ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026152
A Board of Management
Richard Grogan, Richard Grogan & Associates
Rosemary Mallon BL instructed by Mason Hayes & Curran
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 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 23/11/2020, 01/11/2021 and 13/05/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Specifically, I conducted a remote hearing on 29 October 2020 in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. The Complainant requested that the decision be anonymised given the sensitivity of her medical condition, which I agreed to. The Complainant gave her direct evidence on the day and was cross examined by the Respondent’s representative.
The hearing resumed remotely on 1 November 2021. On this day both representatives objected to me continuing to hear the matter as a result of the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General  IESC 24 on 6 April 2021. Specifically, it was asserted that as the Complainant had given unsworn evidence on 29 October 2020, the hearing should recommence ab initio before a different Adjudication Officer. Having reflected on the matter, I did not believe that a serious conflict of evidence would arise however and did not therefore consider it necessary to recuse myself.
The hearing resumed face to face on 13 May 2022 and neither party objected to me continuing to hear the matter despite both sides having indicated in correspondence on 9 and 10 May 2022 that I should recuse myself. Both the principal of the school as well as a member of the Board of management gave unsworn direct evidence on the day and were cross-examined.
The Complainant worked as a shared special education teacher in two different schools, spending three days teaching with the Respondent and a further two days elsewhere. As a result of a diagnosis of non-Hodgkins lymphoma and to mitigate the risk of infection, she was advised by her medical team to teach in only one school for the academic year 2019/2020. She is claiming that the Respondent would not facilitate this and therefore failed to afford her reasonable accommodation.
Summary of Complainant’s Case:
The Complainant started work as a teacher with the Respondent in 1985. She worked as a mainstream teacher until 2006 at which stage she became a shared Special Education Teacher. In September 2013, she became the full time Special Education Teacher with the Respondent. In December 2013, she was diagnosed with non Hodgkins lymphoma and went on critical illness leave until June 2015, when she returned to work full time. In October 2016, she again went on critical illness leave to receive further treatment and subsequently received a bone marrow transplant in January 2017. She returned to work on a phased basis in September 2018 on the condition that she would work with small groups of children and could avoid mainstream classroom settings in order to minimise exposure to infections.
Soon after her return to work, on 14th September 2018, she was asked to cover a mainstream class for a sick teacher and explained to the principal that her medical consultant would not be happy with this as the medical advice was that she should only work with small groups. The principal raised the issue with the Complainant the following week and informed her that she had not supported her in her capacity as principal. The Complainant suffered stress as a result of this allegation and was certified as unfit for work by her GP. Her GP also suggested that she be referred to the Respondent’s medical advisors as the situation needed to be clarified.
The Complainant subsequently returned to work in January 2019 on the Partial Return to Work Scheme which meant that she was only working 2 days per week in the Respondent’s school. While the Complainant’s consultant was not happy that she was allocated the shared special education role, as it meant that she would have to work in two different schools, she ultimately approved the attempt by the Complainant to return to work full time after Easter 2019 given that the immunity risk was lower at that time of year.
When asked for her class preference for 2019/2020, the Complainant advised that she wanted to resume the full time role she previously had, based solely in the Respondent’s school, and advised that this was dictated by her medical circumstances. She also wrote to the Board of Management asking to be assigned the full time role in the school but the request was declined and she was offered the shared role working in two different schools. She stated in evidence that the principal could have moved to a mainstream classroom while the teacher in the mainstream classroom could move to the role that she was expected to fulfil, namely working in two different schools.
She appealed to the Respondent requesting that reasonable accommodation be granted and her consultant wrote to support the application. She was informed on 26th August 2019 that her appeal was unsuccessful and was offered the shared role only.
Summary of Respondent’s Case:
Further to the Complainant’s partial return to work on 31st August 2018 on a two day a week basis, the principal agreed several accommodations for her given her medical condition. On 14th September the principal asked the Complainant if she could assist her with the mainstream classes given that two of the teachers were out sick. The Complainant refused and said that she had been instructed by her medical advisors not to work in a mainstream class. Even though the principal highlighted that this was an emergency situation, the Complainant refused to assist. On 21st September, the principal explained to the Complainant that it had been an emergency situation and asked her if she would support her if it happened again in future. A heated argument ensued which resulted in the Complainant going home. She subsequently went on work related stress leave and returned on 18th January 2019 with the intention of working two days per week according to the School’s Partial Return to Work Scheme.
Further to her return, she sent a letter to the Chair of the Board of Management wherein she requested a number of accommodations which had been granted to her when she returned to work in August as well as an additional accommodation, namely a request to be kept out of the mainstream classroom in all circumstances. She also criticised the principal in this correspondence to the Board of Management and suggested that her absence was enforced. This was disputed by the Respondent in their reply wherein the procedures involved in making a formal complaint were also highlighted to the Complainant.
Further to the Complainant’s full time return on 29th April 2019, the Respondent received a further medical report on 10th May 2019 highlighting the restrictions under which the Complainant could teach, namely continuing only in a learning support capacity and avoiding in all circumstances assisting with the mainstream classrooms. The Complainant subsequently wrote to the Respondent on 31st May 2019 requesting that the accommodations put in place for her until June 28, 2019 be extended for the duration of 2019/2020 school year.
