ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022851
James Doran BL instructed by Damien Sheridan Solicitors
Peter Flood Ibec
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 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 29/11/2019
Workplace Relations Commission Adjudication Officer: Maria Kelly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 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 parties were afforded the opportunity to examine and cross examine each other’s evidence as part of the hearing. Some questions were asked of each party.
I have decided to exercise my discretion to anonymise the parties due to the medical condition of the complainant and the sensitive nature of the personal information disclosed during the hearing.
The complainant was an executive assistant working in a full-time permanent post. She commenced employment on 23 November 1998 and she retired on ill health grounds on 25 January 2019. Her gross monthly salary was €3227.17. She suffers from obsessive compulsive disorder (OCD). She claims that she was discriminated against by the respondent on the ground of disability when it failed to make reasonable accommodation to enable her to continue working. The complainant also claims she was constructively dismissal by being forced to retire on ill health grounds. The complaint form was received by the Workplace Relations Commission on 03 July 2019.
The respondent rejects that the complainant was discriminated against on the grounds of her disability or that she was forced to resign from her employment.
Summary of Complainant’s Case:
The complainant claims she had been discriminated against by the respondent as it failed to make reasonable accommodation to enable her to continue working.
The complainant holds a BA in English, a Higher Diploma in Education and a Masters in Education. She commenced employment with the respondent in 1998 in a section of the Registrar’s Office. She was diagnosed with obsessive compulsive disorder (OCD) which required periods of hospitalisation in 2008/2009 and again in 2012. In 2015 she became pregnant with her first child. Due to her OCD she had to avail herself of sick leave from August 2015 before commencing her maternity leave in November 2015. Before she was due to return to work in 2016 she became pregnant with her second child. As with her first pregnancy the complainant was recommended to take sick leave before commencing maternity leave. Her second baby tragically passed away ten days after birth. The complainant was due to return to work following her maternity and annual leave in July 2018.
OCD is a form of anxiety disorder and the complainant suffered significant anxiety about contamination when using the toilets at work. She avoided using the toilets if possible. In 2018 she was diagnosed with incontinence. Her doctors advised that not going to the toilet enough over the years had contributed to her developing this condition. The medical advice to her was to go to the toilet at least every three hours. Knowing this would cause her a problem when she returned to work in July she contacted the HR Partner responsible for staff in the Registrar’s Office in April 2018. She informed the HR Partner of her disability and requested reasonable accommodation.
During her leave the unit of the Registrar’s Office where she worked had been reorganised. The units of Adult Lifelong Learning had been centralised to one building. All the executive assistants were pooled, and job descriptions were changed. On her return to work the complainant was to be assigned to a role that combined her work with socio-economically disadvantaged students with working with mature and disability students.
When the complainant told the HR Partner about her disability she indicated that she would be happy to move to another unit on her return. The HR Partner arranged for the complainant to see the respondent’s occupational health doctor.
The respondent uses an external occupational health service. The first appointment was arranged for 07 June 2018 with Dr A. The complainant told the doctor about her condition and requested support and reasonable accommodation on returning to work. Dr A asked the complainant for her permission to contact her consultant psychiatrist, which she gave. Dr A agreed to contact the respondent about the supports requested. Use of her own toilet was discussed. The doctor also mentioned that most employees work from home one day a week, but she would check that with the respondent.
21 June 2018 – The complainant met with Dr A for a second appointment. Dr A had contacted the respondent’s consultant psychiatrist, Mr B, and he indicated he did not support the provision of a personal toilet for the complainant. Dr A reported that the respondent would not allow the complainant to work from home. The supports discussed included part-time work and retirement on ill health grounds. The meeting was fraught. Dr A asked the complainant to see her colleague, Dr C. The complainant was asked by Dr C to give her permission to contact the consultant psychiatrist, Mr B. The permission was granted. Dr C put the complainant on sick leave until their next appointment.
The complainant saw Dr C again on 19 July, 16 August, 04 October and 18 October 2018. At these meetings the complainant raised the issue of working from home and Dr C made it clear that the respondent would not allow her to work from home. Dr C was having difficulty in establishing contact with the consultant psychiatrist, Mr B, so she referred the complainant to another psychiatrist, Dr D. The complainant met with Dr D on 24 September 2018. When the complainant met with Dr C on 04 October 2018 she was asked to meet with her own consultant, Mr B again. That meeting took place on 09 October 2018.
