ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00035670

Parties:

	Complainant	Respondent
Parties	Deirdre O'Grady	Health Service Executive

Representatives

SIPTU

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00046872-001	27/10/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00046872-002	27/10/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00046872-003	27/10/2021

Date of Adjudication Hearing: 16/12/22, 29/8/22,20/03/2023

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following 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.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. Where submissions were received, they were exchanged. Evidence was given under oath/affirmation by the complainant and Ms Liz Cloherty Assistant Organiser SIPTU witness for the complainant and Mr Joe Barrett Catering Manager for the respondent. Mr Damian Mullarkey was also in attendance for the respondent.

Background:

The complainant commenced employment in 2002 and was appointed Chef Grade 1 and worked in Tuam until redeployment to Ballinasloe in July 2020 during Covid pandemic. The complainant submits that the respondent failed to provide reasonable accommodation in relation to access to and participation in work specifically in payment of travel expenses and that the respondent directly and indirectly discriminated against her in relation to travel expenses and that the respondent failed to provide reasonable accommodation in relation to her job duties and her disability.

Summary of Complainant’s Case: CA-00046872-001

The complainant submitted that the respondent failed to provide reasonable accommodation for her disability in relation to access to and participation in work, specifically in payment of travel expenses.

The complainant commenced employment in 2002, and later took on the role of Chef Grade which involved managing the kitchen and also working a hybrid role, with half her time working in the kitchen and half the time doing admin work in the office. Around 2009 she moved to Tuam where she continued to do a mix of office work and kitchen work, as a Chef Grade. In 2016 the complainant had to take time off work due to cancer. She underwent chemotherapy and after approximately 18 months she returned to work in 2018. Due to the chemotherapy, the complainant suffered neuropathy of her feet. Neuropathy is damage or dysfunction of one or more nerves that typically results in numbness, tingling, muscle weakness and pain in the affected area and it was submitted that according to the medical advice which included Occupational Health and her own doctor, Ms O’Grady was to avoid standing for long periods, wear open-toed sandals and avoid hot areas as much as possible. It was also submitted that the complainant was advised that she should avoid small country roads when driving as much as possible and use motorways, in order to minimize use of the clutch, breaks etc.

When the complainant returned to work in 2018 her employer agreed that she would work full-time in the office in Tuam and this work involved, among other things risk assessments, ensuring compliance with HAACP requirements, rostering, ordering, accommodating food allergies etc. During the Covid-19 pandemic, the complainant as with many of the respondent’s staff were redeployed to different locations and duties and in May 2020 the complainant and three other staff were informed by their manager Mr Joe Barrett that they would need to be moved temporarily to Ballinasloe as part of this redeployment. As part of this agreement, the respondent would pay travel costs to those who had to travel extra distances due to the redeployment.

The complainant made her manager aware of the medical advice regarding using a motor way and was assured that after the move, the respondent would pay her any additional costs incurred by using motorways. In addition, she was advised that she would be working in the office in Ballinasloe, even if it might take a few weeks to sort out. She moved to Ballinasloe on 1st July 2020 and ever since then she has continued to work full-time in the kitchen. A medical report from her gp dated 10/08/2020 outlines that the complainant

“…finds driving an issue. When travelling on longer journeys or where allowed she finds it of benefit to use cruise control. I would recommend she do this if it helps with pain and discomfort during journeys. As it is much easier to use cruise control on motorways it is reasonable to advise that she use motorways when possible”.

An OH report dated 09/11/2020 outlines that the complainant

“has tried every option available regarding treatment, has been very proactive in my opinion and left no stone on (sic) unturned in trying to improve her symptoms. She also has difficulty with walking and tells me that most of the time she cannot wear shoes due to her symptoms; this will need to be taken into account in finding a suitable and safe role for Deirdre going forward. I recommend that you meet with Deirdre and discuss and review how you can accommodate and manage risks appropriate so that she can remain in the workplace safely”.

The complainant raised a grievance in relation to this aspect of her complaint and she was advised on 11/05/2021 that her stage II grievance was not upheld as the

“financial regulations do not allow approval for same as reimbursement for mileage is for the shortest journey.”

