Ms G (Represented by Murray Flynn, Solicitors) AND Berkeley Court Hotel, Dublin (Represented by IBEC)
1.1 This dispute concerns a claim by a complainant that she was discriminated against by the Berkeley Court Hotel on the ground of disability contrary to the provisions of the Employment Equality Act, 1998 when she was not provided with reasonable accommodation for her return to work following absence on sick leave. The complainant also claimed that she had been victimised by the respondent, but this claim was withdrawn at the hearing. As the investigation involved confidential medical information relating to the complainant, her identity has been withheld in this decision.
1.2 The complainant referred a claim to the Director of Equality Investigations on 13 March 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 17 April 2003 to Anne-Marie Lynch, 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. Submissions were sought from both parties and a joint hearing was held on 8 April 2004.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed as a House Assistant in the respondent's hotel. On 8 May 2000, she went absent on sick leave due to a stressrelated illness. In June 2000 she was examined by the respondent's occupational health practitioner who concluded that she was not fit to return to work. Following intervention by the complainant's general practitioner and her representative union, the complainant was examined in April 2001 by a consultant psychiatrist. The psychiatrist concluded that the complainant had recovered from her depressive illness and said that a structured return to work might have a positive therapeutic effect. He pointed out however that she had a hiatus hernia and that bending or stooping might well aggravate the problem.
2.2 The complainant contended that with reasonable accommodation she could have returned to her former position, but claimed that the respondent failed to provide her with such reasonable accommodation as was its obligation under section 16 of the 1998 Act. She said that in November 2001 the respondent offered her a return to work in a different capacity, which the complainant claimed was unsuitable in all the circumstances. Two positions had been identified by the respondent, one in the stillroom and the second in the staff restaurant. The complainant said that these positions attracted less favourable terms and conditions of employment than those attached to her position of House Assistant.
2.3 The complainant ultimately returned to work in the staff restaurant, under protest, in January 2002. She said that she continued to be discriminated against by the respondent in that the position involved working erratic shift patterns and attracted a lower allowance than the House Assistant post. The complainant asserted that she could have continued in her position as a House Assistant if the respondent had provided her with reasonable accommodation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent asserted that the claim in this matter was referred outside the six-month time period stipulated in section 77 of the Act. It said that the decision not to allow the complainant to return to her previous position was made and conveyed in April 2001 following the receipt of the psychiatrist's report. It said she was verbally offered an alternative position in April, and this offer was confirmed in writing in May 2001. The respondent said that the allegations of failure to provide reasonable accommodation, failure to act with due expedition to facilitate her return to work and the offer of alternative work at a lower rate of allowance and involving shift work all related to the decision made in April 2001. Since the complainant's referred her claim of discrimination in March 2002, the respondent contended that this was clearly outside the time limit.
3.2 Without prejudice to the above argument, the respondent denied that it had discriminated against the complainant on the ground of disability. It said that the complainant had initially gone on sick leave with a stress-related condition in 1999 and had been permitted to return to work by the occupational health practitioner in April 2000. This had proved unsuccessful and she again went on sick leave with the same complaint on 8 May. When she was seen by the occupational health practitioner in June, he was unprepared to recommend her return to work at that time. His report noted that the complainant had problems kneeling and suffered muscular pain in her back and "all over her body". He concluded that she was both mentally and physically unfit for work.
3.3 The complainant's general practitioner and her representative union both queried this decision and the complainant sought a consultant's opinion. She was ultimately seen by a doctor in January 2001, who concluded that she had no major medical problem of concern. He noted however that the complainant had expressed disappointment at being referred to a "lowly GP" and continued to be anxious for a consultant's opinion. The respondent had not realised that the doctor was not a consultant, and it immediately wrote to the complainant undertaking to arrange an appointment for her.
3.4 The consultant psychiatrist reported in April 2001 that the complainant had recovered from her stress-related illness but brought to the attention of the respondent, for the first time, that she suffered from hiatus hernia that would be exacerbated by stooping and bending. The respondent said that it is obvious that bending and stooping were essential features of a job which involved vacuuming and cleaning bedrooms in a hotel. On 23 April the respondent met the complainant and her representative union and informed them that it was not prepared to allow her to return to her House Assistant post because of health and safety implications. This decision was confirmed in writing on 2 May, when the respondent said that it had received medical advice that the House Assistant post would pose a risk to her condition even if she worked reduced hours. The letter said that two alternative positions, in the staff restaurant or the stillroom, had been identified and were available for the complainant's immediate return to work.
3.5 The question of the complainant's representation became confusing at this time. The respondent received a letter dated 8 May from Murray Flynn, Solicitors, advising that the complainant had instructed them and requesting that she be allowed to return to work as her general practitioner had certified her fit to work. The letter said, incorrectly, that a medical report was attached. Then, on 20 June, the complainant's union wrote requesting that she be seen by a specialist to provide a definitive medical opinion. On 2 July, the complainant's solicitors again wrote to the respondent criticising the fact that the respondent had continued to correspond with the union, demanding that she be re-instated to her previous position and advising that they had been instructed to issue proceedings unless she was re-engaged. This letter also, incorrectly, referred to an attached medical report.
