The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-058
(Represented by Paul W Treacy Solicitors)
(Represented by Peninsula Business Services (Ireland) Ltd.
File reference: EE/2013/613
Date of issue: 30 July 2015
HEADNOTES: Employment Equality Acts Sections 6, 8Disability – Conditions of Employment, Discriminatory Dismissal – section 16 provision of reasonable accommodation
1.1. This dispute concerns a claim by Ms. A, the Complainant that she was discriminated against by Employer X on the grounds of disability contrary to section 6 of the Employment Equality Acts and in terms of discriminatory dismissal contrary to section 8 of the Acts and that the respondent failed to provide reasonable accommodation.
1.2. The Complainant referred her claim to the Director of the Equality Tribunal on 15th November 2013. On the 30th June 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, 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 the 6th July 2105.
2. COMPLAINANT'S SUBMISSION
2.1. The Complainant started work for the Respondent in July 2010 as a sales assistant and later an Assistant Manager.
2.2. In January 2013 the Complainant suffered a disk tear which necessitated surgery in February 2013. Having taken three months unpaid leave she returned to work in the first week of May 2013.
2.3. In September 2013 her back condition again concerned her and the Complainant sought further medical advice. She was advised that she should work fewer hours or perform light duties in the hope that her back condition might resolve.
2.4 She approached the Respondent’s Manager Mr.P on the 25th September 2013 and outlined the medical advice she had received. She wished to continue working and was confident that if she was afforded the accommodation sought in terms of light duties or reduced hours her situation would resolve. Additional medical evidence was provide by a report from a physiotherapist which also recommended light duties.
2.5. On the 10th October 2013 the Complainant again met with Mr. P who gave the claimant a letter informing her that as she had received medical advice that she was unable to work on a full time basis her contract was being terminated. There was no exploration or discussion of alternative options at any stage.
3. RESPONDENT'S SUBMISSION
3.1. The Respondent briefly described the position of Assistant Manager occupied by the Complainant. It was an active Management role on the shop floor of a small fashion retail shop.
3.2. The Complainant was on sick leave for spinal surgery from 22 January 2013 until 30th March 2013. The Complainant returned to work at the end of March 2013 on a full time basis but was put on light duties.
3.3. On the 25th September 2013 a meeting took place between the Complainant and Mr.P the Respondent’s Manager. At this meeting the Complainant explained to Mr.P that she had received bad news from her Doctors. Her surgery had not been successful and her back continued to be a problem. She could not continue in full time work. She stated to Mr.P that she understood that this would mean that he “would have to let her go” but she would like to stay on a part time basis.
Mr.P stated at the meeting that letting her go would be a very big step and he needed to get clarification from medical professionals to see what the exact situation was and to see what she could do and what she could not do before coming to any decision. He asked her to provide him with all her medical reports which she did on the 3rd October 2013.
Mr.P stated that he carefully, over a period of 10 days, considered the medical reports and the nature of the Complainant’s job. It was not possible for an Assistant Manager to work part time in the shop. Her role required her to be on her feet all the time and the medical restrictions being sought were restrictive and would impose a very high degree of inflexibility on her duties and her possible working hours. Mr.P stated that he was extremely sympathetic to the Complainant as she had been an excellent employee and he did not take any decision in regard to her employment lightly.
On the 10th October 2013 he met with and wrote to the Complainant stating that he could not accommodate her employment on a part time basis and was terminating her full time employment with immediate effect. The letter stated that “the terms laid down by your medical professionals are restrictive and totally at odds with the need to be flexible and scheduling of hours within the store”
3.4 In relation to “Reasonable Accommodation” the Respondent stated that the Store had allowed the Complainant “Light Duties” since her return from surgery in Poland. Staff had been made aware of the Complainant’s back situation and all steps were taken to limit any duties that would involve lifting or flexing. Despite this the Complainant’s condition had continued to deteriorate. Mr. P also considered that from a Health and Safety perspective, no matter how they attempted to prevent it, there was likely to be some form of lifting, loading, or forward flexion involved – all precluded by her medical advisors. Even if the Complainant took a lesser role these restrictions would continue to apply.
The medical time off and resting post treatment requirements of the Complainant were such as to leave her entirely inflexible work attendance wise and this was contrary to the needs of the business.
The Respondent stated that at no time did the Complainant offer to take a lesser role or state that her overall situation was temporary. At the meeting on the 25th September the Complainant clearly stated that she would understand it if the Respondent had to “let her go”. She was aware that termination was a possible outcome should the Company be unable to facilitate her as she needed.
3.5 The Respondent stated that to facilitate the Complainant in the manner sought would have placed a Disproportionate Burden on the Company. The Respondent would have had to employ someone else on an Assistant Manager’s salary to carry out the duties of the Complainant, albeit on a part time basis. These duties were of a higher order that that of a Sales Assistant. Furthermore sourcing such a part time resource with the necessary time flexibility to work in tandem with the Complainant would not have been operationally feasible.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision, having reviewed all the written and oral evidence presented, is whether or not the Complainant was subjected to discriminatory treatment and discriminatory dismissal on the grounds of disability in terms of section 6 of the Employment Equality Acts and contrary to section 77 of those Acts and whether finally the Respondent failed to provide “appropriate measures” under Section 16 of the Acts.
4.2 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.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.
4.4 Having regard to the foregoing, and on the balance of probabilities, I am satisfied that the parties were aware from January 2013 that the Respondent had a serious back condition that required major spinal surgery in Poland during February 2013.
