ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011821
| Complainant | Respondent |
Anonymised Parties | A Solicitor | A Legal Service |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00015663-001 | 08/11/2017 |
Date of Adjudication Hearing: 13/04/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant has been employed by the respondent since March 1st 2001 as a solicitor. She suffers from a disability and sought the option to work from home. Her disability is not in dispute. |
Summary of Complainant’s Case:
The complainant has given many years of satisfactory service but she suffers from epilepsy and has experienced a number of acute, or ‘grand mal’ attacks. She has made a series of six requests to be allowed to work from home commencing in the period March to May 2015, again in June/July 2015, in October/November 2015 January/February 2016, October 2016 7, and finally January 2017. These were sought as a form of ‘reasonable accommodation’ in the course of a period in which her health was continuing to deteriorate seriously but all of which have been refused. Colleagues of the complainant have been facilitated with such accommodation. There is no question that the complainant is fully competent to discharge her functions. The complainant relies on Marie Daly v Nano Nagle School (Court of Appeal, January 31st, 2018) where it state; ‘The point is a simple one; the statutory obligation is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation….’ The court confirmed the decision of an Equality Officer saying; ‘The general principles set out in Humphries v Westwood Fitness Club require an employer to make a bona fide and informed decision regarding disabled employee’s capabilities before concluding that he or she is unable t perform the duties of their employment…. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive. The complainant says the respondent failed to make any bona fide and informed decision before reaching its conclusions by failing to engage in any meaningful way as to how the proposed arrangement might actually work and/or how the complainant’s tasks might be arranged to make it work notwithstanding the fact that the complainant had undertaken to attend at whatever location the essentials of her role required her to attend on her ‘home day’. The complainant says that the complaint is within the time limits as the respondent ‘s failure to provide accommodation of the complainant ‘s disability is a continuing breach. |
Summary of Respondent’s Case:
By way of a preliminary point the respondent says that the complaint has not been made within the statutory limits set out at Section 77 (5) of the Employment Equality Acts. The date on which the alleged breach occurred was December 7th, 2016. On that date the respondent wrote to the complainant re-stating its previous refusal to facilitate the complainant on the basis that it had received a medical report that permitting to do so would make only ‘a minimal reduction’ in her stress, and having regard to the nature of her ‘frontline’ duties as a solicitor. This front-line role involves face to face client meetings and attending court or other meetings. From the outset it was made clear that working from home was not compatible with these responsibilities. When the independent medical practitioner (hereafter IMP) reviewed the complainant ‘s case one of the issues was achieving a reduction in the complainant ‘s stress and fatigue levels as she considered these to be a trigger for her epilepsy. That IMP consulted one of the complainant’s neurologists who recommended that, if possible, the complainant’s stress and fatigue could be reduced within the limits allowed by her work then it should be. His report confirmed this, but stated that working from home would only result in a ‘minimal’ reduction in stress, and this formed the basis on which her request was declined. The medical evidence did not support the complainant’s request for home working. Further the complainant has not made any fresh submission that would challenge the medical opinion on this point. The respondent does not dispute the complainant’s disability and it has facilitated her by agreeing to a shorter working week. The respondent says it meets the test set out in A Health and Fitness Club v A Worker (EED037). In particular; ‘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 Court went on to note that the Act states that the cost of the reasonable accommodation be nominal. As noted above the respondent obtained independent medical advice to the effect that the reasonable accommodation would only ‘minimise’ the complainant‘s stress and its decision was based on this. |
Findings and Conclusions:
The first issue to be decided is whether the complaint was made within the time limits. The respondent argues that the breach of the Act occurred on the date on which the complainant was most recently refused the accommodation she sought, and therefore that it is not within jurisdiction. The logic of this view is that the position of a complainant (who may ultimately be successful in a complaint) ceased to be in need of the accommodation on the day after it was refused. I reject this argument and find that a case remains within jurisdiction and that there is continuing breach of the Act subject to the substantive case being established in due course. Secondly, the respondent based much of its argument in this case on the likely impact on her condition of the facility being sought by the complainant. Section 16 (3) identifies the circumstances in relation to which the employer must install the reasonable accommodation. They are to enable the person who has a disability; (i)To have access to employment, (iii) To participate or advance in employment, or (iii) to undergo training. Article 5 of the Framework Directive (Council Directive 200/78EC L303/16 describes the objective as follows. In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment etc. This section continues about the proportionality of such measures which is not an issue in this case. The complainant’s neurologist (who did not give evidence but whose views were quoted in the respondent’s submission) apparently stated to the IMP that if the complainant’s stress and fatigue could be reduced within the limits allowed by her work then they should be. The IMP concluded that any reduction would be ‘minimal’. On this basis, the respondent stated on December 7th, 2016 that it did not ‘see any reason to vary its previous decision’ and that decision stood. The decision was first made on May 20th, 2015, and again on October 22nd, February 8th, 2016, October 10th, 2016. Subsequently, it was also re-stated on February 14th, 2017. In fact, there were two strands to the respondent’s position, the first was that outlined above and the second related to the capacity of the complainant to discharge her role while working at