On or about 10 June 2019 the Complainant approached the principal and said that she (the Complainant) should have been told that a new partner school had been found for the following academic year for the shared SET role and asserted that the new location was unsuitable for her. The Complainant told the principal that it was within her gift to allocate the Complainant her old job, namely the full time SET role. The principal re-iterated that she would bring it to the Board.
When the Complainant was informed on 28 June 2019 that her role for September would be the same as her present role, i.e. the shared SET role, the Complainant said that this was constructive dismissal. The principal said “no, we are offering you a job” and the Complainant replied “but you know I can’t do it and my consultant won’t agree to this” or words to that effect. The principal pointed out that the Complainant had been carrying out that same role successfully since Easter. The Complainant said she would take this “all the way to the equality tribunal”. The principal said the Complainant must do whatever was right for her. The Complainant wrote to the Board of Management by letter dated 12 July 2019 expressing her disappointment that the Respondent did not approve her request for her learning support role to be based full time in the school.
On 19 July 2019, an Emergency Board of Management meeting was held. The Board noted that they firstly had to consider the health and safety of the children and then consider the health and safety of staff and the whole school body generally. The Board felt it was impossible to resolve the matter without impacting on the health and safety of the children placed in their care. It was decided that they would write to the Department and the Cluster School Organiser to ask if extra hours could be given to the school in order to create a second full time SET position in the school but the Department did not agree to this.
On 28 August 2019, the Complainant attended the school. The principal went to her room and welcomed her back. The Complainant said that she was very disappointed to receive the letter so late and that she was awaiting advice but that she wouldn’t be able to go to the shared school. The principal explained that the delay was outside her control. The Complainant asked later that day to leave at approximately 12.30 pm to sort out the matter. That afternoon the Complainant rang the principal to say that her Consultant would not be happy with her in a split arrangement and the only reason she had allowed it after Easter was because it was the summer term. The Complainant said it was now the high risk season and it was not suitable for someone in her position to do a split role. She said she was entitled to accommodations and the Board hadn’t given her any.
On 3 September 2019 the principal telephoned the Department of Education who indicated that it wouldn’t be possible to give the extra SET hours to the school on the basis that SET hours are for children not teachers and stated that the Complainant had to be referred to school’s medical advisors as she had exceeded her sick days.
In December 2019, the school received several reports from their medical advisors which included in some cases incorrect information. The principal emailed the medical advisors on 9 December 2019 explaining that she had received four reports – three dated 29 November 2019 and one dated 2 December 2019 and that all contained different details and different recommendations. A revised medical report dated 20 January 2020 was received on 21 January 2020 stating that the Complainant was fit to work with restrictions and that “if possible” she should be facilitated by working 5 days in one school location.
The Complainant since September 2019 was absent for the two days in the shared school on sick leave. The result was that by February 2020 she had reached her limit of 1095 days and the school was informed that the next step was generally unpaid sick leave. The Board wrote by letter dated 14 February 2020 to the Department stating that inter alia the issue was that the Complainant had been reviewed by the Respondent’s medical advisors and that it was advisable, if possible, that she be facilitated with 5 working days in one school location but received no response despite following up.
In March 2020, the Covid-19 pandemic took hold and there was a nationwide lock down. In April 2020, the Complainant indicated that she could work remotely 2 days a week in the shared school. She then commenced working remotely in that shared school two days a week. Since the reopening of the schools in August 2020, the Complainant, due to her high risk category, has not been in a position to attend the school and a substitute teacher has been appointed.
Findings and Conclusions:
Section 16 of the Employment Equality Act states:
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 Complainant alleges that the Respondent failed to make a reasonable accommodation for her disability, contrary to s. 16 (3) of the Employment Equality Acts above, and I must determine whether or not to uphold this allegation of discrimination.
Prior to making a decision on that issue however, Ms Mallon BL asserted that the first question I should consider is whether a requirement for reasonable accommodation arose in the first instance, before examining whether or not the Respondent failed to make reasonable accommodation for the Complainant. Having subsequently reflected on the matter, I believe that this is a reasonable proposition and propose to address both questions, prior to making a decision on whether or not the Complainant was discriminated against.
In answering the initial question, I note that the medical report from the school’s own medical advisors, received on 21 January 2020, after several contradictory reports having been issued prior to that, stated “it is advisable if possible that [the Complainant] is facilitated with working 5 days in one school location”. This was in line with the advice from the Complainant’s own medical consultant of 3rd July 2019 who did not stipulate that she had to remain in the Respondent’s school for five days a week in the 2019/2020 school year. This was unlike the requirement outlined by the medical consultant and supported by the Respondent’s medical advisors that the Complainant not work with the mainstream classes following the incident of 14th September 2018, detailed in the summary above, which was adhered to by the Respondent. In light of the foregoing, I find that the Respondent was not required to reasonably accommodate the Complainant by retaining her in their school five days a week.
