FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : THE ALZHEIMER SOCIETY (REPRESENTED BY MASON, HAYES AND CURRAN SOLRS) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 Dec-E2006-10
BACKGROUND:
2. The Society appealed the Equality Officer's decision to the Labour Court on the 2nd May, 2006. A Labour Court hearing took place on the 30th January, 2007. The following is the Court's determination:
DETERMINATION:
The Complainant commenced employment with the Alzheimer Society of Ireland (the Respondent) in August 1997 as Nurse Manager of its day centre at Drimnagh, in Dublin.
The Complainant took sick leave in October, 2002, when she developed a number of medical conditions. During the Complainant’s absence the Respondent made arrangements to cover her duties. These arrangements involved employing a part time nurse and assigning her administrative duties to another staff member on an acting basis.
Under the Respondent’s sick pay scheme the Complainant was entitled to be paid her full salary for the first six months of absence and half pay for the following six months. Her entitlements under that scheme became exhausted in November 2003. In or about October, 2003, the Complainant contacted the Respondent and indicated that she had sufficiently recovered from her illness to resume work. Her Doctor advised that she should return to work initially on a part-time basis. The Respondent referred the Complainant to its medical adviser who confirmed her fitness to resume work. The Respondent’s Doctor also concurred in the opinion that an initial period of part-time working would be beneficial to the Complainant.
Further meetings and correspondence ensued between the Respondent, the Complainant and her Trade Union in relation to her proposed return to work. In or about January, 2004, the Respondent informed the Complainant that it did not propose allowing her to resume employment in the Nurse Manager role which she previously held. Instead it offered her a nursing post with some limited management functions at another centre. The Complainant declined to accept this offer. Notwithstanding further contact between the parties the dispute was not resolved.
Against that background the Complainant claims to have been discriminated against on the disability ground, in contravention of Section 8 of the Employment Equality Act 1998 (the Act), in not being allowed return to her contracted post. The complaint was referred to the Equality Tribunal and was investigated by and Equality Officer who found with the Complainant. She ordered that the Complainant be restored to her former post with the Respondent without loss of pay and that she be paid compensation in the amount of €20,000. The Respondent appealed to this Court.
Position of the Parties.
Respondent’s case.
The Respondent contends that as a result of restructuring at the day centre at which the Complainant had been employed it no longer required the services of a Nurse Manager. It was submitted on the Respondent’s behalf that while the Complainant was absent on sick leave it put arrangements in place to cover her work which it found satisfactory and decided to maintain on a permanent basis. Thus, it was submitted, the position of Nurse Manager ceased to exist as a result of this restructuring and not in consequence of the Complainant’s illness.
The Respondent further contended that the Complainant was medically unfit for work and in receipt of state disability benefit in the period in respect of which the Equality Officer awarded her arrears of wages. On that account it submitted that the Complainant is not entitled to recover arrears of wages in respect of that period. The Respondent pointed out that the Complainant sought to contend before the Equality Officer that the illness in question was induced by the discrimination which she allegedly suffered. In preparing for this appeal the Respondent’s Solicitors had written to the Complainant’s Union seeking her agreement to undergo a medical examination for the purpose of ascertaining the nature and cause of her illness. The Complainant’s Union refused to agree to such an examination.
Evidence on behalf of the Respondent was given by Mr Maurice O’Connell who is its Chief Executive Officer and by Mr Edward Rowland, who was its Human Resource Manger at the material time.
Evidence of Mr Maurice O’Connell.
The evidence given by Mr O’Connell can be summarised as follows: -
The witness told the Court that he was appointed Chief Executive Officer with the Respondent in 1999. He outlined to the Court his prior experience in managing similar caring services. The witness told the Court that when he took over the Respondent organisation he had caused a review of its structures to be undertaken. He said that at that time it was a small society staffed mainly by volunteers with a small number of employees. Having received public funding for the society he set out to develop the services it provides. Over the intervening time the number of staff employed by the Society has grown from approximately 100 in 1999 to 800 currently. However the number of nurses employed has only increased from 20 in 1999 to 35 currently.
Mr O’Connell told the Court that the current policy of the Respondent is to assign administrative duties to non-clinical staff and to deploy nurses in working with its client group in enhancing the quality of their lives. Turning to the role of Nurse Managers in the organisation, the witness said that hitherto they would have headed-up the branch in which they worked and they would have had a broad management function in respect of that branch. According to Mr O’Connell that position has now changed and a new management structure is in place involving a Regional Manager with responsibility for a number of centres and services. The current practice is to assign the administrative functions at the local level to non-nursing staff. The witness told the Court that the Respondent has 27 day centres throughout the country, 18 of which are managed by non-nursing personnel.
