ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037903
Lough Rynn Castle Limited
Lars Asmussen BL, Tiernan Lowey BL and Conor Bowman SC instructed by Sean Ormonde & Co. Solicitors
Clare Bruton BL instructed by Kane Tuohy Solicitors
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 28 of the Safety, Health & Welfare at Work Act, 2005
Date of Adjudication Hearing: 15/3/2022; 18 May 2022 and 19/09/2022
Workplace Relations Commission Adjudication Officer: Emile Daly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 above complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. This hearing was conducted over three days (15 March 2022; 18 May 2022 and 19 September 2022.) This complaint is linked to two other complaints Adj. 31919 (Discrimination) and Adj. 39597 (Discrimination) and with the agreement of the parties the complaints contained in all three Adj. files are to be decided by this Adjudication Officer.
The Complainant worked for the Respondent hotel business from 2008 until she became unwell with stress and went on sick leave in March 2017. She has been unwell since then and has continuously sent sick notes to her employer on a monthly basis to evidence that. Her complaint is that despite her being on long term sick leave for in excess of 5 years, the Respondent took no steps to contact her or to ascertain her ability to work or to have her medically examined in order to see if she could work. She contends that the failure to take such steps constitutes a failure to make reasonable accommodation for her disability, which is anxiety and depression.
The second aspect of this complaint is that of penalisation under the Safety, Health and Welfare at Work Act 2005. Following a bullying grievance made against the Complainant’s manager in December 2017 the Respondent treated the Complainant adversely and the Respondent also failed to consider or investigate with this bullying grievance before she went on sick leave in March 2017. This complaint of penalisation is a continuing complaint because to date the Respondent has still not taken any steps to investigate the Complainant’s grievance, which the Complainant contends is part of the penalty that she suffered for raising the grievance.
The Respondent denies the complaints.
This complaint Adj. 37903 (Discrimination and Penalisation) is linked to two other complaints, Adj. 31919 (Discrimination) and Adj. 39597 (Discrimination.) At the request of the parties all three Adj. complaints are considered and decided by this Adjudication Officer even though Adj 39597 was not listed for hearing. This request was confirmed by the parties in writing on 22 September 2022. The parties being satisfied that the evidence in respect of all three complaints was tendered before this Adjudication Officer at the hearing on 19 September 2022, agreed that decisions should issue in respect of all three complaints.
For the purpose of clarification;
The first complaint, Adj 31919 (issued on 7 February 2021) is a complaint of discrimination namely the failure of the Respondent to make reasonable accommodation for the Complainants disability by failing to take steps to facilitate her return to work after an extended period of sick leave from March 2017.
This second complaint, Adj 37003 (issued on 22 March 2022) repeats the claim of discrimination above but asserts that this failure continued after the issue of the above complaint on 7 February 2021 until this complaint issued on 22 March 2022. This complaint also makes a complaint of penalisation under the SHWW Act 2005, for the failure of the Respondent (before the Complainant took sick leave in March 2017) to investigate a grievance made against the Complainant’s manager in December 2016. The Complainant asserts that this is adverse treatment as a result of the Complainant making a protected act.
A third complaint Adj 39597 (issued on 21 June 2022) repeats the complaints of discrimination above and asserts that the discrimination (a failure to facilitate a return to work) continued from 22 March 2022 until the issue of the complaint on 21 June 2022
Summary of Complainant’s Case:
The Complainant commenced work for the Respondent, a hotel business in County Leitrim, on 13 October 2008, as a hotel services manager.
The Complainant went on sick leave (for stress) in September 2015 and returned to work in May 2016. On her return to work she found that was treated differently. Her manager, Mr. Reidy reduced her duties and asked her to sign a contract that did not reflect her work duties. She was essentially demoted. She made a formal bullying grievance complaint against Mr. Reidy on 20 December 2016 before taking sick leave between Christmas and New Year. The Complainant was declared fit for work and she returned on 1 January 2017. The Complainant asserts that following her return to work in January 2017 the demotion continued and the Respondent failed to address the grievance that she had raised against Mr. Reidy. This sidelining of her concerns, the disrespect shown towards her, the devaluation of the work contribution she had made over many years, in addition to her demotion and reduction of duties left her with a low sense of self-worth which triggered a further episode of anxiety and stress in March 2017. The Complainant contends that this adverse treatment of her occurred, as a result of her raising a grievance against her manager.
As a result of this treatment the Complainant became anxious and went on sick leave in March 2017. Since March 2017 she has suffered from anxiety and has not returned to work because her doctor is still certifying her as an unfit to work.
