Complainant

Respondent

Parties

Derbhala  Dwyer

Avista clg

Representatives

SIPTU

 Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00049277-001

22/03/2022

The complainant worked as a member of care staff with the respondent from in or around 2006. 

The complainant was diagnosed with multiple sclerosis in 2016.

Following a referral to the respondent’s occupational health service provider in June 2021, the complainant was certified as unfit for unrestricted duties. 

The complaint is of disability discrimination and that the respondent failed to provide reasonable accommodation over an 18-month period from June 2021 to December 2022.  

The complainant worked as care staff with the respondent from in or around 2006.  Following the complainant’s multiple sclerosis diagnosis in 2016, she sought to look after herself as best as she could.  The respondent facilitated her request to reduce her working hours to 15 hours/2 days per week. 

During Covid-19, the respondent’s day services, which is where the complainant was working, were operating remotely.  The complainant was cocooning at the time and the respondent facilitated the complainant with a working from home arrangement whereby she co-hosted online sessions for service users and undertook administrative work.  The complainant returned to the workplace in June 2021.  Within a week or so of being back in work, the complainant was referred to the respondent’s occupational health and was deemed unfit for unrestricted duties.  The complainant remained out of work from 17 June 2021 until December 2022.  The complainant struggled with this and was keen to return to work. 

It was submitted that emails from May 2021, prior to the complainant’s return to the workplace, evidence characteristics of a disability having been imputed to the complainant by the respondent notwithstanding the complainant not having yet attended at the workplace.  It was further submitted that had the respondent addressed any concerns by way of having the complainant assessed before she returned to work, the complainant could have remained working from home.

The respondent undertook various workplace assessments however these did not involve consultation or engagement with the complainant.  It was submitted that the focus of the assessments was on what the complainant could not do rather than identifying what she could do.  In terms of requests for accommodations for the complainant, the respondent relied on its service level agreement with a third party and funding arrangement constraints.

Summary of the complainant’s affirmed evidence

The complainant was out of work on sick leave for a period in 2020 due to a broken ankle.  She returned to work remotely in January 2021 as her medication put her in a very high-risk category in relation to Covid-19.  Her remote working involved 10 hours per work on the e-hub which provided classes for day service users and 5 hours administrative work per week, attached to the Thurles day service.   

The complainant returned to the workplace in Thurles on 2 June 2021 following receipt of her second Covid-19 vaccination and after liaising with her Area Manager.  The complainant did not meet with management before her return to the workplace although she did have a telephone assessment with the respondent’s occupational health provider, the outcome of which was to certify her fit to return to the workplace after receipt of her second Covid-19 vaccination.  The complainant did not have a return-to-work meeting but there was an information meeting about Covid-19 guidelines.   On the complainant’s return to the workplace, she was delegated off-site duties attending to day service users.  On 11 June 2021, the complainant was approached by the Area Manager who advised that he was concerned about her safety at work.  An appointment with occupational health was arranged for 17 June 2021.  The complainant remained in work until 16 June.  The complainant was advised that off-site duties were not happening on 16 June 2021 and instead she carried out activities with 3 service users on Zoom and one of the service users was dropped off at the centre.  The complainant had been due to attend training on 18 June 2021 however she was advised by her Line Manager that the training was not going ahead. 

The complainant was deemed unfit for work by the occupational health physician on 17 June 2021 and the complainant telephoned the Area Manager to let him know.  The complainant made an appointment for an urgent review with her own GP on 21 June 2021.  There was a difference in opinion between the occupational health physician and the complainant’s GP in relation to her fitness for work.

The complainant remained out of work.  She felt disheartened and completely let down.  She had been delighted to return to work in 2021 and was very upset for a long time at the way she was treated by the employer.  She did not feel that there was anything she couldn’t do in her role and was always honest.  The complainant was both financially and emotionally impacted by the respondent’s treatment of her. 

While she was out of work, the respondent carried out three workplace assessments.  The complainant was not contacted and was not involved in these assessments.

The complainant was paid until 17 June 2021, and then received no pay until the outcome of a critical illness application in September 2021.  This resulted in her receiving pay backdated from 17 June 2021.  The first payment she received after 17 June 2021 was at the end of September 2021.  The respondent did not make the complainant aware that she could apply for the critical illness payment, she found this out from her union.

