A Government Department
1.1. The case concerns a claim by Mr A. that a Government Department, discriminated against him on the ground of disability in not providing reasonable accommodation contrary to Section 16(3) of the Employment Equality Acts 1998 to 2004.
2.1. The complainant works for the respondent in a senior technical/professional role. In May 2006 he suffered an accident in which he fractured his spine. This resulted in a disablement which prevents the complainant from sitting uninterruptedly for more than an hour, and from undertaking long journeys by car or airplane. The complainant submits that the delays which occurred in facilitating his return to work amount to failure to provide reasonable accommodation as specified under the Acts.
2.2. The respondents deny that they failed to reasonably accommodate the complainant; and argue in particular that his return to full-time work was agreed as of 27 November 2007, two days before the complaint was heard by the Equality Officer.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2007 to the Director of the Equality Tribunal on 5 April 2007. On 21 September 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, 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. An addendum to the materials submitted with the original complaint form was received from the complainant on 1 October 2007, who stated that he wished that the documents submitted be collectively accepted as his submission. A submission was received from the respondent on 13 November 2007. Additional evidence was requested from the respondent on 22 November 2007 and received on 23 November 2007. A joint hearing of the claim was held on 29 November 2007. The last piece of correspondence relating to the complaint was received on 14 December 2007. The decision has been anonymised due to the amount of detail of the complainant’s medical history that forms part of the evidence in this case.
Summary of the Complainant’s Written Submission
3.1. The complainant submits that he was employed in a senior technical specialist role with the respondent Department since April 2005. His position was based in Dublin. Prior to that, he worked in a similar, more junior role in an agency that the respondent had responsibility for. One reason for the complainant to elect to move to the Department’s headquarters was that the Department was scheduled to decentralise to a provincial location where the complainant was already living. The complainant commuted daily from the provincial town to Dublin to attend work.
3.2. In May 2006, the complainant sustained a spinal injury following a fall at home. Following hospitalisation, he was placed in an orthopaedic brace for five months and confined to bed. Following further recuperation, including physiotherapy, the complainant continued to experience lower back pain when sitting for prolonged periods, including travelling in a car.
3.3. This ongoing disablement meant that he was unable to return to work as he wished, since his daily commute to Dublin was three hours each way. The complainant submits that in February 2007, he attended a consultant in a nearby city who had been approved by the Chief Medical Officer (CMO), who examined the complainant and stated that except for the commuting, which the consultant declared “ill-advised on medical and practical grounds”, the complainant would be fit to return to work.
3.4. The complainant further submits that since November 2006, he had been aware that an advance party of Department staff would be decentralising to the provincial location. He submits that he wrote to the Department’s Personnel Officer in November 2006 and February 2007, seeking to be included in the advance party. He submits that he received a letter from the Personnel Officer on 1 March 2007, in which he was advised that the advance party would not include technical and professional staff and was furthermore fully subscribed.
3.5. The complainant submits that he met with his immediate superior and an official from the respondent’s Personnel Division on 28 May 2007 to discuss options to facilitate his return to work, if he were based in a local office in the provincial location. The complainant submits that he was advised by letter dated 14 June 2007, that the Department was not in a position to accommodate his request.
3.6. Finally, the complainant submits that instead of being facilitated with a return to work, he was placed on the pension rate of pay from February 2007, which he submits caused him financial hardship.
Summary of the Respondent’s Written Submission
4.1. The respondent submits that in November 2006, an application from the complainant was received to be part of the advance party to the decentralised provincial location. The respondent admits that a delay occurred in responding to the complainant, which was sent to the complainant in February 2007. The respondent submits that the complainant was informed that the advance move did not include professional or technical staff.
4.2. The respondent submits that an appointment was made to have the complainant’s condition was reviewed in December 2006 by the Chief Medical Officer. As the complainant was unable to travel to Dublin for this purpose, the CMO recommended that an opinion be sought from a consultant practicing in a city close to where the complainant lived.
4.3. The respondent submits that in February 2007, it received a report from this consultant, stating that the complainant could return to work immediately as long as it was close the complainant’s home, and he would have to travel only intermittently.
4.4. The respondent submits that in March 2007, it proposed a meeting with the complainant in Dublin to discuss his return to work. The respondent further submits that at the same time, the complainant’s sick leave limits had reached a point where pension rate of pay started to apply. The respondent submits that its expectation was that the complainant’s return to work was imminent, and therefore, the complainant’s payment’s were left unchanged. When this did not materialise, the respondent had no choice but to revise the complainant’s pay.