It was recommended that discussions take place with management regarding her current working arrangements to discuss alternative arrangements and additional training if needed. On 27/07/2021 the complainant was advised that her stage III grievance was not upheld as there was considered to be

“no basis for the setting aside of the Terms and Provision of the national Financial Regulations (applicable to all HSE employees) or too (sic) the findings/recommendations of the Stage 2 determination”

She has not carried out office work despite management’s promise and despite the medical advice. When working in Tuam the complainant lived approximately 7km from her place of work, however, her travel distance from home to Ballinasloe is 75km using the motorway, or 59km using the smaller roads. As a result of this change, she has adhered to the medical advice and used the motorway. While the respondent has paid her travel expenses calculated based on the shortest route via google maps, which is the smaller roads, the complainant has incurred costs each day due to the longer distance and the motorway tolls. This has resulted in travel cost as of 22/08/2022 of €5,584.35.

Since 01/07/2020 Ms O’Grady has suffered from spasms at night as a result of the long drive, being on her feet all day at work, having to prepare hot food each day and having to wear steel toe cap safety shoes rather than open-toed shoes in the kitchen. The complainant has been unable to go for walks in the evening and the spasms have interfered with her sleep. The respondent was made aware of all of this through local discussions, the grievance process, the appeals process and through mediation.

It was submitted that the respondent failed to provide reasonable accommodation with regards to the complainant’s “access to employment”. The complainant needs to use the motorway in order to travel to her workplace, i.e. to access her place of employment, specifically by the payment of travel expenses. The complainant submitted that this would not have constituted an unreasonable burden on the employer, given the size and resources available to the HSE and given the intended temporary nature of the redeployment.

The complainant’s evidence was that she was told by Mr Barrett that whatever travel was incurred would be covered and when she queried the motorway she was told that he would sort things out for her. She said whenever she asked about this he told her it was money in the bank and that this new role in Ballinasloe was not suitable as she had been about 6 years in a hybrid role and has made efforts to get retrained. Her evidence was that there had been some meetings with the respondent since she took her claim to the WRC. She said that the respondent’s suggestion of taking extra breaks is not the solution to accommodate her conditions of employment and that she is still learning to live with her disability as during summer her feet get swollen. Her belief was, based on what Mr Barrett said, that she would get the reasonable accommodation that she had before when she worked in the office in Tuam. She did not know if a risk assessment was carried out. She said that the change in the work means that her feet are very sore after work and she cannot do other things that she used to do and it affects her sleep pattern.

Under cross examination Ms O’Grady said that she works on desserts and salads and sandwiches and that she had been told she would have an office job. She was aware of the OH report putting her in the cold area but said that the dessert area may require the making of hot custard and that she has to manage as best she can. She said OH says she should not be on her feet but she is and she does not take any extra breaks as she works with a team and that it would not be in her nature to take extra breaks and that breaks would not help matters. She denied that there is a specific cold area but that she works in the coldest section. She said she has been discharged from OH on two occasions and does not believe the OH report has been implemented. Her evidence was that she has been asking for reasonable accommodation because continuing to work as a chef is not an option for her owing to her condition. She said that for 7 of the alleged dates that Joe Barrett met with her she was not on duty and the meetings could not, therefore have happened. She said she was told by Joe Barrett she would get the money for the tolls back as she was told there would be no loss of earnings. She confirmed that she understood what financial regulations are and in answer to the question if she was aware that persons with disability can go ‘toll free’ she confirmed that she knew this and that they require an appropriate disc. She said that she is not reasonably accommodated by the respondent and said they are not doing everything that is needed. Her evidence was that she enjoys working with the people in Ballinasloe but that the work is not suitable for her disability. She confirmed her salary has stayed the same but said her expenditure has increased owing to the additional mileage using the motor way.

In response to questions from the Adjudicator Ms O’Grady said that the OH report was never referred to by the respondent during her grievance meetings. She denied that management told her to take extra breaks but said that extra breaks would not work and that she came into a different area. She said that what she is looking for by way of reasonable accommodation is for office work, not to have to wear enclosed shoes, not to be standing for long periods of time and not to be exposed to hot areas and lifting hot things. She confirmed that she retained her position as Chef Grade 1 when she relocated to Ballinasloe and that the duties she cannot do owing to her disability are done by someone at a grade below.

Evidence of Ms Liz Ms Cloherty

Ms Cloherty gave evidence that in her capacity as SIPTU official representing the complainant no meetings took place with Mr Barrett on the dates that he had submitted and that meetings had been suspended for a period of time owing to covid and there would not have been virtual meetings either. Under cross examination she confirmed that no meetings took place with her and the catering department as suggested by Mr Barrett.

