EMPLOYMENT EQUALITY ACTS 1998-2015
A Production Operator
(represented by SIPTU)
A Manufacturer of Automotive Cameras
(represented by IBEC)
File reference: et-156866-ee-15
Date of issue: 19th January 2017
Keywords: Employment Equality Acts, Disability, Failure to provide reasonable accommodation, Cancer, No prima facie case
1.1 The case concerns a claim by a Production Operator against a supplier to the automotive industry of driver assistance systems. Her claim is that she was discriminated on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 – 2015 [hereinafter referred to as ‘the Acts’] in that the respondent failed to provide appropriate measures. It is the policy of the Equality Tribunal (now Workplace Relations Commission) to anonymise decisions in the case of disability unless specifically requested by the complainant otherwise.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 16th June 2015. On 23rd February 2016 in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 15th March 2016 as required by Section 79(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 The complainant is employed by the respondent since 29th June 2009. Following a diagnosis of endometrial cancer, she informed her employer. As per procedures she met the respondent’s Occupational Health Nurse and it was agreed that she would submit monthly medical certificates while on sick leave as well as phoning the nurse every fortnight.
2.2 Her treatment was successful and a meeting with the nurse was set up a year later (12th September 2014). At that meeting it was agreed that the complainant’s return to work date would be 13th October 2014. The complainant was assigned to a standing role. She submits that her manager said that she could not sit doing this job or else the other employees would be looking to sit down also.
2.3 The complainant acknowledges that her return to work medical certificate from her GP did not specify that her role must entail sitting down for most of the working day. However she submits other people were accommodated informally. Following the complainant raising the issue, the respondent referred her to their Occupational Healthcare Provider (Medmark). In the letter of referral it stated that ‘if [complainant] is not fit to stand for her shift then she is not fit to work as there is no sit down jobs available to offer to her long term’. The complainant submits this was an attempt to prejudice the doctor.
2.4 The complainant submits that a letter threatening concluding the complainant’s employment was sent to a SIPTU official (complainant was cced):
The company cannot continue to entertain the constant raising of issues by one employee on a regular basis for which there is no medical basis. The situation must cease immediately as it both time-consuming for those involved and a cost on the company.
Should [the complainant] continue to experience issues and difficulties then the onus is on her to resolve these. This may involve a consideration by [the complainant] as to whether the place of work and working arrangement are suitable to her particular set of circumstances.
In these circumstances it is up to the employee to make a considered decision in their best interest going forward in the future.
In conclusion this company has exhausted every available avenue in assisting [complainant’s] return to work and since her return to work in October has provided support in many ways.
2.3 The complainant arranged for a letter from her Consultant Urologist requesting work in seated position for most of the working day. This was sent to the respondent on 27th Many 2015. When no reply was received to this request of r reasonable accommodation a complaint was submitted to the Equality Tribunal on 15th June 2015. Finally on 19th November 2015 the complainant was facilitated with a seated role.
2.4 The complainant submits that this delay constitutes discrimination on the ground of disability. Providing a seat cannot constitute a disproportionate burden according to the complainant. The complainant also fears that her role might change and she will be forced to stand again.
2.5 The complainant cites Nano Nagle School v Marie Daly  IEHC 785 as the relevant authority.
Summary of the respondent’s case
3.1 The respondent submits that there were a number of issues before the complainant went on sickleave. She trialled eight types of safety shoes; none of them were comfortable to the complainant. The cost to the company of these shoes was €596.98. More time has been spent with the complainant by the Occupational Health Nurse and Health and Safety staff before and after she returned from sick leave than any other of the respondent’s 1200 employees in that plant. It bears repeating that her GP certified her fully fit to return to work and there was no mention on this clean bill of health for a seated role.
3.2 Regarding what the production manager said, the respondent accepts that he said that there are no permanent sit-down positions on the production floor. However, the respondent submits it made many accommodations:
(i) At the complainant’s request she was moved from the evening shift to the day shift
(ii) She returned to work on a phased basis – three days for the first fortnight and four days for the following fortnight by mutual agreement
(iii) She was moved to an easier area of work.
(iv) for the first few weeks she was facilitated with sit-down roles as much as possible.
(v) paid her private health insurance contributions even when she came off payroll while on sick leave so that her cover would not be broken.
3.3 She met with the Occupational Health Nurse seven times in the five weeks after she returned to work. The respondent referred her to Medmark who certified as fully fit to work in a standing role. Despite the fact that the request from her urologist was received seven months after she returned to work and that he does not specialise in occupational health, the respondent facilitated the complainant with a seated role.
3.4 Regarding the letter from the respondent that the complainant cites, it refers to extraneous issues to this complaint e.g. grievances from the complainant that the production floor was too warm and the use of chemicals. The Health and Safety Agency conducted an inspection of both issues and the respondent passed the inspection with flying colours. The respondent points out that this letter was sent before the urologist’s request. It also submits that Section 16 of the Acts points out that no employer is obliged to retain somebody unless they are fully capable and competent of conducting role provided reasonable accommodation is provided. When that letter was sent, the complainant had a clean bill of health from her GP and no medical evidence otherwise.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the respondent failed to provide reasonable accommodation. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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.
4.3 I am satisfied that cancer of the womb and its sequelae is a disability within the meaning of Section 4 of the 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
(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
(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;
Section 16(3) states a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(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
(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.
(c) 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
(iii) the possibility of obtaining public funding or other
After she produced medical evidence of the requirement for a seated position, the complainant received it. The respondent did not look behind this report or seek a report from an other urologist. They simply gave the accommodation. While there was a delay of a few months, I find that this was a reasonable timeframe given the complainant’s delay in submitting the report and the nature of their production processes. Even before that, she was offered many accommodations including a phased return to work and a move to the more popular dayshift. In many cases, I find employers can be callous to employees with disabilities. However, in relation to this complainant, the respondent has been both patient and kind. I am particularly impressed by their paying her private health insurance (i.e. the employee’s contributions) when her sick pay had elapsed so that it would not affect her care during her treatment for cancer.
4.4 It differs from the Nano Nagle case in that the complainant continues to be in the employ of the respondent. Another difference is that tasks were redistributed in that she now works in a seated position and on the dayshift.
4.5 Regarding ordering that the complainant have a permanent seated role, I am reluctant to do this. Circumstances change – the complainant may prefer a standing role as her health improves and production methods (especially in such a dynamic industry) evolve also.
5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(ii) the respondent hasprovided appropriate measures
Therefore, I find against the complainant.
Adjudication Officer/Equality Officer