EMPLOYMENT EQUALITY ACTS 1998-2011
A Software Tester
(represented by Gilvary and Associates.)
(represented by IBEC)
File reference: et-156847-ee-15
Date of issue: 7 June 2017
This dispute involves a claim by A Software Tester (hereinafter referred to as “the complainant”) that she was discriminated against by An employer (hereinafter referred to as “the respondent”) on the disability ground, in terms of section 6(2)(g) of the Employment Equality Acts, 1998-2011 (“hereinafter referred to as ‘the Acts”) in terms of failure to provide reasonable accommodation and dismissal under section 8 of the Acts. The complainant also claims that she was subjected to victimisation in terms of section 74 of the Acts.
2.1 The complainant referred a complaint under the Acts, to the Equality Tribunal on the 29th May 2015. On 24th April 2017, in accordance with her powers under the Acts the Director delegated the complaint to the undersigned, Peter Healy, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. A Hearing of the complaint took place on 25th May 2017.
2.2 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.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant started her employment 16 years ago and following a series of T.U.P.E transfers her ultimate employer the respondent for whom she was a software tester and team leader. The complainant suffers a disability in that she was diagnosed with Fibromyalgia in 2011 and was on extended sick leave on the date of her dismissal.
3.2 The complainant submits that the Respondent discriminated against her by failing to apply the policy of illness to her, by refusing to appeal the refusal by the insurers to apply the relevant policy to her and by dismissing her without waiting to see if she could return at a later date.
3.3 The complainant submits that the respondent is using a “strawman” tactic in mischaracterising her claim as one of discriminatory dismissal. The complainant makes no claim of discriminatory dismal. The complainant submits that she was discriminated against on the disability ground by the respondent’s failure to appeal further the refusal of their insurers to continue to pay out on the Health Policy.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent submits the complainant has brought her claim outside the statutory time limit provided for in Section 77(5). The claim forms show three different receipt dates: the 29th of May 2015, the 2nd of June and the 11th of June 2015. It is for the claimant to prove that she submitted a claim in time. The claimant was dismissed with effect from the 30th of November 2014 including notice, which means she is over the six months limit. The time expired on the 29th May 2015.
4.2 There were no changes in the terms and conditions of employment as alleged by the claimant following the change of ownership of the respondent company. There is no claim before the WRC under the TUPE regulations which she refers to in her submission twice at the introduction and paragraph She tries to argue that in some way her benefits such as they were at the start of her employment in 1998 remained in place through all the transfers and changes in ownership of her employer. As a matter of law, the TUPE regulations only preserve across to the new employer the basic pay terms and conditions of employment as of the date of the transfer. It does not preserve them in perpetuity. They can and do change over time. Also, if they did change, which is denied, then they changed forall employees, able or disabled, so there was can be no discrimination as a result. She was not singled out.
4.3 The claimant had several periods of sporadic absence starting in 2006-2008 (no prior records available) i.e. 10 days in 2006, 184 days in 2007 and 63.5 days in 2008 respectively. CSG had a PHI policy in place at the time with Eagle Star and later Zurich Insurance. These policies operate as a benefit in kind for the employees. The policy is between the employer, the insured, and the provider Eagle Star/Zurich Insurance. There is no direct relationship/contract between the employee and the underwriter.
4.4 The respondent submits that following a first Permanent Health Insurance (PHI) Claim in 2007 that company facilitated a phased-in return to work arrangement for the complainant and on the 31/03/08 she returned to full-time working hours. Further, the complainant requested and was granted a home-working arrangement. A voluntary/in house home-working arrangement was put in place one day per week from October 2008 to January 2009. The complainant’s Maternity leave commenced from 19/01/09 to 3/9/09. A Parental Leave arrangement request taking one day per week commenced from 18/9/09 to 14/01/11. Part-time work (4 days per week) arrangement request was granted to the complainant to cover from January 2011 – December 2011.03/02/11 - first day of the complainants final period of absence and she never returned to work after that. Short Term Disability commenced from the first day of absence and ended 16/08/11 (as her salary ceased 16/08/11).The total absence for 2011 was – 236 days.
4.5 Long Term Disability - PHI Claim #2
In May 2011 the respondent advised Zurich (new scheme operator) of the complainant’s on-going illness and the PHI procedure was initiated by her. In February 2012 - The complainant’s PHI claim was accepted by Zurich, taking effect retrospectively from 03/08/11 – 30/09/12 inclusive, with a gross monthly payment. In August 2012 - The complainant’s claim was reviewed in line with the scheme’s normal annual review process. On 28/08/12, The complainant was asked to attend a Specialist Independent examination organised by the insurance company - under the scheme rules "disabled" means “totally incapable ....of following normal occupation...." see addendum to first schedule as referred to earlier.. The specialist’s assessment was that the complainant was “not totally incapable of carrying out the occupational duties of a Software Tester" i.e. she was partially able and therefore she did not qualify under the scheme. As shown earlier, it had happened before under Eagle Star’s PHI scheme. Zurich advised the company of their decision to cease The complainant’s claim with effect from the 30/09/1. The company notified the complainant of Zurich’s decision. She wrote to Zurich herself advising of her dissatisfaction and advised she wished to appeal Zurich’s decision. The complainant then wrote to her own Consultant, seeking a medical report to support an appeal of the decision.
