ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006119
A Call Centre
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 19/05/2017
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Location of Hearing: The Kilmurray Lodge Hotel
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant commenced employment with the Respondent on 21 June 2010. The Complainant was employed as a call centre Customer Service Representative. This role primarily involves responding to customer telephone queries in a call centre to meet the agreed standards and targets of the respondent. Her duties in this role involved mainly taking a high volume of calls daily from customers to deal with their queries, responding to emails and liaising with other departments within the Respondent’s Company. In 2013 the Complainant was diagnosed with depression and was as a result on sick leave from July 2013. The case before the Workplace Relations Commission relates to a claim against the Respondent by the Complainant of alleged discrimination on the grounds of disability.
Summary of Complainant’s Case:
The Complainant was diagnosed with depression in 2013 and as a result was on sick from working from July 2013.
The Complainant stated that a contributory factor to her depression was the negativity and hostility which she experiences from taking customer service calls during the course of her employment. The Complainant stated that when she did experience hostile and upsetting customer service calls, there was no support available to her. The Complainant stated that if she was not ready to take another call directly after one of those hostile and upsetting calls, she would be criticised for going on “Not Ready” by her Line Manager. The Complainant stated that she would have to justify and account for every second that she was not on a call in her weekly meetings with her line manager.
The Complainant stated that while on sick leave in 2013 she fell pregnant. The Complainant outlined that during her pregnancy she suffered from medical complication which resulted in hospital treatment. The Complainant stated that her new born child was required to have multiple surgeries and has a life-long health problem. The Complainant stated that as a result of this she has had significant personal circumstances to deal with and her depression continued.
The Complainant stated that she has had a number of meetings with representatives from the Human Resources Department of the Respondent since November 2013. The Complainant stated that at these meetings with the Human Resources Department she requested to discuss her options for returning to work. The Complainant stated that the only two options outlined to her were to either leave her employment or to be retrained and remain doing her full role as she did previously. The Complainant stated that she informed Human Resources that retraining would not address the main issue for her which was the impact of the abusive phone calls had on her mental health.
The Complainant stated that she has attended assessments the Respondents Specialist Doctor (OD) in occupational medicine who confirmed her diagnosis. The Complainant stated that OD informed the Respondent of the detrimental impact that the hostile customer service calls were having on her mental health. The Complainant stated that the OD also identified these customer service calls as a barrier for her to return to work.
The Complainant stated that she indicated on numerous occasions that a transfer to a different role would permit her to return to work. The Complainant stated that prior to July 2013 when she advised the Respondent of her mental health issues, they accommodated her by re-assigning her to work in the administration department. The Complainant explained while working in the administration department, she had limited phone work. The Complainant outlined that this limited phone work was beneficial to her mental health.
The Complainant stated that a policy was subsequently introduced which placed an embargo on staff members working in that department from transferring to positions in other departments. The Complainant stated that she requested for this embargo to be relaxed on numerous occasion by way of reasonable accommodation which would allow her to return to work in a different role which would not be detrimental to her mental health.
The Complainant stated that she had requested numerous times to be assigned to an administration role but was informed that such accommodation was not a possibility. The Complainant stated that the denial of her request for reasonable accommodation amounts to a breach of the Employment Equality Acts under the grounds of disability and she resigned from her position as a result of this.
Summary of Respondent’s Case:
The Respondent has stated that the Complainant has indicated that her complaint is as follows (a) ‘I say that I have been discriminated against by reason of disability’ and (b) ‘I say that the respondent treated me unlawfully by discriminating against me in failing to give me ‘reasonable accommodation’ for a disability’. The Respondent stated the Complainant has failed to identify how she was discriminated against by reason of her disability other than the alleged non-provision of ‘reasonable accommodation’, which falls under part (b) of the complaint.
The Respondent stated that if it is the case that the Complainant is purporting to claim constructive dismissal under part (a), it is the position of the Respondent that no such claim has been lodged with the WRC as there is no reference to same in the claim form. In addition, any such claim would be out of time as the Complainant resigned her employment on 16 May 2016 but did not submit her complaint until 28 November 2016. The claim is outside the prescribed time limits. The Respondent stated that in a claim of constructive dismissal, the date of effect is when the employee provides the resignation and not when it is formally noted by the Respondent. It was stated that a P45 is merely a tax document and not a source of reliance in employment for date of termination as determined by the EAT in Allison v The Incorporated Law Society of Ireland.
