ADJUDICATION OFFICER DECISION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT, 1998
This Order corrects the original Decision issued on 18/11/2019 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00024123
Diarmuid Ó Gruagain
Department of Business, Enterprise And Innovation
Robert O’Reilly, B.L., instructed by Peter Boyle & Co., Solicitors
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: 08/10/2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following 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.
Mr. Ó Gruagáin is an Executive Officer in the Public Service having first commenced employment in 2003. There was a break in service from 2007 until 2013 when he re-commenced employment. The complaint is in relation to a claim that the respondent discriminated against Mr. O’Gruaigain in that they failed to give him reasonable accommodation in respect of a disability. Mr. O’Gruaigain works in the Department of Business, Enterprise and Innovation.
Summary of Complainant’s Case:
Mr. Ó Gruagáin has an arm injury that has been verified to the Department by physiotherapist and GP reports.
The HR Dept. have failed to follow up these reports.
A report from the Civil Service Occupational Health Department was prepared in January 2019 which contained various suggestions which don’t appear to have been acted upon.
Some steps have been taken as regards voice activated software but it is still not functional thus requiring Mr O’Gruaigain to continue to use his injured arm to do his work.
Summary of Respondent’s Case:
The Department denies that discrimination has occurred.
The Department has complied with its obligations to provide reasonable accommodation in relation to Mr. O’Gruaigain.
Mr. O’Gruaigain has had several engagements with the Chief Medical Officer and the Department has sought to implement accommodations where deemed reasonable.
Management have also had a compatible voice activation product installed on Mr Ó Gruagáin’s PC and have provided time for him to practice on this system.
Findings and Conclusions:
Mr O Gruaigain has a physical disability affecting his right hand. He therefore works with his left hand. Since 2013 Mr O’Gruaigain had been assigned to work in a particular section of The Department and had gained experience in dealing with the issues and legal matters involved in those duties. A decision was made at Government level to reorganise structures within that section of the Department and legislation covering this broad area was enacted in 2015. The specific area that Mr O’Gruaigain worked in was to be transferred and merged into an enlarged section of the Department and the particular duties that he had responsibility for were gradually phased out as a result of this re-organisation. By May 2017 this ‘legacy work’ had been reduced to the stage where Mr O’Gruaigain was re-assigned to a new role in the larger area which carried different responsibilities and had different procedures. This change in role required the complainant to become familiar with a significantly expanded range of legal matters compared to those that he had been used to dealing with. There was also a necessity to utilise a computerised system that was central to working in this area. Mr O’Gruaigain’s main responsibility was dealing with incoming emails from customers of the section. Initially there were a number of staff working on the emails but gradually most of this work became the responsibility of the complainant as the other staff were transferred to other duties.
Mr O’Gruaigain stated in evidence that the symptoms of wrist injury became apparent in May 2018. There had been an earlier arm injury due to a fall from a bike in 2017. Management were notified about his wrist injury. Mr O’Gruaigain was also concerned about his workload and resultant stess and at end of March his union representative had sought a meeting in this regard. He was absent on sick leave from 17 to 22 April which was certified as being due to stress / anxiety. This resulted in a referral of Mr O’Gruaigain to the Chief Medical Officer (CMO) by the HR Dept. Information regarding the wrist issue was also sent to the CMO. Mr O’Gruaigain attended the resultant appointment on 7 June and in his report the CMO stated that a vertical mouse might assist and improve the function of the left wrist. A vertical mouse and thicker mouse pad were provided to Mr O’Gruaigain who said in evidence that these did assist insofar as he was able to function for a longer period without discomfort and therefore get more emails processed. He also consulted a physiotherapist who told him that the wrist issue was due to overuse.
Mr O’Gruaigain was absent from work due to sick leave from 3 August 2018 until 12 December 2018. The certified reason was due to an illness that was unrelated to the issue with his wrist. On 4 October 2018 Mr O’Gruaigain attended an appointment in the CMO’s office and the subsequent report noted, amongst other issues, that he was “attending a physiotherapist for an issue with his left wrist which he attributes to his workplace (this is not my opinion).” The report concluded that Mr O’Gruaigain was not fit to return to work at that stage.
