ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017325
A Health Care Provider
Unite the Union
Employee Relations Department
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Date of Adjudication Hearing: 23/05/2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant is employed by the respondent since 1996. The complainant was initially employed in the Catering Department until she was diagnosed with a long-term visual impairment in 2014. The complaints relate to alleged discrimination on the disability ground in contravention of the Employment Equality Acts, 1998-2015 and Penalisation in contravention of the Safety, Health and Welfare at Work Act, 2005.
Naming of the parties
Given the sensitive nature of this complaint and to avoid causing any unnecessary stress to the complainant, I have decided to use my discretion and anonymise the parties in this decision.
CA-00022436-001 – Employment Equality Complaint
Summary of Complainant’s Case:
The complainant stated that she was discriminated against as a result of her disability when she transferred from the Catering Department to Clerical duties and incurred a significant reduction in working hours and related earnings each week.
The complainant stated that her contractual working hours are 70 hours per fortnight including one day off within that period. On transfer to clerical duties, the complainant stated that she is provided with only 24 hours per week and the established one day off per fortnight has been lost.
The complainant outlined that initially, following her transfer from the Catering Department she was assigned to the main switchboard where she worked 35 hours per week. The complainant stated that due to issues relating to the fire alarm panel on the switchboard, the complainant was deemed unsuitable to continue in that position and was subsequently placed in the Physiotherapy Department where she was provided with only 24 hours of work per week. The complainant contends that she was capable of carrying out her contractual hours per week in the Physiotherapy Department.
The complainant quantified her losses at approximately €20,000 as a result of the reduction in her hours of work without any reasonable accommodation provided to her by the respondent. The complainant cited Labour Court Determination: A Government Department v An Employee (EDA061) in relation to the respondent’s obligation to provide reasonable accommodation to her. The complainant is seeking compensation in relation to her complaint, the payment of any pension shortfall that has occurred as a result of her reduction in working hours and to have her working hours restored to a full working week with the applicable terms and conditions of her current clerical role.
Summary of Respondent’s Case:
The respondent denies that it has discriminated against the complainant on the basis of her disability or that it has failed in its duty to reasonably accommodate her in relation to her continued employment in the organisation.
The respondent outlined that following her transfer from the Catering Department in 2015, the complainant was assigned to the main switchboard and worked 35 hour per week. The respondent stated that the complainant was subsequently transferred to the Physiotherapy Department following Health and Safety concerns relating to the complainant’s role on the switchboard. The respondent stated that there were also issues with the complainant’s ability to carry out the full range of tasks of a Clerical Officer within the Physiotherapy Department. The respondent stated that the complainant was provided with additional hours to make up the shortfall in another area of the hospital but was also unable to fulfil the full range of duties in that post. The respondent stated that it advised the complainant in October 2016 that there were only 24 hours of work per week available to her. The respondent contends that it provided the complainant with paid time off to attend additional training following the deterioration in her eyesight and went beyond its legal obligations in creating a 24 hour per week role for her in the Physiotherapy Department. The respondent expressed regret that the role on the switchboard did not work out but as the complainant was unable to see the alarm signals, she could not remain in that role for Health and Safety reasons. The respondent confirmed that adapting the switchboard to facilitate the complainant remaining in that position would cost approximately €10,000 which it considered cost prohibitive due to budgetary constraints.
The respondent cited the cases of Irish Prison Service v A Prison Officer (EDA1837) and Nano Nagle School v Daly  IECA 11 in support of its position that the duty to provide reasonable accommodation does not extend to creating a new position and that in the circumstances of the complainant’s case, her employment could have been terminated on the basis of incapacity. However, the respondent stated that the complainant was provided with every possible accommodation and despite no legal obligation to do so, a role was created for her in the Physiotherapy Department. The respondent also cited the case of Humphreys v Westwood Fitness Club  E.L.R. 296, 300 and contends that it met the required standard in establishing the factual position in relation to the complainant’s capacity to fulfil her role in the organisation.
In conclusion, the respondent contends that the complaint of alleged discrimination is without merit and should be dismissed.
Findings and Conclusions:
The complainant contends that she was discriminated against by the respondent when it failed to provide reasonable accommodation to her as a person with a disability.
The Applicable Law
Disability is defined in Section 2(1) of the Employment Equality Acts, 1998-2015 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 judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:
6(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,
(b) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
Burden of Proof
Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:
85A (1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
(4) In this section ‘discrimination’ includes —
(a) indirect discrimination,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
The requirement to provide reasonable accommodation is set out under Sections 16(1) and Section16(3) of the Employment Equality Act, 1998 which provide as follows:
16(1)Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(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.
