ADJUDICATION OFFICER DECISION AND RECOMMENDATION
Adjudication Reference: ADJ-00016299
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaning Operative | A Facilities Services Company |
Representatives | SIPTU | Management Support Services (Ireland) Ltd |
Complaints/Dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00021143-001 | 14/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 | CA-00021143-002 | 14/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998 | CA-00021143-003 | 14/08/2018 |
Date of Adjudication Hearing: 01/02/2019
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
The Complainant referred a complaint under the Employment Equality Acts 1998-2015 along with a parallel complaint under the Payment of Wages Act 1991 and an industrial relations dispute under the Industrial Relations Act 1969 to the Workplace Relations Commission (WRC) on 14th August 2018. In accordance with Section 79 of the Employment Equality Acts 1998-2015, Section 41 of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969, following referral to me by the Director General, I inquired into these complaints and dispute. I gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant was represented by SIPTU whilst the Respondent was represented by Management Support Services (Ireland) Ltd (MSS). The Complainant was assisted with an interpreter and several witnesses attended on behalf of the Respondent. This matter was initially listed for hearing on 23rd November 2018 and was adjourned to facilitate the provision of further documentation by the Complainant and the attendance of a key witness for the Respondent. On the resumed hearing date of 1st February 2019, the complaint under the Payment of Wages Act 1991 - CA-00021143-001 was withdrawn on behalf of the Complainant. Her Representative also indicated that she wished to retain the industrial relations dispute as an alternative in the event that her complaint under the Employment Equality Acts was unsuccessful. Post-hearing, both Parties availed of an invitation to update their submissions in light of the Supreme Court Judgment in Marie Daly -v- Nano Nagle School delivered on 31st July 2019 (2019) IESC 63. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision and recommendation. I have taken all of the evidence, submissions, supporting documentation and case-law / law presented by both Parties into consideration and acknowledge the work involved. Given the particular sensitivities involved, I have exercised my discretion to anonymise this decision and recommendation.
Background:
The Complainant contends that she was discriminated against by the Respondent in relation to her employment on the ground of disability contrary to Sections 6(2)(g) and 16 of the Employment Equality Acts (also referred to as ‘the Act/s’), owing to the Respondent’s failure to provide her with reasonable accommodation whilst recovering from elective surgery. The Complainant sought compensation for the discrimination complained of, or in the event of being unsuccessful, an award under Section 13 of the Industrial Relations Act 1969 for the manner in which she had been treated by the Respondent. The Respondent opposed this complaint and dispute, contending that it had provided the Complainant with reasonable accommodation and had acted reasonably at all times.
CA-00021143-003 – Complaint under the Employment Equality Acts
Summary of Complainant’s Case:
The Complainant gave evidence with reference to supporting documentation as furnished and supplementing detailed written submissions made on her behalf. It is common-case that she had commenced employment with the Respondent on 10th December 2012 as a cleaning operative and as at the date of hearing remained in its employment. Her base of work for the past four years was a City Centre building (hereinafter ‘Location A’) where she reported to Mr A. She worked 65 hours fortnightly on an hourly rate of €10.05 in respect of which she earned €653 gross. The Respondent is a large Facilities Services Company who provide various services including cleaning to third parties. The Complainant had a good record with the Respondent without any issues with her work arising.
The Complainant outlined the background to her complaint and dispute herein. She confirmed that on 6th November 2017 and during her annual leave, she availed of gastric band surgery in her home country of Lithuania to address a weight problem and related medical issues. As confirmed with a Medical Certificate from her Irish GP dated 13th November 2017, she was certified as being unfit for work for a one month period whilst she recovered. On its expiry on 11th December 2017 and following a further visit, the Complainant’s GP issued a Medical Certificate certifying that she was fit to return to work on light duties, stating: “She underwent abdominal surgery in November 2017 and while she is now fit to return to light duties she has been recommended not to do any heavy lifting or pulling/pushing until 3 months after surgery.” On the same date, the Complainant attended at her workplace at Location A to furnish this Certificate to her Supervisor. Whilst there, she met with her Manager, Mr A, who advised her that she would be contacted in relation to lighter duties.