The Complainant submits that the Respondent failed to make reasonable accommodation for her disability by not taking any steps to facilitate her return to work. It is asserted is a continuing act of discrimination from March 2017 until the issue of this complaint. She contends that the discrimination complaint, as it is a continuing act of discrimination, cannot be said to be time barred. She contends in addition that even if the Respondent argues that they were not on notice of the Complainant’s wish to return to work when she issued her first complaint on 7 February 2022, which the Complainant denies, from 7 February 2021 onwards this lack of knowledge defence is no longer available to Respondent, because the Complainant’s first WRC complaint (issued in February 2021) expressly put the Respondent on notice of her desire to return to work and yet still no action was taken to facilitate this or even investigate its possibility.
Under oath the Complainant gave evidence that the Respondent made no attempt from March 2017 onward to contact her, to medically assess her or to take steps to allow her to return to work. She never said that she didn’t want to return to work. She sent sick certificates to the Respondent each month, which clearly evidenced her desire to return to work and her WRC complaint form issued on 7 February 2021. Following the issue of her first complaint in February 2021 until this complaint issued on 22 March 2022, the Respondent took no steps to facilitate her return to work.
The first effort made by the Respondent to make contact the Complainant was following the second Adjudication hearing on 18 May 2022, when by letter dated 20 June 2022, the Respondent asked the Complainant to attend an Occupational Health Assessment. A medical examination was conducted by Medmark on 5 July 2022. The finding of the Dr. Colreavy of Medmark was that the Complainant remained unfit for work but that with further treatment she might be fit for work in 6-8 weeks following the assessment. Since her assessment the Complainant has continued to send in GP sick certificates indicating that she remains unfit for work.
The Complainant gave evidence that the manager of the Respondent Mr. Alan Kane met her in September 2022 however during their conversation he did not suggest that she return to work. Nor did he say that her grievance against her manager would be investigated. The Complainant confirmed at the third Adjudication hearing that she did wish to return to work.
The Complainant was cross examined.
The Complainant accepted that following her sick leave in 2015-16 she furnished a fitness for work certificate and on foot of this, she returned to work.
The Complainant accepted that following the short period of sick leave in December 2016- January 2022 she furnished a fitness for work certificate and on foot of this, she returned to work.
The Complainant accepted that since March 2017 she has been certified as unfit for work and she accepted that she was currently certified as unfit to return to work. She gave evidence that she needed to undergo some further medical treatment which she hopes will aid her recovery.
The Complainant stated that when she went on sick leave on 3 March 2017, the bullying complaint that she had made against Mr. Reidy in December 2016 still had not been dealt with by the Respondent. The disrespect that was implicit in that inaction has added to her stress. She stated that it is noteworthy that no action to deal with her complaint against Mr. Reidy has ever been taken.
In terms of the investigation of her complaint against Mr. Reidy, the Complainant accepts that the Respondent’s solicitor wrote on 20 March 2017 suggesting that her complaint would be investigated (directly with the Complainant) under the Company’s Bullying and Harassment Policy. She accepts that her solicitor, Mr. Ormond replied by way of letter dated 27 March 2017 advising that the Complainant had raised the grievance four months earlier and that the Complainant was surprised that it was now being suggested that the investigation would take place, at a time when she was on sick leave. Mr. Ormonde expressed his objection in the strongest of terms to any contact being made with the Complainant directly as when Mr. Kane contacted her recently, this caused her anxiety and upset. Mr. Ormonde suggested in his letter that this conduct was yet more evidence of bullying by the Respondent.
It was put to the Complainant that following receipt of Mr. Ormonde’s letter of 27 March 2017 that it was reasonable for the Respondent to decide not make contact with the Complainant until such time as it was indicated either by her or her solicitor that she was open to being contacted by them.
It was put to her that the first time she had indicated a desire to return to work was on the second Adjudication hearing (May 2022) when her then representative, Mr. Lowey BL said so, on her behalf.
It was put to her that, prior to 18 May 2022, it had never been asserted either by her or by her solicitor that she wanted to return to work or that she was fit to return to work and this was not accepted by the Complainant. The Complainant Counsel submitted that the first WRC complaint in February 2021 clearly put the Respondent of the Complainant’s desire to return to work and to suggest otherwise was absurd.
It was put to the Complainant that the first (Feb 2021) WRC complaint was not a request to return to work. It was rather a complaint that, in the past, she had not been facilitated a return to work. There was nothing prospective in the wording of the first WRC complaint.
