THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-076
(represented by Ms. Sarah Daly B.L. on the
instructions of Kieran McCarthy & Co. Solicitors)
(represented by Niall Brosnan & Co. Solicitors)
File Reference: EE/2008/408
Date of Issue: 15th April, 2011
Keywords: Employment Equality Acts, 1998 to 2008 - Section 6 - Discriminatory Dismissal - Disability - Reasonable Accommodation - failure to provide reasonable accommodation
1.1 This case concerns a complaint by the complainant that she was subjected to discriminatory dismissal by the respondent on the grounds of her disability contrary to section 6(2)(g) and section 77 of the Employment Equality Acts, 1998 to 2008. The complainant also claims that the respondent failed to provide her with reasonable accommodation to take account of her disability in accordance with section 16 of the Employment Equality Acts, 1998 to 2008.
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 19th June, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 20th January, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 19th November, 2008 and from the respondent on 23rd December, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 14th March, 2011.
3. Summary of the Complainant's case
3.1 The complainant was employed by the respondent as a switchboard administrator from 21st April, 2008 until her employment was terminated on 21st May, 2008. The complainant stated that she was born with bilateral congenital cataracts and this condition has left her with very limited vision in her right eye. The complainant was interviewed for the position on 26th March, 2008 and she submitted that the respondent was aware of her disability prior to the interview as the organisation which set up the interview is one which assists disabled persons to secure employment. The complainant stated that she also discussed the nature of her disability with the respondent at the interview and that she informed her interviewer she would need to use special software on her computer for enlarging text on the screen. The complainant stated that the respondent indicated at the interview that the provision of this software would not be an issue and she accepts that this software was provided to her upon the commencement of her employment.
3.2 The complainant stated that she commenced employment on 21st April, 2008 and that her duties included answering telephone calls, transferring calls, taking telephone messages, writing generic letters and sorting post. After completing the initial training week and one further week of working on her own the complainant approached Ms. A, HR Manager, and asked if she could get some feedback on how she was performing in the job. The complainant stated that she met with Ms. A on 13th May, 2008 who informed her that she was doing very well in the job and that the respondent was very happy with the manner in which she was carrying out her duties. The complainant stated that Ms. A informed her at this meeting that from then on she would be given more administrative duties and responsibilities.
3.3 The complainant stated that she informed Ms. A at this meeting that it would be of great assistance to her if the lighting in her room could be improved as this would help her vision, and she was informed that this would not be a problem. The complainant stated that Ms. A then asked if there was anything else she required to which the complainant responded that her computer monitor had a small 14 inch screen and that this slowed her down due to the enlargement software. The complainant explained that when the programme enlarged the text to the appropriate size for her, the small screen meant that she could only see a part of the document whereas the larger screen would make it easier for her. The complainant also mentioned to Ms. A that she had noticed another staff member used a headset and queried whether same might be possible for her as it would help her work faster. The complainant stated that Ms. A responded that the headsets were expensive but she would check it out. The complainant stated that she thanked Ms. A and stressed that the headset was not overly important and that the improved lighting and computer screen would be a great help to her. The complainant also stated that she informed Ms. A that she would be happy to bear the expense of any of the items she suggested should that be an issue.
3.4 The complainant stated that throughout the next week she was given additional responsibilities and that she completed these tasks without any difficulty. The complainant stated that no complaint was made by the respondent during that week regarding the manner in which she carried out her duties. The complainant stated that she was called to Ms. A's office on 21st May, 2008 and was informed that her employment was being terminated. The complainant stated she was informed by Ms. A that the reason for her dismissal was because she was too slow in completing the administration tasks. The complainant does not accept that her alleged slowness was the reason that her employment was terminated and she submitted that if there had been genuine concern with regard to the speed of her work that this would have been mentioned by Ms. A at the meeting on 13th May, 2008. The complainant submitted that the reason her employment was terminated was because she had made three suggestions to the respondent at this meeting for assisting her with her disability. The complainant submitted that if she had not been disabled she would not have needed to make the request for these facilities and so would have continued in employment with the respondent. The complainant submitted that the respondent terminated her employment without giving her any opportunity to show that with the suggested improvements the speed of her work would improve despite the complainant having specifically requested that it do so.
