2
In my view, both asthma and irritable bowel syndrome are malfunctions of the airways of the lungs and the intestinal tract respectively and more appropriately fall within the definition contained at subsection (c). I therefore accept that both conditions amount to disabilities within the meaning of the Act.
Establishing a prima facie case of discrimination on the disability ground
5.8 The next issue for consideration is whether the complainant has established a prima facie case of direct discrimination on the disability ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell3 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.9 More recently, the Labour Court has stated in relation to the burden of proof in a case concerning a dismissal on the disability ground:
"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 2001). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove on the contrary on the balance of probabilities."4
5.10 I have found that the illnesses of asthma and irritable bowel syndrome amount to disabilities within the meaning of the Employment Equality Act, 1998. As stated at 5.4 above, it is not clear from the table of the complainant's illnesses dated 4 September 2001 that most of his illnesses related to asthma and irritable bowel syndrome. However, solely for the purposes of this particular case, I have accepted the complainant's argument. The respondent has not disputed that the complainant was initially refused promotion to the post of Executive Officer on the basis of his sick leave record. On the basis that the complainant was refused promotion to the post on the grounds of his sick leave which was attributable to two disabilities, I find that the facts give rise to a presumption of discrimination and the complainant has established a prima facie case of discrimination on the disability ground.
General Civil Service Regulations governing sick leave
5.11 I will firstly examine the Civil Service Regulations governing sick leave and then proceed to examine what happened in the complainant's case. Section 17(1) of the Civil Service Commissioners Act, 1956 provides, inter alia, that:
"a person shall be accepted by the Commissioners as qualified for appointment to a position for which a competition is held if, but only if, the Commissioners are satisfied that -
(c) he is in good health and free from any physical defect or disease which would be likely to interfere with the proper discharge of his duties in the position......"
Circular 34/76 issued by the Department of Finance which provides the procedures to apply having regard to section 17 states at paragraph 3.2:
"In considering an officer's suitability for establishment or promotion .... , Departments should examine his sick absence record over the previous four years from two angles
- firstly, to see whether there is any indication that the officer is suffering from something affecting or likely to affect his health
- secondly to determine whether his sick absence record is such that it can be regarded as compatible with the requirements of regular and effective service.
If the Department is not satisfied under either of these headings, the case should be referred to the Chief Medical Officer for his advice."
5.12 The Circular then elaborates on the procedures to be applied in order to ensure uniformity in the clearance of candidates for promotion or establishment on the basis of health considerations and sick absences. Paragraph 3.3 of Circular 34/76 provides that:
"The Chief Medical Officer will advise whether or not the officer is suitable from the health point of view. However, if the Chief Medical Officer advises that the officer is suitable from the point of view of health, the question could still remain whether the officer is suitable having regard to the extent and pattern of his sick absences. This latter question has to be decided on by the Department in the light of the provisions of 3.4 following and of any advice given by the Chief Medical Officer. It entails a decision on the compatibility of the sick absence record with the requirements of regular and effective service."
5.13 Paragraph 3.4 of the Circular provides that the limits to be applied in relation to sick leave are not more than 56 days leave and (having regard to the pattern of the absence) not more than 25 absences, in four years. Paragraph 3.4 also allows for the automatic discounting of sick leave absences in certain instances. Paragraph 4.1 provides for an appeal to be made to the Chief Medical Officer where an officer is not accepted as suitable on health grounds. Paragraph 5.2 of Circular 34/76 as amended by Circular 32/91 provides that where a candidate disputes rejection following the reference of the case to the CMO, an appeal to further medical opinion will be available in some circumstances.
5.14 Following the coming into operation of the Employment Equality Act, 1998, Circular 33/99 further amended the provisions on the clearance of candidates for promotion or establishment in relation to sick absences and health considerations. Circular 33/99 refers to paragraph 3.4 of Circular 34/76 which provides for the discounting of sick leave in certain circumstances. Additionally, paragraph 3 of Circular 33/99 further states that the Department of Finance is aware that there are a small number of exceptional cases where candidates for promotion may not have certain sick leave absences discounted under existing sick leave provisions. It cites as examples, an isolated episode of illness such as an uncomplicated heart attack or isolated diabetic complication and states that in such cases whilst the individual may require ongoing medical treatment or monitoring, the CMO and the parent department of the officer may be of the opinion that the illness will not detract from the suitability of the candidate from a health point of view and his or her ability to provide regular and effective service in the future.
5.15 Paragraph 4 of that Circular states that to allow for such exceptional circumstances, he provisions on the clearance of candidates for promotion or establishment by reference to sick absences and health considerations will be modified by the following:
"In cases where a candidate for promotion or establishment has had in excess of 56 days sick leave and (having regard to the pattern of absence) not more than 25 sick absences in 4 years (or pro rata where the service of the officer is less than 4 years), a substantial proportion (as determined by the Personnel Officer) of which has been due to an isolated episode of illness, departments may refer the case to the Chief Medical Officer for review. If the CMO is of the view, in the light of the medical evidence on the isolated episode of illness, that the medical condition which gave rise to it is unlikely to impinge on the suitability of the candidate from a health point of view, it would be open to the department to consider, in the light of the amount and pattern of sick absences of the candidate, whether the absence associated with the single episode of illness could be ignored in determining suitability for promotion."
