Complainant

Respondent

Parties

Oluwakemi  Yekinni

Nua Healthcare Services

Complainant

Respondent

Anonymised Parties

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Representatives

Andrea Tancred Ibec

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-00063926-001

06/06/2024

The complainant submits that she was discriminated against on the grounds of race, disability and failure to provide reasonable accommodation.

The complainant submits that she started work as a Care Assistant on 09/10/2023 and that she asked that she be posted within 20 minutes from her home.  She requested this as she had previously had surgery for metastatic breast cancer in November 2022 and had only been deemed fit to return to work by her consultant in June 2023 and that events that arose with the respondent caused her sadness.  Her place of work was moved to 55 mins from home and she was told to provide a letter which she did from her doctor and the respondent terminated her employment.  She submitted that she was treated shabbily and the respondent did not respond to her questions.  The complainant further submitted that it was only African employees who had to move location and also only African employees who were not provided with sleep-over shifts and that she is African.  She emailed different people on 22/02/2024 and pleaded that “due to my health condition that I discussed during my interview…” and in a further email “I couldn’t drive long distance due to my health condition that I discussed in the interview” and that she “can’t drive long distances”.  She was advised she needed a doctors letter and submitted one on26/02/2024 that set out:

“it is of my medical opinion that due to her background medical issues it is not suitable for her to drive continuously for greater than twenty five mins.  I hope you can facilitate her in her work”.

The complainant’s evidence was that she went to an open day and the recruiter asked her to fill in the medical form and she advised that she had breast cancer.  She had not put this on the form initially but then advised them and she was deployed to a location that was 20 mins from her house.  She has a provisional licence and could not drive the hour car journey that she later got moved to due to her health issues.  There were no issues with her work and she was told that she was going to be redeployed with a 58 minute drive and other African people were also contacted about this.  She sent a message to Sunny Clegg and was told to contact the manager.  Her evidence was she was unhappy and felt depressed and had been dedicated and did a good job and was surprised that they could do this to her.  A letter was sent from her gp confirming she could not drive to work a long distance as she had breast cancer and surgery of the brain and had been told her place of work would be a 20 minute drive which was too long.  Her claim of racial discrimination was that they only asked her to move because she is Nigerian African.

Under cross examination she said she got a job description and contract and confirmed that the contracts provides for the right to move her.  The contract also mentions the hours of attendance and she knew what the role was.  Her medical appointments were mostly in the morning and she confirmed that she had been accommodated to work night shift in December.  She said that it was not recorded that she is unable to drive long distances but she did discuss it at interview and that she had been told she would be deployed for no more than 20 minutes and that she travelled to the place of induction by bus and did not drive there.  She denied that the driving restriction arose because of the change of location.  She did not expect that her rostered shifts would be deleted immediately and did not know that the shift transfer was a temporary transfer and she thought it was permanent.  There is no physical disability that hinders her working in a care facility and if she had to drive service users with a full licence she would not have driven them more than 25 mins.  She did not consider taking a break in the driving to break up the journey and was not aware that sleep over is not allocated to staff on probation and there is no reference to that in the contract.

The respondent submitted that they refuted the complainant’s claims of discrimination on the grounds of disability, race, failure to provide reasonable accommodation and in conditions of employment. It was submitted that the cognisable period is from 07/12/2023 to 06/06/2024 and that the complainant had submitted that the most recent date of alleged discrimination occurred on 23/02/2024. The respondent services includes providing Residential care and Community Outreach and Continued Learning & Development to adults and children with complex requirements and is an equal opportunities employer.

The complainant applied on 29/08/2023 for a position and stated that she has “no physical disability that can hinder me working on a care facility.”  The Complainant commenced employment on 09/10/2023 and held the permanent, full-time role of Assistant Support Worker (ASW) at an hourly rate of €13.39. Her preemployment medical form, states she previously had breast cancer, that she was presently taking medication, and declared that she does not have any physical or relevant psychological condition affecting her ability to perform her duties. The complainant’s probation period was terminated on 29/02/2024 because she declared she was not able to complete hours of work as per her terms and conditions of the contract of employment and because she refused to confirm an emergency temporary transfer from the current location to a second location that was in need of an ASW. This location was an extra 37-minute drive from her house. 

