FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ST JAMES' HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - CLIONA LOVE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal under Section 83 of the Employment Equality Acts 1998 to 2011.
BACKGROUND:
2. The Employer appealed the Decision of the Equality Officer to the Labour Court on 8 January 2016. A Labour Court hearing took place on 17 May 2016. The following is the Court's Determination.
DETERMINATION:
- 1. This is an appeal by St James Hospital ( the Respondent) against the decision of an Adjudication Officer in a claim by Cliona Love of discrimination on grounds of disability and a failure to provide reasonable accommodation. There was no appeal from the Complainant.
2. The Complaint’s employment ended on 30 August 2013. She made a complaint to the Equality Tribunal on 27 February 2014. The Adjudication Officer issued the decision on 2 December 2015. The Respondent appealed to the Court against that decision on 8 January 2016. The matter came before the Court on 17 May 2016.
3. The facts of the case are as follows. The Complainant is a person with an intellectual disability. She appears to have been employed in a form of sheltered employment on the domestic staff of the Hospital. Apart from her intellectual disability she also suffered from physical impairments.
4. Arising from an Occupational Health referral to Health Physician Dr Noirin Noonan in April 2012, the Complainant was accommodated with lighter cleaning duties. In course of the referral the question arose as to whether, in light of her disabilities and resulting impairments, the Complainant could continue in the Respondent’s employment. Dr Noonan recorded in her report to management that it was her view that the Complainant should soldier on as she was only doing 4 hours per day Monday to Friday.
5. In or about April 2013 the Respondent became concerned that the Complainant was unable to perform even light duties to which she had been progressively reassigned as her physical and mental health dis-improved.
6. She was referred by her Manager, Ms Grace Rothwell, for assessment by the Occupational Health Physician Dr Noirin Noonan. Though the referral was made in April 2013 the assessment did not take place until 9 August of that year. Having assessed the Complainant, Dr Noonan determined that she was “permanently unfit to perform the work tasks of a domestic/janitor in St James’s Hospital.” . Dr Noonan stated that she considered the 2013 assessment as a continuation of the 2012 referral following which the Complainant had been accommodated with lighter duties. Dr Noonan notified Ms Rothwell by email dated 9 August 2013. In that email she also states that she needs to speak to the Complainant’s father about her condition. And goes on to say “ I would like to clarify the most suitable date for her to leave; she is happy enough (after my assessment) with this outcome”.
7. She again wrote to Ms Rothwell on 28 August after she talked to the Complainant’s father. In that email she states that he was very upset at this development. He asked her to discuss the matter with her G.P. which she did. She said that he acknowledged that she was probably being carried at work. She goes on to say “Someone needs to ring her now from your end of things and let me know if she is unhappy with the date before I contact Tara Wilson.”
8. Her final involvement in this matter was a further email to Ms Sharon Weston, the Complainant’s line manager, dated 13 September 2013 in which she states “Cliona is permanently unfit to perform her work tasks as a domestic in St James Hospital because of muscular weakness in her hands, severer tremor and balance issues, degenerative disc disease and psychological difficulty coping with stressors, from Friday the 30thAugust, 2013.”
9. She had not other involvement in this matter at this time.
10. After Dr Noonan wrote to Ms Rothwell on 28 August 2013 she passed the file to Ms Weston for further processing. This resulted in Ms Love leaving the employment on the grounds of her disability on 30 August 2013.
11. Mr Gerry Heffernan, Deputy Director Human Resources in the Hospital wrote to the Complainant on 2 September 2013 in which he states that her employment came to an end with effect from 30 August 2013. The reason for the termination of her employment was set out in the letter in the following terms “Dr Noonan has come to the conclusion that you are permanently medically unfit to continue in your current position of Domestic with St James’s Hospital.”
12. He goes on to note that as a member of the Superannualtion Scheme she will qualify for the payment of a Lump Sum and a Superannuation Allowance from that date and undertakes to have her supplied with the relevant figures after they have been calculated and verified. He goes on to say “I am enclosing a standard hospital resignation form for your completion and return and I wish you well in your retirement”.
13. The Complainant attended a retirement party in the Hospital on 13 September 2013 at which she was presented with a Resignation Form in like format to that which had been sent to her by Mr Heffernan on the 2ndSeptember. The form had been completed save for her signature and date. The complainant submits that she was brought from the party to another room where she was pressurised into signing that form.