5.16 There has been a subsequent amendment to the Civil Service regulations for clearing candidates for promotion or establishment in relation to sick absences and health considerations by Circular 17/03. The Circular specifically refers to the obligations of Departments/Offices under the Employment Equality Act, 1998 and the obligation to provide reasonable accommodation citing some examples of reasonable accommodation. It also identifies a mechanism whereby staff members who have disabilities and a sick leave record which is likely to affect his/her ability to carry out the functions of the higher grade are identified as part of the normal course of managing staff. It provides that assessments of the position of any staff who would fall into that category should be carried out and if it is found that such a sick leave record would affect promotion, Personnel Officers should inform the staff member accordingly. It also provides that staff with a disability who are concerned about their sick leave record may discuss the matter with local management or the Personnel Officer. The Circular in question was not applicable at the time of the competition in issue.
Application of the Regulations to the complainant's case:
5.17 On 4 October 2001, the Civil Service Occupational Health Department requested a report from the CMO in relation to the complainant's sick leave absences from 21/05/98 to 12/06/98 and 01/10/99 to 05/11/99. On 05/11/01, the CMO advised that the latter absence could be discounted under Circular 33/99. The complainant was advised by letter dated 29 November 2001 that details of his sick leave were forwarded to the Chief Medical Officer who advised the respondent that 36 days sick leave in 1999 could be discounted. He was also informed that discounting that particular absence did not bring his record within the limits specified by Circular 34/76 and that his application for promotion to the post of Executive Officer could not therefore be regarded as successful. In that letter, the complainant was also advised of the independent appeals mechanism. The complainant responded by letter dated 12 December 2001 indicating his intention to appeal. On 1 February 2002, the CMO, following a further referral by the Civil Service Occupational Health Department on receipt of a letter from the complainant's doctor, indicated that no further sick leave was discountable under the civil service sick leave regulations.
5.18. The complainant appealed the decision not to appoint him due to his sick leave by a letter dated 1 March 2002. In accordance with paragraph 5.1 of Circular 34/76 as amended by Circular 32/91, the complainant appealed for the illnesses to be discounted on the basis that the absences were due to a health problem that had been rectified. In that letter, the complainant stated that most of his sick leave absences were due to two illnesses, which amounted to a disability within the meaning of the Employment Equality Act, 1998. He further stated that his doctor's letter of 19 December 2001 confirmed that the illnesses were under control. It is important to note that there is no reference in the table of illnesses (which was provided by the complainant's parent department to the respondent when he fell to be considered for promotion) to a disability. As stated previously, the document does not give any indication that the illnesses amounted to a disability. The respondent would not itself have any record of the complainant's sick leave. The respondent therefore, first became aware of the complainant's contention that most of the absences were caused by a chronic illness amounting to a disability in the letter of appeal dated 1 March 2002 which contained the reference to a disability.
Obligations under the Employment Equality Act, 1998
5.19 Section 17 of the Civil Service Commissioners Act, 1956 and any Circulars specifying procedural requirements in relation to sick leave must be read in conjunction with the relevant provisions of the Employment Equality Act, 1998. Section 16(1)(b) 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 -
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."
5.20 That section is qualified by section 16(3) which 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 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.
5.21 Section 16(3) imposes an obligation to do all that is reasonable to accommodate the needs of a person with a disability subject to the nominal cost requirement. I will now consider whether the respondent did all that was reasonable to accommodate the complainant's needs. The respondent first became aware of the complainant's contention that most of the absences were caused by a chronic illness amounting to a disability in the letter of appeal dated 1 March 2002. Once the respondent was informed by the complainant that his illnesses were caused by disabilities, it then became necessary for them to consider section 16 of the Act. In A Health and Fitness Club -v- A Worker5, the Labour Court considered that the "nature and extent of the enquiries which an employer should make will depend on the circumstances of each case." It held:
"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 Section 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."
5.22 In accordance with the principles enunciated in A Health and Fitness Club -v- A Worker, the respondent should firstly have considered the factual position concerning the complainant'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 respondent either from the employee's doctors or obtained independently. Following the complainant's appeal on 1 March 2002, the Civil Service Occupational Health Department recommended that the complainant's case be referred to an independent Medical Specialist - the Chief Medical Officer of An Post. On 11 June 2002, the Civil Service Occupational Health Department report stated that the appeal Specialist indicated that the complainant was suitable in view of his improved sick leave record. The complainant was informed by letter dated 18 June 2002 that his appeal against rejection on sick leave grounds was successful and that he was under consideration for assignment and on 11 July 2002, he was informed that he was being appointed to a particular Department. The respondent in this case firstly informed itself as to the medical situation with regard to the complainant through independent means and at that stage, found the complainant to be fully capable and proceeded to appoint him. They, therefore, did not consider the second part of the process which provides that "if it is apparent that the employee is not fully capable Section 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."
5.23 As referred to at paragraph 5.19 above, there is no obligation on a person to romote an individual if the person is not fully competent and available to undertake and fully capable of undertaking the duties of a post having regard to the conditions under which the duties are to be performed - section 16(1)(b). However, section 16(3) imposes an obligation to do all that is reasonable to accommodate the needs of a person with a disability subject to the cost being nominal. In accordance with Labour Court principles, that obligation must follow a particular two stage process. Once the respondent became aware of the complainant's contention that his absences due to illness were caused by disabilities within the meaning of the Act, the respondent followed part one of the process and looked at the factual evidence concerning the complainant's disability by obtaining independent medical evidence. As a result of that process, the complainant was found fully capable and it was therefore not necessary for them to proceed through to the second stage and liaise with the complainant and consider what special treatment or facilities the complainant required to enable him to be fully competent and capable. Accordingly, I find that in the circumstances of this case, the respondent has rebutted the claim of discrimination on the disability ground.
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to promotion to the post of Executive Officer.
1 June 2004
1A Computer Component Company v A Worker EED013 18 July 2001
2NO. EED0317 12 December 2003
3DEE011 15 February 2001
4Valerie Cascella and Antonio Cascella t/a Donatellos Restaurant v. A Worker EED043
5EED037 18 February 2003