4.5. The respondent submits that it met with the complainant on 28 May 2007 to discuss his return to work and a secondment to the agency at which the complainant had previously worked was discussed. The respondent submits that the secondment to the agency was acceptable to the complainant and thereafter actively pursued by the respondent. The respondent submits that delays in facilitating the secondment arose from the fact that it was an unusual arrangement, i.e. an agency looking for staff would normally approach the parent department, rather than the Department looking to second somebody to an agency.
4.6. The respondent further submits that letting the complainant work in his former role in the advance office was not an option, as the complainant’s work could not be re-configured to facilitate this, bearing in mind the need to avoid an inequitable burden on the complainant’s colleagues in similar technical/professional roles in his former division.
4.7. The respondent submits that it requested the complainant to attend the CMO, regarding the continuance of the pension rate of pay, but that the complainant did not attend as arranged. Another appointment was arranged for 28 August 2007, and the complainant did attend at this occasion. The CMO reported back to the respondent on the complainant’s fitness to return to work on 29 August 2007.
4.8. The respondent denies discriminating against the complainant on grounds of his disability and states that every reasonable effort has been made to address the complainant’s situation and provide an arrangement acceptable to all concerned.
Conclusions of the Equality Officer
5.1. At the oral hearing of the complaint, significant additional evidence emerged regarding the circumstances of the complainant’s return to work. The complainant made it very clear to the Tribunal that he took issue with the circumstances that attached to his return to work, independent of the solution that was eventually arrived at. He also requested that the Tribunal draw inferences from the fact that his appointment to the respondent’s agency was finalised on 27 November 2007, two days before the oral hearing of the complaint.
5.2. I will therefore start this section of my decision by setting out this additional evidence, broken down into the issues that arose.
Complainant’s Job Description
5.3. The complainant submitted that his role as a technical specialist should be more suitably termed “adviser”. He submitted that his work was mainly office based with occasional attendance at meetings. It involved a lot of research, evaluation of policy initiatives, and the review of Ireland’s and other countries’ positions on same. He submitted that he would have meetings with national committees, agencies and other stakeholders and receive materials at those meetings and through emails.
5.4. The complainant submitted his PMDS Role Profile to the Tribunal after the hearing, which supports his oral evidence in this regard. The complainant also submitted his travel records for the years 2004 and 2005, which show nine trips in 2004, four of which were abroad, and ten trips in 2005, one of which was abroad.
5.5. The complainant submitted that the respondent had been satisfied with his work performance, and submitted his probation reports, his PMDS Annual Review form and his inclusion in a group merit award as additional evidence to the Tribunal. He submitted that he had reported to both his supervisor, Ms. C, and the head of division, Mr B., for only a short period of time before his accident occurred.
5.6. The complainant submitted that he had been allocated a new policy area in January 2006, a few months before his accident, that required more travel, but that this policy work could have been re-allocated to other colleagues in his division.
5.7. For the respondent, the head of the complainant’s division, Mr B., submitted that the complainant’s role comprised a wide range of advice functions that required frequent national and international travel, and continuous interaction with a range of colleagues from various government departments.
5.8. Mr B submitted that in terms of potential re-structuring of the complainant’s job, to permit him to work from home full-time, that he had looked into it, but that he felt it was not feasible. Mr B submitted that in all policy fields addressed by the division, foreign travel would be necessary and that the scheduling of same could not be fully controlled. Mr B submitted that re-distributing travel among the other specialists in the division would create an unreasonable balance, and would be unfair to demand of the other staff. He also submitted that having two people, i.e. the complainant and a colleague, work on a particular issue, would have led to too much duplication of effort.
Teleworking and Worksharing Options – Reasonable Accommodation
5.9. The complainant submitted that he thought his duties were suitable for teleworking. He submitted that he had been offered teleworking before his accident, and that in fact Eircom, on behalf of the respondent, arrived in his house a week after his accident to install the necessary facilities. He submitted that at that point in time, he did not feel in a position to go ahead with the installation. He submitted a letter from the respondent, dated 28 March 2006, which approved him for teleworking, in evidence to the Tribunal. According to the letter, the complainant was approved to telework for two days per week initially, with an option to extend this working arrangement to three days per week. He submitted to the Tribunal that after that date, the opportunity to telework was taken away from him and he never got it back, and that no explanations were furnished to him as to why this was the case.