The Complainant did not hear anything further until 21st December 2017 when a Manager from another site (hereinafter ‘Location B’), Ms B, contacted her by text message and asked whether she would be interested in a housekeeper / tea-lady position at that site from 2nd January 2018. The text also confirmed that her working hours would be from 10.30am-4pm (it appears that 10am-4pm was latterly agreed), meaning a reduction in her normal rostered working hours. The Complainant confirmed that she would take up the position offered and commenced this new role on 2nd January 2018. She was shown where to work on the canteen floor by Ms B and Site Supervisor, Ms C. She contended that there had been no consultation with her including any assessment of the tasks that she was capable of undertaking or any special measures that would be required to accommodate her current physical condition. She also contended that the position was more akin to that of a cleaner and kitchen porter. Although she was not required to sweep or mop floors, her duties included dusting and cleaning meeting rooms, doors and glass panels, washing dishes and lifting heavy trays and bags of waste. The building block in question was also under construction at the time and required additional cleaning. She had tried to adapt to the role but struggled with some of the duties particularly carrying bags of waste and felt that the role was too heavy and unsuitable. As she needed the work she did not bring these difficulties to the immediate attention of the Respondent. On 10th January 2018, the Complainant received a text message from Ms B raising a few issues with her work albeit noting some good feedback from Ms C, and informing her about extra duties as follows: “Today can you make sure you are walking the floors checking coffee docks and dusting/glass cleaning and checking meeting rooms these duties are all part of your role too.”
Shortly after commencing this role, the Complainant also noticed that she was not being paid for all of the hours worked. On 25th January 2018 she sent a text message to Ms B about her wages being short and also questioned why her time-sheet (attached to her payslip) incorrectly referred to Location A instead of Location B. In response and by text message, Ms B confirmed that her hours were 55 hours fortnightly as she did not get paid for her 30 minute break, being 10 hours less than her normal hours. The Complainant continued to text Ms B about the underpayment of her wages and incorrect time-sheet until Ms B responded by text on 12th February 2018 stating that she would address both issues and repeating that her 30 minute break was unpaid. On 16th February 2018, Ms B spoke to the Complainant and advised her that she was no longer required to work at Location B and would be contacted the following week with other work. She said that there had been a mistake and that a daytime cleaner and not a housekeeper / tea-lady was required at Location B. Accordingly, the Complainant did not attend for work at Location B again. It was not in dispute that she was unpaid for the three week period before that position or the five month period thereafter. Nor had she received a contract or written statement of terms and conditions of her employment.
The Complainant heard nothing further from the Respondent about her work status or further work. In a text message exchange on 20th February 2018, Ms B confirmed that she had sent her a letter. Having heard nothing further, on 15th March 2018, the Complainant unsuccessfully tried to contact Ms B by telephone and texted: “I’m wondering what about letter and my new work. Also I would like to know how will be pay for days that I’m not working? Thanks.” Having received no response, she texted Mr A on 18th and 22nd April 2018, looking for Ms B’s full name but received no response. She wrote to Ms B on 30th April 2018 about the lack of contact and sought clarification as to her work status and pay for the time that she had not been working. On the same date, she wrote to the Respondent’s Head Office as follows: “I have been working for [the Respondent] more than six years. I would like you to find out about my problem. I worked in (Location A) until November 2017. Then in November, I had an operation. I could not carry out my work in (Location A) because of that work was too heavy for me. I was offered the work as a tea-lady in (Location B) but it was not a work tea-lady it was a work daytime cleaner with all the duties of cleaner. My manager, [Ms B] told me that the mistake happened and I will have a work as a tea-lady and I have to leave that work in [Location B] it happened 16 of February 2018. I have not had any work in [the Respondent] ever since. I have been trying to contact the manager (Ms B) but she ignores me. I decided to write the letter to clarify the situation. I hope full-time work will provide me in the near future and paid money for that period of time that I am not working. If the situation is not clear I’m forced will apply to the relevant authorities.” In response to receipt of her letter, on 3rd May 2018, Ms B texted the Complainant offering a tea-lady cover shift for four days from 8th-11th May 2018 but not addressing the issue of her work status or pay. The Complainant replied: “Thank you for the offer but I don’t want cover I want permanent work.” Ms B texted back: “OK I will let HR know.” However, the Complainant did not receive any further communication from the Respondent or confirmation of her work status.
Having contacted her SIPTU Trade Union, thereafter the Complainant was provided with assistance. A Representative emailed the HR Manager for the Respondent on 11th June 2018 inquiring about her work status and asking that he contact the Representative to discuss the matter. Following a number of telephone conversations between the SIPTU Representative and the HR Manager, on 1st July 2018, the Complainant received a text message from Mr A, her Manager at Location A asking whether she had received his text about trying to phone her over the weekend to confirm her attendance with the Respondent’s Doctor the following day. She responded confirming that she had not received any phone calls and her phone had been on all the time. She also confirmed that she would attend but pointed out that this request was only now being made eight months after her operation and the outstanding issue of pay for the intervening five month period without work still had to be addressed. The Complainant duly attended the Respondent’s Doctor on 2nd July 2018 who certified her as being fit to return to work on full duties. She recommenced her employment in her role as a cleaning operative at Location A from 23rd July 2018 without further issue other than that she now works 60 hours fortnightly resulting in a five hour reduction in her working hours. It was also common-case that her surgery had been successful and her health had greatly improved.