The complainant advised that she had no contact from her Area Manger or line manger during the time she was out of work but received text messages and emails from HR in relation to occupational health appointments.  She said that her GP was providing certs during this time which the complainant was submitting to HR and her Area Manager.  The complainant did not receive copies of the workplace assessment reports.

The respondent provides supports to persons with intellectual disability in Dublin, Limerick and North Tipperary/Offaly.  Each area is funded separately by the Health Service Executive (“HSE”) and operates autonomously in the daily delivery of services.

The complainant was a permanent member of the respondent’s care staff. The complainant’s medical condition meant it was necessary for her to cocoon during Covid-19 and the complainant was facilitated within a work from home role and her duties were reassigned.  The complainant was assessed by occupational health based on her cocooning status in May 2021 and was deemed eligible to return to the workplace.  The complainant returned to her core role in the workplace in May 2021.

The complainant was referred for an occupational health assessment in June 2021 after her manager observed her being unsteady on her feet while supporting individuals attending the day service.  An occupational health report dated 17 June 2021 concluded that the complainant was unfit to work.  This remained the case following a further occupational health assessment in August 2021.  An occupational health assessment in October 2021 concluded that the complainant may be fit to work in a restricted role if it could be accommodated and a formal risk assessment of the proposed role would be appropriate once the complainant returned to work. 

The respondent completed an internal risk assessment in November 2021 to review any available, suitable alternative roles.

The respondent engaged a consultancy firm to carry out a group risk assessment of day services in March 2022 and to support with identifying a suitable alternative role for the complainant.  The focus of the assessment was the degree of physical tasks that needed to be carried out in each day centre and what physical hazards might be encountered.  It determined that there were unacceptable risks to an employee with reduced physical mobility and/or diminished or compromised physical ability.  A review of the respondent’s residential services to be conducted in June 2022 was not completed and the respondent escalated this issue within the consultancy firm.

An occupational health referral in May 2022 advised that the complainant remained unfit to return to her core role although she may be deemed fit to return to some duties in a restricted capacity. 

Following a meeting between the complainant and respondent on 23 November 2022, a restricted role was identified for the complainant in December 2022 based on a change in the staffing hours of two employees.

An occupational health assessment in December 2022 concluded that the complainant was fit to return to work in an administrative role with an ergonomic assessment of her workstation and appropriate accommodations.  The complainant’s GP provided a fit to return to work certificate from 2 January 2023. 

The respondent submitted that the complainant fails to establish a prima facie case of discrimination and it fully denied the complaints against it.

Summary of Evelyn Ryan’s affirmed evidence

Ms Ryan is HR Manager with the respondent and responsible for the Limerick/Roscrea region.

She confirmed that during 2020, the respondent’s day service was operating remotely with supports for service users being offered online.  The respondent was in a position to facilitate the complainant in a remote role hosting zoom sessions and monitoring online safety.  

The HR Manager outlined her role and engagement with the complainant in terms of supporting the complainant in a return to the workplace and during her subsequent absence; she requested the local team to arrange for the occupational health referral, reviewed the reports and linked in with the complainant in terms of advising her about appointment arrangements and providing the complainant with copies of reports.

Regarding the complainant’s absence, the respondent was following occupational health recommendations, for example a balance assessment was carried out.  The findings of the October 2021 occupational health report were more conclusive, referring to a formal assessment of the complainant’s mobility and a formal risk assessment of any role proposed.   The complainant was assessed by her own GP and the respondent’s occupational health service provider as fit to return to work in December 2022 and January 2023.  The formal assessment of mobility will happen on the complainant’s return to work to an administrative role in May 2023 and the complainant will also undertake a manual handling training course.

The respondent carried out an internal review of its day services programme in November 2021.  It also arranged for an external independent review of its Tipperary and Offaly day centres to ensure that nothing had been missed.  Both reviews concluded that there was no capacity to support the complainant’s return to work and these reports were sent to the complainant’s union representative.  The HR Manager attended a follow-up review meeting in November 2022 with the complainant and her union representative.   This was a positive meeting and a solution had been reached regarding the complainant’s return to work. 

The respondent did its best to follow the occupational reports, it linked in with the complainant’s consultant and carried out internal reviews.  It acknowledged that it can be challenging for staff out on long-term absence who want to get back in to work.

The witness was asked in cross-examination about emails from May 2021, before the complainant’s return to the workplace, which referred to the occupational health review of the complainant’s Covid-19 risk status and the complainant’s ability to work.  The witness said that it was reported to her that the complainant had been seen unsteady on her feet. 

