Complainant

Respondent

Anonymised Parties

Checker

Transport Company

Representatives

Ms. Áine Feeney, SIPTU

Mr. John Connellan, BC Law

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-00051828-001

25/07/2022

The Complainant commenced employment with the Respondent on 30th March 2009. The Complainant was a full-time, permanent member of staff, in receipt of an average weekly payment of €422.76. While the Complainant remained in employment with the Respondent on the date of the referral of the present complaint, his employment terminated by way of resignation on 26th August 2022.

On 25th July 2022, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had discriminated against him on the grounds of “disability”. In particular, the Complainant alleged that the Respondent failed to make a reasonable accommodation that might allow him to return to work following injury. In denying this allegation, the Respondent submitted that following an internal investigation, they determined that they had no roles that might accommodate the Complainant’s injury and they could not permit him to return to work until such a time as he was deemed fit to do so.

Following a series of adjournments, requested by both parties for the variety of reasons, a hearing in relation to this matter was convened for, and finalised on, 29th July 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party during the hearing. This hearing was listed alongside that bearing reference number ADJ-00044302, and this decision should be read in conjunction with the same.

Both parties issued substantial submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his compliant, while a HR representative gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, the Respondent raised two preliminary issues as to jurisdiction, namely that the present complaint was out of time, and that the Complainant did not suffer from a disability as defined by the Acts. Given the nature of these submissions, they will be considered following a summary of the substantive matter.

Given that the decision below will involve an examination of the Complainant’s medical history, I have utilised my discretion to anonymise the decision in its published form.

The Complainant commenced employment with the Respondent on 20th March 2009. While the Complainant was initially employed as a “warehouse operative”, he changed role to that of “checker” on or about 17th May 2016.

On 6th May 2021, the Complainant suffered a back injury was thereafter certified as unfit for work. During this initial period of absence, the Complainant met representatives of the Respondent and indicated that he would be willing to return to light duties. Thereafter, on 28th July, the Complainant’s medical attendant confirmed that he would be fit to return to work on light duties. On that same date a representative from the Respondent advised that no light duties would be available. The Complainant was further informed that he could only return to work once he is certified as fully fit.

By correspondence dated 16th August 2021, the Complainant’s doctor again confirmed that he would be fit to return to work for light duties only. In this regard, the Complainant submitted that the role of checker, which he had carried out for some time prior to his absence, could easily be adjusted so as to allow for his return. Again, on 20th August 2021, the Respondent corresponded with the Complainant advising that they had no roles that would involve light duties and could not facilitate any “light duties position”.

As matters had apparently reached an impasse, the Complainant’s representative corresponded with the Respondent on 5th October 2021, specifically requesting that the Complainant be referred for an occupational health assessment and that matter be otherwise progressed. No contemporaneous response was received to this correspondence. On 5th October, the Respondent again issue correspondence restating the previous position that the Complainant could only return to work when deemed fully fit to do so.

On 8th November 2021 the Complainant’s representative again corresponded with the Respondent setting out, as some length, the Respondent’s obligations regarding reasonable accommodation in accordance with the impleaded Act. Again, no response was received to this communication.

On 6th & 17th January 2022, the Complainant’s representative wrote to the Respondent seeking some progression in relation to this matter. On 20th January 2022, the Respondent’s HR function responded stating that the Complainant had not issued a medical certificate for some time. Thereafter, on 12th April 2022, the Respondent requested that the Complainant attend their own “company doctor”. While the Complainant attended this consultation on 14th April 2022, to date no report issued from this appointment and the Complainant received no correspondence or update of any description in relation to the same. On foot of the foregoing, the present complaint was referred on 25th July 2022.

Thereafter, given that no substantive response had been received from the Respondent on foot of the foregoing, and in circumstances whereby the Complainant was not permitted to return to work, he resigned his employment on 26th August 2022, and referred a complaint in this regard on 14th February 2022.

By submission, the Complainant stated that the Respondent had routinely and persistently failed to make any form of reasonable accommodation for his injury. In this respect, he submitted that the Respondent failed to make any form of inquiry into the nature of his injury or any accommodations that could be implemented that might allow him to return to his role. In this regard, the Complainant submitted that he had been discriminated against by the Respondent’s failure to make a reasonable accommodation for his injury and that, as a consequence of the same, his complaint should succeed.

By response, the Respondent denied that they had discriminated against the Complainant at any stage of his employment.

In this regard, the Respondent agreed with much of the factual matrix presented by the Complainant. They agreed that the Complainant was certified as unfit for work due to “tennis elbow” between 11th and 28th July 2021. Thereafter, the Complainant issued certification stating that he suffered from “back pain” on from 29th July until 3rd August 2021. No further certificates were received from the Complainant in the course of his employment.

