The Equality Tribunal
Employment Equality Acts
(Represented by SIPTU)
- V -
Nano Nagle School
(Represented by Thomas J O’Halloran, Solicitor)
File reference: EE/2011/780
Date of issue: 3 December 2013
Keywords - Employment Equality Acts – Failure to provide reasonable accommodation – Disability – Prima Facie case – Appropriate measures – Section 16 defence
1.1 This dispute concerns a claim by the complainant that the respondent failed to provide appropriate measures to enable her to return to work on the ground of disability in terms of Sections 6(2), and 16 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 24 November 2011 under the Employment Equality Acts. On 27 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 14 October 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was employed as a Special Needs Assistant (SNA) with the respondent from 1998 and as a part-time secretary from 2004 onwards. In 2010 the complainant had an accident which left her paralysed from the waist down.
2.2 In January 2011, the complainant sought to return to work and contacted the respondent the respondent on that basis. The respondent referred the complainant for an occupational medical assessment. The complainant submitted that the occupational health physician, Dr B, supported her return to work and suggested a risk assessment be carried out to identify what duties were appropriate for the complainant.
2.3 The complainant submitted that in March 2011 she attended for a risk assessment, carried out by an independent provider and following this, the respondent referred her back to the occupational health physician. The complainant submitted that she was also informed that she could return to work if the respondent could keep the substitute as well, that the Board of Management wanted to know who would do the work that the complainant couldn’t do and also that the Board of Management also said that she couldn’t return to work as she couldn’t do the job she was employed to do.
2.4 The complainant submitted that she attended with Dr B again. She submitted that he queried why she was returning as her medical condition was stable, and that he also suggested that the Board of Management needed to decide if they were going to accommodate her return to work. The complainant submitted that Dr B felt that the risk assessment was inadequate and the respondent should carry out another one but that as far s he was concerned her medical condition was stable.
2.5 The complainant submitted that the second risk assessment was carried out in September 2011 and it identified duties that could and others that could not be carried out by the complainant, including that she could operate as a third SNA in a classroom or divide her time between classrooms.
2.6 The complainant submitted that prior to her third appointment with Dr B, the school principal, Ms X, rang to wish her good luck and to inform her that she would be seeking funding to keep her on as a ‘floating’ SNA but that the Board of Management told her not to do anything until her latest medical assessment was over.
2.7 The complainant submitted that Dr B told her that the respondent was not willing to accommodate her, that she could be a ‘floating’ SNA and that he did not understand why the school would not divide the duties of the SNA but that in the circumstances he had no choice but to conclude that she was unfit to return to work. The complainant submitted that Dr B stated that she would be an asset to the respondent and that she could work for another organisation but that this one didn’t want her.
2.8 The complainant submitted that she believes that no reasonable or appropriate measures were taken by the respondent to facilitate her return to work and that the opposite was the case and that she is quite capable of fulfilling a role with the respondent as a SNA and as a secretary.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant was employed as a SNA from 1998 onwards. In 2010, the complainant had an accident which left her paralysed from the waist down.
3.2 The respondent submitted that prior to the complainant returning to work, it had concerns as to her ability to undertake her role. Accordingly the respondent sought professional assistance in assessing whether the complainant was in a position to return to work. The respondent further submitted that when the assessments proved inadequate, they sought further and additional information.
3.3 The respondent submitted that ultimately the medical reports indicated that the complainant could not undertake the full range of her duties. The respondent also submitted that the SNA system is funded by and on behalf of the Department on Education and as such, the funding for SNA’s is beyond the control of the School or the Board of Management.
3.4 The respondent submitted that, having regard to the sort of pupils it caters for, SNA’s must work in pairs. As the bulk of the jobs of the SNA position are beyond the complainant’s ability, the only option for her to remain in position with them is if the authorities would grant funding for a “floating” SNA in addition to the staff complement funded at that time. The respondent submitted that it made enquires as to whether a ‘floating’ SNA position could be funded but was informed that SNA’s are provided for the benefit of the pupils, not for the benefit of staff and accordingly funding for a floating SNA could not be sanctioned.
3.5 The respondent submitted that in the absence of that funding and in a situation where two SNA’s needed to be in place in any one classroom, from a health and safety perspective, it was not in a position to provide the complainant with appropriate measures to enable her to return to the workplace and it was left with no alternative but to let the complainant go.
3.6 The respondent denied that the complainant was employed as a part-time secretary, rather she helped out on occasion with secretarial and computer based tasks.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent failed to provide appropriate measures under Section 16 of the Acts.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 A number of witnesses were in attendance at the hearing of this matter, including the complainant; the Principal of the respondent school, Ms X; the chair of the Board of Management, Mr Y and the Deputy Principal of the respondent school, Ms Z. Mr A, a principal of a similar school based in another county was also in attendance as was Dr B, the occupational health physician who met with the complainant on three occasions. The complainant’s and all of the witnesses testimony was very helpful in this investigation and their credibility is not in doubt.
5.4 Having regard to the testimony of all concerned, I am satisfied that the respondent is a special needs school, that caters for students with moderate, severe and profound disability. Testimony was given that attested to the fact that the numbers of students with severe or profound disability, including some elements of behavioural difficulties is quite high. This testimony was not contradicted. In addition, I am satisfied that the role of an SNA in this type of environment is not exactly comparable to the role of an SNA in a more mainstream school.
