The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-080
(Represented by SIPTU)
HSE West Area
(Represented by Eilis Barry B.L. instructed by Byrne Wallace Solicitors)
File reference: EE/2007/315
Date of issue: 18 April 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Marital Status, Family Status and Disability - Access to Employment, Discriminatory Dismissal, Victimisatory Dismissal - Failure to Provide Reasonable Accommodation
1.1 This dispute concerns a claim by Mr Gerard Healy that he was discriminated against by HSE West, on the grounds of marital status, family status and disability contrary to sections 6(2)(b), (c) and (h) of the Employment Equality Acts in relation to access to employment, discriminatory dismissal in terms of section 8 of the Acts, failure to provide reasonable accommodation in terms of section 16 of the Acts and victimisatory dismissal in terms of section 74(2) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 21 June 2007 under the Employment Equality Acts. On 8 July 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, 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, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 11 November 2010.
2. PRELIMINARY ISSUE
2.1 The complainant has made claims in relation to access to employment, discriminatory dismissal, victimisatory dismissal and failure to provide reasonable accommodation. The respondent submits that the complainant took a claim under the Unfair Dismissals Acts, 1977 - 2001 regarding his dismissal from the respondent and that section 101(4) of the Employment Equality Acts precludes him from taking a claim in relation to his dismissal under the employment Equality Acts.
2.2 Section 101(4)(c) of the Employment Equality Acts states: "an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if .... the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal". In this case the respondent forwarded a copy of the Employment Appeals Tribunal decision UD567/2007 MN 116/2008 which shows that the complainant took a claim under the Unfair Dismissal Acts. I therefore have no jurisdiction in relation to the claims of discriminatory dismissal or victimisatory dismissal.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submits that he suffers from Glaucoma and a progressive hearing impairment. He started work for the respondent on 21 May 2001 in Swinford, Co Mayo and he lives in Sligo. He submits that because of his disability at the time he made this claim he was unable to drive to work which was a round trip of 75 miles. His wife could not drive him to work firstly because of her pregnancy and then because of childcare commitments, he could not arrange to share with a colleague and there was no public transport.
3.2 The complainant submits that he made an application to transfer to Sligo. However, an occupational health report of 28 August 2006 did not support his application saying that his wife should drive him to work.. The complainant submits that his application to transfer was turned down on policy grounds.
3.3 The complainant submits that he raised a grievance when his application to transfer was turned down. Whilst awaiting the outcome of this grievance the respondent initiated disciplinary procedures and this led to his dismissal on 14 December 2006; which he appealed.
3.4 The complainant submits that the respondent made no offer of reasonable accommodation regarding his difficulties in travelling to work which were caused by his disability.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent submits that the complainant started work for them in May 2001 as a Staff Nurse in Swinford, Co. Mayo. The respondent accepts that the complainant is suffering from a disability arising from glaucoma and vision problems. However, the complainant has not furnished them with any medical evidence in relation to a progressive hearing defect. The respondent submits that the complainant was at all times fully competent and capable of undertaking his duties as a Staff Nurse and therefore did not require any accommodation to enable him to carry out his duties.
4.2 The respondent submits that his claim in relation to access to employment, which deals with pre-employment matters, should have been made at the time he applied for the job. As this was in 2001 the claim is out of time in accordance with section 77(5) of the Acts.
4.3 The respondent submits that on 30 June 2006 the complainant requested a transfer to Sligo for reasons of "health and safety". On 21 August 2006 he attended an Occupational Health Physician who issued a report on 28 August 2006 which said that travel to work would be very difficult for the complainant if he had to drive it but he was well able to travel by public transport and was "fit to return to his duties without restriction". The respondent arranged a meeting to discuss his return to work but the complainant did not attend; saying that he was on annual leave but this had not been approved. Subsequently, on 30 August 2006 there was a formal disciplinary meeting following which management recommended that the complainant be suspended without pay because of his failure to meet one of three sanctions that had been imposed following a disciplinary meeting in June. A further meeting was scheduled for 27 September 2006. The complainant requested that transport be provided by HSE for him to attend the meeting and the respondent said it was a matter for the complainant to arrange his own transport. He attended the meeting with a SIPTU representative. The complainant returned to work on 30 September 2006 but was absent on 6 October 2006. On 17 October 2006 he went home sick and did not return to work. On 18 October 2006 the complainant raised a grievance because of the respondent's refusal to relocate him to Sligo Town. On 22 October 2006 the complainant wrote to the Director of Services stating that "due to my continuing impaired vision and lack of transport I regret to advise you that I shall be unable to safely attend for work until further notice" The following day the respondent wrote to the complainant stating "as I have already outlined in my letter dated 22 September 2006 it is a matter for individual staff members to arrange for their attendance at their workplace and it is not an issue for management consideration" and advising him that he should return to work or face the disciplinary process. The complainant wrote again on 24 October 2006 that he was unable to attend work because of a lack of transport and repeated that he was raising a grievance. On 26 October 2006 it was recommended that he be suspended without pay.
