ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026213
Parties:
| Complainant | Respondent |
Parties | Caroline Delaney | St Patrick's Centre (Kilkenny) Limited |
| Complainant | Respondent |
Representatives | Ms. C McGrady BL instructed by Jill Griffin, Solicitor of Farrell McElwee Solicitors | Mr R McKenna of IBEC and Company Managers |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033407-001 | 23/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00033407-002 | 23/12/2019 |
Date of Adjudication Hearing: 20/10/2021 & 01/12/2021
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 79 of the Employment Equality Acts, 1998 – 2015 and,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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
Certain private Medical Reports, for reasons of personal confidentiality, are not detailed in full in the Adjudication.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury was explained to all parties.
Full cross examination of Witnesses was allowed.
Due to Covid 19 difficulties the publication of the Adjudication finding was delayed.
Background:
The issues in contention concern a claim of Discrimination on Age, Disability, Reasonable Accommodation and Discriminatory Dismissal, under the Employment Equality Act,1998. An associated complaint under the Terms of Employment Information Act, 1994 was also cited. The Complainant was employed as a Social Care Worker on a Gross Pay per fortnight of €2,000, as stated on the Complaint form, for a 39 Hour week. The employment commenced on the 4th April 2004 and ended on the 24th September 2019. |
1: Summary of Complainant’s Case:
1:1 Complaint CA-00033407-001 - Terms of Employment (Information) Act, 1994 The Complainant alleged that she had never, since commencing in 2004, received a written Statement setting out her Term and Conditions of Employment. In Respondent internal correspondence and documents received under Freedom of Information provisions this was conceded by the Respondents. 1:2 Complaint CA-00033407-002 – Employment Equality Act ,1998 The Complainant alleged Discrimination on Age, Disability, Reasonable Accommodation and Discriminatory Dismissal grounds. Extensive Oral evidence was presented by the Complainant and supported by a very comprehensive written submission and detailed appendices. Full cross examination of the Complainant took place by the Respondent Advisor. For convenience it is helpful to note that the Complainant was first employed in the RENUA Centre /House (2002 to 2016) and moved to the Deansgate Day Care Centre from 2017 to the end of her employment. In essence the main points made by the Complainant, both Orally and in Written submission, can be summarised under each Equality Heading below. 1:2:1 Age Ground The Complainant reached 65 years of age in 2015. In mid-2014 she had queried with the Respondent the possibility of her continuing to work beyond that age. Initially she was informed that this was not possible due to long established Respondent Age 65 retirement policies especially where a 65-retirement age was specified in a Contract of Employment. On investigation it became apparent that the Complainant had no formal written contract and on further on query with the Health Service Employers Agency attention was drawn to the Public Service Superannuation (Miscellaneous Provisions) Act of 2004. In this legislation retirement ages for Public Servants were effectively set aside for all new entrants post the 1st April 2004. As the Complainant was in this category she continued to work. The Respondents were unhappy with this situation but took no action. Where Age discrimination was alleged was in the actions of the Respondent post the Complainant’s return to work in January 2017 following her road traffic accident in 2016. The Respondent sought to impose work location transfers on the Complainant that were clearly insensitive and took no regard to her age. The Complainant maintained that the Respondents actions regarding the work transfers were motivated by a desire to force her out of the employment – the feeling being expressed that she had “Age fragility” and was unsuited because of Age to the full range of considerable demands, both mental and physical, involved in a Social Care Worker position. Put simply she was targeted by Management because of her age. It was a clear case of Age-related Discrimination. 