The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
EQUALITY OFFICER’S DECISION DEC-E2014-061
(Represented by Judith Johnston)
St Patrick’s Guild
(Represented by IBEC)
File reference: EE/2012/003
Date of issue: 15 August 2014
Employment Equality Acts - Disability – Failure to Provide Reasonable Accommodation & Victimisation
1.1 This dispute concerns a claim by Ms Barbara Johnston that she was discriminated against by St. Patrick’s Guild on the grounds of disability contrary to section 6 (2) (g) of the Employment Equality Acts in relation to a failure to provide reasonable accommodation in accordance with section 16 of the Acts and that she was victimised in accordance with section 74(2) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 21 December 2011 under the Employment Equality Acts. On 28 March 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to 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(1) of the Acts and as part of my investigation I proceeded to a hearing on 5 June 2014.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started working for the respondent in April 2005 and she was one of three people working in the General Office. She worked 2½ days per week in one full day and three half days.
2.2 The complainant submits that in January or February 2010 the three people in the General Office were asked to undertake a filing project during slack periods. This involved taking files out of deep old fashioned cabinets and then using a trolley to wheel files to her desk. After a short period she lost proper movement in her right arm and informed the Director of Services (Sr A) of the discomfort. Then she had a pain in her left arm. It was only after a few months that she realised it could have been caused by her work in the cabinets. The complainant went to her doctor who diagnosed tennis elbow and she informed Sr A. She continued working on the filing project and the pain travelled up her arm and into her shoulder. Then she told Sr A that her doctor had told her to stop digging into the filing cabinets until her arm got better. Shortly after this a colleague told Sr A that she had a back problem caused by filing. Sr A then said the project was to be abandoned even though it was only half completed.
2.3 The complainant submits that she was still expected to close heavy shutters in the evening. She contends there was no point in trying to explain to Sr A. In March 2011 she went back to her doctor who gave her a certificate stating that “she is very restricted in doing physical work”. She gave the certificate to Sr A the next day and explained she would have to temporarily stop closing the shutters. Sr A’s reaction was not pleasant and said she would be taking the complainant’s case to the board. Sr A said her job was in question because of her inability to do these physical tasks. The certificate also stated that complainant may need surgery and Sr A asked when the complainant was going to have the operation and how long it would take to recover.
2.4 A few weeks later, about two weeks before Easter, Sr A gave the complainant 20 sheets of correspondence to put into 20 separate files. This was most unusual as the complainant was usually asked to file one or two pages of correspondence at a time. She did the task with great difficulty and consequently had to go back on anti inflammatories. She told Sr A the following day who was unpleasant and threatening and she told the complainant that her job did not exist anymore. The complainant told Sister A that her injuries had initially occurred in the workplace and asked for a copy of the Health and Safety Act and showed Sr A the relevant pages. Within an hour Sr A apologised and said the complainant had caught her on a bad day and there was no need for the conversation to go any further.
2.5 Following this serious exchange Sr A showed the complainant a draft contract on 26 June 2011. It said she was a Grade IV Clerical (HSE), which had not been said before, but she was not being given the increments of the grade. It also stated that she would have to retire when she was 65 even though the state pension begins at 66 and it stated that she was entitled to 20 days leave but she had been taking 23 days. The complainant refused to sign the contract. In mid February 2013 she was asked to sign the contract again and was told that a new contract was not yet finalised. Again she refused to sign.
2.6 On 7 December 2011 the complainant had a heated conversation with the most recent Social Worker (Ms B) about taking clients upstairs and taking them cups of tea and coffee upstairs. The usual practice was for clients to be given tea and coffee on the ground floor. The complainant told Ms B that because of a problem with her foot (planta fasciitis) and her weak arm joints she could not risk walking up the stairs carrying a heavy tray. Even though she was aware of the complainant’s disabilities Ms B threatened that she would have a meeting with Sr A about the complainant.