4.4 The complainant's grievance was heard on 3 November 2006 and he was informed the respondent had no policy in place to facilitate transfers other than through the former Western Health Board area and Sligo is in the North Western Health Board area. He was told that he could apply through open competition for a post in Sligo. The complainant was medically assessed again and on 13 November 2006 he was assessed by the Occupational Health Physician as "fully fit to carry out his duties without restriction"
4.5 The respondent arranged a further disciplinary meeting for 15 November, which was rescheduled to 29 November 2006. On 14 December 2006 the complainant was informed that his employment had been terminated. This decision was upheld by the Dismissal Appeal Committee and finally on 31 May 2007 the decision of the Appeals Committee was upheld by the CEO of HSE.
4.6 The respondent submits that a failure to provide reasonable accommodation is an omission and not a continuing act and relied on Matuszowicz v Kingston upon Hull City Council IRLR288 in Lord Justice Sedley observed that claimants and their advisors need to be prepared once a potentially discriminatory omission has been brought to the attention of the employer, to issue proceedings sooner rather than later. Furthermore the respondent submits that it had complied with the two stage enquiry set out by the Labour Court in A Health and Fitness Club v A Worker, Determination EE/DO/37. When the complainant requested a transfer and the respondent was aware of his disability he was assessed twice; in August 2006 and November 2006. They submit that there is no obligation to provide reasonable accommodation if the employee is fully capable of undertaking duties without accommodation. The employer is under no obligation to provide any facility that the complainant might ordinarily or reasonably provide for himself; such as transport to work, which employees would normally provide for themselves. The respondent submits that the employee's obligation is restricted to job-related matters.
4.7 The respondent submits that this claim in relation to reasonable accommodation is out of time as it was made after 6 months. The complainant raised a grievance when the respondent turned down his transfer request, arising out of his difficulties getting to and from work, and a hearing took place on 3 November 2006 and the final decision in relation to the provision of reasonable accommodation was made when the Occupational Health Physician issued the report on 13 November 2006. The claim was made on 21 June 2007 which is more than six months later and therefore out of time in accordance with section 77(5) of the Acts.
5. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 At the hearing the complainant confirmed that he was not pursuing his claims on the grounds of marital status and family status. Therefore, I have to decide if the complainant suffered discriminatory treatment on the grounds of his disability in terms of access to employment and failure to provide reasonable accommodation. 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 presented at the hearing.
ACCESS TO EMPLOYMENT
5.2 The complainant put forward his claim in relation to access to employment on the basis of difficulties he had in getting to work in Swinford when he lived in Sligo; that is access in terms of being able to get somewhere. Access to employment claims relate to cases of recruitment or entry to employment and not transport. In this claim the complainant was already working for the complainant and his difficulties in relation to transport to and from work are being considered in the claim in relation to the provision of reasonable accommodation. I therefore find that the complainant has failed to provide a prima facie case in relation to access to employment.
FAILURE TO PROVIDE REASONABLE ACCOMMODATION
5.3 The respondent contended that the final decision in relation to the complainant's application for reasonable accommodation was made when the Occupational Health Physician issued his report on 13 November 2006. As the complainant made his claim to the Equality Tribunal on 21 June 2007 which is more than six months later the respondent contends this is out of time in accordance with section 77(5) of the Acts and no "reasonable cause" has been put forward as to why the claim was not made within six months. The complainant countered that his claim for reasonable accommodation was linked to his dismissal on 14 December 2006 and the decision of the Appeals Committee was not issued until 22 March 2007 and his appeal to the CEO of the HSE was not issued until 31 May 2007 which was less than one month before he made his claim.