Case law cited included Christina Oglesby Vs R & B Burke Catering Services Ltd, HK Danmark CaseC-335/11, A Solicitor Vs A Legal Service (ADJ-11821), Barton v Investec Henderson Crosthwaite Securities Ltd [2003] I.R.L.R. 332, Von Colson v Land Nordrhein-Westfalen.

Summary of Respondent’s Case: CA-00046872-001

It was submitted that the respondent adhered to all medical recommendations issued by Occupational Health (OH) and that all OH reports to date confirm that the complainant is fit to work and carry out assigned duties. The respondent outlined that they provide paid time to the complainant to attend OH appointments and she is reimbursed with travel mileage incurred driving from and to her relocated site in accordance with the National Financial Regulations (NFR). It was submitted that it was a matter for the complainant to decide the route that she would take and it is for the respondent to apply the rate in accordance with NFR.

The respondent submitted that their requirements for reasonable accommodation must not put a disproportionate burden on the employer and that reasonable accommodation should not impose an obligation to create an alternative job.

The respondent submitted that the complainant is not treated any less favourably than any other employee and has been provided with and availed of training opportunities. It was submitted that the complainant works in the coolest part of the kitchen in the salad area and requested breaks have been accommodated. The complainant has also been offered other work locations and it was submitted that the complainant confirmed to the respondent that she was happy working in her current work location. It was further submitted in response to the query from Mr Barrett about whether cruise control was necessary for the complainant, that OH responded on 18/11/2020

“this is beyond the remit of Occupational Health Department to advise regarding cruise control use”.

The complainant’s first grievance was submitted on 27/01/2021. The complainant was advised on 11/05/2021 that her Stage II grievance was not upheld. The complainant was advised on 27/07/2021 that her Stage III grievance was not upheld. An OH report dated 11/03/2022 does not make reference to how the complainant travels to work and makes reference to her disability impacting on her if working in hot areas.

In his evidence Mr Joe Barrett said that the move from Tuam happened very quickly during covid and resulted in having to accommodate the employees located there very quickly. He said it had been determined following assessment that working with salads was most suitable for the complainant and she was also given appropriate shoes and necessary breaks and that she could have taken more breaks. He said she got face masks and that there were also others in remission from cancer. He said that the complainant was asked what career path she wanted to pursue and she has explored doing other courses relevant in the area including food hygiene management and that she is willing to learn. His evidence was that he did not record every meeting that he had with the complainant. It was his understanding that she was happy with how the situation was handled and that he checked in with her and that she is now back in Tuam.

Under cross examination Mr Barrett said he may have got some of the dates mixed up and accepted that a meeting alleged to have taken place on 02/06/2020 could not have taken place. He also confirmed that it would appear that an alleged meeting of 14/6/20 did not take place and that he had phone calls and got the dates mixed up. He said that the alleged date of 11/7/20 was also wrong and that he got his dates mixed up. He confirmed that the complainant requested a full-time office job but that was not possible. He advised that an alleged meeting of 05/8/20 occurred on 06/8/20 and that he had made a mistake with that date. He said that 70% of her work was in the kitchen. He also advised that the date of 14/11/20 must have been a mistake and that the meeting took place but he must have recorded them wrong. He said that he never guaranteed an office to her and that he had no records to confirm that. He confirmed that he knew that the complainant would be standing for longer periods of time in the relocated position and that standing for longer periods of time was a problem for her but said that she had additional breaks if needed. He confirmed that she works with hot food in the new location but that it is minimum handling of hot food and that he knew she could not stand for long periods of time but that she is doing less days in Ballinasloe. He confirmed that the agreement for employees moving to the new location would be no financial loss but he said that this was incumbent on herself going the shorter route. He said that he queried it with OH and that they did not comment on this and said that he is not medically qualified. He did not recall saying to her that she would get the money for the longer journey back and could not recall saying that it was money in the bank. He confirmed that there were discussions and exploration of other options for her work and that they could not allow a second person in the office in Ballinasloe because of covid. He said he believed that she was required to take the most direct route. He said he thought the requirement was to travel the shortest possible route and that he did not realise that it was the shortest practical route. He said during the various recent WRC hearings he has been working to get things resolved with the complainant. He believed that working with hot food in Ballinasloe was at a minimum level. He confirmed that he never conducted a risk assessment. His evidence was that it was the complainant’s decision to choose an alternative route and his interpretation was that it was the shorted possible route and did not know what the definition of “practicable” would be. He said that with nothing was opening up during covid and there were no other options for the complainant. He denied that the complainant was doing much by way of allergy assessment and that her job was largely rostering and not risk assessments. He said he believed that she was happy and that the complainant had plenty of breaks. He confirmed that the complainant was required to wear closed shoes in kitchen but that they got that sorted and denied that she was working in a hot atmosphere and said she was working in a warm atmosphere. He said he only knew that the motorway was not going to be accepted when finance sent back her form in late 2020. He said that he had done what he could to get things resolved for the complainant and that at the last date of the WRC she was now back in Tuam and confirmed he had no details of meetings he thought he had with the complainant .