It was put to her that the Respondent had no basis for thinking that the Complainant wanted to return to work until Mr. Lowey said this at the second Adjudication hearing on 18 March 2022.
Furthermore, even if the Complainant did wish to return to work and even if the first WRC (Feb 2021) complaint could be construed as constituting such a request, this could not and should not have been considered by the Respondent in circumstances where the Complainant’s own treating doctor was still certifying her as unfit for work when this complaint issued in March 2022 and this was subsequently confirmed by the Occupational Health Assessment conducted by Dr. Colreavy who also found her to be unfit for work when she examined the Complainant on 5 July 2022.
It was put to her that it is not an act of discrimination to fail to facilitate a return to work where the employee in question is not fit for work.
After the cross examination had concluded on foot of questions by the Adjudicator, Counsel for the Complainant conceded that the penalisation complaint might not correctly be described as a continuing or rolling complaint which could defeat a time bar point, if the last communication between the parties - on the holding of an investigation into the bullying complaint grievance that the Complainant made against her manager Mr. Reidy - was Mr. Ormonde’s letter of 27 March 2017 wherein (in response to the Respondent solicitor’s suggestion that an investigation proceed under the Respondent’ bullying and harassment policy) Mr. Ormonde objected and requested the Respondent to not contact the Complainant and where no amendment was made to that position subsequently. It was accepted on behalf of the Complainant that, given this evidence, it was conceded that the Penalisation complaint may not be a continuing complaint and may be outside the statutory time limit.
In relation to the discrimination complaint, Counsel for the Complainant made the following submissions:
1. That following the Supreme Court case of Nano Nagle v. Marie Daly  30 ELR the duty to make reasonable accommodation requires an employer to take positive steps to allow person with a disability to work. The Respondent had failed to even countenance the possibility that she would return to work, which is evidenced by the fact that they did not make any contact with her from March 2017. Nor did they seek to have her medically assessed to date, most significantly from 7 February 2021 onwards despite the Respondent being on express notice of her desire to return to work from the issue of the WRC complaint. So even if the Adjudicator was minded to find that the first complaint of discrimination (Adj 31919) would not succeed (because the Respondent was not properly on notice of the Complainant’s desire to return to work) no efforts were made by the Respondent to respond even after the issue of her first WRC complaint in February 2021, which expressly asserted a discrimination complaint based on the Respondent’s failure to accommodate the Complainant in her return to work following an extended period of sick leave, and as a result of which the Complainant’s desire to return to work was laid bare.
2. Sending in sick notes consistently for five years is evidence of a desire to return to work but even if the Adjudicator finds it is not, the WRC complaint of 7 February 2021 clearly constitutes a request that the Respondent to take steps to facilitate her returning to work.
3. Positive steps that should have been taken by the Respondent after 7 February 2021 could have included having her medically assessed and arranging a meeting with her to discuss her capacity to work, taking account of her disability. None of these steps were taken by the Respondent in advance of this complaint on 22 March 2022.
4. The time bar point has no relevance when the failure to take positive steps if the breach is ongoing and continued after February 2021. The first positive step by the Respondent to facilitate the Complainant’s return to work was an invitation dated 20 June 2022 to attend a Medmark assessment in July 2022 (five months after the first WRC complaint was received) and a meeting with Alan King in September 2022 (seven months after the first WRC complaint was received.)
Summary of Respondent’s Case:
The Respondent defence is as follows:
Penalisation complaint defence
1. The complaint of penalisation is out of time because the Complainant has failed to prove that a prohibited act within the meaning of 2005 SHWW Act occurred within the 6 months prior to the issue of this complaint (on 22.3.2021.)
2. The Complainant has failed to prove that the alleged adverse treatment occurred as a result of the raising of a grievance against the Complainant’s manager.
3. The failure to deal with her grievance from March 2017 onwards arose in circumstances where the Respondent solicitors suggested on 20 March 2020 that her grievance be investigated under the Respondent’s Bullying and Harassment policy but the Complainant’s solicitor objected to this by letter of 27 March 2017 advising that this would cause her anxiety.
4. The advice of Mr. Ormonde was that an investigation of her grievance while she was on sick leave was objected and this objection was not altered over time. As she continued to be on sick leave it was reasonable for the Respondent to assume that, in the absence of being advised to the contrary, that the objection to an investigation being conducted - which would require the participation of the Complainant – was being maintained.