5.4 The complainant's claim for reasonable accommodation was his request to be relocated to Sligo and his dismissal came about because he did not attend work because of his stated difficulties in travelling to Swinford. I therefore conclude that this claim, whilst it is not dealing with his dismissal, is directly linked to it. The complainant was dismissed on 14 December 2006 which is still more than six months before he made his claim. However, the complainant contends that his appeal to the Appeals committee and subsequent appeal to the CEO of the HSE were both linked to his dismissal and within the time limits.
5.5 Section 77 (5) (a) of the Employment Equality Acts 1998 - 2007 states that the six-month time limit starts from the "date of occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence". The approach generally taken in this situation is set out in Cast v Croydon College¹ which states that: "a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision." The Report of the Appeals Committee Hearing shows that it was not merely a reiteration of the original decision but they looked into all the facts and essentially carried out a 'de novo' hearing. The letter written on behalf of the CEO is a reiteration of the decision of the Appeal Committee. This does not constitute a new decision but the outcome of the Appeals Committee does and I take this to be the most recent occurrence of the alleged discrimination and the claim is therefore in time.
5.6 The respondent disputed that the complainant had a disability in relation to what the complainant described as a progressive hearing impairment. There was no dispute that he had a disability arising from his glaucoma and vision problems and it was these problems that were referred to by the complainant in relation to this claim for reasonable accommodation. I therefore find that the complainant has a disability within the meaning of section 2 of the Acts.
5.7 In relation to his claim regarding a failure to provide reasonable accommodation Section 16 (3) of the Acts states:
"(a) 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.
Appropriate measures are defined in section 16 (4) of the Acts:
"(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself."
5.8 Prior to the hearing the complainant had only made submissions in relation to difficulties he had in getting to and from his place of work. It was only at the hearing that he gave evidence that his eyesight gave him difficulties at work, particularly in relation to glare. The respondent contended that the complainant had not made them aware of these difficulties and therefore had not carried out an assessment. The complainant's representative contended that his work difficulties would have become apparent if he had returned to work. As the complainant had not made the respondent aware of any difficulty at work arising from his disability I conclude that it was reasonable for them to consider that he was fully competent to carry out his duties at work within the with meaning of section 16 of the Acts and no issue arises in relation to the provision of reasonable accommodation.
5.9 I must now consider the complainant's contention that the respondent failed to provide him with reasonable accommodation in relation to his difficulties travelling to and from work. The complainant had at different times shared travel with colleagues, used a private bus service when he was on a night shift and been driven to work by relations. At the time he made the request to transfer his evidence was that none of these options were available to him. When he made the request the respondent sent him to an Occupational Health Physician who considered the complainant was "was fit to return to his duties without restriction". He understood that the complainant could not drive himself to work because of his disability but he considered that the disability did not affect him if he travelled by public transport, or with a colleague or was driven by his wife. The respondent accepted this report and told the complainant that it was his responsibility to make the necessary arrangements to travel to work. Furthermore, they contended they were unable to facilitate his request for a transfer as Sligo was in a different area of the HSE and there was no agreement to deal with transfers between different areas. They stated that staff who wished to transfer to another area would apply for vacancies that arose. They noted that the complainant had not applied for any vacancies in the Sligo area.
5.10 Section 16 (4) (c) of the Acts states that "appropriate measures ... does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself" and in this claim I conclude that the complainant's travel to and from his place of work was his responsibility and not that of the respondent. Given the situation of the complainant an employer might be expected to consider transferring him to a location nearer to his home where the circumstances are appropriate and it is within their remit. However, in this case such a transfer was not within the remit of the respondent. I therefore find that the complainant has failed to prove a prima facie case that the respondent failed to provide reasonable accommodation.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
That the respondent did not discriminate against the complainant in relation to access to employment, and
That the respondent did not fail to provide reasonable accommodation on the grounds of the complainant's disability.
18 April 2011
¹ Cast v Croydon College, Court of Appeal  IRLR 318