5.10. The complainant further submitted on this point that team interaction was important, but that in his opinion, it could be achieved with monthly meetings in Dublin and frequent contact by email and telephone.
5.11. Following the hearing, the respondent submitted documentary evidence in relation to the complainant’s application for teleworking, that the complainant was assessed by his immediate supervisor, Ms C., as “self-motivated, self-disciplined and able to work with minimal supervision”, “strong organisational and time-management skills”, “results-oriented”, “comfortable with information technology”, “adaptable to changing routines and environments” and “responsible when handling sensitive/confidential information”. In all these categories, the complainant scored the highest mark of five. This assessment was countersigned by Mr B.
5.12. I also note from the complainant’s e-working application, that the complainant was on parental leave of one day per week in spring 2006, and therefore already on a work attendance pattern that is similar to worksharing.
5.13. In response to a direct question from the Tribunal whether he would have considered any form of work-sharing, the complainant stated that it was not offered to him, but that he would have considered it, had the possibility been raised with him.
5.15. Finally I note that in terms of the respondent’s accommodation for other staff with disabilities, the respondent’s Human Resource official stated to the Tribunal that such accommodation could include phased returns to work after long illness absences, a review of duties, or possibly re-assignment to other work areas.
Attendance at Chief Medical Officer
5.16. The respondent stated at the hearing that the agency in question was first approached in June 2007, regarding a secondment of the complainant for 12 to 18 months, until the Department’s headquarters had decentralised. The respondent stated that it requested the complainant to attend the CMO for a final review of his health, and to have his fitness to return to work certified. The respondent stated that all staff with disabilities or long-term illness had to attend the CMO to have their fitness to return to work evaluated. The respondent further submitted that a delay occurred in the complainant’s return to work that was the responsibility of the complainant, because the complainant did not attend the CMO when requested, but only six weeks later.
5.17. In response to this, the complainant submitted in evidence that he had had only 24 hours notice to attend the CMO, and that this was too short to make the necessary arrangements in light of the his restrictions on car travel. The complainant submitted that the letter requesting him to attend the CMO was mailed on 9 July 2007, reached him in the post on 11 July, and that the meeting was scheduled for 12 July. The complainant submitted that he eventually felt able to travel to Dublin to attend the CMO on 29 August 2007. The complainant rejected the notion that there was anything wilful in his delay in attending the CMO or that he should be fixed with the detriment arising from this delay, and pointed to the fact that previously, the CMO had approved a regionally-based consultant to conduct a medical review of the him.
5.18. I find that in terms of the complainant’s return to full-time employment with the respondent, the creation of a full-time project position at the respondent’s agency for the benefit of the complainant fulfils the Department’s obligations to make reasonable accommodation for the complainant in this particular aspect of his employ. In general terms, I find that the re-deployment to a work area in which an employee has worked before falls within general standards of reasonableness, provided that duties and responsibilities are commensurate with the employee’s qualifications, experience and abilities at the time of re-deployment and terms and conditions of employment are not affected save for the flexibility afforded to employers pursuant to S. 35 of the Acts.
5.19. However, from evidence that came to light during the investigation of the complaint it is clear that the process of achieving the complainant’s return to work was marred by delays detrimental to the complainant, which in my opinion do not only constitute lack of reasonable accommodation, but also less favourable treatment of the complainant in comparison to other disabled and non-disabled staff of the respondent’s.
5.20. In this context, I wish to refer to the decision of the Labour Court A Government Department v. A Worker [ADE0516], in which the Court reviewed the changes in the law relating to disability brought about by the Equality Act 2004, and held that
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability. […]
The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. [emphasis added]
5.21. I do find that this pro-activity was missing on the part of the respondent. The complainant was certified as fit to return to work full-time, as long as his work did not entail car travel on a more than intermittent basis, on 7 February 2007. On 28 February 2007, the complainant was advised that it was not possible to accommodate him on the decentralisation advance party that was relocating to the provincial town where he lived. On 5 April 2007, the complainant lodged his complaint with the Tribunal. On 28 May 2007, a meeting finally took place between the complainant, the complainant’s supervisor Mr B. and an official from the respondent’s HR department, in a provincial location close to the complainant’s home town, to explore the options for the complainant returning to work. I note that this was 3 ½ months after the complainant was certified as fit to return to work, and approximately six weeks after he had lodged his complaint with the Tribunal.