2.7 Shortly after this incident on 13 December 2011 the complainant submits that she was told by Sr A that her hours and pay were to be reduced by 20% (½ day per week). She was told that she was the only one affected because she was the last in. She was told at the meeting that the cut arose because of a funding issue but in a subsequent letter dated 20 December 2011 she was told there was not enough work. The complainant contends there had been no change in the workload for the General Office. The reduction was scheduled to take place in February 2012 but before then the respondent changed their mind and split the cut evenly between the three people working in the General Office.
2.8 The complainant submits that Sr A also knew that the complainant had a colostomy for the past 20 years, yet there are 4 toilets in the building with no proper sanitary facilities.
2.9 The complainant submits that she has had ongoing interpersonal difficulties with another member of staff in the General Office. She hoped these would be resolved through a mediation process but it has not worked.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submits that as the complainant made her claim on 21 December 2011 I can only consider events after 22 June 2011, and that the incidents referred to before then are isolated and unconnected events. The respondent also submits that I cannot consider events after the making of the claim and relies on Labour Court Determination EDA122, A School and A Worker, which stated that events subsequent to the initial claim could only be considered if they were in support of alleged discrimination which occurred before the claim was made.
3.2 The respondent submits that in relation to the victimisation claim the complainant had not made any complaint of discrimination to the respondent before she made this complaint to the Equality Tribunal and therefore could not have been victimised, in accordance with the provisions of section 74 (2) of the Employment Equality Acts. Furthermore, any purported victimisation occurring after the lodging of the claim is outside of the time limits in accordance with the Employment Equality Acts.
3.3 The respondent submits that the complainant started working for them on 12 April 2005 as a part time secretary/receptionist, working 17.5 hours per week. The pattern and hours of work have varied over time by agreement. Her starting rate of pay was agreed at the time she started as being at point 1 of Grade IV clerical in the HSE.
3.4 The complainant advised the respondent she had a bowel disorder when she started. She told the Director (Sr A) that it would have no impact on her work and requested no accommodation to be made and indicated that no accommodation was necessary. The complainant was accommodated with time off as and when she needed it. The respondent only became aware the complainant had concerns when they were informed of this complaint by the Equality Tribunal in January 2012. They then spoke with the complainant and additional sanitary facilities were put in place.
3.5 The respondent was not aware that the complainant had any other issues until this complaint was made. When the respondent was notified of the complaint they set about addressing the issues raised. They engaged an independent HR consultant and his recommendations, which were published 25 June 2012, were accepted by all; including the complainant.
3.6 In early 2010 the respondent decided to make an inventory of all files held by the agency. The project was presented to all 3 administrative staff to be done during slack periods and they were told there was no rush or pressure on them to complete the task. They were advised to use a trolley to move files, that a manageable number of files were to be taken at any one time and they should only work on the task for 1/2 hours at a time. In this respect the complainant was treated the same as her two colleagues. The respondent denies the task was overly physically onerous or that it involved ‘digging’ into cabinets as claimed by the complainant. Indeed the use of filing cabinets was day-to-day work. Some months into project the complainant mentioned to Sr A that she had discomfort in her arm. The complainant rested her arm and this was facilitated by the respondent. The complainant was no longer required to work on the project. The complainant did not mention any causal connection between the project and the discomfort in her arm. The respondent submits that no disability has been identified and there is no medical evidence to support the complainant’s assertions.
3.7 Over a period of time the complainant mentioned she was going to her doctor and receiving treatment for her arm. It was a number of months before the complainant said her doctor suggested there was a link. The respondent acted immediately when they became aware there was a suggested link and on 11 March 2011 they told the complainant to stop work on the project. The respondent submits that this amounts to reasonable accommodation. Later a colleague said she was having difficulties with her back so the project was ceased as it was not fair to leave it to just one person.