In reference to (b) above, it is the position of the Respondent that this claim is also out of time. The matter of reasonable accommodation and the blended model work environment was first discussed with the Complainant on 1 July 2015, when she met with HR and the Consumer Operations Manager. The matter was again discussed at the latest date of 18 April 2016, again if either of these two dates are identified as the date of the discriminatory act, then the claim is outside the prescribed time limits. It is the position of the Respondent that the meeting of 18 April 2016 and all subsequent correspondence was merely a reiteration of the conversation that took place on 1 July 2015.
The Complainant failed to provide the Respondent with a ‘clear statement’ setting out her claim, nor has she ‘set of the facts, the link between the ground(s) cited and the alleged discrimination’ or ‘any other relevant information and, where appropriate, any legal points the complaint may wish to make’ as per section 5 of the WRC ‘Procedures in the Investigation and Adjudication of Employment and Equality Complaints’, October 2015. This failure by the Complainant has prejudiced the Respondent, as a full defence cannot be submitted by the Respondent until the basis of all claims are made know to the Respondent. Therefore, the Respondent reserves the right to submit additional information and defence. In light of the foregoing and in line with procedures, the Respondent requests that the Director General dismiss the complaint(s) for non-pursuit.
The Complainant forwarded correspondence dated 12 August 2016 to the WRC on 20 January 2017, which she alleges she sent to the Respondent. This correspondence was never received by the Respondent.
The Respondent stated that the Complainant failed to produce medical evidence of her disability or evidence from medical practitioners that such reasonable accommodation was required or that the Respondent failed to provided same. The Respondent’s position that the complaints in this case are misconceived within the meaning of section 77 of the Employment Equality Acts 1998 to 2015. Accordingly the Respondent respectfully asks that the claim be dismissed.
The Respondent stated that the Complainants GP wrote to the Respondent in May 2012 requesting that the Complainant be facilitated with regards to working a 3 day week, for a 4 week period as she was suffering from abdominal and pelvic pain. Subsequently, the Complainants GP continued with the same rolling request which was facilitated until the Complainant went on long term absence in July 2013 (total period of 14 months).
In January 2013, the Complainant was assigned some administrative work, allowing her to have reduced telephone responsibilities. The Company were in a position to facilitate the request on a temporary basis as there was a backlog in the administration department, as prior to the move to the blended model in 2015, the administration team dealt primarily with email communication.
On 19 July 2013, the Complainant commenced a period of long term absence, suffering depression. During this absence, the Complainant was supported by the Respondent and attended OD on 14 November 2013. At the time, OD advised that no reasonable accommodation could be provided to the Complainant which would enable her to return to work nor was there a foreseeable return to work date.
On 11 April 2014, the Complainant put the Respondent on notice that she would be commencing Maternity Leave on 24 July 2014. The Complainant remained on Maternity Leave and on additional Maternity Leave until the 28 April 2015. Following the cessation of the Maternity Leave the Claimant reverted to sick leave on 1 May 2015.
On 4 June 2015 the Human Resources Business Partner (HRBP) wrote to the Complainant inviting her to an appointment with the Company OD.
On 17 June 2015, the Complainant attended an assessment with OD. The report from this assessment advised that the Complainant remained medically unfit for work and recommended that she be reassessed in three months’ time. In her report, OD stated that she did not believe that there were ‘any workplace accommodations or work restrictions which would enable her to return to work at this time’.
On 24 June 2015 HRBP emailed the Complainant attaching a copy of the occupational health report and advising that she would be in touch with regards to setting up a meeting to address any perceived work-related issues.
On 26 June 2015, HRBP emailed the Complainant inviting her to same on 1 July 2015
On 1 July 2015, the Complainant met with HRBP and the Consumer Operations Manager. At this meeting it was agreed that the Complainant would be sent details of the company’s Employment Assistance Programme and that additional supports such as retraining and mentoring would be provided to facilitate her return to work and in completing the various duties associated with her role, including phone work. At that time, it was explained to the Complainant that the Respondent had moved to a blended model and therefore there were no specific administration roles only, that all roles involved an element of phone work.
On 2 July 2015, HRBP emailed the Complainant outlining details of the Employee Assistance Programme and advising that the Complainant should make contact with the company once again after consulting with her GP in relation to an expected return to work date.