5.22. I find that the respondent has failed to pursue the assessment of the complainant’s situation and the exploration of what kind of accommodation the complainant needed to return to work in a pro-active fashion.
5.23. With regard to the kind of reasonable accommodation required, I have regard to the earlier decision of the Labour Court in An Employer v. A Worker [ADE048], where the Court specifically held that “adjusting the person’s attendance hours or to allow them to work partially from home” were part of the provision of reasonable accommodation, in addition to the relieving of the disabled employee “of certain tasks which other doing similar work are expected to perform.”
5.24. The Court further held, in the same decision, that
The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of the disabled employee. […] This necessarily involves discussing the matter with the employeeor their medical advisors. [emphasis added].
5.25. Based on these findings, I do not accept that the onus should have been solely on the complainant to suggest specific arrangements, as submitted by Mr B. (see para 5.14 above) I find that it is not reasonable to demand from a worker who is coming to terms with disablement and has been absent from the workplace for a long time, to remember in detail all working arrangements that his employer facilitates, that would assist his current situation.
5.26. Turning to the complainant’s specific situation, I accept Mr B.s evidence that having the complainant work from home full-time would not have been practical given the specific demands of the role and the work allocation within the division. However, despite the fact that the respondent’s Human Resource officer stated in evidence that other staff with disabilities had been accommodated with phased returns to work, and despite the fact that the complainant was certified as fit to return to work from 7 February 2007 (see paras 4.3 and 5.21 above), there is no evidence before me that any effort has been made to explore the complainant a phased return to work, or a possible combination of work-sharing and teleworking even on a temporary basis, to facilitate his return to work.
5.27. I also find that withdrawal of teleworking arrangements from the complainant one week after his accident, and without consultation with the complainant, after he had been previously approved and in fact been found highly suitable to telework (see para 5.11 above) constitutes less favourable treatment on grounds of his disability, since the respondent did not seek to advance any other reasons for the withdrawal of the facility.
5.28. With regard to the respondent’s contention that the complainant delayed his return to full-time work by not attending the CMO as requested, I find that the issue of lack of reasonable accommodation of the complainant arises once more. The request for an updated medical exam, to ascertain the complainant’s fitness for work, was not justified, since the complainant had been certified as fit to return to full-time work, subject to accommodation of his disability, on 7 February 2007. The consultant who carried out that examination did so at the request of the CMO and was approved by the CMO, who acted on behalf of the respondent. Therefore, there was no need to request that the complainant undergo a further medical exam by the CMO to take up the position that was created for him to accommodate his disability.
5.29. I therefore find that the detriment the complainant experienced as his return to full-time work was further delayed for six weeks arose as a result of a discriminatory practice by the respondent and cannot be blamed on the complainant as the respondent has sought to do in oral evidence. (See para 5.17 above)
6.1. Based on all of the foregoing, I find that
(i) The respondent did provide reasonable accommodation to the complainant with regard to his return to full-time work in November 2007;
(ii) The respondent nevertheless failed in its statutory duty to assess the complainant’s situation in a timely and pro-active manner, and to explore a full range of options to accommodate the complainant’s disability in cooperation with the complainant pursuant to. S. 16(3) of the Acts;
(iii) The respondent discriminated against the complainant by treating him less favourably than other staff pursuant to S. 6(1)(a) and S. 8(1)(b) of the Acts, by withdrawing teleworking arrangements from the complainant that the complainant had previously been approved for, after the complainant had experienced disablement;
(iv) The respondent did not provide reasonable accommodation pursuant to S. 16(3) of the Acts by insisting that the complainant attend the Chief Medical Officer in Dublin at short notice, in disregard for the limitations in car-travel imposed by the complainant’s disability and thereby delaying his return to full-time work by six weeks, regardless of the fact that the complainant had already been examined and certified as fit to return to work by a CMO-approved consultant several months earlier.
6.2. I therefore order that the respondent:
Pay the complainant the sum of € 25,000 in compensation for the distress and unnecessary hardship the respondent’s actions caused the complainant during a very difficult period of his life, when the complainant faced the challenge of having to learn to live with a long-term disablement. This award is not subject to tax.
6 May 2008