The Complainant discussed her situation with the Respondent on her return and was put on “light duties”. Reasonable efforts were made in the period to September to facilitate her back condition. This was confirmed by oral and written witness evidence.
The premises operates on two floors, a retail floor and a stock room, accessed by a stairs, on the floor above. The nature of the work involves a fair degree of movement from floor to floor with receipts of deliveries and seeking clothing sizes that may not be on immediate retail display. The Respondent made it clear that on her return to work the Complainant was not to carry any boxes or materials up or down the stairs as would have been the case prior to January 2013.
4.5 On the 27th September 2103 the parties met and discussed the medical situation. The Respondent asked for and was provided with full medical reports from the Complainant. These were available in evidence.
The medical position of the Complainant was serious, she had a developed Scoliosis condition. None of the Medical reports indicated any immediate likelihood of an immediate or full recovery.
4.6 The Respondent is a small employer with less than 10 staff, both part time and full time, in the premises in question. It was part of a chain of three shops – operating independently. The Respondent gave details verbally of the total turnover of the Group. The Respondent could not be described as an employer with access to large financial resources.
4.7 In the instant case it is useful to consider the Labour Court's approach in the case of 'A Health & Fitness Club and A Worker' (Determination No EED037, ED/02/59)
"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."
4.8 This case effectively set out the required procedural rules in this type of case.
In relation to the first stage of the employer's enquiry referred to in the quoted case I am satisfied that the Respondent made adequate enquiries as to the Complainant's condition such as to establish the factual position. In evidence in reply to a query from the Tribunal it was stated that the Respondent did not seek an independent Medical opinion on the evidence as produced by the Complainant.
However the nature and extent of the Medical evidence presented by the Complainant to the Respondent and shown in evidence to the Tribunal was such that an independent medical review could scarcely have materially altered the factual position. The Complainant was suffering from Lumbar Scoliosis and had had major spinal surgery in Poland.
The need for an independent review, while possibly procedurally advisable, would not have really added much to the factual situation where it was accepted that the Complainant has Lumbar Scoliosis.
On balance I have to find that the Respondent was fully appraised by the Complainant of all relevant medical evidence.
The Complainant discussed her condition with the Respondent on her return from surgery in Poland again on the 27th September and finally on the 10th October 2013. In oral evidence it was clear that the Respondent was sympathetic to the Complainant and was not in any way seeking to hastily terminate the employment without a full consideration of the evidence.
4.9 In relation to the second stage of the procedure, as outlined in the Labour Court decision above, the consideration of what 'appropriate measures' could be taken by the Respondent, and the cost of those measures must be taken into account.
The Respondent had provided “light work” since the post-operative return from Poland. This was confirmed in evidence both oral and written. The Store Manager. Ms. X gave evidence in corroboration. In reality “light work”, albeit on a full time hours basis, did not seem to have helped the Complainant’s medical condition.
4.10 The nature of the work involved in the retail premises was effectively a standing up and on your feet job.In the Oral hearing it was clear that the only form of “Reasonable Accommodation” possible would have been for the Complainant to work significantly reduced hours in a “Fragile Eggshell” type medical condition. The Report from the Physiotherapist in particular, severely restricted the types of physical movements available to the Complainant. The requirement for medical appointments and follow up rest periods were also quite extensive.
Leaving aside for the moment the physical restriction on the Complainant, the reduced hours in the full Assistant Manager role with all administrative duties, would have involved the Respondent sourcing another part timer of Assistant Manager caliber. Bearing in mind the small scale and limited financial resources of the Respondent’s business the practical issue here was the uncertainty and inflexibility of the Complainant’s working times and the difficulty of securing another resource flexible enough to effectively “Partner” the Complainant while not increasing the cost base of the business.
If the Complainant was to accept a reduced role i.e. that of Sales Assistant the physical restrictions and uncertain limited hours in what was essentially a stand up retail role would have been very difficult for a small retail outlet to cope with.
The Respondent felt that the period since the Complainants’ return from Surgery in Poland , where the Complainant was facilitated as best as possible, had provided sufficient time to demonstrate that Accommodations /Short Time working /Changed Roles would simply not work either medically for the Complainant or operationally for the business.
In his oral evidence the Respondent Manager Mr. P was most sympathetic to the Complainant and clearly stated that he wished her well in securing another position that would allow more scope for her physical limitations. The evidence presented by Mr.P was credible.
4:11 Section 16.3 (c) of the amended Equality Act states in relation to “appropriate measures”
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 business, and
(iii) the possibility of obtaining public funding or other assistance.
The Respondent indicated verbally the financial figures of the company and the level of Turnover. The financial resources of the Respondent operating in the clothing retail sector did not lend themselves to additional costs.
Applying common understanding the basic reality was that in a small retail shop the opportunities for accommodations or revised roles as ought by the Complainant would have been a “Disproportionate Burden” on the Respondent.
4.12. In conclusion therefore having reviewed all the evidence and listened to the witnesses I found that the argument of “disproportionate burden” has merit. Accordingly the Complainant was not dismissed for discriminatory reasons on grounds of gender or disability and the lack of “reasonable accommodation” was based on sound reasons not connected to discrimination.
5.1 I find that:
· the Complainant was not discriminated against on grounds of disability,
· the Complainant was not dismissed for discriminatory reasons, and
· the Respondent did not discriminate against the complainant in relation to the provision of “reasonable accommodation”.
30 July 2015