By email dated 21st August 2021, the Complainant representative queried the Complainant’s return to work. On receipt of this query, the HR manager of the Respondent undertook a review of the Complainant’s duties. In this regard, while the Complainant had been working as a checker for a period time prior to the commencement of his sick leave, this role and all other roles within the warehouse environment involved an element of manual handling. In this regard, it was submitted that no role existed within the Respondent that would be suitable for light duties. In order to prevent the Complainant from exacerbating his existing injury, the Respondent stated that he was welcome to return to work once he was certified as well enough to do so.

In order to further investigate the nature of the Complainant’s ability to perform his duties, the Respondent organised an appointment with their own medical practitioner for April 2022. While the Respondent was awaiting the result of the same, the Complainant repudiated his employment by securing a role elsewhere, effectively terminating the same.

By submission, the Respondent stated that they sought to accommodate the Complainant in the course of his employment. Notwithstanding their efforts in this regard, given the nature of their activities, they were not is a position to do so. They further submitted that the Complainant terminated his employment without notice to the Respondent and without engaging with any of the Respondent’s internal procedures.

At the outset of the hearing, the Respondent submitted that the present complaint is statute barred for the purposes of the impleaded Act. In this regard they stated that no act of discrimination occurred within the cognisable period provided for by the Act. In this respect, they stated that the Complainant commenced a period of sick leave in excess of one year prior to referring the present complaint. Shortly thereafter, the Respondent set out their response regarding their position as to the Complainant application to return on “light duties”, given that this was the alleged act of discrimination complaint of by the Complainant, and in circumstances whereby it occurred in excess of six months prior to the referral of the complaint, the Respondent submitted that the complaint was statute barred.

In this regard, Section 77 (5A) of the Acts provides that,

“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.”

Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

In the matter of Occupantal Limited -v- Joseph Hayes EDA 184, the Labour Court examined the specific application of the Section 6(A) to a complaint involving a failure to provide reasonable accommodation. Here the Court found that,

“…the claimed failure of the Respondent to accommodate the Complainant in respect to his disability can constitute a practice within the meaning ascribed to that notion by section 77(6A) of the Act in Ann Hurley v Co Cork VEC. Consequently, the cognisable period for this aspect of the within complaint extends up to the date on which the Complainant’s employment came to an end.”

In light of the wording of Section 6(A), and having regard to the precedents quoted above, the Respondent’s alleged failure to provide reasonable accommodation constitutes an ongoing “practice” that continued to the date of the lodgement of the complaint form. As such I find that the final date of discrimination fell within six months of the date of lodgement with the Commission and the consequently the complaint is not statute barred.

In addition to the foregoing, the Respondent submitted that the Complainant did not suffer from a “disability” as defined in the Act. In this regard, they submitted that the Complainant initially issued a medical certification stating that he suffered from “tennis elbow”. Thereafter, the Complainant issued medial certification stating that he suffered from “back pain”, with no mention of the previous ailment. Thereafter, and for the entirety of the relevant period for the purposes of the present complaint, the Complainant did not issue any medical certification. In this regard, the Respondent submitted that the Complainant did not establish that he suffered from a disability as defined by the Act, and consequently his application could not succeed.

In this regard, Section 2 of the Employment Equality Acts define disability in the following terms,

a)      “the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

b)      the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

c)       the malfunction, malformation or disfigurement of a part of a person’s body,

d)      a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

e)       a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”

In the matter of A Government Department v A Worker EDA 094, the Labour Court held that,

“The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

Regarding the reason for the Complainant’s absence from work, it is noted that his doctor’s note states that he suffers for “tennis elbow” and thereafter, “back pain”. In this regard, the Respondent has submitted that the two conditions reference above are symptoms or illnesses, rather than diagnosed disabilities. In addition to the foregoing, the Respondent submitted that the Complainant did not provide any medical certification relevant to the cognisable period of the present complaint. In such circumstances, the Respondent submitted that the Complainant has not discharged the burden of proof regarding the existence of a disability for the purposes of the present complaint.

In the matter of A Government Department v. A Worker EDA094, the Labour Court examined the definition of "disability" as defined by Section 2. In so doing, it held as follows,

“It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it:-

“shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”

Regarding the initial point, the HSE’s website describes “tennis elbow” as being the common term for a condition known as lateral epicondylitis, a specific condition capable of formal diagnosis and clearly meeting the definition listed at subsection C listed above. Notwithstanding the same, it is accepted that “back pain” is not a condition but is instead a symptom of a potential disability. It is further apparent that the Complainant has not provided any proof of the existence of a disability during the cognisable period for the purposes of the present complaint and as such may fall foul of the de minimus rule set out in the authority cited above.