On 15/02/2024 the complainant sent an email to the Respondent requesting to only be rostered for night shifts as her childcare arrangements had changed and nowonly had a minder throughout the night.  The request was reviewed and approved on a short-term basis of two weeks to enable the team member to prepare childcare arrangements. The Complainant’s contract of employment clearly stipulates that her hours of work are determined to suit the “needs of the service and will be rostered over a 24-hour period, across 7 days including Sundays.” On  22/02/2024 Mr Stephen O’Reilly, Deputy Person In Charge, advised the Complainant that she was being redeployed for a maximum period of 6 weeks to a new Residential home due to a critical need for staff to cover shifts in that home. The redeployment is in line with the Complainant’s terms and conditions of employment and also set out in the job description which the Complainant received and signed on 13/09/2023.

The Respondent operates on a “last in, first out” basis to ensure that there is only minimum disruption caused to their service users in terms of a change of staff caring for them in their residence and as the complainant was last in she was selected to fill the vacant shifts. On 22/02/2024, the complainant sent separate emails to the Respondent’s management team email address, Ms Sunny Clegg, Person in Charge (PIC) and to Ms Eithne Knox, the Respondent’s former HR Manager, requesting that she not be transferred from where she previously worked to the other house. The Complainant stated the reason for this request was due to the fact the one house was located nearly an hour from her own home, whereas the house she had previously worked in was only a 20-minute drive.

The Respondent refutes that the complainant was told she would be located no more than 20 mins away and refuted that they had been told that the complainant could not work more than 20 mins away and there is nothing in the interview documentation supporting this.  There is nothing noted in the complainant’s “Self-Declaration Medical Assessment” affecting her ability to carry out her duties and nothing supporting she suffered from a disability and nothing in the contract supporting an agreement regarding a 20-minute drive. It clearly stipulated the location details as follows:

“You will be based at a Nua Residential centre/facility and/or based out of a Nua Supported Living facility, with flexibility required to travel to any centre or facility operated by either entity required. Nua Healthcare will consult with each employee regarding their personal preferences and work towards establishing regular assignments, however, …. reserves the right to move you at any stage to alternative locations/facilities. Where possible, Nua Healthcare will endeavour to provide you with a minimum of two (2) weeks’ notice in the event of any such transfer.”

The HR Manager Ms Knox replied to the Complainant to advise that she was not in a position to override any operational requirements and directed her request to the Person In Charge (PIC) who had authority to speak to the Director of Operations to review the distance. Ms Knox also noted that there were no current medical conditions noted on the Complainants file. On the same day, the Complainant replied to Ms Knox advising that she had informed the interviewer at her interview that she attends an Oncologist as she had breast cancer, but stated in the interview and in the email that this does not have any effect on her work, and declared that her doctor deemed her fit to work in June 2023. She stated the only issue she had was with being placed nearly an hour from her home as she was told at interview stage, the maximum drive to work be twenty minutes which is disputed by the Respondent.

The Complainant on 23/02/2024 emailed Ms Knox stating that her schedule for the following week had been deleted and asked why she did not get notice of the transfer.  The Respondent’s position is that her shifts in the house were removed from the rostering system on Thur22/02/2024 to allow for the shifts in the other house to be allocated on 23/02/2024. The roster would have been subsequentially updated with shifts allocated in the Other house if time had allowed before the Complainant sent the email. The Respondent notes 23/02/2024 is the last date of alleged discrimination as outlined in the Complainant’s claim form and refutes any act of discrimination took place either on that date or any date during the Complainant’s employment.  On 26/02/2024 the Complainant sent a GP letter dated the same date to the Respondent which stated:

“It is of my medical opinion that due to her background medical issues it is not suitable for her to drive continuously for greater than twenty five min (sic).”

On 29/02/2024 Ms Clegg and Mr O’Reilly met with the Complainant to advise her probation was being terminated due to her being unable to fulfil her contract of employment.   It was not possible for the Respondent to schedule the Complainant for night shifts twenty minutes from her home only as the needs for the business require team members complete their contractual obligations to ensure delivery of services.

The Respondent submits the Complainant does not fall within the definition of a disability as she has always cited that she was fit to work and never disclosed any disability. It is not in dispute that the Complainant noted on her preemployment medical form that she previously had a medical condition that she was treated for. However, the Complainant has declared her fitness to work repeatedly; on 22/02/2024 on 03/03/2024 and in her claim form submitted to the WRC on 06/06/2024.