Consultant psychiatrist, Mr B, told the complainant that all along he had informed the occupational health service that that she was fit to return to work and that reasonable supports would be helpful. The complainant felt that since she disclosed her disability in April 2018 the respondent had not offered her support or made reasonable accommodation for her disability. If she had not made the disclosure she would have been back in work in July 2018. Eventually at their meeting on 18 October 2018 Dr C told the complainant that a phased return, working four hours per day, would be possible. The complainant met the HR Partner on 25 and 30 October 2018. As the new line manager and the Director of the Adult Lifelong Learning unit were away the complainant was told to resume part-time work on 08 November 2018 – over four months since she had been due to return to work.
During her discussions with the HR Partner the complainant put several suggestions about working part-time at home and part-time in the office, being accommodated with extra toilet breaks, being allowed time to go home to use her own toilet and working at home but collecting and dropping off work at the office. All suggestions were rejected as the role was student-facing and team-based and breaks were twenty minutes in the morning, one hour for lunch. When the complainant started part-time work on 08 November 2018 she was told she could take breaks whenever she needed them.
The complainant saw her consultant psychiatrist, Mr B, on 28 November 2018. She told him that HR had said she could not take extended toilet breaks in the afternoon when she returned to full-time work. He hand-wrote a letter for the complainant to give to Dr C in occupational health. Mr B supported the complainant in being given two more toilet breaks or an arrangement whereby she could work some of the time from home. On the same day the complainant saw Dr C at the occupational health service. She gave Dr C the hand-written letter from Mr B. Dr C stated the complainant could return to work full-time and she would request additional breaks for her. Dr C did write to the respondent and a copy of that letter was provided to the complainant when she submitted a data access request. (At the hearing it was agreed that a copy of this letter would be submitted by the complainant and it was received at the WRC on 03 December 2019.)
Further discussions took place with the HR Partner but the possibility of working from home was ruled out, for data protection reasons. The complainant asked why another member of staff was being permitted to work from home, but the HR Partner refused to discuss that because of confidentiality. The complainant asked to raise the matter with a more senior HR person, but that request was refused.
The complainant made a further appointment to see her consultant psychiatrist, Mr B, on 09 January 2019. She attended occupational health on 14 December 2018. Dr C had gone on leave, so she saw Dr E who put her on sick leave until after her appointment with Mr B in January 2019.
When the complainant met with her consultant psychiatrist, Mr B, she explained that working full-time was too stressful because of the toilet issues. She saw no option but to retire for the sake of her mental health. Mr B said her would support her retirement as her mental health was suffering.
The complainant’s consultant, Mr B, the occupational health doctor, Dr E and her General Practitioner all supported her retiring early on ill health grounds. The retirement was approved retrospectively from 25 January 2019.
It was submitted that the primary sources of law in the area of disability and reasonable accommodation are the Employment Equality Act 1998-2015, European Council Directive 2000/78 (Framework Directive) and the United Nations Convention on the Rights of Persons with Disabilities. Further, that reasonable accommodation is inherent in the law on disability.
The complainant submits the Supreme Court decision in Nano Nagle School v Daly  IESC 63 sets out the law in relation to reasonable accommodation. It was submitted that the Supreme Court determined that Section 16(1), as amended by Section 9 of the 2004 Act, dealing with reasonable accommodation is subject to Section 16(3). It was submitted that Section 16(3)(b) “An employer shall take appropriate measures, where needed in a case, to enable a person who has a disability –
1) To have access to employment
2) To participate and advance in employment
3) To undergo training
Unless the measures would impose a disproportionate burden on the employer” was recognised by the Supreme Court as a mandatory primary duty. It was submitted that based on this decision the respondent has a responsibility to consider a redistribution of duties which a person with a disability is no longer able to perform. Furthermore, it was submitted that if a redistribution of duties is required than an assessment is needed. It was submitted that the respondent did not fulfil its statutory duty to undertake a proper assessment of reasonable accommodation, nor did it explore the possibility of obtaining funding or other assistance. It was also submitted that the respondent did not adopt fair procedures.
