ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008968
Representatives | Oonagh McCormack O'Connor McCormack Solicitors. Sharbee Morrin BL | Paul Gough Holmes O'Malley Sexton Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011703-001 | 01/06/2017 |
Date of Adjudication Hearing: 23/10/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
The Complainant herein has referred a matter for dispute resolution under Section 77 Employment Equality Act, 1998 and the referral has been made within six months of the initial circumstances of the relevant contravention.
Summary of Complainant’s Case:
The Complainant claims that she was discriminated against on grounds of disability by the Respondent, its servants or agents. She has been employed by the Respondent as a Property and Title Researcher for almost twenty eight years. She has an impeccable service record. The Complainant was diagnosed with breast cancer in late 2013 and finished work in January 2014 to undergo aggressive treatment involving a course of combination chemotherapy as well as radiation treatment. In January 2016, the Complainant was fit to return to work. As a consequence of her illness the Complainant suffered and suffers from persistent post cancer/post chemotherapy fatigue. From the date of her return to work in 2016 the Complainant allocated her accrued holidays as three annual leave days per week and attended at her place of work for two days per week. However, by 10th November 2016 the Complainant’s entitlement to accrued leave had apparently expired. On the 9th of August 2016, the Complainant attended for Occupational Health Review with Dr. B, Consultant and Accredited Specialist in Occupational Medicine, for her employer. Dr. B noted that the Complainant’s biggest challenge in her return to work post serious illness, was posed by her commute from Blessington to the City Centre office. She further noted that the Complainant’s fatigue was slowly improving. Within her recommendations, sets out that, “If it is an option, and the organisation is in a position to accommodate home working, this would enable Ms Moloney to increase her hours. If this cannot be accommodated by the organisation, a work station or office space closer to home could possibly offer an alternative solution”. A meeting was held with the Complainants and the Human Resources Department of the Respondent on the 18th of August 2016 purportedly to discuss the Report of Dr.B dated the 9th August 2016. However, a letter dated 26th of August 2013 formally rejected the Complainant’s request for accommodation to work from home. No such formal request had been made. The Complainant submitted a Formal Application for a home working arrangement, on the 23rd of September 2016. This application was supported by the following Reports: a) Report from Dr. B of CHI. – 9th August 2016 b) Report from Professor K, St James Hospital. 29th August 2016 c) Report from General Practitioner, Dr P. 2nd September 2016 d) Report from Professor S, Mater Hospital. 15th September 2016 The Complainant set out in her formal application that the difficulties experienced by her post illness while suffering from fatigue could be addressed by the provision of reasonable accommodation, specifically a home working arrangement. Such an arrangement could require the Complainant’s attendance at Dublin City Council Offices on two days per week with the remaining three days worked from her home in Blessington. Most of the Complainant’s work is carried out at her desk and working online. The Complainant’s role also requires her intermittently to attend at various offices such as the Registry of Deeds or the Probate Office. The Complainant submits that this could quite easily be achieved within the scope of her home-working proposal – two days per week in Dublin City Council Offices and three days per week from home. The Complainant is aware of various employees of the Respondent who have been facilitated with home working arrangements. The Complainant and her medical practitioners opine that a home-working arrangement would serve to alleviant the symptoms of fatigue. For example, if she were particularly fatigued on a day allocated to work from home, she could take a rest on her lunch break and lie down for thirty minutes. It was envisaged by the Complainant at all times that this arrangement could be subject to regular reviews in order to ensure that the Complainant’s obligations and duties to her employer continued to be met. The Complainant received an email from the administration officer on behalf of the Respondent dated 13th October 2016 stating that ‘special leave without pay’ would have to be applied for by the Complainant until a formal decision in relation to her application for a home working arrangement could be made. Ultimately the Complainant’s application for reasonable accommodation in the format of a temporary home working arrangement (subject to review) was refused in early November 2016. By letter 17th November 2016, the complainant formally confirmed that she wished to appeal this decision and a meeting was held on the 19th December 2016. By letter 13th of January 2017 the Respondent confirmed that it was not feasible to grant a home working arrangement. The Complainant formally requested permission to avail of an alternative arrangement on the 18th January 2017 proposing that she would be based in the Respondents’ office in Ballymore Eustace, Co. Kildare for three days per week and at the Civic Offices in Dublin for the remaining two days each week. The Council offices in Ballymore Eustace would require a daily commute of just 10 miles and as such would serve to alleviate the exhaustion and fatigue suffered by the Complainant. By letter 13th February 2017 that further proposal was rejected. The following alterative options were outlined to the plaintiff: a) Work-sharing. b) Special leave without pay. c) Shorter working year. d) Career break. All of these options suggest that the Complainant is unfit for her duties and involve reduced hours and reduced pay.