The witness was aware that the complainant had exhausted her sick pay entitlement and that she was not being paid when she applied for critical illness benefit.   The witness said the respondent circulates memos which refer to the onus being on an employee to apply for critical illness benefit.

The witness explained the delay between the June 2021 occupational health assessment and the appointment at the end of August 2021 was due to a difficulty linking in with the complainant’s consultant.  The procedure when there are differing medical opinions is to ask the professionals to converse with each other.  Subsequently, the respondent received certificates from the complainant’s GP that the complainant was unfit.   The consultant’s report from September 2021 issued directly to the respondent’s occupational health service provider.  

On foot of the September 2021 occupational health assessment report and the request from the complainant’s union representative for reasonable accommodation for the complainant, the HR Manager arranged a further occupational health assessment.  The respondent’s service manager was at this time looking in the background at how the complainant could be facilitated with a return to work.  The witness was unable to say whether he had contacted the complainant in this regard.   The witness outlined how the service manager went about compiling his report and what he would have looked at; he requested the complainant’s curriculum vitae and was aware of her IT skill set.

The witness obtained approval for the external review and contacted the consultancy firm in December 2021 regarding their availability.

The complainant’s role is fully funded by the HSE.    Funding is based on the number of service users and the profile of the service user determines staffing requirements.

The respondent did consider the complainant doing the working from home role from when she was cocooning but the remote service in which she had been involved was being phased out as on-site day services were resuming.  It was put to the witness that the remote service was not phased out until August 2021, the witness could not confirm this.

The complaint to the WRC concerned discrimination on grounds of disability and a failure to provide reasonable accommodation and was received on 22 March 2022. 

The focus of the case presented on behalf of the complainant was that the respondent had failed in its obligation to provide the complainant with reasonable accommodation over an 18-month period, namely from June 2021 until in or around December 2022.

It was common case that the respondent identified an administrative role for the complainant in December 2022.  This role came about following two other staff members requesting a reduction in hours.  An occupational health assessment in December 2022 concluded that the complainant was fit to return to work in an administrative role.  The complainant’s GP confirmed the complainant was fit to return on 2 January 2023.  At the time of the hearing in April 2023, the complainant had not returned to work with the respondent because of approved annual leave and subsequent sick leave due to a broken ankle.  It was anticipated that the complainant would return to work in the administrative role in May 2023 and that there would be a mobility assessment and any necessary accommodations put in place on her return.

It was accepted, and I am satisfied, that the complainant has a disability within the meaning of the Employment Equality Acts 1998-2015 (the “Acts”).

Discrimination on grounds of disability occurs where a person with a disability is treated less favourably than another is, has been or would be treated, where the other person is a person without a disability or a person with a different disability. 

Cognisable period

Section 77(5) of the Acts provides, in relevant part, as follows:-

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) …”

In this case, the complaint was received on 22 March 2022 and accordingly the cognisable period is the 6-period period from 23 September 2021 to 22 March 2022.  Alleged discriminatory acts occurring after the 22 March 2022 are not comprehended by this case in terms of seeking redress for same.  

I have considered the application of section 77(5) of the Acts to acts complained of before the previously mentioned 6-month period and will return to this later in the decision.

Reasonable accommodation

Section 16 of the Acts provides in relevant part as follows:-

“3(a) … 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;”

Burden of Proof and Prima Facie Case

Section 85A of the Acts provides:-

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

Factual Matrix

The respondent was aware of the complainant’s disability.  It was on foot of the respondent’s referral of the complainant to its occupational health provider in June 2021 that the complainant was deemed unfit to remain at work due to symptoms associated with her medical condition.  It appears that at this stage the opinion of the complainant’s own GP was that she was fit for work.  The occupational health opinion in August 2021 was that the complainant was unfit to return to unrestricted duties and that there was a strong possibility that she would remain unfit to return to unrestricted duties indefinitely.  The August 2021 report concluded that the complainant was fit to engage with the respondent to explore her long-term options.  The August 2021 report also references the occupational health physician contacting the complainant’s specialist to outline occupational health concerns and to obtain further information in relation to the complainant’s status and prognosis.   The specialist’s opinion was provided to the respondent’s occupational health physician on 29 September 2021.  It is of particular note that the specialist expressly queried whether there were non-client directed areas the complainant could work or whether she could work in her role with accommodations. 