5. Consequently the assertion that there is a continuing breach cannot be made and - apart from other defences to this complaint (inter alia; that there was no adverse treatment or detriment or that the allegations of detriment preceded the alleged prohibited act) the main defence raised by the Respondent is that the penalisation complaint is out of time.
Discrimination complaint defence
6. As in Adj 31919, for the purpose of this Adjudication hearing only, because the Complainant continues to suffer from ongoing stress and anxiety, the Respondent conceded a conditional acceptance of the assertion that Complainant suffered from a disability. The condition of this being that if the matter is appealed or comes before another forum that no argument of estoppel or other similar argument to prevent the Respondent to rely on this preliminary point would be asserted on behalf of the Complainant, which the Complainant’s legal team accepted.
7. The complaint of discrimination (failure to make reasonable accommodation to permit the Complainant’s return to work) is out of time because no evidence of a discriminatory act during the 6 months prior 22 March 2021 has been proven.
8. In respect of this complaint the Adjudicator is required to address the following questions
(a) did the Respondent know about the Complainant’s desire to return to work after 7 February 2021 and
(b) if so was the Complainant fit to work and
(c) if not, what efforts was the Respondent obliged to make and has there been a failure to make reasonable accommodation for the Complainants disability since February 2021?
9. In so far as the complaint of discrimination occurring before the issue of the first complaint on 7 February 2021, the defence is that claim is statute barred and/or should fail for want of proof of prima face discrimination because the Respondent was not informed of the Complainant’s desire to return to work between 4 March 2017 and 7 February 2021 when the first complaint was brought in February 2021 so there can be no failure to make reasonable accommodation when the request for reasonable accommodation is not sought. In respect of prima facie proof of discrimination the Complainant has been unfit for work since March 2017 and in such circumstances the Respondent is not under a duty to query this medical opinion or to take steps which would require the Complainant to return to work where did not request it. The full detail of the defences raised to this first complaint are more comprehensively set out in full the section entitled Summary of Respondent’s case in the decision in Adj 31919.
10. Insofar as the Complainant contends that from 7 February 2021 until this complaint issued on 22 March 2022, the Respondent then being on notice of the Complainant’s wish to return to work, failed to take steps to facilitate this, the Respondent contends firstly that the service of a WRC complaint of discrimination is not a request to return to work and secondly that even if it could be construed as such, the Complainant was unfit for work in March 2022 and remains unfit for work since.
11. Therefore even if the 7 February 2021 complaint form is construed as a request to return to work (which the Respondent denies) even if she desired to return to work, she is not fit to do so and the Respondent’s duty to be proactive in reasonably accommodating her disability does not extend to suggesting a return to work when she is not fit to do so.
12. The Complainant accepted in her evidence that she has been certified as unfit for work since March 2017. She was unfit when her first complaint issued (in February 2021.) Her unfitness continued for the period between February 2021 to when this complaint issued in March 2022.
13. It is not a failure to make reasonable accommodation to fail to engage with an employee with a view to return to work when the employee is not able to work.
14. The Respondent submitted that reliance on Nano Nagle v. Daly 2019 30 ELR is misplaced insofar as the duty to make reasonable accommodation for disability only arises if (a) an employee has expressed a desire to work (and the Respondent denies that the February 2021 WRC complaint constituted such a request) and (b) that the Complainant is declared fit to work. Following Mr. Lowey’s assertion at the hearing on 18 May 2022 that the Complainant wished to return to work the Respondent took steps to have her medically assessed, writing to her on 20 June 2022 to invite her to an Occupational Health Assessment which took place on 5 July 2022, following which she was found to be unfit for work.
The Respondent contends that the complaint is out of time and is without merit
Findings and Conclusions:
I am satisfied that his complaint is out of time. I am satisfied that the Complainant has failed to prove that penalisation in the form of adverse treatment occurred a result of a protected act within the six months prior to 22 March 2022 or at all. I find that the letter written by Mr. Ormonde on 20 March 2017 was, inter alia, a communication that the investigation into the Complainant’s grievance against Mr. Reidy should not take place while the Complainant was on sick leave. Given that she was on sick leave then and was still on sick leave when this complaint issued in March 2022 and given that Mr. Ormonde did not contact the Respondent to amend his position that this was not an continuing breach. I am satisfied that this complaint is out of time.
I have already considered and decided the complaint of discrimination raised by the Complainant in respect of the period March 2017 (when the Complainant first went out on sick leave) until 7 February 2021. I do not intend to repeat this decision within this complaint but rather I will consider the complaint that from 9 February 2021, following receipt of the first WRC complaint, the Respondent was on notice of the Complainant’s desire to return to work but nonetheless for a period of 14 months, until the filing of this complaint on 22 March 2022, the Respondent failed to take any steps to ascertain whether a return to work was possible and if so what work the Complainant could do.
