Ms Lizette Uwimana
(Represented by the Northside Community Law Centre)
1.1 This dispute concerns a claim by Ms Lizette Uwimana that she was discriminated against in relation to a failure to provide reasonable accommodation in terms of section 16 (3) (a) of the Employment Equality Acts, 1998 – 2007 and suffered discriminatory dismissal in terms of section 6(2) of those Acts by the TLC Centre on the ground of disability and contrary to section 8 of those Acts.
1.2 The complainant referred her claim of a failure to provide reasonable accommodation and discriminatory dismissal to the Director of the Equality Tribunal on 25 November 2005 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought and received from the parties, and a hearing was held on 22 November 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complaint submits that she started work with the respondent on 8 April 2005 as a Care Assistant. She received no job description, was advised of her duties orally and received no practical training. The work involved lifting patients every hour. On 14 May 2005 she went on sick leave with back pain. She went to her own doctor and Beaumont Hospital on 23 May 2005 and was diagnosed as having degenerative changes leading to arthritis of the back. She went back to work on 2 June 2005 but went on sick leave again on 5 June 2005. She saw her GP again on 8 June 2005 and was given a medical certificate until 22 June 2005.
2.2 On 9 or 10 June 2005 the respondent rang the complainant and asked her what was wrong and, despite having the medical certificate, asked the complainant to provide proof of her condition in the form of a letter from her doctor. She went to her GP on 13 June 2005 and got a letter which stated: “the above is suffering from degenerative changes in her spine. I have suggested to her that work as a care assistant may make the condition worse and she may be advised to seek employment that does not involve lifting.”
2.3 On 27 or 28 June 2005 the complainant, on her own initiative, went to her place of work and spoke to the Nursing Manager to discuss her future and was told that she had resigned as she could not be employed as a care assistant because of her back. The complainant asked if she could do any other work and was told that she would have to apply in the normal way by submitting her CV.
2.4 On the same day she met the Project Manager and was again told that she had resigned as she could not do the work of a care assistant and it was not an option to do the job without lifting and she would have to be able to do all the tasks. The complainant submits that she asked about taking over as the Activities Supervisor who was leaving 17 July 2005 and was told that she would have to apply.
2.5 On 29 June 2005 the complainant sent in another medical certificate to cover the period to 31 July 2005.On the same day the complainant submitted her CV to the Nursing Manager but never got a reply.
2.6 On 6 July 2005, at the complainant’s request, the respondent sent a letter to Social Welfare which stated that she had been employed until7 June 2005. The complainant submitted that she did not request her P45 but it was issued and stated that she was employed until16 June 2005. However, in a letter dated 30 November 2005 the respondent stated that the complainant had not been dismissed or asked to resign but that the respondent had been unable to offer her other employment and her job was still open if certified fit.
2.7 The complainant submits that she was dismissed because of her disability, the respondent failed to make adequate enquiries about her disability and did not attempt to provide reasonable accommodation.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent rejects the allegations of discrimination on the grounds of disability.
3.2 The respondent submits that they wouldn’t put someone into work as a care assistant without training and rejects the complaint’s criticism of her training. The respondent submits that the complainant underwent induction training and they submitted a copy of an induction checklist which the complainant signed against each area of training.
3.3 The respondent also rejected the complainant’s comments about the amount of lifting involved. They submit that most of the patients suffer from Alzheimer’s disease but on the first floor, where the complainant worked, most are able bodied and require assistance but do not usually need to be lifted.
3.4 The respondent submits that they requested a letter from the doctor in accordance with her terms and conditions of service to clarify the nature of the illness. On receiving the doctor’s letter of13 June 2005 the respondent concluded that the complainant was not capable of carrying out the full range of duties as a Care Assistant. However, they kept her position open until the complainant requested her P45 and they did not take the complainant off their pay roll until this time. They could not be definite when the P45 was requested but it was issued on 30 June and therefore must have been requested sometime in the previous fortnight.
3.5 At the hearing they submitted a letter from Dr Liam Lacey, CEO of the TLC Centre, dated 21 November 2007 confirming this and also his instruction to the Project Manager to “discuss the possibility of applying for another position provided her Medical GP deemed her fit to do so and the availability of any such position.”
3.5 The respondent confirmed that the Project Manager and the Nursing Manager met the complainant on 28 or 29 June 2005when she called to the workplace and discussed her position with the complainant but deny stating that she had resigned. She was advised to send in her CV and she would then be considered for a suitable position, should one become available. They submitted that to-date nothing suiting Ms Uwimana’s skills and experience have become available in TLC. At the hearing the respondent submitted that the activities coordinator post would have been unsuitable for the complainant as it requires some lifting.
3.6 The respondent submitted a second letter from the complainant’s GP dated4 July 2005 which states: “Although she is taking medication it is likely she will be incapacitated for the indefinite future.”