14. There follows correspondence between the Complainant’s father and Mr Heffernan in which he challenges the process in which the matter has been handled and queries the pension arrangements.
15. Mr Heffernan met with the Complainant’s father and set out the Hospital’s formal position in writing by way of a letter dated 6 November 2013. In that letter he deals with the suspension of pension payments which he notes were at her father’s request. He then goes on to say “As advised at the meeting, Cliona has the absolute right to challenge the hospital’s Occupational Health determination of permanent infirmity and if she wishes to do this she must submit a medical report from her Consultant or GP stating that she is medically fit t carry out the full duties associated with the role. On receipt of same, I will arrange for an independent medical examination to take place.”
16. No such medical report was submitted. The Complainant did not challenge the Occupational Health opinion and the present proceedings were instituted.
17. Issues
- a. The Complainant submits that she was discriminated against by the Respondent on the grounds of her disability when her employment was terminated on 30 August 2013.
b. She further submits that the Respondent did not consider whether, with reasonable accommodation within the meaning of the Act, she could undertake the full duties of her position suitably modified to accommodate her disability.
c. The Respondent submits that it accommodated the Complainant’s disability over a prolonged period of time by adjusting her work load and duties as her health deteriorated. It was only when she was finally assessed by the Occupational Health Physician as being incapable of discharging the duties of her post that it and the Complainant agreed to resign and take early retirement on ill health grounds.
d. It submits that this was a mutual decision and no discrimination arises in this case.
19. She said that she was notified in August by Dr Noonan that the Complainant was a candidate for early retirement on the grounds of ill health and that she was not medically fit to discharge the duties of her job. She said that she passed the file to her Manager Ms Weston for further processing and her involvement in the matter ended.
20. In answer to a question from the Court she said that she did not consider or enquire, on that occasion, whether the Complainant was suitable for any other work within the hospital.
21. Dr Noonan gave evidence to the Court. She said that she had dealt with the Complainant over a long number of years and was familiar with the progressive nature of her disability. She said that she examined the Complainant and formed the view that she was medically unfit to undertake the duties of the post. She said that she did not consider whether she was fit to undertake any other work in the Hospital. She said that she was responding to the question in the referral when she said that she considered the Complainant a candidate for early retirement. She said that she was also of the view that the Complainant was willing to take that option also. She acknowledged that the Complainant had a learning difficulty and that is the reason she was willing to engage with her father on her medical condition. She said that she was of the view that the Complainant was capable of deciding whether she wished to continue at work or take early retirement.
22. Mr Heffernan told the Court that his involvement in this matter did no commence until after the Complainant had passed the date on which she ceased to be an employee. He said that in processing the paperwork he noticed that he did not have a signed resignation form which would normally be completed in circumstances where a person was retiring on ill health grounds. He said that he did not consider whether the Complainant was a suitable candidate for employment in a modified role or in any other role within the hospital. He said that the correspondence that followed with the Complainant’s father arose as a result of the Complainant’s notification to him that she wished to have her father represent her in these matters. His correspondence thereafter sets out his involvement in the matter.
23. Discrimination on the disability ground is prohibited under the Act. Section 16 of the Act goes on to state
(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.
- (a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,
(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.
(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.
(4) In subsection (3)—
“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—
- (a)such a person who is seeking or using any service provided by the employment agency,(b)such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
(c)such a person who is a member of or is seeking membership of the regulatory body.
- (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
a. (c)does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;
The Court inInHumphreys v Westwood Fitness Club[2004] E.L.R 296 the Court set out the duties section imposes on an employer in order to comply with section 16 of the Act. It said(1) That as the claimant's dismissal arose primarily from the respondent's belief that her disorder would impair her ability to carry out the duties for which she was employed, her dismissal was prima facie discriminatory unders.8 of the Employment Equality Act 1998.
(2) There is a complete defence unders.16 of the Employment Equality Act 1998to a claim of discrimination on grounds of disability under s.8, if it can be shown that the respondent formed a bona fide belief that the claimant was not fully capable of performing the duties for which she was employed.
(3) In order to form such belief, the respondent would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances but would at a minimum involve looking at medical evidence to determine the level of impairment arising from the disability and its duration. If it is apparent that the employee is not fully capable, the respondent is required under s.16(3) to consider what if any special treatment or facilities may be available by which the employee can become fully capable and account must be taken of the cost of such facilities or treatment.
(4) Such 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.
- (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
24. Applying that to the facts of this case the Court finds that it is common case that the Complainant suffered from a learning disability. It further finds that the Occupational Health Physician took the view that her disability was such that it permitted her to discuss her medical condition with her father. This is a very unusual step and would require any person relying on her agreement to any significant course of action on to approach it on an amber light.25. In this case the Occupational Health Physician in answer to a query from the Complainant’s manager formed the view that she was a candidate for early retirement on ill health grounds.
26. In coming to that decision both she and Ms Rothwell told the Court that neither of them considered whether the Complainant was capable of undertaking any other work or of modifying her duties or hours of work to accommodate her disability so as to enable her to continue to participate in the workforce.
27. The Court notes that the Respondent offered no evidence to the Court that Ms Weston made any such enquiries before she acted on the note issued by Dr Noonan that the Complainant was not fit to undertake the full duties of her position.
28. The Court also notes that Mr Heffernan likewise did not consider whether any suitable accommodation could be made to enable the Complainant continue to participate in the workforce. Instead he set the bar at a very high level. He required that the Complainant “submit a medical report from her Consultant or GP stating that she is medically fit to carry out the full duties associated with the role” He told the Court that he did not consider any alternative accommodation that might be considered where she could not clear that bar.
29. The Court also notes that the Complainant was not asked to sign a resignation form until after the date of the termination of her employment had passed. The evidence before the Court is that the Complainant ceased to be employed on 30 August 2013. However she was not sent a retirement form until 2 September and was not asked to complete it until 13 September.
30. The Complainant submits that she was pressurised into so doing on that day. The respondent disputes that. However no evidence was presented to the Court as to how and in what circumstances the form was signed. It appears that the form was signed by both Ms Weston and the Complainant. It is acknowledged that the Complainant has learning difficulties. However Ms Weston was not made available to the Court to outline how the form came to be signed and why it was not offered to the Complainant before her employment ended on 30 August 2013.
31. In all of these circumstances the Court takes the view that the Respondent has substantially failed to discharge the duties imposed on it by Section 16 of the Act as detailed above.
32. Accordingly the Court determines that the Complaint is well founded and the appeal is not allowed.
33. The Hospital submits that the Complaint is statute barred as it was submitted outside the statutory time limit set out in the Act. The Respondent’s position is that it is in time and notes that the matter was not raised at first instance. The respondent concedes that it was not raised at first instance.
34. Clark J addressed a similar point inStokes -v- Christian Brothers High School Clonmel & anor [2015] IESC 13 issued on 24/22015. In that decision he stated
- 7.1 As noted earlier, no question concerning the issue of whether the claim was out of time was raised on behalf of Clonmel High School when the matter was before the Director. The issue was raised for the first time before the Circuit Judge, who concluded that the case was not out of time. McCarthy J. came to a different conclusion.
7.2 There are, potentially, two separate issues. The first is as to when time began to run. Is it, as was argued on behalf of John Stokes and as was accepted by the Circuit Judge, when the s.29 appeal was concluded in early May 2010? Or is it, as McCarthy J. held, when Clonmel High School's internal appeals process concluded on February 2010?
7.3 However, there is a second, and perhaps logically anterior, issue as to whether it is now open to Clonmel High School to rely on the time issue. In that context, it is important to note that s.21(3) of the 2000 Act provides an express authority to the Director to extend time in an appropriate case. It seems to me that, in the light of the fact that additional procedures, in the form of a s.29 appeal to the Department of Education, were being pursued, a cogent case could have been made on behalf of John Stokes to seek to persuade the Director to extend time if the point had been taken by Clonmel High School at that stage.
