EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-007
A Health Provider
File reference: EE/2014/231
Date of issue: 27 January 2017
1.1 This dispute concerns a claim by an individual that his employer has failed to take appropriate measures to allow him access to employment and that there has been no apparent intent by the respondent to provide modifications to the complainant's position or alternatively to provide other suitable roles for him within his place of employment.
1.2 The complainant submits that he was discriminated against by the respondent organisation on the grounds of his disability contrary to Section 16(3)(b)(i) of the Employment Equality Acts (1998 - 2012).
1.3 The claimant referred his claim to the Director of the Equality Tribunal in April 2014 under the Employment Equality Acts. On 4 April 2016, in accordance with her powers under Section 25 of the Acts, the Director delegated the case to me, Ray Flaherty, 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 and in accordance with Section 79 (1) of the Acts and, as part of my investigation, I proceeded to a hearing on 19 April 2016.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 CLAIMANTS' SUBMISSION
2.1 The complainant is employed as a Theatre Porter in one of the respondent's hospitals. He suffers from a musculoskeletal condition affecting, in particular, his left knee.
2.2 The complainant returned to work following knee surgery in March 2013. He experienced difficulties with certain aspects of his work after the surgery, specifically working shifts of 12 hours a day for 7 days in a row, lifting and pushing trolleys for particularly heavy patients. The respondent's occupational health doctor, Dr S, recommended that the Head Porter consider what accommodations might be provided to accommodate the complainant's difficulties.
2.3 According to the complainant's submission a report detailing the extensive accommodations attempted with regard to his accommodation, was sent by the Head Porter to Dr S in November 2013. However, the content of this report was never provided to the complainant.
2.4 In November 2013, the respondent's HR manager wrote to the complainant's trade union indicating that all of the numerous efforts made to accommodate the complainant had "proved impossible" because of occupational health restrictions.
2.5 The complainant submits that that the respondent has failed to take appropriate measures to allow the complainant to access his employment. The complainant contends that no appropriate attempts have been made to provide modifications to the Theatre Porter position and attempts to place him into other suitable roles within the hospital have been stymied.
2.6 The complainant contends that the effects of knee surgery and the continuing musculoskeletal condition, which constitutes disability within the meaning of the Employment Equality Act 1998, means that the complainant requires the respondent to take appropriate measures for him to have access to employment.
2.7 The complainant submits that the respondent has not acted in a proactive fashion in exploring "appropriate measures" and has been content to allow its own Occupational Health Department to refuse to allow it to offer alternative roles which would facilitate the complainant in the workplace.
2.8 The complainant submits that given the size of the respondent organisation and the budget available to it, it follows that what is reasonable and proportionate for this respondent is very significant.
2.9 The complainant contends that the respondent has failed to investigate what measures could be taken or which alternative roles might be suitable, instead settling for its own opinion that no such measures or alternative roles exist. The complainant submits that the respondent has decided, essentially, to take no useful action and that this is not in accordance with its duties under Employment Equality Act
3 RESPONDENT'S SUBMISSION
3.1 The respondent submitted that they have made every effort to seek alternative employment for the complainant.
3.2 The respondent submits that, unfortunately, due to his knee condition efforts to provide alternative employment had proved impossible as all nonclinical roles require some aspects of manual handling.
3.3 The respondent submits that the complainant has unsuccessfully been assessed by Occupational Health for a number of different roles and details of these efforts were provided to the hearing.
3.4 In conclusion, the respondent submitted that they have explored all possible alternative roles and have been guided by independent medical opinion in this regard.
4 FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
4.1 Following the hearing the parties were allowed time to conduct discussions to resolve the matter. Subsequently, the Complainant's representative requested that I issue my decision, therefore I now issue that decision based on the submissions made at hearing.
4.2 Taking all the evidence presented by the parties in relation to this complaint, it is clear that the matters before me for adjudication revolve around the issue of reasonable accommodation, which in this particular case relates to the respondent accommodating the complainant in a position consistent with the medical restrictions arising as a result of his disability.
4.3 Section 16 (3) (a) of the Employment Equality Acts, 1998 – 2012 states that:
“For the purposes of this act, a person who has a disability should 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.
Section 16 (3) (b) of the Acts further states that:
"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.
4.4 The evidence presented at the hearing suggests that the respondent has taken certain steps to accommodate the complainant either in his current role or to identify an alternative role. However, I am not satisfied that such steps or efforts have been sufficiently comprehensive and coordinated to suggest that the respondent has fully exercised their responsibility under the legislation.
4.5 In considering the issue of reasonable accommodation, I am significantly influenced by the judgement in the High Court case: Nano Nagle School v Marie Daly  IEHC 785) In that case the Court affirmed the decision of the Labour Court in the case of a respondent who had failed to consider or evaluate potential options of reasonable accommodation. In the case, Noonan J focused on the employer's statutory duty of reasonable accommodation in circumstances where a previously able employee experienced a disability during the course of employment. Therefore, the question for consideration (in the above case and in the particular case before me for adjudication) is to what lengths must an employer go to discharge their statutory duty in relation to reasonable accommodation. The judge further noted that the definition of "appropriate measures" includes the adaption of both patterns of work time and distribution of tasks.
4.6 Against this background, while I acknowledge that the respondent has made some efforts to accommodate the complainant, I am of the view, based on the evidence presented, that these efforts were not sufficiently focused and, in particular, not appropriately coordinated among the various stakeholders involved in such a process, to have properly satisfied the respondent's obligations in this regard.
Having carefully considered all the evidence presented, I find that the respondent discriminated against complainant in the failure to provide reasonable accommodation and make an order for compensation, for the effects of the acts of discrimination, in the sum of €2,000.
In addition, I order the following course of action to be implemented :
1. A thorough Occupational Health review should now be carried out on the complainant by an Occupational Health Physician, independent of the respondent organisation, to establish the current situation with regard to his condition and to provide a comprehensive report in this regard including recommendations in relation to accommodations which may be required within the workplace to facilitate the respondent undertaking appropriate duties.
This review should took place within 3 weeks of the date of this decision.
2. On completion of the Occupational Health review a Health and Safety risk assessment should then be undertaken in relation to any recommendations emanating from the review in relation to the respondent continuing in his current role which might require specific accommodation.
3. The respondent should engage the complainant and his trade union in direct and meaningful discussions with a view to putting in place special facilities or accommodation to ensure that the complainant can confidently and capably undertake his duties.
4. Discussion set out in 3 above should take place and be concluded not later than 6 weeks from the date of this decision.
Adjudication Officer/Equality Officer
27 January 2017