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant alleges that she was discriminated against in relation to her terms and conditions of service and that her employer failed to provide reasonable accommodation in terms of section 16 (3) (a) of the Employment Equality Acts, 1998 – 2007 and discriminatory dismissal in terms of section 6(2) of those Acts by the TLC Centre on the ground of disability and contrary to section 8 of those Acts. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The complainant’s doctor issued a letter on 13 June 2005 stating: “the above is suffering from degenerative changes in her spine. I have suggested to her that work as a care assistant may make the condition worse and she may be advised to seek employment that does not involve lifting.”I am therefore satisfied that at that time she was suffering from a disability in accordance with Section 2 of the Employment Equality Acts 1998 – 2007 and that the respondent was aware of the disability.
4.3 As the respondent made no attempt to contact the complainant after they received the GPs letter of 13 June 2005 it is my view that the respondent considered her unsuitable for work as a care assistant from that time and that she was no longer working for them. The only subsequent contact, the meeting on 27 or 28 June 2005was initiated by the complainant when she called to the workplace to discuss her future. She alleges that she was told by the Project and Nursing Manager that she had resigned as she was unable to carry out all the duties of a care assistant. The respondent’s case was that they did not dismiss the complainant and that a job was available if she was certified fit to return and that the complainant resigned when she requested her P45, which they claim was between 17 and 30 June. However this does not tally with the complainant’s evidence that she did not request the P45 and never resigned. I do not accept the respondent’s view that in not formally ending her employment they did not dismiss her and I do find the complainant’s evidence more compelling that she was told that she had resigned.
4.4 I conclude that the respondent effectively dismissed the complainant when they received the doctor’s letter dated 13 June 2005. However this was not made clear to the complainant. Subsequently, following the meeting on 28 or 29 June, initiated by the complainant, she sent in a further medical certificate for the period 29 June to 31 July 2005and a letter from her doctor dated 4 July 2005. It is my conclusion that the complainant was under the impression, that she was being considered for the position of Activities Supervisor. She subsequently requested a letter to be sent to Social Welfare as she was not being paid and wished to show that she had not resigned her employment.
4.5 Section 16 (1) offers employers a defence in dismissing people with disabilities when it states:
“Nothing in thisAct 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 –
(a) will not undertake (or, as the case may be, continue to undertake)the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be performed, or
(b) 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.”
However, section 16 (3) (a) of the Employment Equality Acts 1998 – 2007 tempers that defence: “For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.” The Labour Court in A Health Board and Fitness Club v A Worker (EED037)¹ (and upheld on appeal in the Circuit Court) set out an approach that should be taken in order that a respondent can rely on this defence ………“if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
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.”
4.6 In applying that approach to this complaint I must first look at the materials facts of the complainant’s condition. The medical evidence submitted whilst she was working for the respondent is in the letter from the complainant’s doctor dated 13 June 2005, as quoted in paragraph 4.2. The doctor’s letter provides a statement as to the complainant’s condition and suggestions in relation to her work as a care assistant. It does not provide a detailed assessment as to the complainant’s capabilities. Also, the likely duration is unclear from this letter and is only clarified in the doctor’s letter of4 July 2005, which was after the complainant was dismissed and therefore could not have been taken into account by them. The complainant was not asked for any further medical evidence and the respondent did not seek any more information. I conclude that the respondent was correct in assessing that the complainant was not capable of carrying out the full range of duties of a care assistant at the time of her dismissal but they were incorrect in not seeking further medical evidence to determine the degree of impairment and its likely duration.
4.7 Secondly, given this assessment, I must look to see if the respondent considered what, if any, special treatment or facilities may be necessary to allow the complainant to become fully capable. The respondent submitted that all staff are trained in the use of the hoist and that the floor where the complainant worked did not necessitate frequent lifting of patients. This would have made it easier for them to have looked at reasonable accommodation. However, despite this evidence the respondent adduced no evidence that any consideration was given as to what appropriate measures could be taken to allow the complainant to be fully competent in the duties of a Care Assistant. I therefore conclude that they have failed in the second part of this approach.
4.8 Furthermore, despite the instruction of the respondent’s CEO I conclude that there was no discussion with the complainant about the possibility of finding her another job. The complainant did ask that consideration be given to her working as the Activities Supervisor and she sent in her CV as requested but this was not acknowledged. The complainant, therefore, was given no indication that her application was considered.
4.9 My conclusion is that the respondent’s enquiry into the complainant’s capability was incomplete, firstly, in that they did not seek further medical evidence as to the complainant’s condition. Secondly, there was no consideration of appropriate measures that could be taken to make her fully competent in relation to the job of Care Assistant or whether the complainant could be found alternative work. Thus, there was no consideration as to what reasonable accommodation was needed to make the complainant fully competent and that, as the complainant was dismissed without such consideration, her dismissal resulted from her disability and therefore being discriminatory.
On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of disability in not providing reasonable accommodation in terms of section 16 (3) (a) of the Acts and discriminatory dismissal took place in terms of section 6(2) of the Acts.
In accordance with section 82 of those acts I award the complainant €10,000 in compensation for the distress suffered as a result of the failure to provide reasonable accommodation and discriminatory dismissal. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
¹A Health and Fitness Club v A Worker, ED/02/59, Det No EED037