home. It was stated by the respondent that it would be ‘very challenging’ were the complainant to work at home. Indeed, the respondent went so far on one occasion to say that it would be ‘incompatible’ with the [complainant’s] role and functions’. (Email of January 1st, 2017). However, the respondent had agreed to other measures such as a reduction in the working week The complainant on the other hand stated that it would create no difficulty whatsoever and that she had ‘huge autonomy’ in relation to the delivery of her tasks. She was willing to be entirely flexible and respond to business needs as required. She also said that much of her work, of a preparatory nature, for example, could just as easily be performed from home as from her office. One of the respondent’s witnesses stated that he could not give any evidence as to what consideration was given to these divergent views. This could mean that either he (a relatively new post holder) was not in possession of any evidence or it could mean that none existed. In practical terms, it has the same outcome if it was not available to the hearing but, on the basis of how this information was delivered at the hearing (a shrug of the shoulders) it seems more probable that the latter explanation is the correct one. In this case the fact that the complainant has a disability is not in dispute. So, one of the tests quoted above in Westwood is not at issue here. The only issue arising from the medical opinion is whether the accommodation sought would have an impact on reducing stress on the complainant and thereby reducing the risk of another attack with possible life-threatening consequences. The conclusion was that it would only have a minimal effect. This may be taken to mean that the accommodation sought would not be the difference between the complainant being fully capable to perform her duties fully and not being so. However, the respondent also relied heavily on the difficulties that granting the facility would create for its work. The complainant strongly disputes this as noted above. So, to summarise, it is not in dispute (the respondent does not dispute it) that the complainant has a disability. The option to work at home is regarded by the complainant as extremely important to judge from her persistence in seeking it. The respondent responds that its medical advice is that it would make little difference but in any event, it considers (and did so before it got medical advice) that the complainant cannot discharge her duties properly with a day spent working from home. Unusually, the accommodation being sought is, in a way a negative, or at least something with an uncertain connection to the objective; it is aimed at reducing the possibility of a further epileptic attack. In other cases, the significance of providing the accommodation is more foreseeable or less unpredictable; a matter of creating physical facilities or circumstances in which a person is enabled to perform the job by providing support or removing obstacles to their full performance, and whose efficacy is either immediately obvious or can reasonably be predicted. In that sense, reasonable accommodation is a positive, facilitative provision to enable tasks to be more easily accomplished. But I see no reason why the removal of an obstacle to the objectives outlined in the Act should be regarded as any different. The failure to engage with the complainant is especially significant in that the issue was initially decided long before medical opinion came into play. In my view there was no attempt to assess with the complainant the precise outworking of the ‘work from home’ option and this unduly influenced the decision even after the IMP assessment. It is quite clear that both the nature of her work and her attitude to flexibility permit her to work from home. The objection seems to be a matter of policy on the part of the respondent and to judge from its description of the accommodation as creating incompatibility with her role; a fairly entrenched one. However, that is not sufficient to decide whether the refusal to permit it breaches an obligation to provide reasonable accommodation. The medical evidence is not very decisive. It is that anything that will reduce stress will help the complainant but that the specific provision sought would only make a ‘minimal’ contribution to this. In summary, I have three pieces of medical evidence which I must take into account. The first (from the complainant’s neurologist) is that ‘a reduction in stress’ will be of benefit to the complainant. The second is that the accommodation she seeks will only have a minimal impact on this. The third is that the complainant has experienced, and is at risk of, ‘grand mal’ episodes which are potentially life threatening. The question is whether a ‘minimal’ contribution might make the difference in avoiding the sort of potentially catastrophic outcome which the complainant has previously experienced and it would appear that the respondent either did not consider this or does not regard this as a significant factor. Put another way the respondent seemed either content to accept, or was indifferent to, a risk arising from the ‘minimal’ impact assessment, despite the possibility of a catastrophic outcome for the complainant. In the very specific circumstances of this case I consider any, even a minimal contribution to avoiding the risk represented by a grand mal seizure as a valid accommodation of the complainant’s requirements to fulfil the entire gamut of her role. The failure of the respondent initially to properly consider the application, and then following the expression of the views of the IMP to rigorously evaluate the possible impact on the complainant is a failure to provide her with reasonable accommodation. It is clear from the history of the case that the respondent had set its face firmly against accommodating the complainant, whatever argument she made and it took advantage of the ‘minimal’ impact assessment to reinforce this position without properly assessing all of the implications. It seemed locked into its view that the accommodation was ‘incompatible’ with her role, which is rather extreme and sounds more like a pre-determined view than one based on any evidence. In my view, making a minimal impact on the possibility of avoiding a life-threatening event is, to put it very mildly ‘a reasonable accommodation’. There should be a zero-risk approach in such a situation. The failure of the respondent at any stage to take this into account is a breach of its obligations under the Act and I find for the complainant. |
Decision:
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 uphold complaint CA-00015663-001 and award the complainant €30,000 in compensation for the breach of her rights under the Act. |
Dated: 07/09/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Reasonable accommodation. |