In relation to the management structure at the Drimnagh centre, Mr O’Connell’s said that while the Complainant was on sick leave arrangements were put in place to cover the duties which she normally performed. That involved assigning her administrative duties to a care worker on an acting-up basis and engaging the part-time services of a temporary nurse. The Court was told these arrangements proved satisfactory and cost effective from the Respondent’s prospective.
Mr O’Connell accepted that the Complainant had contacted him in or about October 2003 and indicated her fitness to resume work. At that point, he said, the new arrangements were in place and in consequence the Complainant’s old role was no longer available. The witness did not indicate this to the Complainant but advised her to contact the Regional Manager, Ms McNamara in relation to her proposed return to work. Subsequently, on receiving a report from Mr Rowland and Ms McNamara, Mr O’Connell approved a proposal to formalise the arrangement then in place at the Drimnagh centre. He understood that the Complainant would be offered an alternative position on her return, details of which were provided to the Court. The witness accepted that the Complainant had at all times carried out her duties in a most satisfactory manner. He said that the decision not to allow the Complainant resume her previous role was related to the organisational needs of the Respondent and was unrelated to her illness. Mr O’Connell accepted that had the Complainant not gone on sick leave the management's functions at the Drimnagh centre would not have been changed and she would be still employed there as a Nurse Manager.
In cross-examination Mr O’Connell accepted that the committee of the Drimnagh centre had met with him to express their dissatisfaction at the arrangements which had been put in place for the management of the centre. He further accepted that the Complainant had qualifications superior to the person who had been assigned the administrative role at the centre. The witness agreed that he received regular up-dates on the Complainant’s medical condition during her absence. He also knew that she had been examined by a Doctor nominated by the Respondent. He did not know that the Complainant had developed a depressive illness. The witness also accepted that the person appointed to the administrative post in Drimnagh had signed her contract on 18th November, 2003. He said, however, that she had acted in that capacity for some time prior to that date.
Evidence of Mr Edward Rowland.
Mr Rowland’s evidence can be summarised as follows: -
The witness told the Court that at the time material to this case he was the head of human resource management with the Respondent. He could not recall when the current administrator of the Drimnagh centre was first appointed to that role. He did however confirm that he wrote to this person in July, 2003 informing her that she would receive an acting-up allowance in respect of additional administrative duties. That allowance was to be backdated to April, 2003. He said that the decision to make this payment was taken by the Regional Manager. The witness acknowledged that the administrator had signed her contract on 18th November, 2003, but he was sure that he had sent it to her in or about July of that year. He could not offer an explanation for the delay in having the signed contract returned.
Mr Rowland recalled receiving a certificate from the Complainant’s Doctor in November 2003 to the effect that she was fit to resume work on a part-time basis. He also recalled having received a report from the Doctor nominated by the Respondent to similar effect. The witness said that the Regional Manager was going on leave at that time and it was decided to defer making a decision on the Complainant’s return to work until the Regional Manager’s return.
Mr Rowland told the Court that the Regional Manager, Ms McNamara, had subsequently advised that the temporary arrangement in place at the Drimnagh centre should be formalised on a permanent basis and that the Complainant should not be restored to her former role. He concurred in that view and he sent a memo to Mr O’Connell on 12th January setting out that advice.
A meeting was subsequently arranged with the Complainant and her Union on 18th February 2004 to discuss the Complainant desire to resume work. This meeting was attended by the witness, the Regional Manager, the Complainant and her Union Official. Mr Rowland told the Court that in the course of this meeting the Complainant indicated her desire to return to work in a full-time capacity. He said that this was the first occasion on which he became aware that the Complainant was available for full-time work. While the witness was unclear in his recollection of the detail of the meeting he believed that the circumstances leading to the decision to confirm the administrator in that post was explained.
In cross-examination the witness said that he did not assume that the Complainant wanted to work part-time indefinitely. He also accepted that the e-mail setting out the advice not to allow the Complainant resume her former duties was sent to Mr O’Connell two days before the Regional Manager met with the Complainant to discuss her position. The witness said that he was unaware of the Complainant having a depressive illness but he accepted that the report from the Doctor nominated by the Respondent, which was written on 24th November, 2003, referred to her having been diagnosed as suffering from reactive depression.