1:2:2 Disability Ground She was first employed on the 5th April 2004 as a Social Care Worker in the RENUA Centre. She worked here without incident until a road traffic accident on the 25th July 2016. This required her to take a considerable period of Sick leave and left her with ongoing medical issues. These issues were the basis of her claimed Disability and were at all times supported by comprehensive Medical evidence including detailed correspondence from leading Hospital Consultants. She underwent numerous Occupational Health examinations from the Respondent organisation and all Reports indicated that the grounds for her Disability were substantiated. The final Medical report from Dr. M. in the XX Clinic indicated that she was not fit for the full duties of a Social Care Worker. However, this Medical report was contested on the grounds that the Report did not say that she was unable to do the Role she was occupying in the Deansgate Clinic. Earlier Medical reports from Respondent Occupational Health and a letter from a Hospital Consultant had indicated that she was suitable for her “Current role” i.e. Deansgate. The Respondent, it was alleged, had “Medically Shopped” and moved from their own Occupational Health Doctor, for a Medical report from a different provider, that would suit their case. The contradictions in the Medical reports was obvious. This was the nub of the Discrimination claim – the Complainant was fully fit for her existing role at the Deansgate Centre even if she was not fully fit for the full generic role of Social Care Worker. By insisting on the full Generic role with 24/7 cover, night duties, weekend work, competence with challenging physical behaviour by patients etc the Respondent employer clearly discriminated against her well known, medically supported and accepted Disability arising from her Road Traffic accident in 2016. The Complainant Legal representative pointed to extensive case law covering the wide definition of a Disability in the EE Act,1998 and the obvious inclusion of the Complainant within its remit. 1:2:3 Reasonable Accommodation Ground. The Complainant stated that she had worked from 2004 to 2016 in the RENUA care facility. This was essentially a supported housing facility with a small number of reasonably mobile clients/ Residents who in general did not display any unduly problematic behaviours. The Complainant had carried out, over her 12-year period there, the full range of required duties and shift roster patterns without any issues. The Complainant emphasised that on her first recruitment in 2004 the then Management had made it clear that there was no “mobility clause” attached to employment in RENUA. In 2004 RENUA was an experimental initiative for the Service and part of a move away from more traditional institutional care -in this case called Campus care. It was made plain that should RENUA not work out the staff there could have no expectation of being reemployed in any of the other facilities of the Service. On the 25th July 2016 the Complainant was most unfortunately seriously injured in a road Traffic Accident – a RTA. Although she initially recovered well she was left with what the Medics called “Sequela” i.e. on-going conditions that could be traced back to injuries received in the RTA. In January 2017 the Complainant reported back to work at RENUA but was informed that here was no longer a position there for her. She was directed to move to a position in Marian House – a Campus facility. The Complainant objected to the move on the grounds that her medical situation was not really suitable for the type of work (physically challenging Clients, Disruptive Physical behaviours etc) she would possibly be exposed to at a Campus style facility. She had difficult discussions with Mr. Q, the Director of Services. The Complainant refused to move and was put in a position of being out of work, unpaid, for some 7 weeks. In a further meeting with Mr. Q in February 2017 Mr Q stated that there were no openings in RENUA but in discussion it became clear that a position might be available in the Deansgate facility. The Deansgate facility was in essence a type of Day Care almost “drop in” Facility for clients of the overall Organisation. The nature of the work was such that the Complainant would always be accompanied by other staff and the likelihood of very physical disruptive behaviour much less. After discussions with Mr. Q the Complainant agreed to move there. Despite initial reservations, the Complainant found the position much to her liking and was happy to remain there. In her evidence she steadfastly maintained that Mr. Q has assured her that she could work there until her retirement. Her position of day work and no weekend duties was ideally suited to her physical and medical situation -her clearly diagnosed disability. From 2017 the Respondent Organisation indicted that they wished the Complainant to work in other Facilities – a return to full Campus style work involving 24/7 rosters and weekend work – the full gamut of Social Care Worker duties. Medical Reports, including a letter from Professor C, indicted that while the Complainant was fit for the Deansgate syle work pattern, her existing role, a move to a more active and physically at-risk style of work – Campus pattern -was not appropriate. It was the Complainant’s argument that by refusing to allow her to continue in the Deansgate pattern of work and insisting on a full Social care Worker range of duties, for which her disability made her ineligible, the Respondent was clearly refusing her “Reasonable Accommodation.” as defined in the EE Act,1998. The issue of medical reports was crucial, and the Complainant strongly contested the final medical report from the K Practice. – Dr M. of the 18th June 2017. This Report was central to the Respondent case supporting dismissal. The Dr. M report found the Complainant medically unfit for Social care Worker duties in total but had never been tasked with reviewing her Deansgate position for which all the other Medical reports, including Reports from earlier Respondent doctors, found her fit. The Complainant alleged that the Respondent had “Medically Shopped” until they found a Report to their liking. Refusal to provide Reasonable Accommodation at Deansgate was a clear-cut case of Discrimination. 