16(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.
Section16(4) provides as follows:
In subsection (3)—
‘appropriate 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 adaptation 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;
In the instant case, the respondent stated that the complainant was unable to remain in the catering department due to a disability and was subsequently transferred to a position on the switchboard until she was removed from that post for Health and Safety reasons. The respondent stated that adapting the switchboard to allow the complainant to remain in that role would have cost approximately €10,000 which it contends was cost prohibitive. While I accept that the complainant was unable to continue in employment as a catering assistant or to work her contractual hours in the Physiotherapy Department due to the lack of available hours and as a result of other limitations, there were no such impediment to the complainant fulfilling her contractual hours on the switchboard after the equipment was adapted.
I am of the view that, having initially identified a suitable role for the complainant on the switchboard, the respondent could have facilitated the complainant to remain in that role for her contractual hours. I find that this could have been achieved for a cost of approximately €10,000. In my view the respondent did not go far enough in providing reasonable accommodation to the complainant.
I do not find that providing reasonable accommodation/ appropriate measures to the complainant at a cost of €10,000 in order for her to remain at work for her contractual number of hours per week would have placed a disproportionate burden on the employer given the costs involved and the wider financial resources of the respondent organisation.
In all of the circumstances of this complaint, I find that the respondent discriminated against the complainant when it failed to provide reasonable accommodation to her as a person with a disability. Accordingly, I conclude that the complaint is well founded.
The complainant quantified her loss of earnings as a result of the discriminatory treatment at approximately €20,000 as well as other losses relating to pension entitlements. The complainant sought compensation in relation to these losses. The complainant also sought that she be returned to her contractual hours of work in her current clerical role.
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.
The complaint is well founded. The respondent is directed to pay the complainant compensation in the sum of €20,000. In addition, the respondent is directed to calculate any pension shortfall that has accrued as a result of the reduction in working hours and apply it to the complainant’s service. The respondent is also directed to reclassify the complainant as a Clerical worker and apply the appropriate terms and conditions to that role, excluding the discretionary day off per fortnight as the complainant is no longer a Catering Assistant. In relation to the complainant’s role in the organisation, the respondent is directed to make the necessary adjustments to the switchboard and return the complainant to that post for her contractual hours of work each week.
CA-00022436-002 Penalisation Complaint
Summary of Complainant’s Case:
The complainant stated that she was penalised within the meaning of the Safety Health and Welfare at Work Act, 2005 when her hours of work were reduced leading to a continued loss of earnings. The complainant is seeking compensation in relation to her complaint.
Summary of Respondent’s Case:
The respondent argued that this complaint is out of time as the contravention to which the complaint relates occurred in April 2017 and the complaint was lodged to the Workplace Relations Commission on 4th October 2018 which is outside of the six-month period for the referral of a complaint.
Findings and Conclusions:
The specifics of this complaint are identical to the issues addressed in Complaint Application: CA00022436-001 above. The decision in that case found that the complainant was discriminated against (treated less favourably) on the disability ground as a result the respondent’s failure to provide reasonable accommodation to her.
In the instant case the complainant asserts that she was penalised within the meaning of Section 27(1) and Section 27(3) of the Safety Health and Welfare at Work Act, 2005 which states as follows:
27(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.
27(3) An employer shall not penalise or threaten penalisation against an employee for—
(a) acting in compliance with the relevant statutory provisions,
(b) performing any duty or exercising any right under the relevant statutory provisions,
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
(e) being a safety representative or an employee designated under Section 11or appointed under Section 18to perform functions under this Act, or
(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
The complainant’s representative argued that the complainant had her hours of work and related earnings reduced by the employer for Health and Safety reasons which it claims amounts to penalisation in contravention of the legislation. On this issue I note the Labour Court Determination in Paul O’Neill v Toni and Guy Blackrock Limited (HSD095) which stated:
It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.
This point was also addressed in Labour Court Determination in St Johns NS v Akduman (HSD102) which stated:
“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of”
In the instant case, I do not find that the complainant was penalised within the meaning of the Act. A cause of action can only arise as a result of committing a protected act in accordance with Section 27(3) of the Safety Health and Welfare at Work Act, 2005. The complainant was successful in complaint application CA-00022436-001 that the adverse/less favourable treatment she received was as a result of a disability. On the same set of facts, the complainant cannot also claim that she was penalised within the meaning of the Safety, Health and Welfare at Work Act, 2005. Accordingly, this complaint fails.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties, I find that this complaint is not well founded.
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Discrimination, Disability, Reasonable Accommodation, Penalisation