3.8 There are blinds and shutters on the staff room, filing room, general office and reception room and these are opened and closed each working day. It is the role of the receptionist/secretary on duty at the time. On 16 March 2011 the complainant came to Sr A and said she would no longer be able to open and close the shutters because she was suffering from tennis elbow. She gave in a doctor’s certificate which stated she was “very restricted in doing physical work”. Sr A asked the complainant a number of questions. She had concerns about the accommodations the respondent may be able to make. These were practical questions about how to manage the situation and Sr A accepts she “may have spoken somewhat sharply or not conveyed her concern” for the complainant but she was not “threatening”. She apologised a few days later and had a positive conversation with the complainant about what duties she could do and how the respondent could facilitate her. Arrangements were put in place to relieve the complainant of duties which were causing her difficulty.
3.9 The respondent submits that the 20 sheets which Sr A gave the complainant for filing was not unusual. The complainant raised no concerns at the time.
3.10 The respondent submits that the incident referred to by the complainant regarding the provision of tea and coffee in December 2011 took place a long time after the other incidents and is unconnected to the other incidents. Sr A was not aware of the dispute between the complainant and Ms B until 13 December 2011. The respondent submits that it was not related to later discussions regarding hours of work.
3.11 The respondent submits that there was a decline in the volume of their work and there was a consequent reduction from 15 to 9 social worker days per week during 2009 and 2010. In December 2011 a decision was made to reduce the number of secretarial/reception hours by ½ day per week. The decision to reduce the complainant’s hours was made on the last-in-first-out (lifo) basis and the complainant was selected as she had the least service of the three staff. This criterion (lifo) was also used when the social work hours had ben reduced. On 13 December 2011 Sr A spoke to the complainant. She was told that the reduction in hours was due to a decrease in the volume of work and was not told that it was due to a funding issue. The reduction in hours was scheduled to occur from February 2012. This reduction was unconnected to disability or to any other matters. When the respondent was informed of this complaint they engaged an HR consultant and arising from this there was an agreement to spread the reduction in hours across all 3 administrative staff.
3.12 The complainant had not previously been issued with a contract. On 26 June 2011 a draft contract was issued to all 3 administrative staff. The contracts were identical, apart from the salary, so there was no potential discrimination. The complainant raised an issue regarding leave and this was clarified. The retirement age was aligned with the state pension age. In February 2013 the contracts were finalised for all 3 but the complainant refused to sign hers or engage with the respondent whilst this claim was pending.
3.13 The respondent submits that the issue of interpersonal difficulties that the complainant had with another member of staff in the General Office was not in the original complaint form and is therefore outside of that complaint. Its subsequent inclusion is therefore outside the time limits. Furthermore it has no connection to any disability and amounts to interpersonal friction.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant suffered discriminatory treatment on the ground of her disability in relation to the provision of reasonable accommodation in accordance with section 16 of the Acts and if she suffered victimisation in accordance with section 74(2) of the Acts. 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.
4.2 The first issue I must consider is that of time limits. Section 77 (5) (a) of the Employment Equality Acts states:
“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence.”
This period may be extended to twelve months if there is reasonable cause for a delay in submitting a claim.
It is possible to refer a complaint of a number of events of which only the most recent is within the six month time frame where it can be shown that the events create a chain of related events.
4.3 In this case the complainant has referred to the problems she had with her arm and the filing project. The respondent saw a doctor’s certificate in March 2011 which referred to the complainant being “very restricted in doing physical work” and she was told to stop working on that project. It was also agreed in March 2011 that the complainant would no longer have to open and close the shutters. However, evidence has been put forward that she was subsequently asked to carry out this work on Wednesdays and continued to do so at least until she submitted this claim.
4.4 I conclude that the incidents referred to by the complainant in relation to her arm are not isolated and unconnected events, as contended by the respondent. They relate to her arm injury and are connected to her contention that the respondent had failed to provide her with reasonable accommodation in relation to that injury. I therefore find that the events relating to the complainant’s arm injury are ‘in time’ in accordance with the provisions of the Employment Equality Acts.