1:2:4 Discriminatory Dismissal ground. The Complainant was dismissed by letter of the 31st of July 2019 on the basis of “Being unable to perform the duties of a social care worker”. This argument was completely false as the Complainant was clearly able to carry out her duties, once “reasonable accommodation” was provided. The paragraph above details this Complainant argument. By refusing to provide Reasonable Accommodation and in effect setting the Medical Bar at an impossible level for the Complainant the dismissal was absolutely unfair and discriminatory. 1:3 Case Law and Legal Arguments in support The Complainant referenced numerous recent Adjudication precedent cases such as Bouse v The Wild Goose Studio (Kinsale) Ltd Adj- 00030978, and in particular S.I. 600 of 2017 – Industrial Relations Act,1990 (Code of Practice on Longer Working) (Declaration) Order 2017. |
2: Summary of Respondent’s Case:
2:1 Background context The Respondent Employer is a major Social Care organisation based in Kilkenny. First opened by the Religious Sisters of Charity in 1966 it originally provided support for Children and Young People with disabilities in a Campus Style setting – in this case a former large institutional style Orphanage. However, with the development of new care models the work of the Organisation has changed to a more community-based system of multiple small residential Units - Community Houses - often based in the local community. To date some 33 Houses in Kilkenny and surrounding areas are supported. The main or old traditional Institution style buildings were finally vacated in 2020. In keeping with these changes, the work patterns and duties of the staff, such as the Complainant, have had to evolve and develop. The Complainant was first employed in 2004 in the RENUA Centre -probably the first Community House outside of the main institution. 2:2 Complaint CA-00033407-001 - Terms of Employment (Information) Act, 1994 The Respondent accepted that there was no signed statement of Employment on file from the Complainant. However, during her period of employment, she had acted for a number of years as a SIPTU local lay representative and there could be no doubt that she was completely familiar with all Terms and Conditions of Employment of Social Care Workers. She was at no loss of any description, monetary or otherwise by the absence of a signed Statement. Any breach of legislation was of a purely inadvertent and of a most minor technical nature. 2:3 Complaint CA-00033407-002 – Employment Equality Act ,1998 Age Ground, Reasonable accommodation Ground, Conditions of Employment, and Discriminatory Dismissal. The Respondent provided detailed Written evidence and Oral evidence from Ms. R. Ms. D and Ms.H, all Managers in the Organisation. In essence the Respondent maintained that the Complainant had been dismissed by letter from Ms. D dated the 31st July 2019. This dismissal was based on comprehensive medical reports culminating in Dr M’s Report of the 18th June 2019 and subsequent clarifications from him that the Complainant was medically unfit for the duties of a Social Care Worker. The Dismissal was appealed and confirmed following an Appeal hearing on the 21st August 2019. In their evidence and as part of an objective grounds defence, the Respondent pointed to the well-publicised and discussed with numerous Union bodies, policy of Decongregation of the services of the Organisation. Large old-style residential Campus style buildings, like the former Orphanage, were being replaced with numerous smaller House style units spread throughout the City. This required full flexibility from all staff especially Social Care Workers as the nature of the work was now multiple small Units. This policy was rolled out from 2016 onwards and was subject to extensive multi Union consultations. It was clear to the Complainant that her long-term placement in the RENUA house would not continue. On her return from Sick Leave, (as result of the RTA in June 2016), in January 2017, the Complainant was requested to move to the Marian Centre. This Centre was located on the old Campus style facility. The Complainant declined to move and a series of meetings with Mr. Q, the Director of Services, took place. It was eventually conceded that the Complainant could take up duties at the Day Care Deansgate facility. This was done by Mr. Q in an effort to get the Complainant back to work from a period of Unpaid leave. It was never intended as a Permanent arrangement. In the following months and years