The complainant submits she was constructively dismissed. The two relevant tests to establish whether an employee has been constructively dismissed are the contract test and the reasonableness test. The complainant relied on Western Excavating (ECC) Ltd v Sharp  I.C.R. 121 (CA) and Joyce v Brothers of Charity Services  E.L.R. 328 to support the submission of constructive dismissal.
Summary of Respondent’s Case:
The respondent states that the complainant has brought two complaints that are in effect the same complaint under two Acts. First, the complainant is alleging that she was discriminated against on the grounds of disability when she ceased employment. Second, she is alleging constructive dismissal under the Unfair Dismissals Act. It is submitted that Section 101 of the Employment Equality Act does not permit the complainant to pursue both complaints.
The respondent rejects that the complainant was discriminated against on the grounds of her disability or that she was forced to resign from her employment.
The respondent states that the complaint voluntarily left her employment when she took early retirement on grounds of ill health. Retirement on grounds of ill health was recommended by her psychiatrist and supported by the respondent occupational health physician.
The respondent accepts that the complainant has a disability and acknowledges she was diagnosed with OCD. The complainant’s consultant psychiatrist wrote to the respondent on 10 January 2019 supporting the complainant to seek retirement on health grounds. The respondent’s occupational health physician in turn supported the complainant’s application for retirement on ill-health grounds. The complainant proceeded to apply for ill-health retirement and she signed a retirement decision form on 19 February 2019 indicating her decision to retire with effect from 25 January 2019. Her application was approved by letter of 21 February 2019.
The respondent submits that the complainant’s decision to retire was voluntary. Her decision was made following advice from her treating psychiatrist. The respondent never suggested retirement to the complainant.
The respondent further submits that if the complainant wished to remain at work she should have utilised the respondent’s grievance procedure. There is an obligation on an employee to use the grievance procedure before contending that she has no option but to resign. The respondent submits the standard of proof required in a constructive dismissal claim is set out in McCormack v Dunnes Stores UD 1421/2008 – “The notion places a high burden of proof on the employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to solve his/her grievance with his/her employer. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.
The respondent states that working from home was never suggested by any medical expert as an option to facilitate the complainant at work. The complainant’s concerns prior to leaving work in December 2018 were about the quality of the air related to smoking outside the building. This concern was examined by the respondent and it was found that there was no nicotine identified at any of the monitoring points in the building. None of the complainant’s emails in late 2018 indicate anything about resigning because of a failure to accommodate her with working from home.
Findings and Conclusions:
The complainant has brought two complaints against the respondent. First, a complaint of discriminatory treatment of the grounds of her disability under the Employment Equality Act relating to the respondent not providing her with reasonable accommodation. Second, a complaint of constructive dismissal under the Unfair Dismissals Act. The respondent submits that Section 101 of the Employment Equality Act does not permit the complainant to pursue a claim for alleging discriminatory treatment on the grounds of disability when she ceased employment and a claim alleging constructive dismissal.
Sections 101(2) (4) and(4A) provide:
(2) Where an individual has referred a case to the Director General of the Workplace
Relations Commissionunder section 77(1) and either a settlement has been reached by mediation or the Director General of the Workplace Relations Commission has begun an investigation under section 79, the individual—
(a) shall not be entitled to recover damages at common law in respect of the case,
(b) if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal, unless the Director General of the Workplace Relations Commission, having
completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and respondent.
(4) An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if—
(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun, or
(b) an adjudication officer has made a decision to which subsection (1) of section 8 of the Unfair Dismissals Act 1977 applies in respect of the dismissal.
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
(4A) (a) Where an employee refers—
(i) a case or claim under section 77, and
(ii) a claim for redress under the Act of 1977, to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in
subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.
(b) In this subsection—
‘Act of 1977’ means the Unfair Dismissals Act 1977;
‘dismissal’has the same meaning as it has in the Act of 1977;
‘relevant date’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation.
Section 101 deals with alternative avenues of redress. The phrases “in respect of the dismissal” or “in respect of a dismissal” are used in Section 2,4 and 4A to indicate that a complainant may not make two complaints about the same dismissal under different legislation. It is clear in Section 4A that a claim for discriminatory dismissal under the Employment Equality Act and a claim for unfair dismissal under the Unfair Dismissal Act, arising from the same facts, cannot be maintained. In such circumstances the complainant must either withdraw the claim under the Unfair Dismissals Act or the claim brought under the Employment Equality Act will be deemed to have been withdrawn.