As outlined above, the cognisable period in respect of this complaint is the period 23 September 2021 to 22 March 2022.  The evidence in respect of this period is that the complainant’s specialist and the respondent’s occupational health physician had both expressed their opinions regarding the complainant’s fitness and raised the matter of reasonable accommodation with the respondent.   The occupational health report of 29 September 2021 stated “I remain open to review Ms Dwyer to provide an update on her fitness for work or to assist in the consideration of reasonable accommodation.”  The complainant’s union representative contacted the respondent’s HR Manager on 30 September 2021 and confirmed that the complainant was seeking to return to work as soon as possible.  A discussion regarding a return to work and reasonable accommodation was sought at the earliest opportunity.  There were further emails from the complainant’s representative to HR in November and December 2021 seeking an update on an internal review carried out by the respondent and requesting specific accommodations so that the complainant could return to work.  I note the respondent’s evidence that the contact between HR and the complainant at this time concerned arranging occupational health appointments and the complainant’s submission of medical certificates.  The complainant remained out of the workplace and a discussion between HR and the complainant’s union representative did not in fact take place until November 2022. 

Based on the foregoing, I find that the complainant had established a prima facie case of discrimination contrary to the Acts and the burden of proof shifts to the respondent in accordance with section 85A of the Acts.

The respondent’s duty

Section 16 of the Acts prescribes the nature and scope of the duty imposed on an employer in respect of an employee who has a disability.

In essence a person with a disability is fully competent and capable of undertaking the duties attached to a job if the person could do so on being provided with appropriate measures/reasonable accommodation.  An employer has a mandatory duty to take appropriate measures where needed in a particular case, provided that such measures do not impose a disproportionate burden on an employer.  A disproportionate burden is evaluated by taking into account financial and other costs, the scale and financial resources of a business and the possibility of obtaining public funding or assistance. 

The requirement to provide reasonable accommodation, and the particular measure of redistributing an employee’s responsibilities, was comprehensively considered by the Supreme Court in Nano Nagle School v Daly [2019] 3 IR 369.   The Supreme Court clarified that the redistribution of duties may be an appropriate measure and that the relevant test concerning the provision of reasonable accommodation is one of reasonableness and proportionality.  As per MacMenamin J:-

“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 re-designate or create a different job to facilitate and 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.”

In disputing any discrimination on its part, the respondent submitted that there was regular communication with the complainant or her representative during the complainant’s absence, the respondent followed the occupational health advice and that the delay in finding a suitable alternative role for the complainant was due to challenges in the sector.

It is clear from the Supreme Court’s decision in Nano Nagle that an employer must engage in some form of exploratory action to ensure compliance with its duties under section 16.  This may involve consultation with the employee, independent assessment or some other step for compliance.

I accept that the respondent sought to comply with its duty towards the complainant by referring her to occupational health, seeking the opinion of the complainant’s specialist and requisitioning internal and external reviews. 

I am not however satisfied that such actions were sufficient to discharge respondent’s obligations in this case for the following reasons.

The complainant’s role with the respondent as care assistant involved providing direct support to individuals using the respondent’s day service.  My understanding is that the service users supported have moderate, severe or profound intellectual disabilities. 

Both the complainant’s specialist in September 2021 and the respondent’s occupational health physician in October 2021 raised the matter of the complainant’s fitness to work in a restricted role or in her role with accommodation.   The occupational health physician in the same report expressed the opinion that the complainant was not fit for a role engaging directly with service users.   I do not find that this amounted to an assessment or opinion that no appropriate measures could be taken or that reasonable accommodation could not render the complainant fit given that, within the same report, reference is made to the possibility of the complainant working in a restricted role and recommendation is made for the complainant to complete a formal manual handling training course and assessment for certification. 

I have carefully considered the respondent’s actions on foot of the medical and occupational health reports from September and October 2021.

The respondent’s evidence was that reviews of day services and residential services concluded that there was no capacity to support the complainant’s return to work. 

An internal report of the respondent’s day services dated 3 November 2021 is expressed to be a report regarding the complainant returning to the workplace.  Whilst the manager who compiled the report was not present at the hearing, I note that the rationale for the report was stated therein as being to assess the complainant for any duties which could be carried out, including a review of administrative duties, 2:1 working or working from home.  However, I am not satisfied that there was in fact any assessment of the complainant for duties that could be carried out and I find that this matter was not clear from the medical or occupational health reports.  The complainant or her union representative were not involved in any way in the review or compilation of the report.  It was emailed to the complainant’s representative following her request for same in mid-November 2021.

I note the report’s conclusion that the manager could not find a suitable position to support the complainant’s return to work and would remain cognisant of the complainant’s situation should anything become available.  I note that this conclusion was reached after finding that there were no administrative roles available, no scope for the complainant to work alongside another staff member because of the funding model which is based on the needs of the service user and the complainant not being eligible as a member of care staff for the working from home scheme.  It appears from the report that its focus was on identifying a suitable, alternative, available role for the complainant.  In this regard, I note the references to how new roles could not easily be created because of a service agreement and how a business case must be made to create a new role. 

A similar internal report dated 15 December 2021 was completed in respect of the respondent’s residential services.  The manager who compiled the report did not attend the hearing.  On my review, the focus of the report was similar to the day services report, namely to identify suitable, alternative available positions for the complainant, of which there were none.   This report also referred to the service agreement, funding model and how new jobs are created.   Again, neither the complainant nor her union representative was involved in the compilation of this report and there was a dispute between the parties as to when this report was provided to the complainant.

Whilst the internal reports referred to making a business case for new posts or additional funding, there was no evidence of any assessment of the financial and other costs or possibility of public funding or assistance to provide reasonable accommodation for the complainant.

On 21 February 2022, the respondent requested an external company to review its day centres in Tipperary and Offaly in relation to occupational risk.  A report dated 23 March 2022 issued to the respondent which detailed the physical hazards and tasks involved in the role of care staff and concluded that in relation to an employee who has reduced physical mobility and/or diminished or compromised physical abilities, that the risks presented were unacceptable.

This report issued to the respondent in or around the same time as the within complaint was referred to the WRC.

I am not satisfied that the respondent can rely on the occupational health reports it received in relation to the complainant to rebut the inference of discrimination and to discharge its duty under section 16 to explore and, where appropriate, make reasonable accommodation for the complaint.  I consider it significant that the occupational health report from October 2021 referred to a formal assessment of the complainant’s mobility as being appropriate along with completion of a manual handling training course and assessment for certification, and that these measures are reiterated as recommendations in the occupational health report in May 2022.  The evidence before me indicates that a balance evaluations test was ultimately completed in June 2022.

In circumstances where the occupational health report at the material time, namely October 2021, stated that the complainant was not fit to return to unrestricted duties and expressed the opinion that she may be fit to work in a restricted role if it could be accommodated, I find that the employer was required to assess and consider what a restricted role might look like for the purpose of identifying any measures that could be taken to facilitate the complainant’s return to work. 

There was no evidence before me of the respondent having made additional enquires to occupational health on foot of the October 2021 report, having engaged with the complainant regarding appropriate measures, or having assessed what the complainant could or could not do so that it could properly consider a restricted role and appropriate measures.

The respondent’s approach following the October 2021 was to request two managers to review their respective areas in terms of identifying a suitable, available role.   In my opinion the reviews carried out were limited in scope and cursory in nature.   I do not find that there was any consideration given to what the complainant could or could not do or of occupational risk, let alone any assessment or examination of what a restricted role might look like or appropriate measures.

In relation to the risk assessment carried out by an external company in or around February/March 2022, again there does not appear to have been any assessment or consideration of what the complainant was capable of doing, whether adaptations could be made or whether the complainant would be capable of performing the adapted role.

The respondent’s submission that it engaged with the complainant at all times is not evident in the six-month period before referral of the case to the WRC.  There was no evidence of any engagement with the complainant on the medical or occupational health opinion, the internal reviews carried out by the respondent, or the external review conducted by a third party.  In the particular circumstances of this case, I find that the respondent’s failure to consult with the complainant on the substantive matter of her disability and reasonable accommodation meant that it could not discharge its obligations under section 16 of the Acts and in particular in relation to the assessment of appropriate measures. 

On the evidence before me, I find that the complainant was discriminated against in the 6-month period prior to referral of her complaint to the WRC by reason of the respondent’s failure to discharge its responsibilities under section 16 of the Acts. 

In light of my finding above and having regard to section 77(5) of the Acts, I have considered the matters complained of in and around the complainant’s return to work in June 2021 and following her assessment by occupational health as unfit to work on 17 June 2021 on the basis that they are sufficiently connected with the discrimination that occurred within the 6-month cognisable period. 