On 17th July 2018, the Complainant attended a meeting with the HR Manager accompanied by her Representative. She voiced her concerns about the manner in which she had been treated by the Respondent including not being offered any suitable work over a lengthy period of time despite repeated efforts to contact the Respondent. During the meeting, a copy of a letter dated 15th May 2018 which Mr A had apparently issued to the Complainant was furnished headed: “Request for fit to work cert” and stating: “I am writing today in response to your letter received 2nd May 2018. You are currently absent on sick leave following a medical cert which you provided on 11th December 2017 confirming that you were only fit to return to work on light duties for a period of 3 months. A tea lady position was sourced for you on a temporary basis at (Location B) to facilitate your request for light duties however, you confirmed that this role was not satisfactory. At present (the Respondent does) not have any full-time tea lady roles available. If you are now fit for work on full duties please supply a fit to return cert from your doctor. As you have been absent on sick leave for a pro-longed period I feel it would be beneficial to refer you to (the Respondent’s) Occupation Health provider for an assessment. I will be in contact once I have a confirmed appointment for you.” The Complainant confirmed that she had never received any correspondence and also that her address had never changed. No proof of postage in respect of this letter was furnished on behalf of the Respondent at any stage including this hearing. In the absence of a satisfactory resolution, SIPTU referred these complaints/dispute on the Complainant’s behalf to the WRC on 14th August 2018.
The Complainant confirmed that whilst she had been in receipt of Illness Benefit for the initial month off work on sick leave, she had not applied for any Illness Benefit of other Social Welfare payments for the subsequent periods immediately before and after the housekeeper / tea-lady position and was financially at a loss for these periods. She explained that this was owing to the lack of clarity regarding her work status and/or knowledge of her statutory entitlements. She was also unaware of any internal procedures outlining her obligations and entitlements as to sick leave. Although she had resumed employment in her original role albeit with a shortfall in hours, the Complainant was clearly still very upset and aggrieved by the unjust manner in which she felt she had been treated.
Under questioning, the Complainant accepted that she had not informed the Respondent of her intention to avail of elective surgery during her annual leave. She also accepted that on the first morning of her work in the temporary housekeeper / tea-lady position, she had been shown what was required and had not indicated that she was incapable of undertaking the role. She further agreed that she had not complained to the Respondent at the time about any difficulties. She maintained that she had been given additional duties after the commencement of the role as outlined in the text from Ms B on 10th January 2018. When asked to identify which of the duties involved heavy lifting or pushing/pulling, she referred to having particular difficulty lifting the kitchen waste which was heavy. It was put to her that lighter roles within the Company were rare and she had accepted the job and had remained there. The role was for one person on the site at Location B and as she was the sole employee there, it could not have been altered without employing a second person to assist her and this was financially unviable. It was further put to her that there had been a complaint about her work by the Client at the same time that she had decided to leave the role as being unsuitable. She maintained that Ms B had told her to leave the position. It was also put to her that she had not communicated with the Respondent regarding her sick-leave or furnished a fitness to return to work certificate as requested. She said that she was unaware of the request or any procedures. It was put to her that she had declined further work offered (the temporary tea-lady position for 4 days) in response to her request for work. She said that this work was only offered after her letter of 30th April 2018 and maintained that she had required more long-term work. Nothing new arose from further questioning. It was not in issue that she was unable to undertake her regular role as a cleaning operative for the three month rehabilitation period.
In written and oral submissions, the Complainant’s Representative outlined the relevant statutory provisions including Sections 2, 6 and 16 of the Employment Equality Acts and ensuing obligations imposed upon employers and caselaw as it applied to the facts herein. It was not in issue that the Complainant had a temporary disability within the meaning of Section 2 of the Acts. It was submitted that the Respondent had discriminated against the Complainant on the ground of disability by failing to provide her with reasonable accommodation during her recovery from surgery. At a minimum, an employer is required to fully and properly assess all available evidence to decide what appropriate measures can be put in place to meet the needs of a disabled employee. These are effective and practical changes required to enable retention of an employee in a position. In addition to the well-established case-law on the provision of reasonable accommodation in the workplace including Humphries -v- Westwood Fitness Club (2004) ELR 296, reliance was also placed upon the Labour Court decisions in Dunnes Stores -v- Mary Guidera EDA1838 and A Store -v- A Worker EDA1629 upholding decisions of the WRC and Equality Tribunal. The Complainant’s Representative also updated its submissions in light of the Supreme Court Judgment in Marie Daly -v- Nano Nagle School(2019) IESC 63. In that case, the Supreme Court confirmed that Section 16 of the Acts required an employer to provide appropriate measures to a disabled employee in order to enable them to remain in employment and that fair procedures were required for assessing same.
In the instant case, it was contended that the Respondent had failed to discharge its duties towards the Complainant under Section 16 of the Acts. In particular, it had failed to sufficiently consider her GP’s recommendations that she not do any heavy lifting or pulling/pushing until three months after surgery, make adequate enquiries as to her medical condition or take appropriate measures to enable her to perform her work to her ability. Instead, the Complainant had been asked to move from her base in Location A to a position at Location B where she was told that lighter duties would be available to her. She had been made to wait until the housekeeper / tea-lady position had become available and was left without income for that period. Upon the commencement of that position, the Complainant did not receive any induction and was simply brought to the canteen and asked to work, effectively doing the work of a cleaner and kitchen porter. Over the ensuing six weeks, there had been no conversations or meetings with management to establish her role. The only communication in this respect was Ms B’s text of 10th January 2018 giving her additional duties. When it became clear that the position was unsuitable, instead of supporting the Complainant, she was suspended without pay and forgotten about. The Respondent further failed to respond to her enquiries about her work status and pay, or address her written grievance of 30th April 2018 and only had her assessed by its Doctor when the Trade Union became involved on her behalf. Particular issue was taken with the Respondent’s contention that the onus rested with the Complainant to engage regarding her sick leave in circumstances where she had not been furnished with any internal procedures and the Respondent had failed to respond to her communications over a prolonged period. Compensation was sought by way of remedy for the discrimination suffered.
Summary of Respondent’s Case:
The background facts to this complaint were not materially in issue and the Complainant’s employment history, position as a cleaning operative at Location A, hours and salary as outlined above were confirmed. It was also accepted that the Complainant was under a temporary disability within the meaning of Section 2 of the Employment Equality Acts following her elective surgery.
Ms B, the Manager at Location B gave evidence with reference to supporting documentation as furnished and supplementing detailed written submissions on behalf of the Respondent. She confirmed that she was not based at Location B all of the time and attended there on a weekly basis. She had been approached by Mr A, Manager at Location A to see if she could provide a housekeeper / tea-lady role to the Complainant who required light work. Accordingly, she had offered the Complainant the role of housekeeper / tea-lady at Location B which she had accepted as per the text message exchange referred to above. Ms B confirmed that on 2nd January 2018, she had met with the Complainant to show her the role and introduce her to Ms C, the Supervisor at that site. The Complainant had not indicated any difficulty with the duties as outlined above and seemed happy to be getting back to work. She had communicated with the Complainant on a regular basis. She had seen her at the site on a weekly basis and had also communicated by way of telephone and text. She confirmed that at no stage during the six week period that she worked there did the Complainant indicate that the role was too onerous or that she had any other issues with the role.
Ms B further confirmed that the Client (business-holder at the site) had contacted her to complain about the Complainant’s work and said that things were not being done, it was not working out and someone to do the job properly was required. On 15th February 2018, she met with the Complainant and told her that she did not think that she was suitable for the role and would let her know when something suitable became available. Ms B said that she then went on leave for a period at that stage. She confirmed that in response to the Complainant’s requests, on 3rd May 2018 she had offered her the tea-lady cover role from 8th-11th May 2018, being the only suitable position available. However, the Complainant had refused this role and she had no further contact with her thereafter.
Under questioning from the Complainant’s Representative, Ms B contended that the housekeeper / tea-lady role still required an element of cleaning including wiping surfaces and disposing of waste. The Complainant had been aware of what was required from day one and had not indicated any difficulty including with lifting the waste. Ms B was asked what assessment she had conducted in light of the Complainant’s Medical Certificate recommending that she not do any heavy lifting or pulling/pushing until three months after surgery. She said that she had sat the Complainant down and explained the duties and had also shown her around the building which she felt was adequate. The Complainant had indicated that she was happy to perform the role and never came back to her once to say that she had any difficulties. When Ms B had passed on the complaints from the Client including that the waste was not being collected to the Complainant, she had not indicated any difficulty undertaking this task. When it was put to her that she had not in fact been meeting the Complainant in person and had asked her to perform additional duties in her text of 10th January 2018, Ms B contended that these were reasonable duties. She confirmed that the Complainant had been removed for not completing her tasks. It was put to her that the Complainant’s difficulties in the housekeeper / tea-lady role were not a training issue given her spotless record. In response, Ms B said that the Client had felt that the Complainant was unsuitable for the role and she had informed her accordingly. She had further informed her that she would ask other managers if there was a suitable role and contact her if such a role became available. She had also spoken to Mr A about the Complainant’s situation but could not confirm when. Despite not having responsibility for the Complainant’s employment she had tried to offer her further work in May 2018 which she had declined. She confirmed that she was not trained in human resources or employment equality issues and would revert to HR when any such issue arose. In relation to the complaint that she had failed to respond to the Complainant’s text messages and efforts to contact her as outlined above, Ms B said that she had been on a month’s leave from 20th February until 20th March 2018 and had hundreds of messages to deal with on her return. She said that she had sent a letter confirming that the Complainant was not working for Social Welfare purposes although no copy was produced. She denied receiving any phone-calls or voicemails from the Complainant. Ms B further confirmed that light roles were rare and the Complainant had been offered the only two light roles available over the seventy sites serviced by the Respondent. There was only the one role at Location B which could not have been altered without employing another person to assist, had such a request been made.