Notwithstanding my view that there was no requirement of the Respondent to reasonably accommodate the Complainant, I will for the sake of completeness make a decision on whether or not a purported burden on them to do so was proportionate or otherwise. In this regard, I note that following receipt of the 12th July letter from the Complainant which included the aforementioned 3rd July correspondence from the medical consultant, the Respondent once again considered the matter, at an emergency board meeting held on 19th July 2019. Specifically, the Respondent discussed the matter at considerable length and produced a detailed set of rationale which explained why it was not possible to have the Complainant take up the full time Special Education Teacher role in the school. The minutes of the meeting show that this request was declined because of both educational as well as health and safety concerns for the school children arising largely from the Complainant’s inability to assist with the mainstream classes when required.
Given the small size of the school, with only four teachers for the mainstream classes, I believe that it would have represented a disproportionate burden on the Respondent to have given the Complainant the full-time Special Education Teacher position in the school. Specifically, while it may appear on the face of it to be reasonable for the principal to have moved to the mainstream classroom and for one of the teachers who worked in the mainstream classroom to move to the Complainant’s shared role, namely splitting their time 60% - 40% between two schools, I cannot ignore that the work of both the principal and the other teacher did not solely consist of teaching the students they were assigned to and that some of it consisted of duties, albeit very occasional, that the principal, because of the Complainant’s medical condition and the stipulation that she could not engage with the mainstream classes, simply could not distribute to her. Specifically, it is worth highlighting once again what happened on 14 September 2018 when two out of the four mainstream teachers called in sick and the principal had to take charge of their students and redistribute some of them to other classes because she could not find a substitute and the Complainant could not assist because of her medical condition. While I recognise that the referral of this case and the accompanying events preceded the pandemic, I can only imagine what an invidious position the principal would have been in if she was unsuccessful in sourcing a substitute for one or more mainstream teachers who were unavailable to attend school during the Covid period, as happened on 14 September 2018. Although no-one could have envisaged the difficulties the pandemic would have caused schools when the aforementioned rationale were compiled in July 2019, I noted that the first of these stated, with remarkable prescience it must be said, that:
“Should a …. health emergency arise [the Complainant] is exempted from supervising children. Should this occur on a day when a teacher is absent or the shared SET [Special Education Teacher] is in another school the implications could be very serious”
While Mr Grogan quite reasonably highlighted that certain events which required engagement with the mainstream classes could have been scheduled for one of the three days on which the shared SET was in the Respondent’s school, Ms Mallon BL, whose assertion I prefer, stated that the school did not have control over the timing of all of the events where additional supervision may have been required by the full time SET, such as when the students were attending sacramental preparations, the timing of which would have been dictated by the relevant church.
I also believe, on the basis of the evidence presented to me, that the health and safety of the children, under the care of the Respondent, which the Complainant herself acknowledged in evidence to be the primary concern of the Board of Management, would undoubtedly have been compromised if the Complainant’s request was acceded to and she was allowed her to work full time in the school without having to engage with the mainstream classes as advised by the various doctors. Specifically, it is self-evident that the more people available to protect and mind children, then the lower the health and safety risk. While Mr Grogan highlighted that a health and safety expert should have been engaged by the Respondent to examine the particular risks and carry out a proper assessment, I believe that the Board of Management, which included parents in the school as well as the principal, were well placed to make an assessment of any such risks, given their in-depth knowledge of the school and the student population.
Notwithstanding the decision made by the Respondent to refuse the Complainant’s request to work 5 days a week in the school, I also noted that contact was made with the Department of Education to ask if extra SET hours could be given to the school in order to facilitate the Complainant’s request to remain there full time. Specifically, the letter to the Department highlights the Complainant’s medical background and made a request for a dispensation to allow her to work full time at the school. Although the Respondent’s correspondence was both detailed and persuasive, the request was refused by the Department and the Complainant was not afforded the opportunity to work in the school for five days a week as she had wanted.
While the Respondent therefore sought additional funding to accommodate the Complainant and facilitate her wish to remain in the one school in line with Section 3 ( c ) above, I noted that there was no consultation with her. Notwithstanding this failure to consult, I did note that the Board offered to meet with the Complainant in a letter of 26 June 2019 and must recognise that the Supreme Court in the matter of Marie Daly and Nano Nagle found that consultation was not compulsory. In any event, I am of the view that any consultation would have been a futile exercise given that the Complainant was simply unable to engage with the students from the mainstream classrooms because of her disability despite there being a need to do so by the Respondent, in particular with regard to additional supervision when required and the power hour work.
I therefore believe that it was not unreasonable for the Board of Management to refuse the Complainant’s request to work five days a week in the school given the consequences that this could have had for the student body if it had been acceded to, as suggested by the rationale, and that the suggestion by the Complainant that they should have done so would have represented a disproportionate burden.
Overall, I find that as the Respondent was not required to reasonably accommodate the Complainant and that in any event the burden on them to do so was disproportionate, she was not discriminated against.
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-00033300-001: I find that as the Complainant was not discriminated against for the reasons set out above.
CA-00033300-002: This complaint was withdrawn
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill