Employment Equality Acts
Adjudication Officer/Equality Officer’s
Decision No: DEC-E/2017/002
Fiona O’ Reilly
(Represented by Lavelle Solicitors)
(Represented by IBEC)
File No: et-159098-ee-15
Date of issue: 11 January, 2017
Employment Equality Acts - discriminatory treatment - disability - reasonable accommodation - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Fiona O’ Reilly (“the complainant”) that she was subjected to discriminatory treatment in her working conditions by Debenhams Ireland (“the respondent”) on the grounds of disability in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. In this regard, she alleges that the respondent failed to provide her with reasonable accommodation in her employment.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 28 August 2015 under the Employment Equality Acts. On 21 March, 2016 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 25 October 2016.
2. Summary of the Complainant’s case
2.1 The complainant commenced employment with the respondent in August 1996 as a sales assistant. On 6 November 2013, the complainant collapsed at work and was on sick leave from her employment. She was subsequently diagnosed as suffering from Multiple Sclerosis which has affected her mobility quite significantly and she remained on sick leave until her employment was terminated by the respondent by letter dated 26 August 2015. The complainant submits that her employer referred her to Dr. R, an Occupational Physician who prepared a report for the respondent based on correspondence Dr. R had with the complainant’s GP dated 25 June 2014. The complainant states that in this report, it stated that “although she may be prevented from returning to work in her substantive position, she could eventually return to work in a sedentary role.” The complainant submits that she was not furnished with a copy of any report or details of any customised medical assessment which Dr. R says in his second medical report was carried out and the only report from her GP at that time was his letter of 21 November which states “it would be helpful if an alternative position more suited to her current abilities even part-time were offered to her”. The complainant further submitted that the respondent failed to fulfil the requirement to engage in communication and transparency between it and the complainant, in that, although there were just four meetings over a two year period, there is no evidence from the notes of those meetings that there was ever any discussion as to what other roles or duties might be available to the complainant that would, having regard to the advices of the respondent’s doctor allow her take up a position even on a part-time basis which involved sedentary duties.
2.2 The complainant submits that there were four meetings which the respondent will say were held in accordance with its policies regarding long term absence. The complainant states that these meetings were in the most part intended as a box ticking process and that there was no real engagement during any of those meetings in relation to what other roles or positions even on a part-time basis may be available so as to allow the complainant to return to work. The complainant submits that according to the notes of a meeting held on 28 August 2014, there was a discussion in which a representative of HR, Ms. W on behalf of the employer said that the company would like to assist the complainant in a return to work and went on to explain the process stating that once HR receives a medical report, the following will occur
(1) your line manager will conduct a meeting to discuss our process.
(2) we offer a rehabilitation programme to the employee to help them to return to the workplace. This may involve reduced hours or task depending on what we have been advised by your medical advisors. However, there will be a timeframe on this.
(3) we act on the advice of the medical advisors and we will accommodate where possible to help the employee return to work.
2.3 The complainant submits that there was no meeting arranged with her line manager to discuss the above process or any discussion about or offer of rehabilitation involving possible reduced hours or tasks and that the respondent failed to fulfil its own process as outlined at the meeting. In conclusion, the complainant’s main points are;
· the respondent failed to carry out an assessment on what appropriate measures could be provided to allow the complainant to return to work.
· the Occupational Therapist who prepared the two reports on which the respondent relied in terminating the complainant’s employment never met the complainant in person and consequently was not in a position to make a full assessment of what the complainant could do.
· there is no evidence that the respondent ever seriously addressed the prospect of a phased return to work by the complainant.
· there was never any discussion with the complainant as to how the respondent might reasonably accommodate her.
· the respondent and/or Dr. R did not share the medical report and information obtained by him from the complainant’s GP with the complainant for comment.
2.4 The complainant cited the following case law in support of her case, the Labour Court case Limerick and Clare Education Training Board v Cotter EDA1417, the Equality Officer decisions in O’ Rourke v Brennan Convenience Foods DEC-E2014-058, A Worker v A Company (in receivership) DEC-E2014-066 and McDonald v Road Safety Operations Ireland Ltd. T/A Go Safe DEC-E 2014-069.
3. Summary of the Respondent’s case
3.1 The respondent states that the complainant commenced employment with the respondent in August 1996 as a sales assistant. In November 2013, the complainant went out on sick leave certified with a spinal cyst initially and then in April 2014 with Multiple Sclerosis. The respondent submits that in May 2014, the complainant was sent forms to consent to an Occupational Health referral. The respondent states that this is a process that employees are contractually obliged to partake in once requested to do so by the company and its main aim is to facilitate any adjustments that may be required following a customised medical assessment or an independent medical assessment. The respondent submits that on 25 June 2014, a report was issued from Dr. R, Occupational Health Physician following the complainant’s GP being required to complete a medical report for his information. The complainant’s GP confirmed that the complainant had been diagnosed with Multiple Sclerosis and the main symptoms that prevented her return to work at that time were her Multiple Sclerosis which affected her right leg and resulted in extreme limitation of movement such that she then used a frame to walk. Dr. R stated in his report that the complainant “suffers from a significant number of medical problems which are preventing her from returning to work in her substantive position. In view of the severity of her symptoms, I believe that, in the balance of probabilities, she will always have difficulty walking which will prevent her returning to work as a sales adviser. She could however eventually return to work in a sedentary role if she experiences some improvement in her leg symptoms that allow her to walk more easily. If it would be possible to eventually offer the complainant sedentary duties, I would suggest that every 8 to 10 weeks she is contacted directly to get an update on her progress and ask her if she feels well enough to consider a graduated return to work. If she is still unwell in 4 to 5 months time (once she has been absent from work for one year) I suggest that we carry out a customised medical assessment (CMA)”.
3.2 The respondent states that a meeting was scheduled for 28 August 2014. During this meeting, the complainant stated that she would like to return to work but she had to visit the hospital in January. The respondent maintains that the complainant stated she would not be able to return to work full time and that she was receiving physiotherapy. A further meeting was held on 25 November 2014 and the complainant was asked how she had been since the last meeting to which she stated “there’s no change”. The respondent states that at this meeting the complainant could not come back to work in the position she was in before as she could not stand and had bad mobility problems. Following this meeting, a customised medical report was requested as per Dr. R’s advice. The report was issued to HR in January 2015. It stated “In view of the persistent and unremitting severity of her symptoms, it is my opinion that in the balance of probabilities, she will always have difficulty walking which will prevent her returning to work as a sales adviser. Previously, I have advised that she may be able to eventually return to work in a sedentary role, however as there has been very little improvement in her symptoms and she also had difficulty with fine movements, I am unable to give suggestions as to what she would be able to do once seated at work. As such, I suggest that you consider a definitive employment decision on the grounds of ill-health”. The respondent submits that on 18 May 2015, a third meeting was scheduled between the complainant and HR and at this meeting the complainant stated“you know looking at me I am not fit for work”.
3.3 The respondent submits that a fourth meeting was scheduled for 3 June 2015 but the complainant cancelled same. This was rescheduled for 1 July but complainant emailed the company to say she had a fall and could not attend. A further meeting was scheduled for 17 August but complainant e-mailed to say she was receiving hospital treatment and would be unable to attend. The respondent states that on 26 August 2015, a letter was issued to the complainant confirming that the company had no option but to terminate her employment on the grounds of ill-health. In the letter the respondent reiterated her inability to fulfil her contract of employment and that the company had fully considered all alternatives to termination i.e. reasonable accommodation etc. but regrettably no such alternative was thought appropriate. The respondent contends that the complainant was afforded the right to appeal this decision however did not avail of same. In conclusion, the respondent states
· The company has a clear process it follows in terms of managing long term sick employees. This process is invoked once an employee exceeds four weeks of continuous absence.
· At all stages through the process, the company is very transparent in terms of what the objectives of the meetings are.
· The company engages the employee in the process in terms of what support the employee needs to facilitate them in returning to work and this is confirmed during the meeting process.
· In the first meeting in August 2014, the complainant stated that she would need to come back to a sit down job and not full-time. The only sedentary roles the company has are specialist roles e.g. HR service centre.
· However, in the third meeting in May 2015, the complainant confirmed she was getting progressively worse and that the company knew she could not come back to work by looking at her.
· The company rely on the medical expert’s advice as to what support/outcome it should take in terms of each individual case.
4. Conclusions of Equality Officer
4.1I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
4.2 The complainant has alleged that she was discriminated against on the grounds of her disability by the respondent. Disability” is defined in Section 2 of the Acts as meaning –
“(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”.
I am satisfied that the complainant’s disability comes within the meaning of the definition as above. The complainant submits that she was not provided with reasonable accommodation. Therefore, the matter I have to consider is whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts.
4.3 Section 16 of the Acts provides:
“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,
(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 herself or herself;”
4.4 I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club EED037 which was upheld by the Circuit Court. The Labour Court stated:
“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…………….. 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.”
· Having carefully examined all the evidence, I find that the respondent did carry out a thorough assessment in relation to the needs of the complainant as outlined above. I note following the first report of Dr. R,(independent Occupational Consultant for the respondent) that he indicated the possibility of sedentary duties for the complainant if she experienced improvements in her leg symptoms that allow her to walk more easily. However, in the following report and having consulted and engaged with the complainant’s own GP, Dr. R noted that there was very little improvement and she had difficulties with fine movements. In his second report, Dr. R recommended that the company consider a definitive employment decision on the grounds of ill-health with regard to the complainant. I also note from the correspondence that during the meeting between HR and the complainant in May 2015, the complainant did indeed confirm that she was getting progressively worse and that the company knew she could not come back to work by looking at her. Having carefully considered all the evidence, I find that the respondent had no other option but to terminate the complainant’s employment as at this stage as she was absent on sick leave for almost two years with no prospect of returning to work. I note that within that time the respondent did carry out a thorough assessment and had ongoing engagement with the complainant, however due to the deterioration in her condition, she was not in a position to return to work. Having carefully evaluated all the evidence, I find that the complainant has not established a prima facie case of discriminatory treatment on grounds of her disability and the complainant’s case fails.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts.
5.2 I find that the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment.
Equality Officer/Adjudication Officer
11 January, 2017
 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.