The witness also accepted that he had a telephone conversation with the Complainant in November 2003 in relation to her return to work. He denied, however, that he told the Complainant that “there were issues” in relation to her return to work.
In answer to a question from the Court, the witness said that it had been decided not to allow the Complainant return as a nurse manager either on a part-time or a full-time basis.
The Complainant’s case
The Complainant’s case is that she was employed as Nurse Manager of the Respondent’s centre at Drinmagh and that she had a right to return to that job when she recovered from illness. She said that the question of restructuring at the centre was never raised with her during the currency of her illness nor when she indicated her availability to return to work. She submitted that the arrangements which had been put in place during her absence were temporary and the Respondent only moved to formalise them after her recovery.
The Complainant contended that when she first met with the Regional Manager of the Respondent to discuss her return to work she was given to understand that she would be returning to her original role and there was no suggestion of any impediment to her so doing. It is the Complainant’s case that when she discussed her medical condition with the Regional Manager, and particularly her continuing depressive illness, the Respondent’s attitude towards her changed and it was only then that difficulties with her return to duty began to emerge. The Complainant submitted that while the Respondent claimed that another person had been appointed to undertake the management role at the Drimnagh centre during her illness, it was clear that this appointment was in fact made some weeks after she was certified as fit to resume work. On these facts the Complainant contends that she had made out a prima facie case of discrimination on grounds of disability and the onus of proving the absence of discrimination shifts to the Respondent.
The Complainant’s evidence.
The Complainant told the Court that she commenced employment with the Respondent in 1997. She referred to her contract of employment which provided that she would be employed as the Nurse Manager of the Drimnagh day centre. The contract also contained a job description setting out her duties which included a role in the general administration of the centre.
The Complainant told the Court that in October, 2003, she contacted the CEO of the Respondent by telephone and informed him that she would be fit to return to work within a matter of weeks. The CEO told her to contact the Regional Manager, Ms McNamara, to make the necessary arrangements. The witness was not previously acquainted with Ms McNamara who came to work for the Respondent after she became ill. The Complainant told the Court that she met with Ms McNamara in late October 2003 and was entirely satisfied with the meeting. She said that Ms McNamara was supportive and expressed herself happy at the prospect of the Complainant resuming work as Nurse Manger. Ms McNamara indicated that some arrangements would have to be put in place and proposed that the parties meet again.
The Complainant met with Ms McNamara again on 19th November, 2003, to discuss her return to work. At this meeting, which lasted approximately 15 minutes, the Complainant discussed her medical condition with Ms McNamara (who is herself a nurse), and told her that she was still suffering from depression and was on medication for that condition. It was the Complainant’s evidence that Ms McNamara remarked that that could have long-term implications. Ms McNamara undertook to contact the Complainant later
The Respondent then referred the Complainant to a Dr Murphy for a medical examination. She told the Court that she attended Dr Murphy on 20th November. The Doctor certified her as fit to return to work, initially on reduced hours.
The Complainant said that following this examination she made several phone calls to Ms McNamara but none of her calls were returned. She subsequently contacted Ms McNamara’s secretary who said that Ms McNamara was busy and would ring her back. Ms McNamara did not contact her. The Complainant then contacted Mr Rowland and asked for a return date. Mr Rowland told her that he would pass her request on to Ms McNamara. Ms. McNamara then advised the Complainant by letter that she was leaving the country on holidays and would not return until after Christmas. She advised the Complainant to contact Mr Rowland in relation to her return to work. The Complainant subsequently contacted Mr Rowland who said that here were issues in relation to her return to work. He refused to elaborate on what he meant by that expression. Mr Rowland informed the Complainant that he could not deal with her request for a return to work date and she would have to await Ms McNamara’s return.
The Complainant finally met with Ms McNamara on 14th January, 2004. Ms McNamara told her that she would not be going back to her old job and offered her 20 hours work per week as a nurse. The Complainant declined that offer. The Complainant asked Ms McNamara who was managing the centre and was told that a Ms Scanlon, who had been a care worker, had been assigned that role. The Complainant asked if she would be expected to report to Ms Scanlon but Ms McNamara declined to answer her question.
The Complainant told the Court that in her original role she had full access to the families of clients and would normally establish the medical history of those using the services provided by the centre. She said in the role proposed she would not have that access, which she regarded as wholly unacceptable.