Case law cited included Nano Nagle School v Daly [2019 IESC 63, EDA2126 Monica McEntee v HSE,

Findings & Conclusions: CA-00046872-001

The complainant submits that the respondent failed to provide reasonable accommodation with regards to the complainant’s disability in relation to access to and participation in work, specifically in payment of travel expenses. The respondent accepts that the complainant has a disability namely chemo induced neuropathy but submits that the respondent’s policy requires “All official travel should be by the shortest practicable route and by the cheapest practicable mode of conveyance”, that OH was requested to make their recommendations regarding same and did not deem it necessary for cruise control to be utilised and reasonable accommodation should not put a disproportionate burden on the employer. The Complainant lodged her complaint with the WRC on the 27/10/2021.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Section 16 sets out .

(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) Insubsection (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;

Section 85A(1) of the Act provides in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 – considered evidential burden imposed on a Complainant by section 85A and held:

“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.”

The complainant must therefore establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. The Labour Court in Cork City Council v McCarthy EDA 21/2008 outlined that:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

It was established by the Court in Melbury Developments Ltd v Valpeters [2010] ELR 64, that

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

I note that the complainant and other employees were allowed travel expenses for mileage incurred driving from and to the redeployed site in accordance with the NFR. It is further noted that the complainant’s GP has recommended

“…it is reasonable to advise that she use motorways when possible”,

It was not disputed that cruise control is more appropriately utilised on the motorway and that use of the motorway would incur additional mileage. The OH report does not confirm or dispute the GP recommendation; the OH report simply has nothing to say on the matter

“this is beyond the remit of Occupational Health Department to advise regarding cruise control use”.

It seems unusual that the respondent did not seek further clarification from OH taking into consideration the GP’s report and that the respondent was paying mileage for employees, however, for some reason this did not happen. The complainant’s evidence would also appear more credible that she had been advised by her manager that she would receive the motorway mileage. Taking into consideration all the evidence and submissions I find that the complainant has established a prima facie case of discrimination on the grounds of disability.

The Supreme Court in Nano Nagle School v Daly [2019 IESC 63 held that employers were obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation and to demonstrate, if no such measures were taken, that this was only because those measures would be disproportionate or unduly burdensome. S16 requires the employer to take “appropriate measures” for a person with a disability to have access to employment and to participate in employment. It is further noted that that employees were given mileage to get from Tuam to Ballinasloe owing to their redeployment.

The complainant has cited case law including ADE/20/35 R & B Burke Catering Services Ltd v Christina Oglesby to support their complaint but I note that in that instant case, the reasonable accommodation sought was “minimal and was in place prior to the transfer of undertakings”.

In EDA2126 Monica McEntee v HSE the complainant had a disability that limited her driving, and Nano Nagle School v Daly [2019 IESC 63, is referenced in that decision that there is an obligation on employers under S 16 to

“….merely ..provide appropriate measures “that do not impose a disproportionate burden on the employer) that can facilitate an employee with a disability to fulfil the requirements of the job for which they have been hired.”

The established jurisprudence shows that in order to avail of a defence of objective justification an employer must show the impugned condition, criterion or practice: -

(a) Is unrelated to a discriminatory ground,

(b) Corresponds to a real and legitimate need on the part of the undertaking,

(d) There are no less discriminatory means of achieving that need.