Mr A gave evidence outlining his role, experience and the Complainant’s employment history with the Respondent. He confirmed that he was the Area Manager for various sites including Location A. He said that after the Complainant had submitted the Medical Certificate recommending lighter duties following her surgery whilst on annual leave, she had been accommodated with the housekeeper / tea-lady role at Location B. He had no contact with her during January and February 2018 as she had been under Ms B’s management. He could not be specific about dates but sometime after the Complainant had left that role, he had discussed the matter with Ms B. However, there were no other suitable positions available. He had understood that she wanted to return to work and in conjunction with HR, issued his letter of 15th May 2018 which was posted to the Complainant as outlined above. However, she had never confirmed that she was ready to return to work with a fitness to work certificate. Whilst he may have missed her text messages looking for Ms B’s full name, he had got her back to work. He confirmed that the Complainant had resumed her role as a cleaning operative at Location A and remained working there without further issue.
Under questioning, Mr A confirmed that the only other positions available were cleaning roles and if there had been any suitable roles they would have been offered to the Complainant. When it was put to him that the Respondent had failed to communicate with the Complainant, he maintained that she had never reverted to say that she was fit to return to her position as a cleaning operative. He agreed that HR should have issued a letter to the Complainant after she left the housekeeper / tea-lady role confirming her employment status, but she had known that her job remained open.
It was submitted that the Respondent had acted reasonably towards the Complainant who had a ‘transient’ disability and provided her with reasonable accommodation in the only available light role of housekeeper / tea-lady at Location B. In this respect, the Respondent had complied with the Complainant’s Doctor’s recommendations regarding the provision of tasks that did not involve heavy lifting or pushing/pulling for a three month period. Thereafter, the Respondent’s written submissions digressed somewhat from the factual position presented by Ms B in oral evidence to ground its legal submissions as follows: “The Respondent complied with this request and offered the claimant temporary work as a housekeeper (tea-lady), however after a period of time the claimant felt that the role was unsuitable, as the claimant believed the duties were not light enough following her surgery. Her last day working as a housekeeper was the 16th February 2018. Additionally, there was a request from the Client on site to have the claimant removed, but this was not addressed as it coincided with the claimant’s request that the duties were not suitable. There was no other role within the organisation, that the claimant was capable of completing, due to her fitness to work, and as such the claimant was again placed on sick leave, until such a time that she would be fit to return to work.” It was further submitted that the housekeeper / tea-lady role was the only role lighter than a cleaner within the Company. “Yet the Respondent had one available in December 2017 and supplied it to the claimant until such a time as the claimant felt it was no longer suitable, and was not reasonable and was incapable of completing the duties due to her surgery.” It was further submitted that the Respondent was not contractually or statutorily obliged to pay the Complainant whilst she was on sick-leave following her elective surgery. When she indicated that she was not getting work, she was offered cover work which she refused and when asked to provide a fitness to return to work certificate, she never provided same. When it was determined by the Respondent’s Doctor that she was fit, she returned to work in her role as cleaning operative at Location A.
In written submissions as updated on behalf of the Respondent, it was submitted that it had met its obligations under Section 16 of the Employment Equality Acts as interpreted by case-law including the Court of Appeal and Supreme Court Judgments in Marie Daly -v- Nano Nagle School, and had done everything reasonably possible to accommodate the Complainant’s temporary disability. As she was the sole employee at Location B, it would not have been possible to reassign some of her duties to another employee. Therefore, the only manner in which she could have been further accommodated would have been to employ another staff member to assist her with completing her duties. This would have been unreasonable and created an entirely disproportionate burden upon the Respondent by doubling employees and the consequent cost of wages. In this respect, reliance was placed upon Section 16(3)(c) of the Acts which provides that when determining whether the measures taken would impose a disproportionate burden upon an employer, particular account shall be had to the financial and other costs, scale of the resources of the business and possibility of obtaining public funding. In an industry where profit margins are tight and no public funding is available, this would have rendered the entire contract unfeasible. Also relying upon Paragraph 106 of the Supreme Court Judgment in Nagle, it was submitted that Section 16(3) of the Acts does not place such a high burden on an employer as to create an “entirely different job” or accommodate at all costs, an employee with a disability. Overall, it was submitted that the Respondent had complied with its obligations under the legislation and accordingly this complaint should be dismissed.