5.5 A number of facts have emerged from the testimony given at the hearing and there are no areas of contention surrounding the relevant issues. When the complainant sought to return to work, the respondent sent her for assessment by an occupational health physician. On the basis of his recommendation, the respondent carried out an independent risk assessment. The complainant then returned to the occupational health physician following this. The occupational health physician was not satisfied with the details in the risk assessment and suggested that a second risk assessment was carried out. The respondent conferred with the complainant and engaged an Ergonomics/Occupational Therapist Consultant, Ms P, nominated by the complainant to undertake a second risk assessment. This consultant was familiar with the complainant disability, having worked with her during her recuperation period.
5.6 Ms P’s report outlines the assessment method which included reviewing the suitability of the school and classes on one day and observing the complainant in situ for an additional day. A job analysis was undertaken having particular regard to the school environment; the safety of the complainant, staff and children; and the complainant’s ability to complete the duties of an SNA in the school
5.7 The job analysis details the tasks to be undertaken by the complainant and outlines any adaptations required to accommodate the complainant. In her conclusions, Ms P outlines that there is a requirement for two physically able SNA to deal with children who act out or who need physical assistance and also that the SNA’s may need to intervene to protect a child or other staff member. Ms P also concludes that it is clear that the complainant “is limited from assisting with children with physical care needs” and continues that safety is “the main concern for the complainant, staff and children”. Ms P’s recommendation is that the complainant could act as a floating SNA and that it is not recommended that she “work with children who act out physically”. In her final comment, Ms P expresses the hope that the responded has the resources to support the complainant as she is “very motivated to return to work”.
5.8 The complainant returned to see Dr B following the ergonomic/occupational assessment and he interprets the report as confirming that the complainant has difficulty completing many of the more challenging aspects of the SNA role. He indicates that it confirms that the complainant is not suitable to complete a series of routine tasks safely and that two physically able SNA’s are required to meet the demands of the role of SNA in this school. Dr B acknowledged that the complainant has a medical issue that renders her unsuitable to perform many of the roles typical of a special needs assistant (and clarified in oral testimony that he means in this school situation). Dr B noted that the level of accommodation required by the complainant is ‘significant’ and that the respondent is not in a position to facilitate such a level of accommodation. Dr B concludes by giving the opinion that the complainant is not medically fit for the position of special needs assistant and that the condition is genuine and permanent. Dr B closed his assessment with the remark that he feels that the complainant is likely to remain unfit for the position of SNA permanently.
5.9 The Principal, Ms X, outlined the steps that she took to ascertain whether she could get funding for a ‘floating’ SNA position and was informed that the provision of SNA‘s was to enable the care of children, not of adults. Accordingly, no funding for a ‘floating’ SNA was forthcoming. In the circumstances where their budget is externally controlled, the respondent was not in a position to fund a ‘floating’ position and accordingly, was left with no alternative but to let the complainant go.
5.10 In the recent case of Shannon Regional Fisheries Board and A Worker (Determination EDA1318) the Labour Court stated that
“The general principles set out in Humphries v Westwood Fitness Club require an employer to make a bona fide and informed decision concerning a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive. “
5.11 In the instant case, I consider that the respondent has fully and properly assessed all of the medical evidence available and that upon obtaining further medical advice that evidence is conclusive.
5.12 In the Labour Court’s decision in the case of 'A Health & Fitness Club and A Worker' (Determination No EED037, ED/02/59), the Court’s approach is outlined as follows:
"However a dismissal which appears to be discriminatory within the meaning of Section 8 of the Act may be saved by Section 16. This section provides, as follows:
16.—(1) 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—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(2) [Not relevant]
(3)(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
5.13 In the instant case, discriminatory dismissal is not being pursued, and the only issue for me to consider is the provision of appropriate measures. In the circumstances of this case, I am satisfied that the complainant is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to the position of SNA with the respondent, having regard to the conditions under which those duties are, or may be required to be, performed. Accordingly, the respondent is entitled to rely on Section 16 and the complaint must fail.
5.14 Having regard to the element of the complainant which relates to the complainant’s work as a part-time secretary the evidence given by Ms X, the school Principal, is that the complainant helped out with some secretarial duties over a number of years, taking home some computer-based work in order to assist with the secretarial duties for a colleague who was ill. The evidence given was that this person subsequently passed away and that the respondent recruited a full time secretary to undertake this role. Ms X stated that although the complainant continued to undertake some small amount of work (for which she was paid from petty cash) the work was no longer necessary. Ms X’s evidence was that she continued to pay the complainant the small sum because she did not know how to discontinue the payment as the complainant had helped out the school a lot and by that time had become a personal friend. This account of events was not contradicted by the complainant
5.15 Having regard to the written and oral evidence in this regard, I am satisfied that the complainant was not recruited as a secretary, and that following the incumbent’s appointment as the full-time secretary there was no need for the complainant to undertake secretarial duties any further. I am also satisfied that at no time did the complainant seek to work as a secretary and that her primary role which seems to have accounted for more than 95% of her time is that of SNA. I am also satisfied that to accommodate the complainant in a secretarial role would necessitate the respondent either letting go the incumbent secretary or creating an additional position for the complainant. In my opinion, either of these steps would go beyond what is envisaged by Section 16 of the Acts. Accordingly, this element of the complaint also fails.
6.1 Having considered all the written and oral evidence presented to me, I find that the medical evidence indicates that the complainant is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to the position to which she was recruited for, having regard to the conditions under which those duties are, or may be required to be, performed. Accordingly the provisions of Section 16(1) of the Acts applies in relation to this complainant and therefore this complaint must fail.
6.2 Additionally, notwithstanding the foregoing, I have considered all the written and oral evidence presented to me, and I find that the respondent has given consideration to the provision of appropriate measures to enable the complainant to return to work but that these measures give rise to a cost other than a nominal cost. Therefore the respondent is entitled to rely on the provisions of Section 16(3) of the Acts and accordingly this complaint must fail.
3 December 2013