3.5 The complainant submitted that she was discriminated against on the grounds of her disability and that the respondent failed to comply with its obligations to her as a person with a disability in accordance with the provisions of section 16(3) of the Employment Equality Acts. The complainant submitted that in her opinion (and in the opinion of Ms. A at the meeting on 13th May, 2008) she was able to carry out her duties effectively with just the aid of her specialised software. However, she further submitted that had there been a genuine issue regarding the speed of her work (which she denied) that the respondent was obliged to have given her the opportunity to see whether she was fully competent and capable of carrying out her duties at the necessary speed with the assistance of the facilities she had suggested. The complainant submitted that the respondent failed to put in place any of the facilities she had requested at the meeting on 13th May, 2008 and she claimed that the provision of these facilities would not have amounted to more than a nominal cost.
4. Summary of the Respondent's case
4.1 The respondent operates a five star hotel which has been in existence since 1996 and it employed approx. 88 members of staff in May, 2008. The respondent stated that the complainant was offered a job as a switchboard administrator following an interview and she commenced employment on 21st April, 2008. The respondent stated that it was at all times aware of the complainant's disability and that it was not an issue during the course of her employment. The respondent stated that under the terms of her contract, the complainant was employed on a probationary basis for the first three months of her employment and that this was explained to her both verbally and in writing. The respondent claims that it was explained to the complainant that her work would be monitored over the probationary period and a decision would be made at the end of the three month period as to whether she would be offered the position on a permanent basis.
4.2 The respondent stated that upon the commencement of the complainant's employment, special software was installed on her computer which magnified the writing on the computer screen in order to accommodate her disability. The respondent stated that one week after the complainant had commenced employment she approached the HR Manager, Ms. A, and asked for feedback regarding her performance in the job. The complainant was informed by Ms. A during a subsequent meeting that she was doing well but she would, as her employment continued, be given more responsibilities as she had only been given very basic jobs to do since the commencement of her employment. The respondent stated that the complainant requested a few items to assist her in her position at this meeting, namely new lighting, a new computer screen and a headset. The respondent stated that due to space constraints, the hotel switchboard is located in a small room and it was not possible to install new lighting. In any event, the respondent submitted that the room has a large window which provided ample natural lighting as well as ceiling lighting. The respondent stated that it tried to source a larger computer screen throughout the hotel but there was none available and the price quoted for the headset was very expensive.
4.3 The respondent stated that gradually the complainant was given extra duties and responsibilities and it appeared to managerial staff in the hotel that she found these extra duties and responsibilities stressful. The respondent submitted that the complainant seemed to panic if she was given a job/work to do when she hadn't finished completing another task. She took too long in transferring and introducing calls which was acceptable in the first two weeks whilst undergoing initial training but as time passed, it was expected that an employee would speed up at what were considered to be normal tasks. The respondent submitted that it operates a top class award winning five star hotel and professionalism and efficiency amongst staff is expected. The respondent submitted that part of the requirements for somebody on the switchboard is calmness and speed and the complainant was not showing these characteristics during the course of her employment.
4.4 The respondent stated that whilst reviewing the complainant's performance in the job, a decision was made by the general management of the hotel that she was not making sufficient progress or improvement. The respondent stated that the complainant was called to the office of the HR Manager, Ms. A on 21st May, 2008 and was informed that the management of the hotel felt that tasks were not being completed in sufficient time and that her switchboard duties were not getting any stronger. The complainant was informed that a decision had been made to terminate her employment under the terms of her contract of employment. The respondent submitted that the decision to terminate the complainant's employment was not in any was attributable to her disability but was due to her poor performance in the job. The respondent submitted that at no stage during the complainant's employment did her work performance improve to an acceptable level and it stated that the unacceptable speed of her work was not influenced by her disability.