Mr O’Gruaigain signalled his intention to return to work some weeks later and at the request of the HR Dept. attended a further appointment with the CMO on 11 December. The CMO reported that there were no objections to a return to work provided it was done on a phased basis. There were no recommendations as regards any further accommodations in respect of Mr O’Gruaigain. The HR Dept. then specifically asked the CMO’s office if there were any further reasonable accommodations that the Department could consider providing to the employee but in a response dated 19 December nothing was mentioned with regard to the wrist injury. Mr O’Gruaigain returned to work on reduced hours. He attended a follow-up appointment with the CMO on 22 January 2019 and in the subsequent report, in referencing suggestions made by his physiotherapist, it was noted that voice activation software might be useful. In the Department’s submission it states that the HR Dept. then engaged with Mr O’Gruaigain’s managers in respect of the possible installation of the voice activated software. It would appear, however, that action on the matter did not occur until Mr O’Gruaigain initiated a conversation on 19 March 2019 with his line manager, Mr Manley, in relation to ongoing issues that he had with his wrist injury. These issues included a requirement that he process a fixed quota of emails on a daily basis. Mr. Manley agreed that he was unaware of the recommendation in respect of the installation of voice activated software until that meeting of 19 March.
Mr Manley drafted an email to send to management about the voice activated software and forwarded it to Mr O’Gruaigain for his comments. On 29 March Mr Manley agreed to temporarily reduce the daily quota of emails that Mr O’Gruaigain was expected to deal with. On 9 April the email was sent to management. There was communication between management, HR Dept. and IT consultants in regard to the matter and it appears that software was installed on Mr Ó Gruagáins machine around 20 May. Mr Ó Gruagáin in his evidence stated that he noticed headphones on his desk and thought it might be linked to the voice recognition software but he could not utilise it without training. Mr Manley stated that he had enquired about training on behalf of Mr O’Gruaigain but had been advised of the need to engage a third party in that respect. Around the end of July Mr Manley spoke with Mr O’Gruaigain to the effect that he should try to access the new system as the software involved was self-guiding and that Mr O’Gruaigain could set aside some time to train the software to his voice. As part of that discussion Mr Manley suggested that Mr O’Gruaigain could again reduce the daily email quota from 60 to 50 and set aside one hour a day for training.
It would appear that Mr O’Gruaigain had accessed the system but that various technical issues have arisen so that his attemts to use the system were consequently intermittent. The one hour per day training was therefore not practicable. Annual leave occurred around this time and this, combined with Mr Manley being absent on some occasions under the Public Service Shorter Working Year Scheme, has resulted in a situation where issues still remain and the system has not become fully operational. Mr Manley said that he encouraged Mr O’Gruaigain to use the system for some work if possible but acknowledged that it was slow. At the time of the hearing Mr Manley was actively following up a suggestion from Mr O’Gruaigain that Enable Ireland have a trained person who specialises in training individuals on assistive technology who might be of assistance in the matter. I accept Mr Manley’s bona fides in this matter and note that he acted at all times in a conscientious manner.
In late July 2019 Mr O’Gruaigain summitted further reports from his medical advisors which recommended a short, temporary reduction in his daily quota. Management agreed to this request and also referred the reports to the CMO in mid-August. A report was received from the CMO on 23 September suggesting that management lisaise with Mr O’Gruaigain in relation to the accommodations that he is seeking.
Section 16(3) of the Employment Equality Act, 1998, states:
(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 section 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.
Mr O’Gruaigain lodged his complaint with the WRC on 13 September 2019. His issue is that 8 months after the Department’s CMO advised that voice activated software would be of assistance to him it is still not functioning and that, given the resources of the Department, this is a breach of their obligations under the Act to provide him with reasonable accommodation to enable him to carry out his duties. The evidence at the hearing indicates that the voice activated system is not yet working satisfactorily.
I note that the Department has not contested that Mr O’Gruaigain has a disability in relation to an injured wrist. Nor has it been argued that any measures would place a disproportionate burden on the Department. It appears to me therefore that the question before me is whether the Department adequately addressed their responsibilities to Mr O’Gruaigain under the legislation. Section 16(4) of the Act defines appropriate measures as follows:
In subsection (3) -
‘apprropriate measures’, in relation to a person with a disability -
(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaption of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.
The Supreme Court considered the issue of reasonable accommodation in Nano Nagle School v Daly (2019) IESC 63 and in which McMenamin J. stated that there was a general duty to be found in Section 16(4)(a) “to provide ‘effective and practical measures’ where needed in a particular case, to adapt the place of business to the disability concerned. The subsection is not to be interpreted as undermining or eroding the main purpose set out in s.16(3)(a) which is to hold that a person with a disability is fully competent to undertake any duties, if they would be so competent and capable on reasonable accommodation being provided by the employer, provided it is not disportionate…What is required by the section, read in its entirety, is that consideration be given to distribution of essential duties, as part of a reasonable accommodation.”