Provision of Reasonable Accommodation
4.5 I must now look to see if the complainant’s arm injury falls within the definition of “disability’’ within section 2 of the Employment Equality 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 from a person without the condition or malfunction, or
(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,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”
Before March 2011 it is accepted that the complainant mentioned to Sr A that her arm was causing her discomfort but there was no indication that she was restricted in what she could do. The medical certificate submitted by the complainant in March 2011 stated the complainant: “has an ongoing tennis elbow, which may need surgery. Because of this she is very restricted in doing physical work.” My conclusion is that the complainant’s arm injury falls within the definition of “partial absence of a person’s bodily … functions” and that the complainant has a disability in accordance with the Employment Equality Acts. I also conclude that the respondent was aware that the complainant had a disability from the time the certificate was submitted.
4.6 When the complainant submitted the doctor’s certificate in March 2011 she was told by the respondent not to work on the filing project any longer and she was no longer required to open and close the shutters. However, shortly after this the complainant was given what she contended was a larger amount than usual of filing to do at one time. The respondent contended there was nothing unusual about the filing but at the hearing Sr A gave evidence that she considered the complainant had very little else to do and she was testing out her capabilities. The complainant contends she went back on anti-inflammatories for her arm injury as a consequence of carrying out this task. Also, the complainant was subsequently asked to open and close the shutters on Wednesdays and the complainant’s evidence is that she was afraid to refuse because of what Sr A’s reaction might be.
4.7 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.”
4.8 The complainant wanted to avoid aggravating her arm injury and asked to stop working on the filing project and to stop having to open and close the shutters. Initially this was agreed to by the respondent and would probably amount to the provision of reasonable accommodation. However, the respondent then tested out the complainant’s capabilities by giving her a large batch of filing. Clearly if the respondent was unsure of the complainant’s capabilities they could have initially asked the complainant herself and then, if they were not sure, could have sought medical opinion. Then the complainant was asked, for the respondent’s convenience, to open and close the shutters one day per week. Again, they did this without asking the complainant whether there was any change in her condition from when she had asked to be relieved of this duty because of her arm injury. Nor did they seek medical opinion. Because of the interaction between the complainant and Sr A I accept the complainant’s contention that she was afraid of Sr A’s reaction if she refused.
4.9 I conclude that the respondent could quite easily have ensured the complainant was excused from ‘physical work’ and she could have carried out the rest of her duties. However, they chose not to do this and thus they failed in their duty to provide the complainant with reasonable accommodation in relation to her arm injury.
4.10 The respondent acknowledged that they knew the complainant had a colostomy from the start of her employment in 2005. They contend that the complainant informed them of this but said that it would have no impact on her work. The complainant did not contradict this. The respondent states they first became aware that the complainant was unhappy about the lack of facilities relating to her colostomy when it was included in this claim to the Equality Tribunal, which they were informed of in January 2012. They then installed the appropriate facilities. The complainant contends this took several months to be implemented. In circumstances where the complainant failed to ask the respondent for any facilities for more than six years, I fail to see how the complainant could contend, in her initial claim to the Equality Tribunal, that the respondent failed to provide her with reasonable accommodation.
4.11 The other incident put forward by the complainant which she contends relates to disability is the disagreement she had with Ms B about the provision of tea and coffee for visitors in December 2011. From the evidence presented this was a work disagreement and when the complainant told Ms B of her difficulties she was not made to do anything relating to her disabilities.
4.12 The claim of victimisation is that the complainant was chosen to have her hours cut because her disability meant she was able to carry out less of the duties. Section 74 (2) of the Employment Equality Acts states: “For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.12 The complainant did inform Sr A that she was restricted in her physical abilities and did make a connection between her arm injury and the work she did on the filing project. However, there is no evidence that she made a claim of discrimination or that she fell into any of the other sub sections of section 74 (2). As stated by the Labour Court in EDA 1312, Frances Donnelly v National Gallery of Ireland: “This section of the Acts is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.”
I therefore conclude that the complainant is unable to establish a prima facie claim of victimisation.
5.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the respondent failed to provide the complainant with reasonable accommodation on the grounds of the complainant’s disability, and
- that the complainant was not victimised.
5.2 I order the respondent to pay the complainant €7,500 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
15 August 2014