It appears that the redeployment was expected to be temporary but the reality was that it became a prolonged redeployment. On the facts of the complaint and the submissions and evidence it appears that the defence of objective justification whereby to grant the complainant mileage for motorway would place a disproportionate burden on the employer is an objective justification. The complainant was granted mileage for the redeployment and I find the application of the policy to the complainant were unrelated to the complainant’s disability, and the application of the policy is for a real and legitimate need and an appropriate means of achieving that and it would appear to me there was no less discriminatory means of achieving that need. I find that in all the circumstances for this complaint that the complainant established a prima facie case of discrimination and that the respondent has discharged the burden of rebutting the prima facie case of discriminatory treatment on the disability ground for reasonable accommodation made by the Complainant. Accordingly, I find that the Respondent did not discriminate against the Complainant on the grounds of disability with regards to reasonable accommodation specifically with regards to payment of travel expenses.

Summary of Complainant’s Case: CA-00046872-002

The complainant submitted that the respondent indirectly and directly discriminated against the complainant in relation to conditions of employment and the policy that applied to travel expenses.

An OH report dated 09/11/2020 outlines that the complainant

The complainant raised a grievance in relation to this aspect of her complaint and she was advised on 11/05/2021 that her stage II grievance was not upheld as the

“financial regulations do not allow approval for same as reimbursement for mileage is for the shortest journey.”

She has not carried out office work despite management’s promise and despite the medical advice.

When working in Tuam the complainant lived approximately 7km from her place of work, however, her travel distance from home to Ballinasloe is 75km using the motorway, or 59km using the smaller roads. As a result of this change, she has adhered to the medical advice and used the motorway. While the respondent has paid her travel expenses calculated based on the shortest route via google maps, which is the smaller roads, the complainant has incurred costs each day due to the longer distance and the motorway tolls. This has resulted in travel cost as of 22/08/2022 of €5,584.35.

The “apparently neutral provision” in this case is the HSE’s policy with regards to payment of travel expenses and/or their application of this policy. It was submitted that an apparently neutral provision in relation to employees with disabilities, has in this case “put a person … [with a disability]…. at a particular disadvantage in respect of remuneration compared with other employees of their employer.” The complainant submitted that it includes payments of travel expenses, in cases such as this one where those are paid by the employer.

With regards to direct discrimination it was submitted that the policy of the HSE has resulted in discrimination against Ms O’Grady, in that she has incurred significant financial losses as a result of her travel to work whereas other employees working in her unit have not. The employer has reimbursed the full cost of other employees’ travel expenses but not Ms O’Grady’s such that the “rules of instructions” have resulted in discrimination against an employee with a disability and that the respondents only objective justification is reference to the policy NRF.

The complainant submitted that the employer is required to take “appropriate measures” (reasonable accommodation) to enable a person with a disability to have access to employment and to participate in employment unless the measures would impose a “disproportionate burden on the employer” such as financial costs, the scale and financial resources of the employer, the possibility of obtaining public funding etc. In Ms O’Grady’s case, it was submitted that appropriate measures/reasonable accommodation in relation to the travel issue would have been to allow her to travel to work using a route that is appropriate for her condition. In other words, it would have facilitated her access to her employment and her participation in the employment. In relation to the reference to “disproportionateburden” the complainant submitted that the respondent had failed to provide any evidence that paying Ms O’Grady her full travel expenses would constitute a disproportionate burden. Furthermore, given the size of the HSE, and given that the move to Ballinasloe was intended to be a temporary redeployment due to Covid-19, this would have been within the ability of her employer to do so. Instead of arguing that such a measure would be a disproportionate burden, the employer has argued that they are prevented from doing so due to the financial regulations, NRF-5. However, the financial regulations which the employer has referred to, NRF-5 state that;

“All official travel should be by the shortest practicable route and by the cheapest practicable mode of conveyance.”

And the rules refer to the shortest “practicable” route, and not the shortest “possible” route. The shortest practicable route for Ms O’Grady is the route which is consistent with her medical advice. It would not be “practicable” for her to choose a route which would cause her additional physical pain and injury due to her condition.

It was submitted that the complainant did not believe that a reasonable application/interpretation of the National Financial Regulations prohibits the payment of Ms O’Grady’s travel expenses and that this would have been an appropriate measure for her, not overly burdensome given the size of the HSE, and which would have helped enable her access to and her participation in her place of employment. The complainant submitted that she has suffered indirect Discrimination in relation to her conditions of employment remuneration, i.e. travel expenses and particularly in reference to s19(4) (a) and in addition that constituted direct discrimination.