The Complainant performed her duties from commencement at the Respondent on 09/10/2023 until such time that she was unable to fulfil her contractual obligations due to only having childcare during the night. An accommodation of two weeks was provided to allow for the Complainant to arrange childcare. It is the Respondent’s respectful position that no discrimination occurred, as claimed and further, the Complainant has not produced any evidence that such discrimination/unfavourable treatment did occur. No comparator has been named against which such alleged unequal treatment may be judged.  Furthermore, she has not set out how this alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the Complainant being the victim of discrimination.

The Respondent contends that the Complainant cannot establish a prima facie case of discrimination and has not, provided evidence to demonstrate that she was treated less favourably than any other employee on the grounds specified. The Respondent is not aware of any event that may have occurred on 23/02/2024 that might constitute any discriminatory act.   

The onus of proof lies with the Complainant to show that she was discriminated against on the ground of race and it is the Respondent’s respectful submission that the Complainant cannot therefore establish a prima facie case of discrimination. The Respondent strongly refutes that it failed in its duty to provide reasonable accommodation. The work for which the Complainant in the instant case was employed, was outlined in the contract of employment which she signed and then the Complainant claimed she was no longer able to perform the work for which she had been hired. It is not the case that the employer was notified either by the Complainant or by a medical expert that this situation came about by reason of a disability and for that reason the employer cannot be expected to address this as if she suffered from a disability.  The Respondent proposes that the principle issue in the instant case is the Complainant’s incapacity to fulfil her contract. The Respondent respectfully submits therefore that the claim must fail and furthermore the Complainant’s probation period was terminated after she advised that she could not fulfil her contract of employment and the Respondent made the decision to terminate the contract for the reasons of frustration of contract that are outlined above. The Respondent submits that it has been fair and reasonable to the Complainant at all times

Case law cited Southern Health Board v Mitchell Margetts v Graham Anthony & Company Limited, EDA038 Nano Nagle School -v- Daly [2019] IESC 63 Behan v An Post Limited UD 320/2006

Evidence of Priaya Peariasamy was she works in recruitment screening and interviewed the complainant at the open day and that a pre medical form and cv and other forms were received.  The complainant was not told that she would be working 20 minutes away and the complainant did not say that she had driving restrictions. The complainant left with her forms and then said she had not expressed her medical issues and it was her main concern.  The complainant told the witness that she had breast cancer and was fit to work.  The complainant said she was physically fit and did not mention about 20 minutes driving.  Candidates are told that they might have to drive distances of up to an hour and to be flexible and that the emphasis is on the needs of the individual and supporting them. 

Under cross examination she said it is the responsibility of the employee to get to work and that the complainant had originally submitted other pre-employment forms where she did not mention her cancer but returned and filled in another form mentioning about her cancer..  She filled in one after the interview and she did not recall if there was a letter saying fitness to work and the witness had no concerns with the complainant and the candidates are asked about flexibility.

The evidence of Sunny Clegg was that she was the person in charge and was the complainant’s line manager and was not aware of health issues.  She got an email on 15/02/2024 about night working and she was advised that the complainant could not be provided just night work and that they could support her on a short term basis and gave her 2 weeks of night work.  It was a surprise that the complainant said she could only drive 20 minutes as there is a flexibility clause in the contract and she had not heard that the complainant had travel restrictions and driving to work would not be something discussed at interview.  A meeting was called for 29/02/2024 and because the complainant was unable to fulfil the contract her employment was terminated while on probation.  It was denied that only African employees were asked to travel and the complainant was the last in and was within her probation and staff ratio is approximately 70% African race.  As a new employee the complainant would have needed a better understanding of the organisation’s paperwork as well as better knowledge of the residents to be given more night shifts.

Under cross examination Ms Clegg denied that she had been spoken to by the complainant about her medical condition.  There was no issue with the complainant work outside her refusal to move.  It was accepted that the email of 22/02/2024 mentions the health condition of the complainant and that the witness knew the complainant had medical appointments from previous communications.  The witness was on annual leave from 19/02/2024 till 24/02/2024.  There was reasonable accommodation with night shift given for a period of time.  She did not recall asking the complainant to come in and discuss the matter.  The meeting was scheduled and the complainant did not have anyone with her and she was advised at that meeting that her employment was ended and did not ask the complainant any questions and no clarity sought from the gp and no clarity sought from occupational health and there was no accommodation of her for a short period of time and no appeals mentioned when her employment was terminated.