Findings and Conclusions:
It is necessary to apply the factual matrix to the applicable statutory provisions as interpreted by caselaw to determine whether or not the Respondent discriminated against the Complainant on the ground of disability in terms of Sections 6(2)(g), 8 and 16 of the Employment Equality Acts by failing to provide her with reasonable accommodation during her rehabilitation from elective surgery. It was not in issue that the Complainant had a temporary disability within the meaning of Section 2 of the Acts. Section 85A of the Acts sets out the burden of proof which applies to complaints of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. Section 6(2)(g) prohibits discrimination by employers against existing or prospective employees by less favourable treatment on the ground of disability and Section 8 prohibits discrimination in relation to specific areas of employment including access to employment. Aligned to these provisions, Section 16(1) provides that an employer is not obliged to recruit, promote or retain an existing or prospective employee in a position or provide training or experience in that position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is subject to Section 16(3) which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of ‘appropriate measures’, more commonly referred to as ‘reasonable accommodation’ by his/her employer “…unless the measures would impose a disproportionate burden on the employer”. Section 16(4) outlines the meaning of ‘appropriate measures’ and provides a non-exhaustive list of what they may entail including “…effective and practical measures, where needed in a particular case…” including the "…adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources.” Section 16 of the Acts provides 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.
[Section 16(2) is omitted as being irrelevant to the instant case.]
(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.
(4) 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;”
The law on the interpretation of Section 16 of the Acts and extent of an employer’s obligations was in a state of flux during the course of this case. At the time when the Complainant sought to return to work on 11th December 2017 on the lighter duties outlined in her Medical Certificate, the High Court had upheld the Labour Court decision (overturning a decision of the Equality Tribunal) in Marie Daly -v- Nano Nagle School (2015) IEHC 785. In this case, Ms Daly was employed by the Respondent School since 1998 as an SNA. Unfortunately she suffered serious injuries in a road traffic accident in 2010 and remained wheelchair bound after her rehabilitation. She was anxious to return to work but expert reports found that she could only undertake, wholly or partly, nine of the sixteen tasks required of an SNA. Based upon these reports, the School concluded that as she did not have the capacity to undertake her full duties regardless of the ‘appropriate measures’ taken, it was not possible for her to return to her job. On an appeal on a point of law against the Labour Court which held in her favour, the High Court considered the CJEU decision of HK Danmark, acting on behalf of Jette Ring -v- Dansk almennyttigt Boligselskab(C-335/11)and concurred with the Labour Court’s finding that as ‘appropriate measures’ as defined by Section 16(4) of the Acts included the adaptation of both working time and tasks with the caveat that it did not impose a disproportionate burden on the employer, it followed that there was no requirement that the employee concerned be capable of fulfilling all of the duties of her job. It also found no fault with the Labour Court’s findings that the School had failed to engage with its duty to consider whether or not Ms Daly could reasonably be accommodated by the implementation of ‘appropriate measures’ before deciding to dismiss her. By the time that the Complainant in the instant case had left the temporary position of housekeeper / tea-lady from 16th February 2018, in a Judgment delivered on 31st January 2018 (2018) IECA 11, the Court of Appeal had overturned the High Court and by distinguishing between “core duties” and “tasks”, concluded that Section 16 does not impose a legal requirement upon an employer and the School in this case, to strip away essential tasks of a position which an employee was no longer able to perform or to redistribute these tasks to other employees. Accordingly, it was alleviated of its obligations towards Ms Daly given the particular circumstances.
Post-hearing of this complaint, the Supreme Court overturned the Court of Appeal in a Judgment delivered on 31st July 2019 (2019) IESC 63 and the Parties herein updated their submissions accordingly. The Supreme Court provided clarity as to what is required in practical terms by Section 16 of the Acts. It adopted a holistic approach to its interpretation and applied a reasonableness and proportionality test to an employer’s primary duty to provide reasonable accommodation to an existing or prospective employee with a disability. As summarised by McMenamin J. in the majority Judgment (noting that the minority Judgement only varied as to remedy): “The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought is an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.” Specifically, McMenamin J. observed that “…the term “distribution of tasks” must be read in a manner which is consistent with the entirety of Section 16, and the purpose of the Act.” After rejecting the Court of Appeal’s distinction between “core duties” and “tasks”, he held that the duty to provide reasonable accommodation “…cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”. He further clarified that “It is a matter of degree, capable of being determined objectively.”He also confirmed that the meaning of full competence by an employee in a position as required by Section 16(1) of the Acts has “…to be assessed as contingent upon there having been reasonable accommodation and appropriate measures.”
There had also been disagreement between the various Courts as to the level of consultation with an employee seeking accommodation required by an employer following on from the two-stage enquiry test set out by the Labour Court in A Health and Fitness Club -v- A Worker EED037 and upheld by the Circuit Court in Humphries -v- Westwood Fitness Club (2004) ELR 296. In this respect, McMenamin J. observed: “In this State… our courts have always attached importance to fair procedures where employment is at stake. (See Bolger v. Showerings [1990] ELR 184, Lardner J., and the recent Judgment of Ní Raifeartaigh J. in Dublin Bus v. MeKevitt [2018] IEHC 78).” before noting “I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.”
Turning to the facts in the instant case, it is not in dispute that the Complainant would have been unable to undertake her regular role as a cleaning operative during her rehabilitation from elective surgery regardless of what adjustments were made to that role. Approximately three weeks after her GP’s confirmation that she was fit to return to lighter duties that did not involve any heavy lifting or pulling/pushing for a three month period, the role of housekeeper / tea-lady became available and she readily accepted this position. For the avoidance of doubt, I do not consider this to be aredesignation or creation of a different position as alluded to in Nagle such that the Respondent could be alleviated from its obligations under Section 16 of the Acts. The overriding test is one of reasonableness and proportionality having regard to the facts of the particular case and employment context and the “distribution of tasks” must be read in a manner which is consistent with the entirety of Section 16, and the purpose of the Acts. Therefore, there may be situations whereby the redistribution of tasks extends to accommodating a disabled employee with a different but existing role within the organisation depending upon the employer’s particular circumstances with the proviso that this does not impose a disproportionate burden. Given that the nature of the Respondent’s business is to provide cleaning / related services to third parties, the work involved was of a generic nature requiring a degree of interchangeability and flexibility. The temporary housekeeper / tea-lady role was essentially a variation of the Complainant’s existing cleaning operative role requiring similar tasks. Furthermore, there was nothing particularly costly or onerous about offering this position to the Complainant once it became available and would have to be filled in any event and indeed the Respondent did not seek to argue otherwise. In this respect, a distinction can be made between creating a wholly new job for an employee who acquires a disability such that he/she cannot undertake any of the duties of their existing position and accommodating such an employee in a pre-existing role which would otherwise have to be filled. Invariably each situation will turn on its own particular facts subject to the reasonableness and proportionality test in Nagle and the tribunal in question has to objectively assess the point at which the duty to provide reasonable accommodation imposes a disproportionate burden on an employer.
It is also quite clear from the wording of Section 16(3) of the Acts that the Respondent’s obligations do not end with simply offering a lighter or varied role and it was required to “…take appropriate measures where needed in a particular case to enable a person who has a disability…” to participate in employment. Although the various Fora and Courts in Nagle varied their views as to the level of obligation imposed by Section 16(3) upon an employer, the law required some level of engagement and adherence to fair procedures regarding taking ‘appropriate measures’ when an employee became unable to fulfil their role owing to a disability as defined by the Acts. Regardless of what application of the law is applied to the facts in the instant case, there is no evidence of any engagement by the Respondent in relation to its obligations under Section 16 of the Employment Equality Acts at any stage of the process by way of its own direct evidence, minutes or otherwise. By way of practical example, Ms B who by her own admission did not have any training on the application of the Employment Equality Acts should properly have reverted to HR for appropriate advice on how to accommodate the Complainant in the temporary housekeeper / tea-lady role. Although the Complainant did not expressly indicate any difficulty undertaking the role, the Respondent was on notice of her physical limitations from her GP’s Medical Certificate. Given that the Complainant was to avoid heavy lifting and pushing/pulling actions, in my view it was simply not sufficient to show her the role in a general sense without breaking down the tasks required to ascertain whether or not she could perform them and if not, investigating what adjustments were required. If expert assistance was required to assist, then I do not consider this disproportionate for a Company of the Respondent’s size to have employed same. Whilst I regard Ms B’s text message of 10th January 2018 to the Complainant to be more of a reminder of her duties rather than an assignment of new duties, I find it indicative of the casual attitude adopted to accommodating her.
Whilst the Respondent has presented differing factual accounts as to the circumstances in which the Complainant left the temporary role, it is not in dispute that she had been struggling with her duties and in particular with lifting waste which had apparently led to a complaint about her work by the Client. It may well have been the case that the Complainant was just not suited to the temporary role. However, the fact that she had an impeccable work record should have set off alarm-bells as to why she was unable to properly perform her duties. At this stage, rather than simply letting her go from the role on foot of a complaint from the Client, it would have been prudent for the Respondent to have had her assessed by its Doctor or an Occupational Therapist to ascertain the cause of her difficulties and how they might be overcome. In circumstances where there were clearly communication difficulties as evident from the various text message exchanges, engagement with her Union at this stage would also have been prudent. However, it appears that there was no clear line of communication between Mr A, Ms B and HR or coordinated response to address the Complainant’s situation, either to confirm whether she could be properly accommodated within a role or to enable her to be certified on sick-leave so that she could claim appropriate Social Welfare for the period in which she was out of work. The offer of work from 8th-11th May 2018 by text message from Ms B was a wholly inadequate response. What is also evident throughout is that the Respondent offered flexibility when it suited the Company including adjusting the location and hours of work for the Complainant when the housekeeper / tea-lady role became available but when it came to accommodating her temporary disability, there was no degree of flexibility afforded.
The absence of fair procedures and prudent HR practice is evident throughout including any paperwork confirming her employment status at the various junctures, handbook confirming sick-leave procedures and proof that it was furnished to the Complainant or proof of postage regarding the correspondence relied upon. It was clear that she had attempted to contact the Respondent on numerous occasions regarding her predicament and received no meaningful response until her Union made representations on her behalf. Whilst a letter dated 15th May 2018 from Mr A was produced implying that the onus rested with the Complainant to provide certification that she was fit to return to work, it also stated that she should undergo an assessment with the Respondent’s Doctor and that Mr A would be in contact once he had a confirmed appointment. Even if I accept the Respondent’s evidence that the letter was sent to the Complainant, there was no follow-up to arrange an appointment with the Respondent’s Doctor until the Union became involved several months later. In the interim, the Complainant who was a long-standing loyal employee with an impeccable record was left in a limbo without income. I do not accept the Respondent’s contention that the onus rested with her to prove that she was fit to return to work given its obligations under the Acts and absence of any evidence that she had been furnished with sick-leave procedures. Whilst I have no doubt that the Respondent’s management believed that they were doing what was required of them at the material time, a general lack of knowledge and awareness as to the Respondent’s obligations under the Employment Equality Acts was evident throughout. Whilst I also have some concern about the casual manner in which the Complainant apparently had her hours reduced upon her return to her role as a cleaning operative and the absence of a written statement of terms and conditions of employment clearly confirming her role and hours, this was not pursued as part of this complaint and no other complaints under the relevant legislation were pursued.
Finally, I reject the Respondent’s arguments to the effect that the accommodation required by the Complainant would have imposed a disproportionate burden on the Respondent because it would have required another member of staff to assist the Complainant in undertaking the temporary housekeeper / tea-lady role and find it to be speculative at best. As set out above, without engaging in any meaningful way with the Complainant at the material time, it is impossible to say in hindsight and after the fact that she could not have been reasonably accommodated within the meaning of the Acts and/or that any such accommodation would have imposed a disproportionate burden on the Respondent. For instance, there is the possibility that alternative ways of undertaking the tasks giving rise to the Complainant’s difficulties could have been found at the time that they arose.
Decision:
Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Section 82 of the Acts. Based upon the aforementioned reasoning, I find that pursuant to Section 79(6) of the Acts, the Complainant has made out a prima facie case that the Respondent failed to provide her with reasonable accommodation in terms of Section 16 of the Acts which has not been rebutted. In accordance with Section 82(4) of the Acts, I order the Respondent to pay the Complainant €7,500 in compensation for a breach of the Employment Equality Acts. The maximum applicable award for an employee is 104 weeks remuneration or €40,000 (whichever is greater), the latter being applicable to this case. This award is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive as interpreted by case-law that the sanction be “effective, dissuasive and proportionate”. To further elaborate, I consider this award to be an effective penalty in terms of meeting the intention of the legislature to remedy breaches of the Acts, and to be dissuasive in that it represents more than a nominal sum to the Respondent such that it will have a deterrent effect in the future. I consider this award to be proportionate in circumstances where some efforts were made by the Respondent to provide accommodation albeit not in compliance with the Acts. I have also considered the effect of the discrimination on the Complainant who was clearly upset at what she perceived to be unfair treatment given her loyal and lengthy service and also suffered six months loss of earnings after the temporary role was terminated. For the sake of completeness, I do not consider the criticism made of the Respondent for taking three weeks to find the temporary role to be justified in circumstances where the Complainant had not given notice of her elective surgery and requirement for reasonable accommodation and have factored this into the award accordingly.
In accordance with Section 82(1)(e) of the Acts, I further direct that the Respondent provides appropriate training to its management to ensure future compliance with its obligations under the Employment Equality Acts, particularly regarding the provision of reasonable accommodation to employees with disabilities and puts in place procedures to ensure adherence to same.
CA-00021143-002 – Dispute under the Industrial Relations Act 1969
Recommendation:
The aforesaid industrial dispute was pursued under Section 13 of the Industrial Relations Act 1969 on behalf of the Complainant as an alternative to the other complaints and was essentially based upon the same factual circumstances as set out above and met with a similar rebuttal on behalf of the Respondent in both evidence and written submissions. In circumstances where I have fully addressed and sought to remedy all the issues complained of herein under Complaint Reference CA-00021143-003, I do not propose recommending anything further under this Act at this juncture.
Dated: 12th November 2019
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Sections 2, 6, 8 and 16 of the Employment Equality Acts - provision of reasonable accommodation to employees with disabilities - Marie Daly -v- Nano Nagle School(2019) IESC 63