In cross-examination the complaint acknowledged that she had been offered two alternative positions elsewhere in the Respondent Organisation, which she declined. She said that neither post involved managerial responsibilities and were not comparable in terms of status or duties with her original post. She said that at all times she wished to return to the post of Nurse Manager in accordance with her contract of employment and was not prepared to accept a lesser post.
The Complainant accepted that she was in receipt of disability benefit from the department of social welfare from the time she first sought to return to work up to the present. She said that arising from the manner in which the Respondent treated her she developed stress and anxiety. She was given medical certificates by her doctor to that effect which she submitted for the purpose of obtaining disability benefit. The Complainant said that she had no other source of income during this period. She said that she could not have obtained other work or benefits as she had not been dismissed and the Respondent retained custody of her P45. The Complainant’s evidence was that her condition was as a result of the distress caused to her in not being allowed resume work. Both she and her Doctor were satisfied that had she been allowed to return to work at any point she would have received clearance from her Doctor to do so.
The Complainant further accepted that neither in a statement submitted to the Equality Officer nor in correspondence to the Respondent was it ever suggested that she was suffering from depression in consequence of not being allowed to resume work as a nurse manger.
Findings of fact
The Court has carefully considered the evidence adduced in the course of the hearing and the documentary material with which it was provided.
It is accepted that the Complainant fulfilled her role as Nurse Manager of the Respondent’s Drimnagh centre with skill and dedication and that she gave satisfactory service in every respect. The Court is satisfied that the arrangements which were put in place to cover the Complainant’s absence were regarded as temporary in nature and intended to continue until the Complainant returned. Had it been decided to formalise these arrangements on a permanent footing during the currency of he Complainant’s absence on sick leave some record to that effect would have been available. Moreover, the evidence of Mr Rowland confirmed that the decision not to allow the Complainant return to her original post crystallised in or about January, 2004, some three months after the Complainant indicated her availability to resume work.
It appears to the Court that the discussion which the Complainant had with Ms McNamara on 19th November, 2003, was the catalyst for the difficulties which subsequently ensued. The Court accepts the Complainant’s evidence that the initial meeting with Ms McNamara was amicable and supportive but that after the second meeting, at which her then current medical condition was discussed, her attitude changed and she became evasive and unresponsive to the Complainant’s continued attempts to obtain a return date. The Court is also satisfied that the decision not to allow the Complainant resume her prior role was taken on foot of recommendations made by Ms McNamara to Mr Rowland and, through him, to Mr O’Connell.
It is clear on the evidence that the Respondent decided not to allow the Complainant resume her former role in either a full-time or a part time capacity. In consequence, the failure of the Respondent to facilitate the Complainant with part-time work initially was more likely to have been a manifestation of the uncertainty created around her future role in the organisation than a refusal to provide her with reasonable accommodation in returning to her original role. The Court is, therefore, satisfied that there was no refusal on the part of the Respondent to allow the Complainant a period of part-time workingper se.Rather, the Respondent was not prepared to allow the Complainant return to her original post as Nurse Manager, either in a part-time or a full-time capacity.
The law applicable
Section 6 of the Act provides that discrimination shall be taken to occur where, on any of the discriminatory grounds, one person is treated less favourably than another is, has been or would be treated. It is common case that the claimant’s illness constituted a disability as that term is defined by s 2 of the Act.
Section 6 of the Act requires that the impugned treatment be judged by comparison to that of an actual or hypothetical comparator who was absent from work either because of a different disability or for a reason other than disability. In that regard the Complainant relied upon the treatment of the CEO of the Respondent who was absent from work because of a different illness. He was replaced temporally while absent and was allowed resume his full duties on recovery. The Court accepts that the CEO is an appropriate comparator for the purposes of the instant case.
In its submission to the Court the Respondent contended that if it did discriminate against the Complainant, which it denied, this was objectively justified by the need to restructure the services provided at its Drinmagh centre. Such a defence could have no application in the instant case. What is at issue is a complaint of direct discrimination. As a matter of settled law the defence of objective justification is only available in a case of indirect discrimination.
Burden of Proof.
It is now trite law that in cases of discrimination the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. If that burden is discharged the probative burned of establishing that the principle of equal treatment was not infringed in relation to the Complainant shifts to the Respondent.
The primary facts relied upon by the Complainant are that the question of her return to her contracted post only became an issue for the Respondent after she told the Regional Manager of her continuing medical condition, and in particular that she was suffering from depression. She asserts that the Regional Manager expressed the view that this could have long-term implication. The Complainant suggested that the Regional Manager might have been apprehensive that she would require further sick leave in the future.