4.5 The respondent also denied that it failed to provide special measures or facilities in order to accommodate the complainant's disability within the meaning of section 16 of the Employment Equality Acts. The respondent submitted that it provided the complainant with the special computer software she had requested upon the commencement of her employment. The respondent stated that the main part of the complainant's job was to answer/transfer telephone calls and it claimed that the additional facilities which she had requested from Ms. A. during the performance feedback meeting would not have had any impact on the manner in which she would have been able to carry out these duties. The respondent denies that it discriminated against the complainant on the grounds of her disability.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
5.3 In the present case it was not disputed between the parties that the complainant has bilateral congenital cataracts which have impaired the vision in her right eye and I am therefore satisfied that she is a person with a disability within the meaning of section 2 of the Employment Equality Acts. The actual issue of complainant's dismissal as a fact is not in dispute between the parties in the present case. However, there is a complete conflict between the parties regarding the reasons and circumstances surrounding the dismissal. The complainant, on the one hand, claims that she was dismissed on the grounds of her disability and she submitted that the respondent dismissed her on the pretext that she was a slow worker when in fact it dismissed her because she had suggested minor adjustments to her work environment which would be helpful on foot of her disability. The respondent, on the other hand, claims that the complainant's dismissal was in no way attributable to her disability and it submitted that the decision was taken to terminate her employment because of the fact that she had not performed to the required standard in the job during her period of employment.
5.4 Therefore, the issue that I must decide in the present case, is whether or not the respondent discriminated against the complainant on grounds of her disability in terms of the manner in which she was dismissed from her employment. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the oral hearing.
5.5 In considering this issue, I note the respondent accepted that it was fully aware of the nature of the complainant's disability prior to the commencement of her employment as a switchboard administrator. I am satisfied that the respondent did not consider that the complainant's disability would have any adverse impact on her ability to carry out her duties in this position at that juncture. In this regard, I note that it was not in dispute that the respondent put in place the special computer software which the complainant had requested in order to accommodate her disability upon the commencement of her employment. The complainant commenced employment on 21st April, 2008 and she stated that she sought feedback from the respondent regarding her performance after two weeks in the job. The complainant claims that she was told by the HR Manager, Ms. A, at a subsequent meeting on 13th May, 2008 that she was performing very well in her position. The respondent accepts that this meeting did in fact take place following the commencement of the complainant's employment although it does not accept that this meeting took place on 13th May (the respondent claims that it took place a week after the complainant commenced employment).
5.6 I am satisfied that the respondent was unable to refute the complainant's evidence in relation to the nature of the discussions which she claimed took place during the course of this meeting (as Ms. A did not attend the oral hearing to give evidence). In this regard, I also note that the respondent stated in its written submissions to the Tribunal in response to the complaint that a meeting took place between the complainant and Ms. A (in response to the complainant's request for feedback) during which she was told by Ms. A that she was 'doing well'. I am of the view that if there had been any significant difficulties in relation to the manner in which the complainant was performing her duties up to that juncture that this issue would have been raised by the respondent at this meeting. Having regard to the evidence adduced, I accept the complainant's evidence that this meeting with Ms. A took place on 13th May, 2008 (i.e. eight days prior to her dismissal) and I am satisfied that the respondent neither raised any performance related issues with her during the course of this meeting nor did it give her any indication that her employment was in danger of being terminated because of performance related issues.
5.7 It was not in dispute between the parties that the complainant was informed by Ms. A at this meeting that she would be given additional administrative duties and responsibilities thereafter. The respondent accepts that during the course of the discussions between the complainant and Ms. A at the aforementioned meeting that she requested a number of additional facilities to be put in place in order to accommodate her disability and thereby assist her in the job (namely to improve the lighting in her office, a larger computer screen and a headset). The complainant claims that the respondent neither put in place the additional facilities that she had requested nor did it revert to her to discuss the issue of these additional facilities during the intervening period between the meeting on 13th May, 2008 and the date upon which she was dismissed on 21st May, 2008. The respondent accepts that the additional facilities which the complainant had requested were not put in place prior to her dismissal and it has argued that even if these facilities had been put in place they would not have had any impact on the complainant's ability to carry out the core duties of the job (i.e. answering ad transferring telephone calls) to the required standard. The respondent's General Manager, Mr. B, gave evidence that the complainant was unable to discharge either the additional duties which had been allocated to her after the aforementioned meeting with Ms. A or the core duties of the job (i.e. answering and transferring telephone calls) to the required standard and consequently the decision was taken to terminate her employment on 21st May, 2008.