Here, the complainant has not claimed discriminatory dismissal under the Employment Equality Act but has claimed she was discriminated against by reason of her disability by the respondent failing to give her reasonable accommodation. The complainant’s separate claim of constructive dismissal has been brought under the Unfair Dismissals Act. Therefore, there is no double claim relating to dismissal. I will now deal with each individual complaint.
CA-00029455-001 Complaint of Discriminatory Treatment on the Grounds of Disability
Disability is defined in Section 2 of the Act:
(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;
The respondent accepted that the complainant has a disability. I am satisfied that the complainant’s disability comes within the meaning of the definition above. The complainant claims that she was not provided with reasonable accommodation. The matter I must consider is whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Act.
The complainant was diagnosed with OCD several years before she disclosed the fact at work. She had disclosed her condition to the respondent’s occupational health service. She was out of work on a combination of sick leave, maternity leave and annual leave between 2015 and 2018. Being very aware of the problems her OCD had caused her, especially in the use of toilets, and other reasons set out in the written submission, the complainant decided to disclose her OCD to the HR department of the respondent and request she be given reasonable accommodation.
The complainant contacted the respondent’s HR department in April 2018, three months before she was due to return to work. The respondent does not dispute that it was informed of the complainant’s disability at that time. The complainant states that she requested reasonable accommodation and discussed the use of her own or a designated toilet and working from home. The HR Partner referred her to the occupational health service and arranged an appointment. The appointment with occupational health didn’t take place until 07 June 2018, some two months after the complainant had contacted HR. The complainant then experienced almost six months of appointments and meetings with various doctors, consultants and HR. On 16 October 2018 the complainant’s own consultant psychiatrist wrote to the occupational health service stating, among other items, “I would reiterate my support of a flexible approach. Obsessive-Compulsive Disorder is not associated with a loss of capacity or common sense and I expect that (name) will be able to adapt to a reasonable working environment with pragmatic planning.” The occupational health doctor recommended a phased return to work of four hours per day for a month.
On 25 October 2018 the complainant met with the HR Partner. The complainant states that she asked questions about extra breaks as she had been medically advised to go to the toilet every three hours. She states she was told that the standard break times of twenty minutes in the morning and one hour for lunch and no afternoon break would apply as that is how the unit operated.
It was agreed that complainant could return to work on a part-time basis on 08 November 2018. On her return to work she was told she could take breaks whenever she needed them. The part-time arrangement was to remain in place for one month.
On 28 November 2018 the complainant met with her consultant psychiatrist and told him she was still struggling, and that HR had told her she could not take extended toilet breaks in the afternoon when she returned to full-time work in December. Her consultant gave her a hand-written letter to give to occupational health. In the letter her consultant stated, “I would support either 2 extra toilet breaks or an arrangement where (name) works some of her time from home.” After meeting with her own consultant, the complainant met with the occupational health doctor and handed over the note from her consultant. The occupational health doctor indicated that the complainant could return to work full-time and that she would request additional breaks for her.
Before returning to work full-time the complainant had various interactions with the HR Partner. The complainant states that the HR Partner was insistent that she could not work from home because of data protection issues. When she raised the issue of why another member of staff was being allowed to work from home the HR Partner refused to discuss that, based on confidentiality. The complainant states that her request to raise these issues with another HR person was refused.
In addition to her existing health concerns the complainant, in late November and early December 2018, raised issues about the quality of the air in the office. She alleged that smoking outside the building was polluting the air in the office and her health was being adversely affected as her asthma symptoms were being exacerbated. This issue was examined by the respondent and it stated that no nicotine was found at any of the monitoring points in the centre where the complainant worked.