It can be inferred from the findings of fact made by the Court in relation to these assertions (and set out earlier in this Determination) that the decision not to allow the Complainant resume her contracted role was influenced by her medical or psychiatric condition. This is sufficient to shift the probative burden to the Respondent. Accordingly the Respondent must prove, on the balance of probabilities, that the principle of equal treatment was not infringed in relation to the Complainant.
The principle of equal treatment.
Article 2 of Directive 2000/78/EC, establishing a framework for equal treatment, provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on any of the protected grounds. The time for transposing that Directive expired on 2nd December, 2003. The Court is satisfied that the discrimination alleged by the Complainant occurred on or about January, 2004, when the decision not to allow her resume her former role was crystallized. Hence, in respect to the instant case, the Act must be construed in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive. This follows from the decision of the ECJ in Case C-106/89Marleasing S.A. v La Commercial Internacional de Malimentacion S.A. [1990] ECR 4135.
Thus the obligation on the Respondent is to prove that there was no discriminationwhatsoeverin its decision not to allow the Complainant return to her role as Nurse Manager. This clearly means that a discriminatory reason need not be the only or even the dominant reason for the impugned decision. This point was previously considered by this Court inNevins, Murphy, Flood v Portroe Stevedores[2005] 16 282, when it said the following: -
- Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1998] I.R.L.R. 73 , per Lord Nicholls at p.576).
- In any event we doubt if Lord Nicholls's wording is in substance different from the 'no discrimination whatsoever' formula. A 'significant' influence is an influence which is more than trivial. We find it hard to believe that the principle of equal treatment would be breached by the merely trivial.
The Court is satisfied that this statement of the law should be adopted in the instant case. Thus the Court is satisfied that the Respondent must prove that the Complainant’s illness was not a causative factor in the decision not to allow her resume her contracted role, or if it was a factor that it was no more than a trivial influence.
Conclusion
Evidence regarding the reason for the Respondent’s decision was given by Mr O’Connell and Mr Rowland. The Court regards Mr O’Connell as having been somewhat remote from the decision in that he merely endorsed a position which had been taken by Mr Rowland acting on the advice of Ms McNamara, the Regional Manager. Mr Rowland appears to have been heavily influenced by what was said to him by Ms McNamara although his recollection of the material events was somewhat deficient. The Court is therefore satisfied that Ms McNamara was crucial to the decision making process. Ms McNamara was not called to give evidence and the Court cannot speculate as to what her evidence might have been.
In these circumstances the Court is satisfied that the Respondent has not discharged the probative burden which it bears and the presumption of discrimination has not been rebutted. Accordingly the Complainant is entitled to succeed.
Redress.
The Respondent has raised serious issues in relation to the redress ordered by the Equality Officer, which the Court must consider. It is accepted that the Complainant was medically certified as unfit for work throughout the period covered by this claim. The import of the Equality Officer’s award was to restore the Complainant to the position which she would have been in had it not been for the discrimination. Accordingly she directed that the Complainant be paid the salary which she would have received had she been at work. However, if the Complainant was unfit for work during this period she would not have been entitled to payment of her salary since her entitlement to sick pay had been exhausted. Thus, if she received her full salary (less the social welfare benefits) she would be placed in a significantly better position than she would have been in but for the discrimination.
The Complainant assets that her current medical condition is as a result of the discrimination which she suffered. If that were so she would be entitled to recover for the loss of salary which she suffered. However the Court cannot reach that conclusion on the basis of a bare assertion and in the absence of medical evidence to that effect. Moreover, the Respondent sought to controvert that assertion by asking the Complainant to undertake a medical examination by a practitioner nominated by it. This facility was refused on behalf of the Complainant.
In the circumstances the Court is of the view that it is appropriate to vary the redress ordered by the Equality officer as follows: -
•The Complainant should be re-employed by the Respondent as nurse manager of it Drimnagh centre, on the terms and conditions set out in her contract of employment and without loss of service form such date as she is medically certified to return to work.
•The Court is satisfied that the Complainant is entitled to a significant award of compensation for the effects of the discrimination which she suffered. She should be awarded compensation in the amount of €35,000 on that account, which the Court regards as a proportionate award in all the circumstances of the case.
Determination
The appeal against the findings of discrimination made by the Equality Officer is disallowed. The redress awarded is varied as set out above.
Signed on behalf of the Labour Court
Kevin Duffy
1st March, 2007______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.