Evidence of Ms Liz Ms Cloherty

Summary of Respondent’s Case: CA-00046872-002

“this is beyond the remit of Occupational Health Department to advise regarding cruise control use”.

Case law cited included Nano Nagle School v Daly [2019 IESC 63, EDA2126 Monica McEntee v HSE,

Findings & Conclusions: CA-00046872-002

The complainant submits that the respondent indirectly and directly discriminated against her in relation to conditions of employment namely through the National Financial Regulations (NFR) policy and the respondent denies the complaint. The respondent accepts that the complainant has a disability namely chemo induced neuropathy but submits that the respondent’s NFR requires “All official travel should be by the shortest practicable route and by the cheapest practicable mode of conveyance” and denies that the complainant has been directly or indirectly discriminated against by the NFR policy.

The Complainant lodged her complaint with the WRC on the 27/10/2021.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Section 85A(1) of the Act provides in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 – considered evidential burden imposed on a Complainant by section 85A and held:

Determination EDA0821, Cork City Council v McCarthy elaborated on the application of that test and commented as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

It was established by the Court in Melbury Developments Ltd v Valpeters [2010] ELR 64, that

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Employment Equality Act defines indirect discrimination as

“(1) (a) …where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

(b) Where paragraph (a)applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1)applies in relation to A or B.”

Section 8(4) defines direct discrimination as

A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

The CJEU has held that discrimination can arise not only from the application of different rules to comparable situations but also by the application of the same rules to different situations seen in Case C-279/93 Finanzamt Koln-Altstadt v Schumacker [1995] E.C.R. I-225 par 30. Discrimination can be direct or indirect. Article 2 of Council Directive 2000/43/EC of 29 June 2000 defines indirect discrimination as follows: -

“Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

Stokes v Christian Brothers High School Clonmel [2015] IESC 13 at par 9.2, referred to the meaning to be ascribed to the term “particular” as follows: -

“I am satisfied that the use of the term "particular" brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable.”

The complainant has submitted that the provisions of NFR are both indirectly and directly discriminatory against the complainant. Section 5.10 of the NFR policy outlines Rules Governing the Payment of Travel Expenses and Section 5.10.3 which parties referred to sets out

“All official travel should be by the shorted practicable routes and by the cheapest practicable mode of conveyance.”

And a foot note for routes references routes to mean

Refer to official road maps/and or internet route planner sites for further guidance.

I note during evidence that Mr Barrett appeared confused about whether the policy had referred to the shortest possible route or the shortest practical route and his evidence suggested that he had assumed the policy mentioned the shortest possible route which it does not. While shortest possible might suggest some inflexibility, shortest practical routesuggests something more flexible in its application. I do not find anything in the use of the word “practical” within the policy that suggests the policy either indirectly or directly is discriminatory. While I note the complainant submit such a policy puts the complainant at a particular disadvantage in respect of remuneration compared with other employees of their employer, this would appear to me to be “mere speculation or assertions, unsupported by evidence” and in effect, “cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Having heard all the submissions and evidence I do not find that the complainant has established a prima facie case of discrimination with regards to either direct or indirect discriminatory within the policy and the condition of employment and I do not find she was discriminated against with regards to this aspect of her complaint.

Summary of Complainant’s Case: CA-00046872-003

It was submitted that the respondent failed to provide reasonable accommodation with regards to the complainant’s disability in relation to her job duties.

An OH report dated 09/11/2020 outlines that the complainant

The complainant raised a grievance in relation to this aspect of her complaint and she was advised on 11/05/2021 that her stage II grievance was not upheld as the

“financial regulations do not allow approval for same as reimbursement for mileage is for the shortest journey.”

She has not carried out office work despite management’s promise and despite the medical advice.

When the complainant returned to work her employer agreed that she would work full-time in the office in Tuam and this work would involve, among other things risk assessments, ensuring compliance with HAACP requirements, rostering, ordering, accommodating food allergies etc During the Covid-19 pandemic, the complainant as with many of the respondent’s staff were redeployed to different locations and duties and in May 2020 the complainant and three other staff were informed by their manager Mr Joe Barrett that they would need to be moved temporarily as part of this redeployment.