5.8 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed. However, this defence is tempered by the provisions of section 16(3) of the Acts. This subsection provides that a person with a disability is to be regarded as fully competent and capable to undertake the duties of a post if, with the benefit of special treatment, they would be fully capable and fully competent to do so. This subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them capable of doing the job required of them. In the case of An Employer -v- A Worker the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:
"Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if, with the benefit of special treatment, they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCall  IRLR 60)
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 a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge  IRLR 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.
This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee. (see the Determination of this Court in A Health and Fitness Club and A Worker (Determination 037) which was upheld by Her Honour Judge Dunne (as she then was)on appeal to the Circuit Court)".
In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.
5.9 In applying this approach to the present case, I note that the respondent did not dispute that the complainant had requested a number of additional facilities to be put in place in order to assist her in the job during the meeting with Ms. A on 13th May, 2008. I accept the complainant's evidence that these facilities would have been of assistance to her in terms of her ability to discharge her duties in an efficient manner especially in light of the fact that she was afforded additional duties and responsibilities following the meeting on 13th May, 2008. It was not disputed that the respondent failed to put in place the additional facilities which the complainant had requested in order to assist her in the discharge of her duties. I am of the view that there was a strict obligation upon the respondent to at least consult with the complainant (as a person with a disability) regarding her request for these additional facilities before it took the decision to terminate her employment on the basis that she was not performing her duties to the required standard. I am satisfied that instead of doing so, the respondent took the view without any further consultation with the complainant or without conducting an adequate assessment of the situation, that these facilities would not be of assistance to her in terms of her ability to carry out her duties in an effective manner. Consequently, the complainant was not afforded any opportunity to participate at any level or influence in the decision making process that resulted in her dismissal.
5.10 The Employment Equality Acts provide a defence to the employer if the provision of appropriate measures would impose a disproportionate burden on it. In the present case, I am satisfied that the respondent did not adequately consider the provision of the additional facilities which the complainant had requested nor did it establish to my satisfaction that the provision of these facilities would have imposed a disproportionate burden upon it. Accordingly, I am satisfied that the respondent cannot rely on the defence in subsection 16(3)(c) of the Acts.
5.11 Based on the evidence adduced, I am satisfied that the complainant was not afforded any prior indication or notice by the respondent that it was contemplating the termination of her employment on the grounds of her inability to carry out her duties in an effective manner. It is clear that the first indication the complainant was afforded that her dismissal was being contemplated by the respondent was when Ms. A, called her to the meeting on 21st May, 2008 to inform her that her employment was being terminated. Having regard to the foregoing, I am satisfied that the respondent completely failed to initiate or complete a process oriented approach (as set out by the Labour Court in the aforementioned An Employer -v- A Worker case) when coming to the conclusion that the complainant was incapable of performing the duties for which she had been employed. Therefore, it cannot rely upon the defence available in section 16(1)(b) of the Acts. In the circumstances, I find that the respondent failed to comply with its obligations to the complainant under section 16(3) of the Acts in terms of the manner in which she was dismissed from her employment. Accordingly, I find that the complainant was dismissed from her employment in a discriminatory manner by the respondent on the grounds of her disability.
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent discriminatorily dismissed the complainant on the grounds of her disability in terms of section 6(2)(g) of the Employment Equality Acts, 1998 to 2008 and contrary to section 16(3) of those Acts.
6.2 Section 82 of the Employment Equality Acts, 1998 to 2008 provides that I can make an order for the effects of the discrimination. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. Having taken the foregoing matters into consideration, I am of the view that an award of €10,000 is appropriate in the circumstances of the present case. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
15th April, 2011