to 2019 the Complainant was subject to numerous Medical referrals to Occupational Health Physicians, initially in Dublin and latterly at the K Practice in Waterford. The Medical reports always indicted that the Complainant was fit for work but the question of the range of duties and the location became problematic in terms of a proper interpretation of the Reports. Eventually Dr. M in Waterford clarified (letter of 3rd July and subsequent clarification e mails with HR) that the Complainant was not fit for the full duties of a Social Care Worker as set out in a detailed job description supplied – copy given in evidence. It was on this “Unfitness to work” basis that the dismissal took place. The Respondent had undertaken a comprehensive Medical examination programme and the views of the Complainant were always fully canvassed. The final Appeal Hearing on the 21st of August 2019 had been comprehensive and had confirmed this decision. In summary the position was that the needs of the Service had evolved significantly since 2004 and all Social Care Workers needed to be fully flexible and available across all facilities. The Complainant was limited to a narrow range of duties and this was unsustainable in the present Organisational/Clinical model. All rules of Natural Justice were observed throughout the proceedings. |
3: Findings and Conclusions:
3:1 Legal issues - The Employment Equality Act, 1998 complaint – CA -00033407-002 The Law in Employment Equality cases - Employment Equality Act,1998 Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents In an Employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being 1. Does the Complainant have a qualifying “Disability”? 2. In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. In other words, is she eligible to bring a claim? 3. Does a prima facie case of discrimination, based on a reasonable inference exist? 4. Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground? 5. Depending on these answers the Provisions of Section 85 (a) of the Employment Equality Act,1998 - The Burden of Proof then applies to the Respondent. In plain English the onus is on the Employer to prove that no discrimination occurred. There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.” Notwithstanding legal precedent all cases rests on their own particular facts and context it is necessary to now consider the case taking into account the considerable Oral and Written evidence presented. 3:2 First Legal issue: Had the Complainant a qualifying Disability.? For an Equality Discrimination case of this nature to proceed the first issue for the Complainant t is to demonstrate that a Disability existed. Significant case law and Legal precedent exist on this area. Disability is defined by Section 2 of the 1998 Act. Section 2 Definitions disability” means— ( 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; In the case in hand the Medical evidence beginning with Dr K on the 29/01/2019 - “I do not believe she would be physically fit to assume a position that requires an increased physical role” and subsequent Reports from Medmark on the 28/02/2019 and 12/04/2019 all confirmed the medical issue of the difficulty of moving to a Community House as opposed to a Day Centre in Deansgate. The letter from Dr C, Consultant Physician, of the 8th March 2019, refers to the change in work location “In my opinion such a transfer of work would not be in Caroline’s best interest and would impact negatively on her health” The final medical report from Dr M also states in the closing paragraph “I find she is unfit for the role of Social care Worker in community houses” On the basis of this medical evidence from three Doctors and a Medical Consultant it is only possible to conclude that the Complainant clearly had a Physical disability that precluded her from the full range of Social Care Worker duties in Community Houses but left her fit for the Day Duties at Deansgate. In terms of her Employment Equality complaint the evidence is that she had, as per Section 2 of the Act, a qualifying Disability. 3:3 Was the Complainant covered by the Discrimination provisions of the Act? Accepting that the Complainant had a disability the matters to be considered are now those set out on her complaint form. The Complainant pointed to alleged discrimination on the Age Ground, Reasonable Accommodation Ground, Conditions of Employment, and Discriminatory Dismissal grounds. These ground are considered in sequence below. 3:3:1 The Age Ground The most pertinent fact of the Age situation was that the Complainant was allowed continue in work well past her 65 birthday. She was 69 years and four months, approximately, at the date of the employment ending. The normal retirement date in the Employer was 65 years of age. It is only reasonable to conclude that a Discrimination complaint on Age Grounds, in the light of these facts, does not really have a prima facie basis. 