The complainant was surprised that she did not continue to have the arrangements she had before with regards to the reasonable accommodation owing to her disability despite promises from her manager as she found that she had to work in the kitchen area. She moved to Ballinasloe on 1st July 2020 and ever since then she has continued to work full-time in the kitchen. A medical report from her gp outlined recommendations regarding driving and a OH report dated 09/11/2020 outlines that the complainant

“has tried every option available regarding treatment, has been very proactive in my opinion and left no stone on (sic) unturned in trying to improve her symptoms. She also has difficulty with walking and tells me that most of the time she cannot wear shoes due to her symptoms; this will need to be taken into account in finding a suitable and safe role for Deirdre. I recommend that you meet with Deirdre and discuss and review how you can accommodate and manage risks appropriate so that she can remain in the workplace safely”.

The complainant raised a grievance in relation to her complaint and she was advised on 11/05/2021 that her stage II grievance was not upheld with regards to extending mileage to include motor way and that the recommendations with regards to her working conditions were that the respondent would

“continually review your current working arrangements with your line manager with a view to returning to the Tuam area as a matter of urgency.

2. To discuss with your line manager alternative working arrangements outside the production kitchen environment undertaking additional training if required for upskilling or alternative placement within the HSE Tuam area.

3. To be referred to the Occupational health department in 6 months’ time by your line manager

On 27/07/2021 the complainant was advised that her stage III grievance was not upheld as it was considered that there was

No mention is made regarding her conditions of employment within this grievance decision.

It was submitted that the complainant has not carried out office work despite management’s promise and despite the medical advice. Since 01/07/2020 Ms O’Grady has suffered from spasms at night as a result of the long drive, being on her feet all day at work, having to prepare hot food each day and having to wear steel toe cap safety shoes rather than open-toed shoes in the kitchen. The complainant has been unable to go for walks in the evening and the spasms have interfered with her sleep. The respondent was made aware of all of this through local discussions, the grievance process, the appeals process and through mediation.

It was submitted that the employer has failed to take appropriate measures in relations to the distribution of Ms O’Grady’s tasks despite her manager’s reassurance prior to the redeployment that this would happen. The complainant has been working in the kitchen all day, every day since June 2020 and contrary to the medical advice she has had to wear steel-capped safety shoes instead of open-toed shoes, work in the kitchen, including on the preparation of hot food, stand all day, contrary to the medical advice. This has resulted in significant physical pain, discomfort and lack of sleep for her due to spasms. It was submitted that the that the employer has failed to take appropriate measures/make reasonable accommodation for Ms O’Grady’s disability.

Evidence of Ms Liz Ms Cloherty

Summary of Respondent’s Case: CA-00046872-003

“this is beyond the remit of Occupational Health Department to advise regarding cruise control use”.

In his evidence Mr Joe Barrett said that the move from Tuam happened very quickly during covid and resulted in having to accommodate the employees located there very quickly. He said it had been determined following assessment that working with salads was most suitable for the complainant and she was also given appropriate shoes and necessary breaks. He said she got face masks and that there were also others in remission from cancer. He said that the complainant was asked what career path she wanted and she has explored doing other courses relevant in the area. It was his understanding that she was happy with how the situation was handled and that he checked in with her.

Under cross examination Mr Barrett said he may have got some of the dates mixed up and accepted that a meeting alleged to have taken place on 1st June could not have taken place. He also confirmed that it would appear that an alleged meeting of 14/6/20 did not take place and that he had phone calls and got the dates mixed up. He said that the alleged date of 11/7/20 was also wrong and that he got his dates mixed up. He confirmed that she requested a full-time office job but that was not possible. He advised that an alleged meeting of 5/8/20 occurred on 6/8/20 and that he had made a mistake with that date. He also advised that the date of 14/11/20 must have been a mistake and that the meeting took place but he must have recorded them wrong. He said that he never guaranteed an office to her and that he had no records to confirm that. He confirmed that he knew that the complainant would be standing for longer periods of time in the relocated position and that standing for longer periods of time was a problem for her but said that she had additional breaks if needed. He confirmed that she works with hot food in the new location but that it is minimum handling of hot food. He confirmed that the agreement for employees moving to the new location would be no financial loss but he said that this was incumbent on herself going the shorter route. He said that he queried it with OH and that they did not comment on this and said that he is not medically qualified. He did not recall saying to her that she would get the money for the longer journey back and could not recall saying that it was money in the bank. He confirmed that there were discussions and exploration of other options for her work and that they could not allow a second person in the office in Ballinasloe because of covid. He said he believed that she was required to take the most direct route. He said he thought the requirement was to travel the shortest possible route and that he did not realise that it was the shortest practical route. He said during the various recent WRC hearings he has been working to get things resolved.