7.4 It seems to me that a party cannot be deprived of the opportunity to seek an extension of time by reason of the fact that its opponent does not raise the time issue at all before the body, in this case the Director, on whom the power to extend time is conferred. It is clear that the time bar in this case is not an absolute one, because it is capable of being extended by the Director.It is not, therefore, a barrier which goes to jurisdiction as such. Rather, it is a measure which may, in the absence of a successful application to extend time, lead to a claim not being able to proceed on the merits.[Emphasis added]
7.5 However, it seems to me to follow that it is incumbent on a respondent to a claim before the Director to make any point concerning time which may be open to them so as to put the claimant on notice that there is a time issue, and to afford the claimant an opportunity to seek to persuade the Director to extend time. Against that background, it seems to me that a failure to raise the time question before the Director may lead to a legitimate conclusion that a respondent is, thereby, precluded from raising the point thereafter. It must be acknowledged, however, that there may be cases where a failure to raise a time point might not be decisive. For example, there might be cases where a respondent would be able to argue that it was, through no fault of its own, unaware of aspects of the factual matrix against which the question of possible reliance on a time bar would have to be considered. However, no such circumstances appear to have arisen on the facts of this case. To now rule that Clonmel High School is entitled to rely on a time bar, and thus to deprive John Stokes of the opportunity to persuade the Director to extend time would, in my view, be to countenance a manifest injustice. In those circumstances, it seems to me that Clonmel High School is precluded from raising the time bar issue. It follows that it is unnecessary, therefore, to consider any other aspect of that issue, or to determine when time began to run on the facts of this case.
36. The Hospital seeks to distinguish the facts of the instant case from the facts applying in Stokes. It submits that in Stokes the complaint was submitted within the extended time limits permitted under the Act whereas in this case it submits the complaint was outside those extended time limits and could not have been allowed by the Tribunal.
37. The Court does not accept that view. The decision in Stokes clearly provides that where an issue is not raised at first instance a party cannot seek to rely on that issue on appeal to defeat a claim.
38. It is not a matter for this Court to speculate how the Tribunal might have dealt with the matter had it been raised. That is a matter that must be put to the Tribunal and on which it must issue a decision before this Court, in line with the decision in Stokes, can consider the matter. As it was not raised at first instance it cannot be raised on appeal.
39. Accordingly the Court rejects that submission.
40. The Hospital submits that should the Court determine that it has infringed the Act it should reduce the award of €17,000 awarded by the Adjudication Officer at first instance.
41. It submits that it had accommodated the Complainant with progressively tailored duties to accommodate her progressive disabilities over a long period of time and that this demonstrates that it did not seek to act otherwise than in an appropriate and supportive manner with the Complainant and sought at all times to enable her to remain in the workforce. It further submits that it understood that the Complainant’s ill health retirement was effected on the basis of mutual agreement..
42. In this case the Complainant submits, notwithstanding that she did not appeal the decision of the Adjudication Officer, that she suffered a loss of income in the amount of five years pay to which she would otherwise have been entitled had she remained at work. It also submits that she has been deprived of the opportunity to work and to have structure to her day and that she if finding the transition to unemployment particularly difficult given her mental and physical disabilities. She submits that she requires support and assistance to cope with her circumstances to assist her .find alternative employment which she may never do. She argues that the Court should take these matters into consideration when deciding on the level of compensation to be awarded.
43. The Court notes that it is well settled law that the duty not to discriminate is one of strict liability. It is not necessary to prove fault or intention in order to make out a complainant under the Act. (Dekker v VJV Centrum [1990]E.C.R. 1-3941 and Southern Health Board v Mitchell DEE 2/1999 reported at [1999E.L.R. 322).
44. The Act empowers the Court to provide for redress by way of an order “for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77 of the Act.” The Court is satisfied that the Complainant has suffered a wrong, however unintentional on the part of the Respondent, and that the effect of that wrong will have profound consequences for the Complainant. It is unlikely that she will find it possible to return to the workforce in any capacity. The Court has therefore given consideration to the effect of the discrimination suffered by the Complainant in considering the level of compensation that should apply in this case.
45. Having considered the submissions of both sides and taking into account the full circumstances of this case the Court finds that the award made by the Equality Officer is not sufficient compensation in the circumstances of this case. The Court finds that the appropriate award in this case is €25,000 and determines accordingly.
DeterminationThe Court determines that the complaint is well founded. The appeal is rejected. The Court orders the Respondent to pay the Complainant compensation in the sum of €25,000 for the infringement of her rights under the Act. The decision of the Equality Officer is varied accordingly.
- a. The Complainant submits that she was discriminated against by the Respondent on the grounds of her disability when her employment was terminated on 30 August 2013.
Signed on behalf of the Labour Court
Brendan Hayes
31 May 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.