On return to full-time work in early December 2018 the complainant was struggling to cope and so she contacted her consultant psychiatrist to make another appointment. The next available date for an appointment was 09 January 2019. She then went to occupational health on 14 December 2018 where she was medically certified on sick leave until after she saw her consultant on 09 January 2019. The occupational health doctor wrote to the HR Partner confirming it would be in the complainant’s best medical interest to remain absent from work until the assessment by her consultant psychiatrist. The letter includes the following paragraph, “During the course of the assessment, (name) once again enquired about the possibility of working from home. I understand that due to data confidentiality concerns that this is not feasible. However, she has stated that there are others who are working from home and perhaps you might clarify this.” A copy of this letter was provided to the complainant when she submitted a data access request to the respondent. I have underlined the part that confirms that the complainant had, on more than one occasion, raised the option of working from home. Working from home was recommended for consideration in the letter of 28 November 2018 from the complainant’s consultant psychiatrist and the issue is again noted here in the letter from occupational health on 14 December 2018.
At the consultation with her psychiatrist on 09 January 2019 it was agreed that he would write to HR a letter of support for the complainant to seek retirement on health grounds. In the letter the consultant notes, “her return to work, despite the best efforts of all concerned and the facilitations that have been afforded to her, has not proven to be sustainable for (name)” and further “She is aware of the pros and cons of this decision and has considered this step carefully in collaboration with professionals, friends and family, including her union and a HR expert. I am more than satisfied that her decision is in her best interest, all considered, and that every effort has been made to problem-solve her difficulties in the workplace.” The application for retirement on grounds of ill health was processed and approved to take effect retrospectively from 25 January 2019.
The respondent states that working from home was never suggested by any medical expert as an option to facilitate her at work. However, in the hand-written letter from the complainant’s consultant psychiatrist, dated 28 November 2018, it clearly states that he would support her having either two extra toilet breaks or an arrangement where she would work some of her time from home. It is clear from this letter and the letter that followed on 14 December 2018 from occupational health to the HR Partner that working from home, at least for some of the time, was raised and discussed by the complainant with these two medical professionals. The complainant states that she also raised various options of working from home with the HR Partner. The respondent has not provided evidence that it carried out any assessment of the option of the complainant working from home, all or some of her time or even for a short period.
In response to a question at the hearing the respondent stated that it does not have a working from home policy in place. The respondent confirmed that, even though there is no policy in place, another member of staff was facilitated with working from home for a short period.
The complainant made her disability known to HR in April 2018, three months before her scheduled return to work. She did so to have appropriate measures in place to facilitate her return. HR referred her to occupational health. All her discussions of appropriate measures took place with the HR Partner and the medical professionals. Her consultant psychiatrist supported consideration being given to accommodating her with working from home some of the time.
The Supreme Court in Nano Nagle School v Daly  IESC 63 decided the following concerning the interpretation of Section 16 of the Act, at paragraph 84:
“Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”
The Court made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures where needed in a particular case to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.
Section 16(4) defines appropriate measures. Appropriate measures are not just physical changes but may include changes in work practices. Each individual case must be assessed by the employer to establish what appropriate measures are required. An employer’s response to assessing what appropriate measures are required is described in Employment Law (Regan 2017) at paragraph 17.277 as follows: “It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the employee entering into an interactive dialogue with the employer, to search for the right kind of accommodation needed in the overall circumstances of the case. It is a proactive obligation placed on employers.”
The respondent did not present evidence that an assessment of the various options of working from home, full-time or part-time or short term, in respect of the complainant was carried out. The respondent states that the option of working from home was never suggested by any medical expert, but that is incorrect. The complainant’s consultant psychiatrist wrote to the occupational health doctor, on 28 November 2018, stating he would support an arrangement where the complainant could work some of her time from home. There was no evidence that the respondent considered this suggestion. The letter from occupational health of 14 December 2018 refers to the complainant raising the issue again, and that another member of staff may have been working from home. There was no evidence of a response to occupational health about another person being facilitated to work from home.
At the hearing the respondent confirmed that another member of staff was facilitated with working from home for a short period. The same facility was not given to the complainant, even for a short period. There was no explanation why one member of staff was permitted to work from home, even for a short period, and the complainant was not. The respondent’s position was that employees were not permitted to work from home. Clearly there were some exceptions to this general rule. The respondent however did not consider what individual appropriate measures, including various working from options, might enable this particular employee to participate in her employment.
I am satisfied that the various options of working from home were not assessed by the respondent in respect of the complainant’s individual circumstances. Rather the options were disregarded by the respondent as there was no working from home policy in place at that time. Further, I am satisfied that the complainant was treated differently to one other member of staff who was facilitated with working from home, for a short period.