Case law cited included Nano Nagle School v Daly [2019 IESC 63, EDA2126 Monica McEntee v HSE,

Findings & Conclusions: CA-00046872-003

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

16.

(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) Insubsection (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,

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

Section 85A(1) of the Act provides in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 – considered evidential burden imposed on a Complainant by section 85A and held:

It was established by the Court in Melbury Developments Ltd v Valpeters [2010] ELR 64, that

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The complainant’s evidence was that she had been facilitated with reasonable accommodation prior to the redeployment to Ballinasloe. I note the evidence of her line manager Mr Barrett that as a result of covid he had to respond quickly to the organisation’s needs and redeploy employees. Reference was made on a number of occasions by Mr Barrett that the complainant was allowed to take breaks if and when needed. Mr Barrett referred to date of many meetings with the complainant and/or her representative that did not occur. It would appear that Mr Barrett did have some conversations with the complainant but I did not get a sense that Mr Barrett fully understood the reasonable accommodation that was required for the complainant and which had detailed by medical reports including OH. It was clear that OH and indeed I were struck by how pro-active the complainant was to try and resolve matters and that OH gave advice regarding what difficulties the complainant experiencing and what else was needed

(the complainant) also has difficulty with walking and tells me that most of the time she cannot wear shoes due to her symptoms; this will need to be taken into account in finding a suitable and safe role for Deirdre.

and

I recommend that you meet with Deirdre and discuss and review how you can accommodate and manage risks appropriate so that she can remain in the workplace safely”.

The complainant had raised matters with the respondent during the appeal of her Stage II grievance whereby she outlined around 25/06/2021

Working all day on me feet wearing enclosed shoes is having a negative effect on my health, causing pain, spasms and a flare up of the neuropathy. I feel that my line manager gives me no support, doesn't reply to my texts or phone calls and when we do meet, he just “fobs me off”. This is having an effect on me mental health.

It appears that the complainant was not involved with any risk assessment and indeed Mr Barrett did not know who might have conducted same and that because the complainant was not mostly working with hot food the respondent appeared to make assumptions that this of itself was sufficient to accommodate the complainant. I noted the complainant’s credible evidence regarding the hot foods that she did have to work with, the length of time that she had to stand for all which the OH report made recommendations against and that her manager submitted details of 7 meetings that either did not take place or took place on other dates then he had provided. The respondent made some efforts to reasonably accommodate the complainant, however, this does not in my opinion meet the obligations set out in Nano Nagle School v Daly [2019 IESC 63 and there was no reasonable defence that what was required would have been disproportionate or unduly burdensome.

Having assessed the written and oral evidence and submissions before me, I find that the Complainant has made out a prima facie case that the Respondent did discriminate against the complainant on grounds of disability, in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts and the Respondent has failed to rebut same. Such facts amount to discriminatory acts on the grounds of the complainant’s disability. Taking into consideration the failures of the respondent and impact on the complainant I make an award of €5,000 to the complainant.

Decision:

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-00046872-001

I find that in all the circumstances that the complainant established a prima facie case of discrimination and that the respondent has discharged the burden of rebutting the prima facie case of discriminatory treatment on the disability ground and accordingly, I find that the complainant was not discriminated on the grounds of disability with regards to reasonable accommodation specifically with regards to payment of travel expenses.

CA-00046872-002

I do not find that the complainant has established a prima facie case of discrimination with regards to either direct or indirect discriminatory within the policy and the condition of employment and I do not find she was discriminated against with regards to this complaint.

CA-00046872-003

I find that the Complainant was discriminated against on grounds of disability, in relation to the provision of reasonable accommodation and taking into consideration the failures of the respondent and impact on the complainant I make an award of €5,000 to the complainant.

Dated: 02/02/2024

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Equality, reasonable accommodation, direct discrimination, indirect discrimination