On 16 July 2015, the Complainant wrote to HRBP advising that, having met with her GP, she did not have an expected return to work date.
On 6 August 2015 HRBP wrote to the Complainant advising that she would contact her in due course to schedule another appointment with the Respondents OD and requesting that in the meantime the Complainant continue to submit relevant medical certificates.
On 16 October 2015 the Complainants Team Leader (TL) spoke with her in order to schedule an appointment with the Respondents OP. The Complainant advised that she was away from home and agreed to make contact with TL on 21 October 2015.
On 21 October 2015, the Complainant contacted TL as agreed and advised that she remained unfit to return to work. TL informed the Complainant that the Respondent would once again postpone her appointment with the Respondents OD and that they would contact her to reorganise an appointment in the near future.
On 11 April 2016 TL spoke with the Complainant to discuss her welfare and to invite her in to a meeting to discuss her continued absence. The Complainant advised that she was ‘seriously considering’ handing in her notice and in response TL urged her to meet in person. In response TL stated that she would be free to meet the following week.
At this meeting on 18 April 2016, it was agreed that the Respondent would organise for the Complainant to attend an occupational health specialist for assessment in the near future. On all previous occasions, the OD was in a position to advise, what, if any, reasonable accommodation, would be required in order to assist the Complainant in returning to work.
On 12 May 2016 HRBP wrote to the Complainant inviting her to an occupational health assessment on 23 May 2016.
On 16 May 2016, prior to attending occupational health, the Complainant sent HRBP an email with the subject line “Letter of Termination”. In this email, the Complainant stated “Thank you for your kindness and respect that both you and Glenda have afforded me in our last meeting. I wish to inform you that I am terminating my employment with [The Respondent Company] as a CSR…..’ The Complainant also requested that the Respondent cancel the scheduled appointment with occupational health.
On 17 May 2016 HRBP replied to the Complainant’s email and advised that the Respondent was reluctant to accept the Complainant’s resignation based on the issues described in the resignation letter. HRBP invited the Complainant to a meeting on 23 May 2016: “to discuss the issues you have raised so that we can ensure that we have addressed and dealt with any possible outstanding issues or difficulties that you may have.” The letter also advised the Complainant that she could avail of the Company grievance procedure and that any issues raised in accordance with same would be thoroughly investigated.
Between 18 May 2016 and 12 July 2016, there were a considerable number of interactions between HRBP and the Complainant.
On the 18 May 2016 The Complainant emailed HRBP stating that before she would agree to any meeting she sought a response to her request to be transferred from her role in the call centre to a different role.
On 20 May 2016 HRBP emailed the Complainant informing her that all teams within her division were blended such that each role would require phone work. As such, the Complainant was advised that the Company could not facilitate her specific request of ‘no phone work’ but wished to offer necessary training and mentoring to support the Complainant in her role. On 20 May 2016 the Complainant emailed HRBP stating that she would not meet unless the company undertook in advance to move her to a role ‘not involving phone work’. On 23 May 2016 HRBP emailed the Complainant once again inviting her to a meeting, on 27 May 2016, and advising that the purpose of this meeting would be to discuss the issues raised and to ensure that the Respondent addressed these and any other outstanding issues to facilitate her in returning to her role.
On 24 May 2016 the Complainant emailed HRBP advising that unless the Company confirmed that it would grant her request to be engaged in a role without phone work that she would not be willing to attend the proposed meeting. On 24 May 2016 HRBP responded to the Complainant clarifying that, in the proposed meeting, it was intended “to discuss all various possibilities of reasonably accommodating you” and advised that it was preferable to discuss these options in person.
On 25 May 2016 the Complainant emailed HRBP confirmed her unwillingness to attend the proposed meeting and requested that HRBP cease correspondence with her on the matter.
On 1 June 2016 HRBP wrote to the Complainant acknowledging her refusal to meet to discuss the concerns outlined in her resignation letter and seeking clarification that the Complainant still wished to terminate her employment
On 22 June 2016 the Complainant wrote to HRBP stating that, in light of the company failing to grant her request: “I cannot see how it will be possible for me to return to work at this time.”
On 1 July 2016 HRBP wrote to the Complainant once again, explaining that due to operational requirements, all roles within the Complainant’s division require phone work, and as such it was not possible for the company to grant her request to change her role. The letter strongly emphasised that the Company continued to be interested in discussing potential reasonable accommodation with the Complainant within the role for which she was employed, and hence the Company had been continuing to arrange a meeting with the Complainant to discuss same. The Complainant was asked whether she wished to engage with the company to discuss a potential return to work or would rather that the Company accept her resignation.
On 12 July 2016, the Complainant wrote to HRBP confirming that she wished to terminate her employment and requesting that the company send on her P45.
On 27 July 2016 HRBP wrote to the Complainant accepting her resignation letter of 16 May 2016 and advising that her P45 would be sent on to her address.
The Complainant alleges that the denial of her request to be assigned to an administration role “amounts to a breach of the Employment Equality Acts under the disability ground” and that the only two options which were made available to her were “to leave the business or to be ‘retrained’.” The Respondent rejects this claim in its entirety. The Complainant was not seeking ‘reasonable accommodation’, rather she wanted an entirely different role from the one for which she was employed. The Complainant accepts in her complaint to the WRC that ‘the main aspect of my work was taking phone calls from [electricity supplier] meters and boiler service etc.’ The Complainant also accepts in her statement that she was not seeking accommodation in her current role but rather ‘I indicated on numerous occasions that [a] transfer to a different role would permit me to return to work’.
The Respondent sought on a number of occasions to: Engage with the Complainant on what reasonable accommodation was required and to allow her to ‘input’ into such a process. The Complainant obstructed such attempts, demanding first that her claims be conceded to in the first instance. In order to assess the requirements for reasonable accommodation, the Respondent sought the input from professional medical advisors, in order to make an informed decision on such requirements. The Complainant declined to attend for such an assessment.
Ultimately, the Respondent was frustrated in its attempts to fully identify, consider and implement forms of reasonable accommodation owing to the Complainant’s position of non-engagement and non-attendance at occupational health. The Complainant provided no medical evidence demonstrating her need for ‘reasonable accommodation’ rather, she offered her personal opinion and what she believed was required.
The Respondent does not accept, the Complainant’s interpretation of OP’s report of June 2015, in which the Complainant alleges that OP: ‘informed my employer of the detrimental impact the hostile phone calls had on my mental health, identifying this as a barrier to returning to work’. Rather, OP stated in her June 2015 report ‘I do not believe that there are any workplace accommodations or work restrictions which would enable her to return to work at this time. [The Complainant] was advised that medical intervention alone would not lead to the resolution of any perceived work-related difficulties. I am no able to validate her concerns; I mention them here as [The Complainant] referred to workplace difficulties during her assessment; while I do not believe that these workplace concerns are the primary reason for her absence at present, they are likely to pose a barrier to her returning to work once well if they remain unaddressed. I recommend that the employer engage with [the Complainant] in an attempt to address any work- related issues…’ The Respondent had previously reasonably accommodated the Complainant on foot of written medical advice from her general practitioner.
The Complainant had declined to attend the Company occupational health physician, therefore the Respondent was not in a position to obtain medical advice on what, if any, reasonable accommodation was required to assist the Complainant in returning to her position. It must be noted, all previous occupational health reports requested by the Respondent from their occupational health providers had explicitly made reference to ‘reasonable accommodation’ and what if any was required to assist the Complainant in returning to work, as evidenced from the foregoing extract from OP’s report.
The Respondent does not accept that the only options available to the Complainant were to ‘leave employment’ or ‘be retrained’. Rather the Respondent repeated, including in the email of 24 May 2016 that ‘…would like to discuss all various possibilities of reasonably accommodating you should you wish to return to work.’ Again on the 25 May 2016, the Respondent wrote ‘The purpose of the meeting is to discuss all accommodations which might be possible and to give you every opportunity to give your input to facilitate exploring all the possible accommodations which may be available’
Over the course of a number of meetings and correspondences with the Complainant the Respondent had proposed a number of reasonable accommodations to facilitate the Complainant’s return to work and has repeatedly attempted to arrange meetings with the Complainant to seek her input regarding same. These proposed accommodations included but not limited to: A staged return to work, support through the company’s employee assistance programme, retraining, mentoring in the complainant’s role.
In spite of the steps taken by the Respondent in seeking to accommodate the Complainant or to understand how she may be accommodated, she maintained that unless the company was willing to re-assign her to another role not involving phone work that she would be left with no option but to terminate her employment. The Complainant’s insistence in this regard persisted, in spite of the Complainant’s own acknowledgement, in a letter dated 12 July 2016, that such roles were no longer available.
The Respondent rejects the claim that there was an alleged failure by the Respondent to provide support to the Complainant in carrying out her role in its entirety. The HR department has demonstrated a consistent and proactive approach to support the Complainant in carrying out her role. On a number of occasions between May 2012 and March 2013 the Respondent facilitated the Complainant’s requests for change in her working hours in line with medical certificates.
Furthermore, following receipt of the occupational health report dated 17 June 2015, the Respondent arranged a meeting with the Complainant to address perceived work-related issues. The notes from this meeting show that the Complainant was informed of the various supports that would be provided in order to facilitate her return to work, such as re-training, briefings and access to the Employee Assistance Programme. Moreover, an email sent to the Complainant on the following day, 2 July 2015, provides details of this programme and reaffirms the Respondent’s commitment “to support you upon your return to work through appropriate training, coaching and mentoring”
In addition, Company records would show that the Respondent gave considerable time to Complainant in providing: team meetings, coaching sessions, training and upskilling.
The Complainants complaint in relation to an embargo implemented by the Respondent is misconceived. The Complainant alleges that at an earlier point in her employment with the Respondent, she had once been re-assigned to work in the administration department but that, owing to a subsequent embargo, staff working in the department were precluded from applying for posts in other departments. The Complainant states that “on numerous occasions [she] requested that this embargo be relaxed” and that by failing to make an exception for her, the Respondent failed to reasonably accommodate her disability. While it is the case that in May 2013, when the company was renegotiating the Energy Supplier contract, a temporary embargo was implemented for three months in order to retain talent, this embargo was lifted at the end of this three month period during which time the Company successfully received an extension of the contract up to December 2014.
The Complainant was absent on sick leave for the entire duration of the period in which the embargo had effect, May to August 2013. From May 2011 until April 2013, the Complainant applied for 10 roles, the last one being in April 2013, the embargo didn’t affect any of the Complainant’s applications. While prior to 2015 the structure of the Complainant’s department included separate roles for phone work and administration (i.e. email) work, a blended model structure was introduced as an operational requirement of the contract negotiation in 2015. This blended model amended the structure of the Complainant’s department to ensure that all CSR’s deal with both phone calls and emails, removing the previous administrative roles which required email work only. It is not the case that the Complainant was precluded from returning to an alternative administrative role as a consequence of an embargo, but rather that such roles ceased to exist in the Complainant’s division in 2015, and as such it was no longer possible for the respondent to grant the claimant’s request for this specific accommodation. This fact was repeatedly and ambiguously made clear to the Complainant in a number of correspondences cited above, wherein the Respondent sought to arrange to meet with the claimant to discuss all other possible accommodations. Ultimately, however, the claimant declined to engage with the company regarding same.
The Respondent summarised their submission as follows:
The Complainant has failed to establish a prima facie case of discrimination as required by the Employment Equality Acts
By the Complainant’s own admission, she was not fit to fulfil the duties required for the role of Customer Services Representative. There were not any roles in the Complainant’s division that did not require phone work
Even if such roles had existed, the jurisprudence of the Labour Court and the tribunals has clearly indicated that a Company is not required to provide an alternative role in order to reasonably accommodate the Complainant.
Reasonable accommodation could involve the provision of special facilities or supports to the Complainant but not the provision of an alternative role. Whilst the employer must make a reasonable effort to facilitate a person with a disability at work there is no obligation on the employer to provide the worker with an alternative job if they cannot perform the job for which he/she was recruited.
The Respondent is relying upon the decision of the Equality Officer in Gannon v Milford Care Centre, DEC-E2004-048. In this case, the Equality Officer stated that when an employee is unable to do his/her job due to a disability, the employer must examine all possible alternatives to see if the employee can be accommodated and this might include alternative work arrangements or attendance patterns. However, it was ruled that examination must be carried out in the context of the post for which the employee was originally recruited and that the obligation does not extend to offering the employee other positions in the organisation which the employee was not originally recruited.