Evidence of Mr Stephen O’Reilly was that he was deputy person in charge and that the complainant was supported when she requested night duty and supported with time off requests.  They work with vulnerable people and need to send their employees into crisis situations.  The complainant was the least experienced and therefore as the newest member was selected for transfer as it would be less disruptive to the clients.  Her request not to drive greater than 25 minutes goes against the needs of the centre and it would be very restrictive and nobody else has been accommodated that way.  He knew she had ongoing medical appointment and she had said she was fit to work.  The last three people who had taken up employment had been requested to transfer and they were African.

Under cross examination Mr Reilly was not aware of anyone else given reasonable accommodation for health reasons, 70% of employees are African and that the complainant was accommodated for 2 weeks when she had childcare problems.  He was present when the Complainant was phoned and advised to come into the meeting of 29/02/2024 and there was no mention of getting any further clarification from the gp and that discussions had taken place without the complainant prior to the meeting.  His role at the meeting was to support Ms Clegg and a decision had been made before the complainant came in to terminate her employment.

Evidence of Ms Eithne Knox was that as HR manager at the time she talked to Ms Clegg about the email and that the complainant was told that the HR manager could not override operations reasons and that she was aware that the complainant had already been supported with 2 weeks night shift.  It appeared that the complainant had a difficulty with her ability to get to work and the timing of the complainant’s gp letter was also taken into consideration after her request for night shift for child care reasons.  In this case her employment was not terminated as normal during probation as normally HR would issue a non-confirmation of employment and right of appeal and therefore this was not done as normal.  She said there was no follow up with gp or with their occupational health department.

Under cross examination Ms Knox confirmed the complainant did not get notice of the transfer and that the contract refers to they will ‘endeavour’ to give 2 weeks’ notice and they did not give 2 weeks’ notice as it was urgent.  She said they follow up to ensure that employees have a full licence and have an incentive in work for employees to get their licence.

The complainant submitted that she was discriminated against in her conditions of employment on the grounds of disability and failures to provide reasonable accommodation for her disability and discriminated against on the grounds of race.

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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

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) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

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

The complainant’s evidence was that she informed the respondent of difficulties with travelling more than 25 minutes to work, that she had breast cancer resulting in brain surgery and remains under the care of a consultant for regular reviews and that she submitted a letter from her gp dated 26/02/2024 advising of her medical disability and that her employment was terminated.  The complainant also submitted that she was discriminated against on the grounds of race as African employees are discriminated against by being selected for transfer and not provided with sleep over shifts and that she is African.

The respondent denies the allegations and submits that the complainant did not disclose that she had a medical condition, did not advise that she had challenges with driving, that they are not responsible for how the complainant makes her way to work and that they terminated her employment because of her failure to pass probation as she advised she was unable to drive to work.  The respondent further denies that they discriminated against her on the grounds of race and that a large percentage of their employees are African and that selection for transfer was because the complainant was last in and that the newer employees are not provided with sleep over shifts owing to the disruption to their clients.

Section 85A(1) of the Act outlines that

“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.”

Evidential burden imposed on a Complainant by section 85A is set out in Southern Health Board v Mitchell [2001] ELR:

“The first requirement is that the complainant 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 complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

Only if such primary facts are established and 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.  It is for the complainant therefore to establish primary facts upon which they rely and also that those are facts of sufficient significance to raise inference of discrimination. As set out in Cork City Council v McCarthy EDA 21/ :

“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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Court set clearly 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 confirmed in her application form on 12/09/2023 that she had no physical condition that prevented her performing her duties.  On 15/02/2024 she requested night shift as she was only able to secure a minder for night time and also with her ongoing appointment with her oncology consultant.  While the complainant mentions her oncology consultant I note that she had been facilitated with appointments when the need arose and it does not appear that her request for night duty was due to any disability and I note furthermore that the complainant also advised that she was only “pleading not commanding nor with any right”.  This request was reiterated on 22/02/2024 when she emailed on 3 occasions to various managers that she was “plead(ing) …that “due to my health condition that I discussed during my interview…” and in a further email “I couldn’t drive long distance due to my health condition that I discussed in the interview” and that she “can’t drive long distances”.  She was advised that the respondent was not aware of any medical condition and it would appear that her shifts were removed and she wrote distressed that she had bills to pay and needed her shifts.