Reviewing the Department’s response I note that the first accommodation was provided in June 2018 when in response to a CMO report a vertical mouse and thicker mousepad were provided to Mr O’Gruaigain. This was found to provide some relief on a temporary basis. In January 2019, following the return to work from sick-leave unconnected with his wrist injury, a further CMO report stated that voice recognition software might prove useful but it would appear that nothing was done in this regard until Mr O’Gruaigain brought it to the notice of his line manager, Mr Manley in March 2019. As noted, in September the system still was not fully operative. The other accommodation mentioned was that from time to time the daily quota of emails that Mr O’Gruaigain was expected to process was reduced but these reductions were temporary and of short duration. As regards training, Mr O’Gruaigain was told that he could devote one hour per day to train himself on the system and in these circumstances the quota could be reduced from 60 to 50. The requirement for third party training was recognised but at the time of the hearing this had yet to be arranged.
Indeed the issue of the provision of voice recognition software is illustrative of the lack of urgency in this matter. The software was installed around 20 May. Mr O’Gruaigain stated that he saw headphones on his desk and assumed it had a connection to the voice recognition software but was not informed about it. It was 31 July before there was a conversation between Mr O;Gruaigain and his line manager about the system. Mr O’Gruaigain was then advised to access the system and that it was self-guiding. He encountered problems and did not access it again until late August. In September it was discovered that the software was not compatible with the version of Outlook used by the Department and that even after applying adjustments the system was still very slow. The need for third party training was then recognised. In criticising the slowness of the Department I also recognise that Mr O’Gruaigain himself could also have been more proactive.
It is therefore clear that the measures adopted by the Department have not proved effective and practical. The Labour Court in A Worker v A Hotel, EDA0413 stated:
“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.”
Section 85A of the Act sets out the burden of proof that applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the grounds specified. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination has occurred. At the initial stage the complainant is therefore seeking to establish a prima facie case. Therefore it is not necessary for him to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. Where such a prima facie case is established it falls to the respondent to prove the absence of discrimination.
I do not believe that the Department has been proactive in this matter nor has it carried out a full assessment of Mr Ó Gruagáins needs. Mr O’Gruaigain was referred to the CMO on several occasions but it appears that it was only in July 2019 that a specific referral in relation to the injury was made to the CMO. I note that his resulting report suggesting that management liaise with Mr Ó Gruagáin in relation to the accommodations he is seeking came after the complaint was filed with the WRC. The Department, in their defence, stated that they enquired of the CMO’s office whether comments made by the CMO were recommendations as to accommodations in respect of Mr O’Gruaigain but were informed that the CMO would be explicit if he was making a recommendation in this regard.
The issue of the daily quotas for dealing with emails arise from a process initiated in April 2018 when management had concerns about Mr Ó Gruagáins performance. Management invoked procedures under the Management of Underperformance Policy and initiated a Performance Improvement Plan (PIP) for Mr O’Gruaigain. In was in this context that daily quotas were assigned to Mr O’Gruaigain. This process was the subject of complaints by Mr O’Gruaigain and the PIP was subsequently withdrawn. Nevertheless Mr O’Gruaigain’s performance remained under scrutiny by management. This may explain why the question of lessening the workload was not considered and that any reduction in the daily quota was of a limited and temporary nature.
In summary therefore I find that the Department had a duty under Section 16(4)(a) of the Act to provide effective and practical measures to ensure that Mr O’Gruaigain was given reasonable accommodation in the exercise of his duties and that they failed to take a proactive approach in this regard. I find that while accommodation of a type was provided it was not effective and practical. I further find that no consideration was given to the question of the distribution of tasks and that the approach to the provision of training lacked urgency. Having evaluated all the evidence and submissions I find that Mr O’Gruaigain has established evidence of a prima facie case of discrimination on the grounds of disability and that the Department has not rebutted this evidence.
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.
For the reasons set out above I find that the Department of Business, Enterprise and Innovation (DBEI) discriminated against Mr O’Gruaigain on the grounds of disability in that the DBEI failed to provide reasonable accommodation to him as provided for in Section 16(3) of the Employment Equality Acts. In making an award I note that there is no loss of earnings involved in this claim. I therefore order the DBEI to pay to Mr O’Gruaigain the sum of €5,000.00 as compensation for this discrimination. As provided for in Section 82(1) of the Act I further direct that a senior manager engages with Mr O’Gruaigain in respect of the provision of effective and practical measures to assist him in the performance of his duties.
Workplace Relations Commission Adjudication Officer: Joe Donnelly