3.6 By letter of 13 July, the respondent advised the solicitors that its only communication with the union had been its receipt of the letter of 20 June, which suggested that the complainant continued to use the union in the matter, and the respondent reiterated its offer of alternative work. The respondent also advised that the medical reports referred to had not been provided, but that the complainant's medical condition had been well documented by the respondent's medical advisers. The solicitors responded by letter of 3 August, which sought details of the terms and conditions of the alternative work being offered. The enclosed medical report, from the complainant's general practitioner, noted that stooping and bending were risk factors for the complainant's condition but said that she would prefer to return to work on a trial basis to see how the situation developed.
3.7 Between August and December of 2001 several letters were exchanged by the parties relating to the complainant's return to work. Ultimately the complainant accepted the position in the staff restaurant on the condition that she work the same hours as previously, namely 8am to 3pm. The respondent advised the complainant's representative that the position necessitated working a combination of shifts (8am-5pm, 9am-6pm, 7am-4pm and 3pm-12pm). Allowing the complainant to work fixed hours would mean the respondent having to create a position that did not exist or allow a situation where an employee did not provide the necessary cover. On 19 December, the complainant's solicitors accepted the offer of the position but reserved the right to raise the issue further. The complainant commenced work in the staff restaurant on 11 January 2002.
3.8 The respondent levied a 15% service charge on guests. This was pooled and distributed to staff in accordance with union agreements. Porters, House Assistants and waiting staff were in a pool which received 12.5% of the service charge, with 2.5% being distributed among all others except management. During 2002 the post of House Assistant carried a basic salary of €8,870 and the complainant's share of the service charge would have amounted to €10,977. During the same period the salary of the staff restaurant post was €13,650 and the share of the service charge amounted to €2,970. The complainant's new post therefore carried a higher basic salary, but lower allowance, as well as requiring shift work.
3.9 The respondent said that section 16 of the 1998 Act did not require an employer to retain in employment any person who is not fully competent and fully capable of undertaking the duties attaching to the position, and medical advice clearly showed the complainant was not fully capable of performing the duties of the House Assistant post. It said that it was under no obligation to offer the complainant alternative work, but that, when it decided to do so, no breach of the Act occurred when the terms and conditions that applied were those attaching to the alternative position.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the ground of disability contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including disability. Section 8 provides that:
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
The date of the alleged discrimination
4.3 However, the first matter to be dealt with in this case, before any consideration of the substantive issue, is the date of the alleged discriminatory incident. If the referral was out of time, I have no jurisdiction to consider the substantive issue.
4.4 The complainant was referred to the Equality Tribunal on 13 March 2002. Given the six-month time limit, the last occurrence of an allegedly discriminatory act must have occurred no earlier than 14 September 2001. The referral form stated that the first incident of discriminatory treatment was 8 May 2000, when the occupational health practitioner declined to recommend the complainant's return to work. The form indicated that the discrimination was ongoing. The respondent, on the other hand, asserted that the decision to refuse to permit the complainant to return to work was taken in April 2001, when it discovered that the complainant suffered from hiatus hernia.
4.5 I must find that the complainant's reference to 8 May 2000 is not relevant to this claim. The decision of the occupational health practitioner was taken as a result of his previous mistaken decision to permit the complainant to return to work in April 2000, and related to her depressive illness. It was confirmed by the complainant's representatives at the hearing that no assertions were being made in relation to the depressive illness, and that the claim related solely to her delayed return to work because of the hiatus hernia.
4.6 The respondent became aware of this condition only on receipt of the psychiatrist's report in April 2001. Its decision that the complainant could not return to her position of House Assistant, because she suffered from this condition, was conveyed verbally to the complainant and her representative union on 23 April 2001. The first occurrence of the allegedly discriminatory incident was therefore prior to, but no later than, 23 April 2001. However, in the circumstances, I must find that this also constituted the last occurrence. The respondent's position did not change during the intervening months. It repeated its decision in subsequent correspondence with the complainant's representative, but this correspondence was a reiteration of the original decision and did not constitute a new decision. Since this is the case, the complainant was referred outside the time limits specified in the Act.
4.7 Section 77 (6) of the Act provides that the time limit may be extended if on an application by the complainant the Director...is satisfied that exceptional circumstances prevented the complainant's case...being referred with the time limit... No such application was made behalf of the complainant, and no evidence was adduced that such exceptional circumstances existed. The complainant had instructed legal representation as early as May 2001, and no explanation was given as to why the claim was not referred for some ten months after this.
5.1 Based on the foregoing, I find that this complaint was referred outside the time limit stipulated in section 75 of the Employment Equality Act 1998, and I have no jurisdiction to investigate the claim.
15 June 2004