4.6 In June the HR Director for the respondent advised The complainant that if she wanted to appeal Zurich’s decision she would need to provide further Independent Specialist medical evidence. He advised that the company had no influence over Zurich’s decision in relation to her appeal claim. In December 2012 the complainant furnished the documentation required by Zurich and the company appealed Zurich’s decision on her behalf. The respondent submits that that documentation submitted by the complainant, was a doctors letter that did not confirm her “total disability” as required under the scheme. Further correspondence ensued between the parties in which the insurer confirmed that it would not be reversing its decision. In august 2013 the complainant advised in the letter that she was not in a position to return to work and she was making an application for Long Term Disability with Social Welfare. She enquired about a formal appeals process as she felt “I have grounds to challenge Zurich’s decision”. The respondent advices that they did not agree. In July 2014 the respondent invited The complainant to a meeting to discuss her fitness to work in light of being accepted onto the state invalidity pension and to investigate if The complainant was in a position to return to work in the foreseeable future. The complainant was joined by her representative. The parties met on 03/09/14 to review her continuing absence and employment. The complainant advised that as part of the invalidity pension’s qualifying process, she was assessed by the state’s consultant (no name provided) who classed her as unfit to work. She was unable to provide to a possible return-to-work date as part of a “road to recovery plan” in the foreseeable future and the likelihood of returning to work in the next 12 months was highly unlikely. In March 2014 the parties met, and advised the complainant that, as a result of her being medically certified unfit to work on a continuous basis since February 2011 and given that she was in receipt of the state invalidity pension for an indefinite period, plus she could not provide an indication or timeframe of when she may be fit to return to work, the company reached a decision to issue her with notice of termination on the grounds of incapacity. Termination of her employment would be effective on 30/11/14 and that if she wished to appeal the decision she would need to initiate proceeding within 7 days. In October 2014 the complainant appealed the decision to terminate her employment.
4.7 An appeal meeting took place. The complainant’s solicitor present along with, the Company VP, who heard the appeal. Her solicitor said she was not appealing the decision to dismiss her but rather and instead on the following four grounds-
1. CSG should have re-appealed her case with Zurich after they had declined her last PHI claim.
2. She was treated less favourably in her terms and conditions, as in they had diminished, throughout the various TUPE arrangements referred to earlier.
3. He said from a moral and corporate perspective CSG should keep an open mind on her medical condition. He said that there was no guarantee that she could be fit in the future.
4. She should receive her annual leave entitlement as a payment in lieu, in line with the Stringer v HMRC decision by the ECJ, whilst she was out sick/absent for the entire period.
4.8 The company V.P. upheld the companies’ original decision to terminate The complainant’s employment. The company’s response to the 4 points raised was:-
1. CSG have no right to appeal Zurich’s decision, complying fully with the scheme rules. Zurich could only consider the appeal if the claimant had brought new medical evidence to show she was totally incapable, which she never did.
2. She was treated no differently in relation to her terms and conditions to anyone else, abled or disabled in the company. If the conditions had deteriorated, which is denied, then they did so for all employees.
3. In the absence of some future possibility of a return to work, it is unfair to expect the employer to leave the position open indefinitely with the possibility of a return to work, and this after 3.5 years continuous absence.
4. At the time there was no application in the private sector of the Stringer case - that was only introduced with the Workplace Relations Act 2015.
The respondent submits that for all these reasons the complainant’s dismissal was fair and not discriminatory.
CONCLUSIONS OF THE EQUALITY OFFICER
5.1. I have to consider is whether the complaints were referred within the statutory time limits. The first complaint form was received within the required time limit. In the instant case, I consider all instances of the respondent’s treatment of the complainant with regard to her disability to be linked. I must decide if a continuum of discrimination exists following examination of those instances.
5.6 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.
5.7 An employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. 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
(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.
(complainant) 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
5.8 In relation to the practical requirements and obligations placed on employers The Labour court has found in Humphreys v Westwood Fitness Club  E.l.R. 296 that:
“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 she 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."
5.9 In the instant case the respondent has provided me with a detailed documented history of their engagement with the complainant. The chronology of events is agreed by both parties. I accept the account of the respondent above and find that they have met their obligations under the Acts to engage with the complainant regarding her disability and that they have acted appropriately.
6.0 At the hearing of this complaint the complainant clarified that all aspects of alleged discrimination arise from the respondent’s decision not to challenge the decision of the insurer. The respondent was presented with medical advice from the insurer stating that it would be beneficial for the complainant to return to work. The respondent facilitated the complainant’s appeal. The complainant provided medical evidence from her own doctor directly to the insurers that she was not “totally incapacitated”. The respondent had no sight of that medical evidence at the appropriate time. The only way that the respondent could further appeal was to ignore the medical evidence put forward by both the insurer and the complainant. This was not a logical course of action for the respondent. I find that the respondent’s decision not to appeal the findings of their insurers was rational and not influenced by discrimination.
6.1 While the complainant has clarified her claim in regards to dismissal, I wish to clarify that I find no evidence of discrimination in regards to the manner of the dismissal. The complainant was absent for three years and could not provide a date of return. I accept the respondent’s account that it was necessary to end the employment relationship for workforce planning reasons.
6.2 As the decision for to appeal was the single act of victimisation put forward by the complainant I find no evidence of victimisation as defined under the acts.
6.3 The complainant argues that the failure to the respondent to further appeal the decision of an Insurance company amounts to indirect discrimination. The respondent provides an insurance policy to provide continued income for those who qualify. I find no evidence that the respondent would have acted differently had the insurance policy applied to those who are not disabled. I find no evidence of indirect discrimination.
7.1 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
(i) the respondent has not discriminated against the complainant on the disability ground regarding reasonable accommodation.
(ii) the respondent has not discriminated against the complainant on the disability ground regarding dismissal.
(iii) the respondent has not victimised the complainant in terms of Section 74 of the Acts.
Adjudication Officer/Equality Officer
7th June 2017