The Respondent offered to adopt a number of measures to reasonably accommodate the Complainant. The Respondent offered to provide mentoring and retraining. The Respondent offered the Complainant to return to work on a phased basis. The Respondent also provided the Complainant with details of its Employee Assistance Programme. Each of these clearly constitutes a reasonable accommodation within the meaning of the Employment Equality Acts. However, in spite of the Respondent’s repeated attempts to arrange welfare and return to work meetings with the Complainant to discuss same, she refused to engage with the company with regard to any of these measures.
The Respondent has in the past demonstrated a proactive approach in seeking to reasonably accommodate the employee throughout the period of her long-term absence and illness.
The Respondent granted the Complainant’s requests for changes to her working hours on a number of occasions. The Respondent also investigated the nature and extent of the Complainants illness twice sending the Complainant to an occupational health specialist [OD], and sought to provide retraining and other possible accommodations to facilitate her return to work.
The Complainant was at all times aware that she had the opportunity to apply for other roles within the organisation and the Respondent advised her of the same. However, the Complainant chose not to avail of these vacancies and did not apply for any of these roles
The Complainant has failed to identify a comparator for the purposes of alleging discrimination on the grounds of disability. Indeed, such a comparator could not possibly be identified in light of what the Complainant is alleging. The Complainant alleges that the Respondent failed to reasonably accommodate her by failing to assign her to a role not involving phone work. However, no such roles are available in the Complainant’s division under the amended organisational structure. As such, any comparator the Complainant sought to nominate would also be unable to avail of the reasonable accommodation that the Complainant was seeking, for the identical reason that no such accommodation could be provided as a consequence of the operational structure.
The Respondent submits the Complainant has failed to prove that she has been treated any less favourably than another person is, has or would be treated in an a comparable situation on the ground specified in section 6(2)(g) of the Employment Equality Acts 1998 to 2015.
The Complainant has adduced no grounds to imply discrimination.
As stated previously, the mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. It is further submitted that the Complainant has provided no evidence via comparators that the treatment she received was less favourable. Thus, the Complainant has provided no evidence of discrimination as required for a viable complaint under the Acts.
The obligation on the Respondent is to undertake appropriate measures in seeking to reasonably accommodate the Complainant. In this case, the Respondent has consistently sought to engage with the Complainant with a view to discussing a number of proposed reasonable accommodations. The Complainant repeatedly refused to engage with the employer regarding same, asserting that she would only agree to return to work on the condition that the Respondent grant her specific request – a completely new job.
The Respondent could not have failed to provide reasonable accommodation in the circumstance, but rather they were prevented from doing so by the actions of the Complainant.
Findings and Conclusions:
Section 6(1) of the Employment Equality Acts 1998 to 2015 states:
“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv)is imputed to the person concerned,
Section 6(2) of the Equality Acts provides that as between any two persons, the discriminatory grounds are: “(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
The essential issue for decision is firstly whether this complaint is admissible under the Employment Equality Acts and, if so, whether the Respondent discriminated against the Complainant on the ground of her disability contrary to the provisions of those Acts.
Section 77 of the Employment Equality Acts deals with time limits within which complaints of alleged discrimination must be referred. Section 77(5)(a) stipulates that a claim for redress may not be referred “…..after the end of the period of 6 months from the date of occurrence of the discrimination or……the date of its most recent occurrence.”
Section 77(5)(b) provides that an extension of the 6 month time limit to 12 months may be granted by the Director in certain circumstances, i.e. where there is reasonable cause preventing a Complainant from submitting a claim within the prescribed 6 month period. The Respondent upholds that the Complainants employment with the Respondent was terminated by the Complainant on the 16 May 2016 via letter of resignation. The Complainants claim was received by the WRC on the 28 November 2016. In this case, following these set dates, the Complainants claim is deemed expired. However, it is vital to note that the Respondent engaged in communication with the Complainant in respect to her resignation stating “we are reluctant to accept your resignation…” It is important to note that the Complainant asked to cease correspondence on this matter for the “time being” in her email dated 25 May 2016. Further to the same the Respondent wrote the Complainant seeking clarification on the status of the Complainants employment. It is clear from that correspondence that the resignation of the 16 May 2016 was not accepted by both parties due to ongoing communication. The Complainant, as per the letter dated 22 June 2016 confirmed “I cannot see how it will be possible for me to return to work at this time”. There was no confirmation of termination of employment. On the 1 July 2016 the Respondent wrote to the Complainant with a summary of what had occurred to date and asked what route the Complainant was proceeding down. Of the 12 July 2016 the Complainant resigned from her position. The Complainant submitted her complaint of alleged discrimination to the WRC on 28 November 2015. Therefore the Adjudicator finds that the Complainant is within the extended period prescribed for submitting her complaint and I accept this case should be heard accordingly.