Notwithstanding the foregoing, in the matter of St Margaret’s Recycling -v- Ryszard Smektunowicz EDA 1822, the Labour Court examined that concept of “constructive notice”, and quoted with approval the following passage from Somers v W [1979] IR 94. This authority describes the concept in the following terms,

“When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.”

In St Margaret’s Recycling, cited above, the Court found that placing an employer on notice of a condition such as back pain, and demonstrating that an employee was no longer in a position to fulfil their role as a consequence of such a condition, places them on constructive notice of the existence of a disability as defined by Section 2.

In the normal course, once an employee indicates that they cannot complete the work for which they were hired, an Employer would arrange for the employee is question to attend an occupational health specialist to determine the nature of the injury or illness. This instruction would normally be accompanied by information outlining the nature of the duties associated with the role. The purpose of such a referral is to secure an expert medical opinion as to a specific employee’s ability to perform their duties in light of their present and ongoing capacity. In the present case, no such referral was made or attempted. While the Complainant was, after a lengthy period of absence, referred to the Respondent’s “company doctor”, it is noted that no report issued on foot of this appointment and no relevant information was communicated on foot of the same.

Having regard to the foregoing sequence of events, I find that the Respondent did not pursue “the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.” In such circumstances, I find that they were fixed with constructive notice of the existence of the disability within the meaning of the Act.

As a consequence of the findings listed above, I assume jurisdiction to consider the substantive complaint. 

Regarding the substantive complaint, the Complainant has alleged that the Respondent failed to make any form of accommodation to allow him to return to work. By response, the Respondent stated that the nature of the Complainant’s role was such that no accommodations were possible, and that the Complainant simply could not complete the same until he was deemed to be fully fit by a medical practitioner.

Regarding an employer’s duty to provide reasonable accommodation, Section 16(3)(b) of the Employment Equality Act provides that,

“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.”

Section 16(3)(b) provides that,

“The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

iii.                 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.”

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows,

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held that,

“Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity”

In the matter of Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, the Labour Court held that in assessing the requirements for a potential reasonable accommodation, an employer would, “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”.

The Court went on to state that ,

“It is generally accepted that the nature and extent of the enquiries which an employer should make will depend on the circumstances of each case and the questions which the employer is considering”.

Regarding the instant matter, it is common case that the Complainant’s GP certified him as fit to return on “light duties” from 28th July 2021. Thereafter, the Respondent replied, simply stating that no light duties were available, and that the Complainant could not return to work until such a time he was deemed to be fully fit to do so. This position was re-affirmed by the Respondent on several occasions. In evidence, a representative for the Respondent stated that any role within a warehouse environment would entail a certain amount of physical labour, and that the nature of the Respondent’s activities was such that no light duties could be accommodated.

A number of issues arise in relation to the foregoing. Firstly, “light duties” in this context is an extremely broad concept and can involve anything from an almost complete inability to perform the tasks associated with the role to a requirement for the most minor of adjustments. Having regard to the factual matrix as presented, there is no evidence of the Respondent seeking to examine the nature and extent of the Complainant’s injury to determine, with any precision, the impact the same would have on his ability to perform his role. While the Respondent did arrange for the Complainant to attend their own “company doctor”, it was accepted that this was not an occupational health specialist and no report duly issued on foot of the same.

In addition to the foregoing, the Complainant submitted, in evidence, that his role of “checker” could have been relatively easily amended to remove any duties that might cause him further injury. While the Respondent disputed that this position, the correct forum for such a discussion is an internal process whereby the Complainant might be provided with the information that informs the Respondent’s conclusions, permits him to contest the same and advocate for any accommodation he feels relevant. In the present case, it is apparent that no such process was adopted and that the first occasion on which the Complainant could ventilate his concerns in this regard was during the hearing of the matter.

Having regard to the accumulation of the foregoing points, I find that the Respondent has not complied with the requirements imposed on them by virtue of Section 16 of the Act. As a consequence of the foregoing, I find that the Respondent has not demonstrated that they provided reasonable accommodation for the Complainant’s injury. In such circumstances, I find that the Complainant was discriminated against on the grounds of disability as provided for in the impleaded Act.

I find that the Complainant was discriminated against within the meaning of the Act.

Regarding redress, while the Complainant initially sought re-instatement to his role, during the hearing he confirmed that he had secured alternative employment, and did not wish to return to employment with the Respondent.

Having regard to the foregoing, I find that financial compensation is the most appropriate form of remedy. In this regard, Section 82(4)(a)(ii) provides for an such an award to be calculated at,

“…104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned”.

Having regard to the totality of the evidence presented, and having regard to the Complainant’s average weekly earnings as outline above, I award the Complainant the sum of €10,991.76 in compensation for the effects to the discrimination.

Discrimination, Disability, Reasonable Accommodation