Was the Respondent on notice of the Complainant’s desire to return to work following the issue of the 9 February 2021 complaint?
A WRC complaint is a written complaint setting out an assertion that a breach of employment rights has occurred and for which a remedy is being sought. In this case the Complainant contends that the words contained in the 9 February 2021 complaint form:
“Our Client has been out sick for an extended period and no effort has been made by the Respondent to accommodate our Client in her return to work. Full submissions to follow”
I find these words to be ambiguous. They are capable of being understood as that the Complainant wishes to return to work on a prospective basis. They are also capable of being understood as being a complaint that until that point, ie in the past, that no effort has been made by the Respondent to accommodate the Complainant in her return to work. I am not satisfied that the limited words in this complaint form were sufficiently clear to allow the Respondent, who had not heard from the Complainant in five years, that there was a continuing desire to return to work.
To decide if these words have a clearer meaning in context of inter-partes communication at this time I was furnished with two letters from the Complainant’s Solicitor. A letter dated 25 May 2020 and letter dated 3 March 2021.
The letter dated 25 May 2020 was sent by Mr. Ormonde to Hegarty and Armstrong Solicitors. This was presumably in error as these are the solicitors who act on behalf of the Respondent’s Insurer and are not the Respondent’s solicitors with whom Mr. Ormonde had actively corresponded during 2016 and 2017 in respect of the Complainant’s employment difficulties. In this letter, which was sent by email and in respect of which the Respondent say they never saw until after the second Adjudication hearing on 18 May 2020, Mr. Ormonde asks how the Respondent intends to facilitate the Complainant’s return to work. I accept that this is described prospectively.
The second letter is to Mr. Reidy directly and is dated 3 March 2021 in which Mr. Ormond asks, following receipt of the WRC complaint of 7 February 2021 does the Respondent intend to instruct Hegarty and Armstrong Solicitors to defend the WRC proceedings. This letter does not state that the Complainant requests a return to work and therefore for the purpose of this consideration I am setting it aside.
Having considered my notes in respect of the first WRC hearing on 15 March 2022 I am satisfied that it was not asserted during that hearing that the Complainant wanted to return to work. Having considered my notes in respect of the second WRC hearing on 18 May 2022 I note that Mr. Lowey claimed for the first time that the Complainant wished to return to work and that the discrimination complaint was a continuing one.
I accept that the letter of 25 May 2020 was probably sent by Mr. Ormonde and while I understand that Hegarty and Armstrong have since advised the Respondent solicitors that they never received this email, they did not attend the WRC hearing on 19 September 2022.
I am inclined to take the Complainant’s evidence at its height and I consider that the receipt of the 9 February 2021 WRC complaint together with the letter of 3 March 2021 that the Respondent should have been aware that the Complainant wanted to return to work when this complaint issued on 22 March 2022. I accept that no steps were taken by the Respondent between 7 February 2021 and 22 March 2022 to engage with the Complainant.
Consequently I find that the Respondent’s contention that this complaint is out of time does not succeed.
Was there failure to make reasonable accommodation?
I am satisfied that even if the Respondent were aware that the Complainant had a desire to return to work on 22 March 2022 that she was incapable of doing so. Her certified unfitness for work was not tempered with the possibility of a return on lighter or alternative duties. It was comprehensive finding that due her continuing illness she was unable work. In light of this I find that the Respondent was not under the duty, as asserted by the Complainant, that the Respondent should look behind that medical opinion or come up with a work proposal that had not been suggested by the Complainant. I do not accept that the Nano Nagle authority can be relied on to find that where an employee has been certified as unfit for work, that an employer should seek to engage with him or her to see what work they might be able to do. If such an approach were made at a time of acute illness this could be ill-received by an employee on sick leave, as Mr. Ormonde was alert to in March 2017. Such effort could be regarded as oppressive conduct or insensitive to the likelihood that when one is sick one need to be left alone in order to allow recovery to take place.
I am satisfied that this complaint is not out of time but I am satisfied that the Complainant has failed to establish a prima facie case of discrimination.
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-00049275-001 (Discrimination) I find that the Complainant was not discriminated against
CA-00049275-002 (Penalisation) I find that this complaint is out of time
Workplace Relations Commission Adjudication Officer: Emile Daly