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 Complainant was discriminatorily dismissed and whether the Respondent failed to provide reasonable accommodation in order to enable the Complainant to continue to work with the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
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.
The Complainants disability is not contested and falls within the legislation. Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in terminating a person’s employment. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(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.
However, Section 16(1) must be read in conjunction with Section 16(3) where 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 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.
(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 business, and
(iii) the possibility of obtaining public funding or other assistance.
The Adjudicator refers to the Labour Court case Humphries v Westwood Fitness.  ELR 296. It is worthwhile to quote the relevant paragraphs:
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 he 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.
The Adjudicator finds that the Respondent focused on reasonable accommodation of the Complainant within her department rather than the Company as a whole. The whole Company does have other departments existing at the same Company locations but there was an embargo in place at the time to disallow transfers amongst departments.
The Adjudicator finds that the Respondent never communicated with the Complainant in respect to any possible reasonable accommodations that they would do if the OD recommended the same, which was mentioned at the oral hearing of this case.
The Complainant put the Company on notice in relation to “seriously considering” resignation prior to resignation due to her difficulty in dealing with different calls from customers due to her illness.
The Respondent allege that the Complainant was not looking for reasonable accommodation but a different role.
The Complainants illness / disability is not contested by the Respondent. However, the Respondent stated they wanted the OD to confirm reasonable accommodations before they would discuss it instead of the Complainants option on the matter.
The Complainant states that she was only provided with two options: leave or retrain in the same role. No other discussions regarding any reasonable accommodations were discussed or explored including the Complainants request to avoid calls.
The Complainant did not attend the final request for attendance at the OD by the Respondent and resigned as a result of the same.
The Adjudicator looked at the position set out by the Labour Court in An Employer and A Worker.  ELR 159. The Court found that the reasonable accommodation test is an objective one:
The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.
The Complainant’s case is that if she suffers from a disability then the Respondent must reasonably accommodate this disability and that this reasonable accommodation, according to the Complainant, involves moving her to a position in which she would have no telephone contact with customers. The purpose of Section 16(3) is to provide a person with a disability with “appropriate measures” or “reasonable accommodation” in order to render that person fully capable to undertake the full range of duties associated with the post.
The statutory obligation is to provide reasonable accommodation to undertake the work for which the complainant was employed to which the Complainant accepted in her complaint to the WRC that ‘the main aspect of my work was taking phone calls from [electric supplier] meters and boiler service etc.’
It is necessary to consider did the Respondent meet its obligations in relation to reasonable accommodation. The reasonable accommodation test is an objective one and in this case the Adjudicator finds that the Respondent did not reasonably accommodate the Complainant as there was no consideration of any transfer to another department or division or other measures with the Complainant. At the oral hearing the HR Advisor mentioned that the Respondent would have explored reduced working hours/phased return etc. in an attempt to help facilitate the Complainants return to work. However, it is important to note that this option, or any other considerations of options, was not explored nor explained to the Complainant. The Adjudicator finds that the concept of reasonable accommodation was not explored.
The Adjudicator finds that the Respondent has not met the legal requirement in exploring measures of reasonable accommodation. The Complainant did not assist the process the Respondent tried to engage in, in respect to aiding the proposed future return to work, in failing to attend the OD. However, the Adjudicator finds that the process was not fully explained to the Complainant in the context of reasonable accommodation and in identifying what the OD may suggest which would have been a helpful aid to the Complainant during her absence due to disability.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have considered the following to confirm if this claim meets the requirements of this Acts:
The Complainant must establish that she is covered by the relevant discriminatory ground. I can confirm the Complainant has established that she is covered by the relevant discriminatory ground which is disability based on her depression.
The Complainant must establish that the specific treatment alleged has actually occurred. I can confirm that the Complainant has established that the specific treatment alleged has actually occurred.
I am satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable I order the Respondent to pay the Complainant a total of €5,000.00 [which equates to approximately 12 weeks gross wage] in compensation. This figure represents compensation for infringement of her rights under the Acts and is not taxable.
Workplace Relations Commission Adjudication Officer: Caroline McEnery