3:3:2 Reasonable Accommodation Ground. This Reasonable Accommodation situation was the key essence of the entire case. The Medical reports are crucial evidence as is a consideration of the evolving Law in this area following on from the Supreme Court case. The headline case is the Supreme Court Nano Nagle School v Daly [2019] IESC 63. In this case the issue of Reasonable Accommodation was considered at length. Considerable Legal commentary and analysis has been devoted to this ruling. A useful summary is the Legal Island review of the 2/08/2019 and other Reviews from leading Law Firms, all of which informs and guides the consideration of the evidence here. In essence the Supreme Court ruled that the duty is clearly on an Employer to reasonably consider practical steps to facilitate a disabled employee continuing at work unless such steps would constitute or impose a “Disproportionate burden”. This obligation on an employer to provide ‘reasonable accommodation’ to an employee is set out in section 16 of the Employment Equality Act 1998. Section 16 of the act provides, inter alia, (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)— F34 [ ‘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 Supreme Court held that there was no reason why providing reasonable accommodation should not involve a redistribution of duties in the workplace, provided this did not place a disproportionate burden on the employer. In addition, Section 16 above indicates a non-exhaustive list, set out in the Employment Equality Act 1998, which includes ‘the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources’. This Supreme Court decision, as argued in the Legal commentaries, goes a step further in placing an obligation on the employer. It has done so by suggesting that the employer must look not only at a redistribution of the tasks of the role but must look at a redistribution of the essential duties and functions of the employee’s job. The Supreme Court arrived at this finding on the basis that the Act in question obliges the employer to consider all appropriate measures to provide reasonable accommodation provided the cost of doing so would not be disproportionate. The Supreme Court held, in essence, that the‘test is one of reasonableness and proportionality’ but there was an obligation on the employer to explore whether public funding would be available to assist with the provision of reasonable accommodation. The Supreme Court also held that while there was no statutory obligation to consult with the employee it made sense and would be sensible for the employer to do so. The Court also reaffirmed the long-held position that the employer was not obliged to create a different job for the affected employee. However, Section 16(1) of the Employment Equality Act provides for 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. It has been argued that this Secton (1) almost constitutes a contradiction with Sub Section 16(3) also quoted above. This point is also discussed in the Supreme Court judgement. In Paragraph 84 of the judgement it states 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. This point is further discussed in Paragraph 89 Paragraph 89 This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”. If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or “stripped out”. But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, “fully capable of undertaking the duties” attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are nonessential. 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 redesignate 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 in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position. It appears from the Supreme Court decision that whilst the employer is obliged to make reasonable accommodation for the employee this obligation is restricted to deciding what can be done to allow the employee to do the particular job-that is, the job position in question. In the case under review and considering the evidence presented the key question – the Reasonable Accommodation sought was to allow the Complainant to remain at Deansgate on day work with a significantly reduced risk from possible physical injury- blows to her abdomen - from disruptive patients more likely to be encountered in a Community setting. The Supreme Court, it can be strongly argued, required Employers to carefully examine their organisations to see what was practical. The Respondent in this case argued that they did this – email traffic and witness evidence was provided. However, the exercise did not yield any suitable positions as the focus seemed to be, from the evidence, on the availability of day work only Social Care positions with limited exposure to physical risk from Clients. In a 24/7 operation this was going to be a major challenge unless you allowed the Deansgate arrangement to continue. None the less, reviewing the evidence, and following the Supreme Court views on “reasonableness and proportionality” a decision to allow the Complainant to remain at Deansgate on day work could not be classified, on a reasonable basis, as a Disproportionate Burden on a large Organisation. In addition, the potential time span of the arrangement was unlikely to have been great as the Complainant was already approaching 70 years of age and would very likely be covered by the age 70 retirement provisions of the 2015 Public Pensions legislation. Accordingly, and having reviewed all the written evidence and particularly the oral evidence the Adjudication decision has to be that Discrimination took place by a failure to provide Reasonable Accommodation. 3:3:3 Discrimination in Conditions of Employment and Discriminatory Dismissal. In relation to Conditions of Employment the evidence did not point to any major Discriminatory acts per say here. The Conditions ground does not have a good prima facie basis. 3:3:4 Discriminatory Dismissal The Dismissal of the Complainant was based on her being unable to fulfil the full range of duties of a Social Care worker. As discussed above the evidence pointed to the failure of the Respondent to provide Reasonable Accommodation. It has to follow that a dismissal following from this shortcoming has to be Discriminatory. The Dismissal was Discriminatory under the Employment Equality Act,1998. 3:4 The Burden of Proof. The Employment Equality Act Section 85(A) requires that the Respondent Employer effectively establish that the alleged Discrimination did not occur. Reviewing the evidence, I came to the view that the Burden of Proof rested with the Respondent employer. In this case the employment was ended by the Employer. The Respondent employer maintained in their arguments that the need for a major “Decongregation” or move away from major large institution settings to smaller Units was best Policy and in keeping with modern Medical/Psychiatric advice. This required a Social Care staff working a flexible 24/7 roster and the Complainant simply was medically unfit for this type of work. The Respondent defence was one of Objective Justification, i.e. there was an objective reason for not retaining a Social care worker who was limited in her location and range of work duties when full flexibility was a requirement in a Decongregated organisational model. 3:5 The Objective Justification Argument and the Employment of the Complainant. In the Adjudication paragraph above, detailing Section 16 (1) v Section 16(3) the Supreme Court has effectively over ruled this Objective Justification argument. Letting the Complainant remain on the Deansgate pattern of work could not be seen as a Disproportionate Burden and the Objective Ground of having, without any differentiation, all Social Care workers on the same pattern of hours/full flexibility across all roles is likewise not sustainable. 3:6 Final summary conclusion. CA-00033407-002 – Employment Equality Act ,1998 From a full review of all the evidence and consideration of extensive Legal precedents especially the Supreme Court in the Nano Nagle case the following conclusions are made. There was no discrimination on Age Grounds – a prima facie case was not sustainable. There was a failure to provide Reasonable Accommodation as required by the EE Act,1998 and as set out in the Supreme Court judgement. As a consequence, a Discriminatory Dismissal took place. 3:7 Complaint CA-00033407-001 - Terms of Employment (Information) Act, 1994 From the evidence presented it was clear that, more by way of oversight than any negative issue, a written contract in the form required, was not provided to the Complainant. However, it was also clear that the Complainant was well familiar with her terms and conditions both personally and through her SIPTU Representative role for a number of years. She suffered no financial or work conditions losses or impairments. The lack of a proper written contract was, in the context of this overall complaint, very much a lesser matter. The Conclusion has to be that the Respondent was technically at fault but as the impact on the Complainant was minor any redress has to reflect this situation. |
4: Decision: CA: 00033407-001& 00033407-002
Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
4:1 CA-00033407-001 Terms of Employment (Information) Act, 1994
The Complainant is deemed to be Well Founded.
Accordingly, under Section 7 an award of Compensation, for Breach of a Statutory Right, of €100 is made.
4:2 CA: 00033407-002 – Employment Equality Act ,1998
Under Section 79 and 82 of the Act the following Redress awards are made.
As there was no sustainable prima facie case for Discrimination on the Age ground no redress is appropriate.
As there was a Failure to Provide Reasonable Accommodation an award of €20,000 Compensation is made in favour of the Complainant. For clarity this is not Renumeration
As an act Discriminatory Dismissal took place an award of €5,000 is made.
From the information provided the Complainant was on a claimed annual salary of € 52,000 – (however the P60 for 2018 indicated an Annual Salary of approx. € 36,000) the Redress awards of €20,000 and €5,000 are in this context, “just and equitable bearing in mind all the circumstances of the case.”
Dated: 14-02-22
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Reasonable Accommodation, Discriminatory Dismissal, Age Related Dismissal. |