As part of the Complainant’s Application she submitted a letter from the Irish Cancer Society which sets out that “Employees need the support of their employer both when they are going through treatment and when they are ready to return to work”. The letter lists a number of guidelines as to how employees can be supported such as: “Allowing changes to their work schedule if required”. “Allow for flexible working hours or perhaps working from home”. “Continued understanding and flexibility from an employer is important. Once treatment for cancer has been completed, being able to continue working is vital for many people with a cancer diagnosis for many reasons including, proving a sense of routine or normality to the employee and offering a sense of control in all aspects of the employee’s life”. Furthermore “Given the huge financial impact of having cancer, the reality may be that the employee may not be able to afford to be absent from work”.
The Complainant submits that the definition of a disability is expressed in terms of the manifestations or symptoms produced by a particular condition or illness or disease rather than the taxonomy of the condition, illness or disease in question. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. In assessing whether the Complainant suffered from a disability, it must be considered whether the Complainant suffered any of the effects listed at paragraphs (a) to (e) above (Government Department v. A Worker EDA 4/2009). The language of the statute must be construed in the ordinary and natural meaning of the words and sentences used (Customer Perception Ltd. v. Leydon [2004] 15 E.L.R. 101). The Complainant in the within proceedings relies on paragraphs (a) and (c) of the statutory definition. The Complainant suffered from extreme fatigue following her oncological diagnosis. It is therefore submitted that the Complainant’s condition constitutes a disability for the purposes of Section 16 above. Section 16 of the Employment Equality Acts 1998 and 2004 provides that an employer or a provider of agency work is not required to recruit, retain, train or promote a person who will not, or is not available to, carry out the duties of a position or who will not accept the conditions under which the duties attached to a post are to be performed or who is not fully competent to carry out the duties concerned. For the purposes of s. 16 of the Employment Equality Acts 1998 and 2004, a person with a disability is to be considered fully competent and capable to undertake the duties attached to a job if the person could do the duties with the assistance of special treatment or facilities. The nature and extent of an employer's obligations under this section was comprehensively considered by the Labour Court in Humphreys v Westwood Fitness Club [2004] E.L.R. 296 and in An Employer v a Worker [2005] E.L.R. 159. The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability (A Hotel v. A Worker EDA 0721). If the Respondents formed the view that the Complainant was unfit to carry out her duties by reason of her disability, the Respondents failed to provide reasonable accommodation to the Complainant. The Complainant was fit to participate in full time employment as long as she was allowed to continue in employment with the benefit of a working from home arrangement. The Respondents were advised of this fact by the Complainant’s medical practitioners and indeed the Respondents’ own Occupational Assessor. The Respondents failed to consider allowing the Complainant to either work from home three days per week or from the offices at Ballymore Eustace even on a trial period. A disproportionate burden would not be caused to the Respondent to provide the accommodation sought. As a result of the failure of the Respondent to provide reasonable accommodation, The Complainant has been working part-time since November 2016 and suffers a continuing loss. |
Summary of Respondent’s Case:
The respondent stated that the complainant had been an employee of theirs for in excess of 28 years. She was an excellent employee who devoted herself to her work. She was diagnosed with cancer in late 2013. She was on certified sick leave from January 2014 to January, 2016. Prior to her return she attended with the respondent’s doctor. It was recommended that the complainant return to work in January, 2016 for two and a half days a week for approximately 3 months. Based on the respondent’s doctor’s recommendation the respondent allowed the complainant to work two and a half days a week at first. She was reviewed again in May, 2016 who stated “ she very much enjoys her work and is unable to consider fulltime work at the present time. She is concerned that the two and half days working is beyond her capacity at present. She remains fit for two days work at present using accrued annual leave” Following receipt of that report the complainant was reduced to two days per week. The complainant was reviewed again in August, 2016. The doctor stated “remains fit for reduced hours at this time. We have had a long discussion today in relation to the possible accommodations which could be considered to facilitate she increased hours. If it is an option, and the organisation is in a position to accommodate home working, this would enable her to increase her hours. If this cannot be accommodated by the organisation, a work station or office space closer to her home could possibly offer her an alternative solution” The administration officer met with the complainant on the 18th August, 2016 to discuss the report. At the meeting the complainant stated that her commute from Blessington each day was exhausting. She had to get up at 5.30am and left the house at 6.45am. She started her work in the office at 7.30am. She requested that she be allowed to work from home for the remaining three days a week. She stated that if this was not possible she would have to consider her options once her annual leave ran out. The complainant wrote to the administration officer on the 26th August setting out why she felt it would be possible to work from home three days a week. The complainant later made a formal application in relation to her working from home proposal. A meeting was held on the 5th October, 2016. At his meeting the complainant produced a number of medical reports which supported her application. Following a review of the complainant’s medical reports and the CHI reports that the respondent concluded that it could not accommodate her request to work from home. The complainant then applied to ‘job share’ together with an appealed of the decision not to allow her work from home. Her appeal was unsuccessful. At present the complainant continues to work reduced hours. She has exhausted her annual leave entitlements and is now paid only for the days she actually works. She did apply to work in offices close to her home but the premises are now owned by a different company, so her request was refused. The respondent accepts that even in the absence of a policy governing a particular situation, decisions can be made a local level.
