THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2011- 246
(represented by The Equality Authority)
(represented by Advokat Compliance Ltd)
File reference: EE/2008/486
Date of issue: 19th December 2011
Keywords: Employment Equality Acts, Disability, Imputed disability, Access to employment, Failure to provide reasonable accommodation
1.1 The case concerns a claim by Ms McN against a charity providing services to people with intellectual disabilities. Her claim is that she was discriminated against regarding access to employment, on the grounds of disability in terms of 6(2) (g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as 'the Acts']. She also claims that the respondent failed to provide appropriate measures that would allow the complainant to be employed by them.
1.2 Through her legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on the 19th July 2008. On 18th July 2010, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 22nd April 2011 as required by Section 79(1) of the Acts. The last piece of correspondence in relation to this case was received on 24th June.
2. Summary of the complainant's case
2.1 The complainant applied for the positions of Social Care Worker, Care Assistant and Basic Instructor with the respondent. The respondent is a charity offering services to people with varying levels of intellectual disabilities. She was called for interview for the first two positions. The interview took take place on 12th February 2008. The complainant submits that she is very interested in working with people with disabilities as she is visually impaired herself and therefore can relate to their difficulties. At the time of interview she had obtained an honours degree in Applied Social Studies and was doing some voluntary work for the respondent. She had various example of relevant work experience e.g. working with children with special needs. At the interview, in the interests in being frank, she mentioned that she had congenital glaucoma and used a magnifying glass for reading. She pointed out that this did not prevent her from obtaining a degree or working with people with disabilities elsewhere.
2.2 The complainant was successful in the interview both for the Care Assistant and Social Care Worker roles. She was informed by letter dated 21st February 2008 that she was being placed on the relief panel for care assistant duties subject to compliance with six conditions including a medical examination with a general practice recommended by the respondent (Dr A's practice). She complied with the other five conditions and attended her medical appointment on 28th February. The examination was conducted by Dr B, a GP at Dr A's practice. She discussed her visual impairment with Dr B. The GP also asked her whether she ate well (Ms McN has a body mass index of 15). The complainant submits that she replied that she 'eats like a horse'. The doctor gave Ms McN a sheet stating she is physically fit and suitable for employment albeit it drew attention to her visual impairment. Ms McN submits that she left the surgery assuming that all conditions were met and that she would be starting work shortly with the respondent.
2.3 Ms McN phoned the respondent to enquire whether they required anything else from her. Shortly after this phone call, she received a letter inviting her to a meeting with Mr C, Director of Human Resources with the respondent. At the meeting on 28th March 2008, she was handed a copy of a letter by Dr B to the Mr C. The letter stated:
I recently performed a medical examination on this lady who has applied for a care assistant position. Following our discussion, I wish to clarify several points.
This lady has been affected with congenital glaucoma with the result she has no vision in her left eye and significant visual loss in her right eye which is currently 6/24 with correction. She is also of extremely short stature with a weight of 35kg and a body mass index of 15.
In view of both of these issues, I feel that she would not be well-suited for a position in which she would be dealing with clients with challenging behaviour.
Ms McN submits that she was stunned when she was handed this letter as she had previously understood that she had passed her medical examination. She further submits that she was 'very down' as this is the career path she wishes to embark on.
2.4 The complainant agrees that her visual impairment is a disability within the meaning of the Acts. She denies her small stature is a disability within the statutory meaning but submits that the respondent is imputing this disability to her. She does not accept that her eyesight or her stature would have prevented her from being a Care Assistant or Social Care Worker. From her various work placements as part of her Social studies course she is aware that the duties of Care Assistant would require her to dress and wash people with intellectual disabilities. Neither a magnifying glass nor telescope would be necessary for these day-to-day duties.
2.5 She submits that her sight is a minor disability and that it is clear that she can function by her completion of her degree including work placements in care settings. She states nothing was mentioned to her during her medical examination and the withdrawal of the offer came as a complete shock to her. She does not dispute that the respondent has a right to conduct a medical examination. However, she submits that the report is very negative and gives no explanation as to why she would be unable to deal with the essential tasks of this position with the respondent.
2.6 No consideration was given to reasonable accommodation, the complainant submits. The complainant cites A Health and Fitness Club:
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.
2.7 The complainant submits that the respondent should have engaged an occupational therapist to assess the complainant, her disability, her physical presence and her potential workplace environment to judge her potential capabilities and suggest reasonable accommodation options if necessary.
3. Summary of the respondent's case
3.1 The respondent is a registered charity that provides services to over 480 people with moderate, severe and /or profound intellectual disabilities. Many of these service users have very high care needs and present challenging behaviour. The respondent submits it is committed to supporting people with disabilites obtain employment in environments which are appropriate and suitable to their needs. It was a founder member and partner in FAS-sponsored supported employment consortium for their region.
