R & B BURKE CATERING SERVIES LTD
1.An Appeal of an Adjudication Officer's Decision No(s)ADJ-00018759 CA-00024178-002
At the commencement of the hearing the Court sought clarification as to whether the fact of the Complainant having a disability was in dispute and the Court was advised that it was not. The Complainant lodged her complaint with the WRC on the 17thDecember 2018 therefore the cognisable period is 18th June 2018 to 17th December 2018.
Summary of Complainant’s submission.
The Complainant contends that she suffered from Achilles Tendonitis which is a disability within the meaning ascribed to that term by s.2 (1) (c ) of the Act. She contended that the Respondent discriminated against her on the disability ground in not providing her with reasonable accommodation when she was transferred into their organisation under a transfer of undertakings on the 31stAugust 2018.
The Complainant suffered from a disability and was absent from work for a period of time. During her absence she attended Occupational Health and on her return to work on the advice of Occupational Health she was placed on restricted duties. The advice from Occupational Health was that she should not spend more than 3 or 4 hours a day on her feet and that her work should be varied between standing duties and sitting duties. Occupational Health also recommended that in terms of lifting the maximum weight she should lift was 5kg. These accommodations were put in place by her then Employer and included some till duties where she could sit when carrying out those duties. It was also agreed as a temporary measure that she would only work three days a week (twenty hours).
After the transfer of undertakings, the Complainant’s duties were changed and the chair she used when working on the till was removed. The Complainant was assigned pot wash duties which involved the lifting of heavy pots and trays. The Complainant raised her concerns with the Respondent on a number of occasions. On the 8thNovember 2018 the Complainant provided a letter from her GP outlining that her condition was getting worse, but she received no response from the Respondent.
The Complainant was seeking to have the arrangement that existed with her previous employer restored. The Complainant through her Union raised a number of grievances with the Respondent including the issue of her duties and the requirement for reasonable accommodation as had previously existed. Despite further engagements on this issue the Respondent declined to provide reasonable accommodation as recommended by the Complainants Doctor.
The Complainant was certified as not fit for work from January 2019 due to Achilles Tendonitis and remained absent on sick leave until she resigned in April 2021. The Complainant is seeking compensation for the failure of the Respondent to provide her with reasonable accommodation.
Summary of Respondent’s submission.
It is the Respondent’s submission that following the transfer of undertakings while he did receive some documents in respect of the Complainant, he did not receive any documents in respect of reasonable accommodation, or the Complainant being assigned to light duties. It is the Respondent’s submission that the Complainant’s role involved a variety of duties and that she continued to have the same role after the transfer. While some of the duties did involve hosing down pots and putting them into the dishwasher these were all empty pots.
The biggest pot the Respondent has is 4kg which is below the 5kg limit recommended by the Complainant’s Doctor. In respect of the stool at the till it is the Respondent’s submission that it was a hazard and they removed it. There had been an incident where someone had nearly tripped over it and spilt hot coffee. It was also their submission that the stool was only at the till because the Complainant put it there when she was working on the till. It was the Respondent’s submission that they only became aware of the Complainant’s requirement for reasonable accommodation when she raised it with them towards the end of October 2018. They had sought to engage with the Complainant, but she had not been available on some of the dates offered. It was their submission that the nature of the job required that you were on your feet a lot and that there was not much scope to provide seated duties.
However, the Complainant would have been able to rest during her breaks. The Respondent submitted that they had offered the Complainant a role in a different location. Later in their submission they clarified that the offer of working in a different location had been made prior to the transfer of undertakings and prior to them being on notice of her disability and requirement for reasonable accommodation. The Respondent confirmed to the Court that the position on offer in the other location was in respect of the same role and duties. It was the Respondent’s submission that it was not possible to meet the Complainant’s request as it would constitute an undue burden on the Respondent. In response to a query from the Court the Respondent confirmed that they had not carried out an assessment of the Complainant’s role when they became aware of her requirement for reasonable accommodation.
The applicable law
2.— (1) In this Act, unless the context otherwise requires…
(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;
Section 16 (3) provides: -
(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.
“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;
As the Respondent in this case did not take appropriate measures and was in a position to show that the measures required would impose a disproportionate burden on the Respondent the Respondent’s appeal must fail. The Court determines that compensation of €5,000 be paid to the Complainant.