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Findings and Conclusions:
The definition of disability contained in the Employment Equality Acts is set out in a list of broad categories as follows: “(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 judgment or which results in disturbed behaviour”. The scope of protection against discrimination of the Act is delineated in Section 8. Section 8(1) of the Act prohibits discrimination in relation to: (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts. Accordingly, the scope of prohibited discrimination is wide and encompasses every stage of employment. In this jurisdiction disability has been interpreted in an extremely broad way . In An Employee v. Bus Eireann [2003] ELR 351 it was held that heart conditions amount to a disability for the purposes of the Acts. Further, in the case of Mr O v. A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability. Further, as was suggested in A Government Department v. A Worker EDA094, the de minimis rule applies and the condition must manifest in a minimal level of symptoms to be classified as a disability. The complainant was diagnosed with breast cancer in 2014. She underwent extensive chemotherapy and radiation treatment. As a result of her treatment, the complainant now suffers from fatigue. I am satisfied that the fatigue brought on by cancer treatment can be differentiated from everyday normal fatigue and as such it does meet the criteria of a disability within the meaning in the act. The complainant stated that she has been treated less favourably than several other members of staff. One employee who broke her leg whilst skiing was allowed to work from home until her cast was removed. The respondent stated that she was facilitated in that way due to a health and safety policy. No such policy was in existence to cover the complainant’s disability and therefore she was not facilitated. The respondent accepted that a decision could be made at local level despite the absence of a particular policy. No attempt was made to assess whether it was actually possible to carry out her duties from home. Her manager stated that in his view, it was not. However, I note that he did not carry out any assessment, review or trial to corroborate his view. It would seem, following an analysis of the complainant’s duties that a significant proportion of her work was done on the computer. I am satisfied that the complainant has established a prima facia case of discrimination on the grounds of disability. Reasonable Accommodation Section 16 Employment Equality Act, 1998- 2015 requires an employer to " do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities” Reasonable accommodation requires employers to take account of relevant characteristics of their employees and obliges them to make changes to allow the employee to do the work. This requires employers to take a proactive approach in removing barriers and making adjustment to the work environment so that an employee with a disability can be accommodated in the work place. The position regarding an Employer’s responsibility to an employee suffering from a disability has recently been dealt with in the seminal case of Nano Nagle School V Marie Daly 2015 IEHC 785. . In particular, this case has examined the extent of reasonable accommodation and appropriate measures which should be provided by an employer on behalf of an employee suffering from a disability which now includes an obligation on the employer to redistribute tasks and / or eliminate some of the tasks performed by the employee in order to accommodate that employees return to work. There is a duty on an employer to make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before making a decision which may be to the employee’s detriment. This principle was first established in Humphreys v. Westwood Fitness Club [2004] ELR 296 in respect of decisions to dismiss a disabled employee on the grounds of incapacity. However, this principle was extended to all decisions that may detrimentally affect a disabled employee in A Worker (Mr O) v. An Employer (No. 2) [2005] ELR 113. The practical effects of this requirement, is that it requires an employer to take into account all relevant evidence to determine the duration and extent of a disability. Once completed, the onus is then on the employer to consider the appropriate measures or special treatment or facilities in order to allow the employee to be capable of performing his employment. This necessarily involves an examination of the costs and obligations as an employer would not be expected to be over- burdened. In Kennedy v. Stresslite Tanks Limited Dec-E2009-078 it was held that failure to consider appropriate measures will lead to a finding of discrimination even where the employee was allowed to participate in the process. The Respondent was in possession of all the medical facts pertaining to the complainant’s post cancer treatment fatigue. They had in their possession five medical reports from the complainant’s doctor and two reports from their own doctor all saying that the complainant would be capable of working additional hours if she could eliminate her commute from Blessington. The respondent did not carry out any analysis, review or assessment of what percentage of her duties could be carried out from home. The complainant carried out an analysis and broke down her individual functions into those that could be carried out at home and those that required her to be in Dublin. Based on that analysis she concluded that she would have to be in Dublin two days a week only. It would seem that the respondent totally ignored her analysis. Furthermore, it would seem that the respondent ignored the medics advises too. The respondent accepts that decisions of this nature can be made at local level even in the absence of a policy. Despite that, no attempt was made to facilitate the complainant based, it would seem, on the opinion of her manager, whose opinion was not backed up by analysis. There is a duty on the respondent to redistribute work or remove barriers that present as an obstacle in the way of the employee’s ability to carry out their functions. They failed in their obligation to the complainant to do so. Having carefully considered all of the evidence adduced by both parties, I find that the respondent failed to objectively justified its refusal to reasonably accommodate the complainant. I find that the respondent, Dublin City Council did discriminate against the complainant on grounds of disability. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint.
I find that the complainant claim ADJ 8968 CA 11703 succeeds.
I award the complainant €25,000.00
Dated: 16th November 2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
Disability, Fatigue, Reasonable Accommodation , Work from home. |