The complainant returned to the workplace on 3 June 2021 upon receipt of her second vaccination and at a time when the respondent’s onsite day services were resuming.  She had been cocooning in line with public health guidance prior to her return to the workplace.  While cocooning she was facilitated with working from home; 10 hours work related to the respondent’s e-hub and 5 hours administrative work.   Following her return to the workplace, the respondent informed the complainant she was being referred to occupational health.  I am satisfied that this was an appropriate response in circumstances where the respondent had concerns about the complainant’s mobility and do not find that discrimination can be inferred from such a course of action. 

The outcome of the referral was that the complainant was deemed unfit for work for more than one month.  It is apparent from the evidence that there was initially a difference in opinion between the complainant’s GP and the occupational health physician on the matter of the complainant’s fitness for work.  I accept that the procedure in such circumstances was that outlined by the respondent, namely for the relevant professionals to liaise with each other.  In this case, this gave rise to seeking the opinion of the complainant’s specialist.  That opinion was provided on 29 September 2021; it acknowledged that concerns relating to the complainant’s ability to perform her role are within the expertise of occupational health and the respondent and raised the matter of reasonable accommodation.

I am in no doubt that the complainant was keen to continue working and requested work in the period from June 2021.   The respondent moved the complainant to sick leave on foot of the opinion of the occupational health physician in June 2021.  It explained the delay in addressing the complainant’s sick leave and her desire to return to work from June 2021 as being due to the difference in medical opinion and waiting for the specialist’s opinion.   

I note the outcome of the occupational health report in June 2021 was that the complainant was “unfit for more than 1 month”, and in August 2021, that she was not fit to safely return to unrestricted duties at present.  Furthermore, I note that it was common case that the complainant was at that stage submitting medical certs to the effect that she was unfit for work.

On review of the respondent’s submission and the internal report on day services, I am satisfied that the respondent’s remote day services ceased in August 2021.  The respondent’s evidence was that consideration had been given after the complainant was assessed as unfit on 17 June 2021 to the complainant returning to the remote work she had being doing up until 3 June 2021.  There was no explanation as to why this measure was not put in place for the period from June to August 2021 to enable the complainant to participate in employment.  Accordingly, I am unable to find that this was a reasonable and proportionate response on the part of the respondent to the provision of this form of reasonable accommodation.  There was no other evidence of consideration, or the provision of reasonable accommodation for the complainant in the period from June 2021.  In such circumstances, I find that the respondent failed in its duty under section 16 of the Acts to enable the complainant to participate in employment.

For completeness, section 16 of the Acts does not oblige an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been employed.  At some point after the complainant underwent a balance evaluations system test in June 2022, the occupational health physician gave its opinion that the complainant was medically unfit for her substantive role as a care worker and would remain so in the long-term and that she was fit for a sedentary role such as an administrative role.  The respondent in this case did ultimately identify an administrative role for the complainant and accommodation in this format has been arranged to enable her to return to work.  The complaint before me was not, and nor was there any evidence of, less favourable treatment in and around the respondent’s identification of this alternative role for the complainant.  The June 2022 outcome does not however negate the section 16 obligation of the respondent at the material times comprehended by this claim for redress.

Redress

Further to my findings above, I consider an award of compensation to be appropriate in the circumstances of this case.

I accept how upset the complainant was at not working and her evidence that it had a negative impact on her both financially and emotionally.    Whilst she received back pay in respect of the period from June to September 2021, she had to manage this period without any income.  The complainant did ultimately receive pay under the sick leave policy in respect of sick leave and critical illness at full and half pay from 17 June 2021 up to May 2022, but obviously this impacts the complainant’s sick leave record and entitlements going forward.  It was submitted on behalf of the complainant that the complainant’s financial loss in respect of the 18-month period from June 2021 to December 2022 was €12,000.00.  It is appropriate to recall that the complainant’s contracted hours of work were 15 hours per week.

In accordance with section 82(1)(c) of the Acts, I award compensation of €10,000.00 to reflect the effects that flowed from the discrimination in the cognisable period, June 2021 to March 2022.  This award is not in respect of remuneration or arrears of remuneration.  

In accordance with section 79 of the Employment Equality Acts 1998-2015, I decide that the complainant was discriminated against on grounds of disability as set out above. 

In providing for redress in accordance with section 82 of the Acts, I order the respondent to pay the complainant €10,000.00 in compensation for the effects of the discrimination that occurred.

Disability discrimination – Reasonable accommodation – Cognisable period