I am satisfied that the respondent in not carrying out an individual assessment of the various options on working from home did not take appropriate measures to enable the complainant to continue to participate in employment. I find that the respondent did not fulfil its statutory duty to the complainant. The respondent failed to make reasonable accommodation for her disability. The complainant was discriminated against on the grounds of her disability.
I have considered all the circumstances, including the fact that the complainant’s ill health retirement was supported by strong medical evidence and I have decided that the appropriate redress is an award of compensation for the effects of the discrimination.
CA-00029455-002 – Complaint of Unfair Dismissal – Constructive Dismissal
The complainant had returned to work on 28 November 2018 on a part-time basis. The part-time arrangement was to be in place for one month and was recommended by occupational health. She resumed working full-time in early December 2018. However, the complainant found it very difficult to manage her OCD and continue to work. She visited occupational health on 14 December 2018 and she was certified on sick leave until a date in January 2019 when she had an appointment with her own consultant psychiatrist.
The complainant, along with her husband, attended the appointment with her consultant psychiatrist on 09 January 2019. Following that meeting the consultant wrote to the HR department to support the complainant in seeking retirement on health grounds. The consultant included the following in his letter, “She is aware of the pros and cons of this decision and has considered this step carefully in collaboration with professionals, friends and family, including her union and a HR expert.” The occupational health doctor and the complainant’s General Practitioner supported her application. The complainant signed a retirement decision form on 19 February 2019. Her retirement on grounds of ill health was approved to be effective retrospectively from 25 January 2019.
In July 2019 the complainant submitted a complaint of constructive dismissal to the Workplace Relations Commission. The respondent rejects the claim that the complainant was forced to resign and submits that she left voluntarily on grounds of ill health and with the support of her consultant psychiatrist.
Dismissal is defined in Section 1 of the Act as:
“dismissal”, in relation to an employee, means—
(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would
have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,
Where an employee resigns and brings a claim of constructive dismissal the burden of proof is on the employee to show that the conduct of the employer was such as to breach a term that goes to the root of the contract or that the conduct was a repudiation of the essential terms of the contract. The bar for constructive dismissal is high and the employee must show that in resigning they have acted reasonably.
It is well established that an employee is required to utilise the grievance procedure to attempt to resolve their complaints. Conway v Ulster Bank UD474/1981 and McCormack v Dunnes Stores UD1421/2008 are decisions of the Employment Appeals Tribunal that confirm the high burden of proof on the employee and the need to show that the employee acted reasonably and exhausted the internal grievance procedures to attempt to resolve grievances with her employer before resigning.
The complainant was clearly having great difficulty in trying to agree reasonable working arrangements that would assist her to manager her OCD. The respondent did put in place certain arrangements but did not assess the possibility of working from home, even in the short-term. However, the complainant made her own decision to resign, having met with her consultant psychiatrist. The complainant did not raise a grievance with the respondent or show any attempt to use the grievance procedure to resolve her issues about being facilitated with working from home or about the quality of the air in the office. In fact, the complainant has not shown that she gave the respondent any indication of her intention to resign before her consultant psychiatrist wrote to HR on 10 January 2019. In those circumstances I am satisfied that the complainant has not met the required burden of proof to establish constructive dismissal. The complainant was not unfairly dismissed.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
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.
CA-00029455-001 – Employment Equality Act
I am satisfied that the respondent in not carrying out an individual assessment of the various options on working from home did not take appropriate measures to enable the complainant to continue to participate in employment. I find that the respondent did not fulfil its statutory duty to the complainant. The respondent failed to make reasonable accommodation for the complainant’s disability. The complainant was discriminated against on the grounds of her disability.
I have considered all the circumstances, including the fact that the complainant’s ill health retirement was supported by strong medical evidence and I find the appropriate redress to be an award of compensation for the effects of the discrimination. I direct the respondent to pay to the complainant an award of €60,000, a little more than one and a half years salary, for the effects of the discrimination.
CA-00029455-002 – Unfair Dismissals Act
The complainant has not met the required burden of proof to establish constructive dismissal. The complainant was not unfairly dismissed.
Dated: 11th June 2020
Workplace Relations Commission Adjudication Officer: Maria Kelly
Ill health retirement