3.2 On 21st December 2007 the respondent received an application form for the complainant. She was invited for interview for the position of Social Care Worker and Care Assistant on 12th February 2008. She attended at interview and performed well which is reflected in the scores awarded to her. She mentioned her visual impairment herself at the interview but the respondent still deemed her suitable subject to a medical examination. On 21St February 2008, the respondent wrote to the complainant advising her that her name had been placed on the respondent's relief panel for both Social Care Work and Care Assistant. This offer was made subject to six conditions including receipt of satisfactory references, completion of a Garda clearance check and satisfactory medical examination.
3.3 The two letters which issued to the complainant by the respondent on 21st February 2008 (one in respect of each panel) asked her to contact Dr A's practice in order to have the medical examination carried out. Between that point in time and receipt of the result of the medical examination, both the complainant and respondent continued to deal with the various matters that needed to be attended to in order to allow the former to commence employment e.g. references sought and a PRSA option form was completed.
3.4 On 29th February 2008, the respondent received a letter from the complainant enclosing a note from Dr B. The handwritten note said that the complainant' has congenital glaucoma with the result that has no vision in her left eye and is vision is 6/24 in her right. She uses a magnifying glas to read. She said that this was discussed with yourselves at interview'. On 6th March Mr C, the Director of Human Resources rang the doctor in question seeking a medical report. This report is at 2.3. He and another member of the Human Resources Department met with the complainant on 28th March 2008. Mr C explained that the respondent would be reluctant to proceed with the appointment in light of Dr B's report. The complainant was given an opportunity to comment at the meeting and subsequently. The respondent heard nothing more from the complainant so on 15th April 2008, it wrote to her confirming that they were not proceeding with the complainant's application to the panel.
3.5 At the meeting of 28th March the complainant explained that she was already undertaking work on a voluntary basis for the respondent. The respondent submits that this is an evidence of a lack of discrimination by the respondent against the complainant. They submit that the roles she applied for were very different from that of a volunteer. As a volunteer, the complainant was under the supervision of staff at all times. The provision of such supervision would not have been possible had the complainant been appointed to the relevant relief panels. Instead she would have been receiving calls, often at short notice, in situations were other staff were unavailable to attend at work e.g. sick leave, force majeure leave or annual leave.
3.6 The respondent submits that she would often have been required to provide care for up to five service users with severe intellectual disabilities some of whom would have consequential behavioural difficulties. In circumstances where the complainant has a significant visual disability, the respondent submits that there would have been an unacceptably high risk of her not being able to notice visual signs of impending challenging behaviour. This, they maintain, would expose both herself and her service users to risk of injury. The respondent suggests that to allow her to work for them in these circumstances would breach its obligations under the Safety Health and Welfare at Work Act 2005.
3.7 The respondent points out that Section 16 provide that nothing in these Acts shall be construed as requiring any person to recruit an individual to a position if the individual is not fully competent 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. The respondent accepts that the complainant had excellent academic qualifications and otherwise was suitable for the appointment. However, they maintain she was not fully competent or fully capable of undertaking the duties considering the difficult conditions of employment both roles would entail.
3.8 Regarding reasonable accommodation, the respondent maintains that the only effective and practical measure that it might have taken to enable the complainant work as either a Social Care Worker or Care Assistant with them is to have her accompanied by a second Social Care Worker or Care Assistant at all times. The respondent submits that would be unduly burdensome on the respondent as it would double the cost of employing the complainant and that two people rather than one would have to be sought from the relief panels every time a member of staff was unavailable.
3.9 Regarding A Health and Fitness Club v A Worker, the respondent submits it did 'make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity' by contacting Dr B for her professional opinion as to whether or not she would be capable of performing either of these roles. Mr C allowed the complainant 'to influence the employer's decision' at the meeting on 28th March 2008. The respondent also points out that this instant case concerns a complaint regarding access to employment rather than a dismissal as in A Health and Fitness Club v A Worker.
3.10 In support of their case, the respondent cites Gannon v Milford Care Centre where the complainant's disability prevented her from bending and lifting in the course of performing her duties as a nurse. . The Equality Officer concluded that bending and lifting were such core elements of the job that these duties could not practicably be reassigned to their colleagues. Accordingly, the respondent had not failed to provide reasonable accommodation in the circumstances.
4. Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant suffered discriminatory treatment in relation to access of employment and whether the respondent failed to provide reasonable accommodation in order to enable her to take up a position with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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.
4.3 Disability is defined in Section 2 of the Acts:
(a) the total or partial absence of a person's bodily or mental functions including the absence of a part of a person's body
(b) the presence in the body of organisms causing, or likely to cause chronic disease or illness
(c) the malfunction, malformation or disfigurement of a part of a person's body
(d) a condition or malfunction which results in a person learning differently form a person without the condition or malfunction
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
The complainant submits that she has been discriminated against because of an actual disability (visual impairment) and an imputed disability (small stature and low BMI). Impute is defined in the Oxford English Dictionary as
1. regard (especially a fault or a crime) as being done or cause or possessed by; attribute or ascribe to the discredit of
2. reckon, take into account; consider
3. Charge or arraign with a fault etc; accuse
I am satisfied that Dr B in her medical report at 2.3 did impute the complainant's low BMI as a disability. The respondent submits that only actual disabilities can be imputed and a BMI of 15 is not an actual disability. I do not accept the respondent's contention in this regard. The definition of disability is very broad in the Acts. Section 2 (c) of the Acts could be interpreted to include an extremely low BMI such as the complainant's. Therefore, I am satisfied that the complainant has established a prima facie case of discrimination on the ground of disability regarding access to employment.
4.4 However, Section 16 (1) provides a saver for employers:
Nothing in this Act 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 ....
(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and full 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.
4.5 Mr D, expert in challenging behaviour, gave evidence for the respondent. He submits that he started as a Social Care Worker before qualifying as a Nurse, and then as a Psychologist. He has written a book on managing aggressive behaviour in care settings using low arousal approaches. He stated that he has been assaulted three times during his career working with people with intellectual difficulties. He wears glasses himself and they have been broken twice by service users during aggressive episodes. His view was that a serious visual impairment, like the complainant's, would be an obstacle in working as a Care Assistant or Social Care Worker. He submits that a person with poor eyesight could miss the visual cues preceding aggressive episodes. In response to a question by myself, he also said employing a person of small stature in these roles also be problematic but less so than a severe visual impairment. He said that while physical constraint should always be a last resort, giving the appearance of being physically strong is occasionally useful. He did not dispute that the complainant has empathy for disabled people but went on to say that, people with disabilities do not have a monopoly on empathy.
4.6 Dr B was a doctor at Dr A's practice for four years when she conducted the medical examination for the complainant. Dr B was unable to attend the hearing as she was no longer living in Europe and was on maternity leave. She did submit a witness statement. Dr A gave evidence to say he was the GP for the respondent charity. He conducted hundreds of medical examinations for them over his 38 years in practice. He has also frequently treated both staff and service users following violent episodes by service users. He stated that he is very familiar with the work of the respondent and the risks it entailed. Had he conducted the medical examination, he would have had reservations about the complainant being fully competent in undertaking the role of Care Assistant or Social Care Worker. He said that Dr B should not have expressed her reservations about the complainant's capability to take on all elements of the role on a pre-printed sheet saying that the complainant was physically fit and able to work for the respondent. However, that does not take away from the fact that Dr B did have concerns. It emerged at the hearing that the complainant previously worked with children, rather than adults, with intellectual difficulties during her work placements. I accept the respondent's contention that voluntary placements differ significantly from roles where you are paid to take responsibility.
4.7 Having heard the totality of the evidence, it is with some regret that I must accept the 16(1) defence argued by the respondent that the complainant is not fully competent and fully capable of undertaking the duties attached to the positions of Care Assistant and Social Care Worker considering the conditions under which these duties may be required to be performed. It is unfortunate, but not discriminatory within the statutory meaning, that the respondent could not offer the complainant roles to which she was academically qualified and interested in. This is because, on medical advice, the respondent had to consider its obligations as an employer and to its service-users. In direct evidence, Mr C said that 'in an ideal world, he would love to employ the complainant.
4.8 I will now turn to 'reasonable accommodation. Section 16 (3) of the Acts states:
3) (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.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(c) In determining whether the measures would impose such
a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's
(iii) the possibility of obtaining public funding or other
(4) In subsection (3) --
''appropriate measures'' in relation to a person with a disability --
(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; [my emphasis]
In the instant case, I do not accept the complainant's contention that a report of an occupational therapist was required to second-guess a medical practitioner who was familiar with the requirements of the roles in the respondent organisation. I am satisfied that the only effective measure that would protect the safety of the complainant and the respondent's service users is to employ an other Care assistant or Care Worker to shadow the complainant. This is not practical and would place a disproportionate financial burden on a charity.
4.9 While Dr B should not have put her concerns on a document that gave some indication that the complainant was deemed physically fit and able to work for the respondent, I accept that Dr B had legitimate reservations and these reservations were not hidden from the complainant. When the respondent organisation received the doctor's note from the complainant, they correctly contacted Dr B for a more comprehensive medical report. In line with fair procedures, they asked the complainant to attend a meeting where they gave the complainant a copy of the report and Mr C outlined his concerns. The complainant was allowed over a fortnight to comment on same before they formally withdrew their offer of employment. Neither then nor subsequently did the complainant proffer alternative medical evidence. This distinguishes this instant case from A health and Fitness Club v A Worker where the respondent did not seek professional advice nor did they respondent discuss the complainant's situation with her before dismissing her.
4.10 I am satisfied that the respondent is entitled to avail of the defence in Section 16 i.e. only with measures that would place a disproportionate financial burden on the respondent would the complainant be fully capable and competent of performing all duties.
I have concluded my investigation of Ms McN's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has not discriminated against the complainant on the grounds of disability regarding access to employment
(ii) the respondent has not failed to provide appropriate measures that would allow the complainant to be employed by them
Therefore, I find against the complainant.