On 26/02/2024 the complainant submitted a letter from her physician that advised

“it is of my medical opinion that due to her background medical issues it is not suitable for her to drive continuously for greater than twenty five mins.  I hope you can facilitate her in her work”.

The definition of a disability has been interpreted in a broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU) and albeit that the complainant informed the respondent of her cancer diagnosis, I do not find that the evidence supports that the complainant put the respondent on notice at commencement of her employment that she had a disability that would impact how far she could drive to work.  Notwithstanding that; I do find that the complainant put the respondent on notice of a cancer diagnosis such that she required medical appointments which she was accommodated with and that also through her gp the respondent was on notice of a medical issue that impacted on her ability to drive greater than 25 minutes and was therefore a disability within the meaning of the act.

I note the respondent submits that the most recent date of discrimination referred to by the complainant on her complaint form is 23/02/2024 and they submit that no acts of discrimination occurred during this time.  I also note that the complaint form which is not a statutory form also refers

“my employment was terminated because I cannot be transferred due to my medical condition…... The only message I get was that I have no medical condition on file”,

and the complainant’s evidence included that her employment ceased on 29/02/2024 arising from what she alleges is the respondent’s failure to provide reasonable accommodation following the letter from her medical physician.  The respondent’s witnesses Mr O’Reilly and Ms  Clegg confirmed that they received this letter from the complainant dated 26/02/2024, that they terminated her employment on 29/02/2024 and that at that meeting the decision had been made to terminate the employment in advance and without engaging with the complainant or her medical physician or their own occupational health and as per the evidence of Ms Knox without offering an appeals process.  They also submitted that they are not responsible for how the complainant gets to work.

Having reviewed the evidence and submissions, it would appear that the complainant was medically fit to do her work when she commenced employment and no issues arose.  She later sought reasonable accommodation with regards to access to work when the length of commute to work changed and that upon receipt of the letter from the medical physician the respondent terminated her employment following what was in effect, a request for reasonable accommodation.  Where reasonable accommodation arises, it is necessary for an employee not only to have a disability within the meaning of the Act but also that appropriate measures are necessary for the employee to be fully competent and capable of undertaking his/her duties  and access to employment. 

Section 16(3)(b) provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if they could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.  The complainant submitted she could continue to do her role if consideration was given to the shorter commute that was supported by medical evidence.

The Labour Court has set out that the employer would “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity” (Humphreys v Westwood Fitness Club[2004] 15  E.L.R. 296..  This also provides:

“This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the 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 nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions”.

At a minimum as set out in Shannon Regional Fisheries Board v A Worker EDA 18/2013 , it required the employer to apply the objective test:

“….to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive.”

Appropriate Measures unders16 ofthe Act includes “access to employment” and the Supreme Court judgement in Nano Nagle School v Daly [2019 IESC 63 sets out that employers are 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.  In EDA2126 Monica McEntee v HSE a complainant had a disability that limited her driving, and 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.”

were highlighted by the Court.  In this instant caseIt may have been that what the complainant was seeking was disproportionately or unduly burdensome for the respondent to provide the reasonable accommodation that the complainant sought but the respondent failed to make appropriate enquiry with full cooperation of the employee, failed to seek input of the employee, failed to provide an appeals process and therefore deviated from their own normal procedures, failed to engage with the complainant’s medical specialist and failed to engage with the respondent’s own medical specialist.  I note the respondent’s evidence that they accommodated the complainant previously with nights when requested but this request was mostly unrelated to the reasonable accommodation on grounds of disability under the Act.

Having considered all the circumstances I find that the Complainant has established a prima facie case of discrimination on grounds of disability, and the respondent has not met the burden of proof required and therefore the complainant was discriminated against by the respondent’s failures to provide reasonable accommodation and taking into consideration the circumstances of the instant complaint including the impact on the complainant I make an award of €8,000 to the complainant.

The complainant submits a further complaint that she was discriminated against on the grounds of race in conditions of employment but the respondent’s evidence which was clear and undisputed by the complainant was that the majority of the employees are African and that provision of transfers and sleep overs is on the basis of last in and therefore the complainant has not established a prima facie case of discrimination and I find that the respondent did not discriminate against her on the grounds of race.

Having considered all the circumstances I find that the Complainant has established a prima facie case of discrimination on grounds of disability, and the respondent has not met the burden of proof required and therefore the complainant was discriminated against by the respondent’s failures to provide reasonable accommodation and taking into consideration the circumstances of the instant complaint including the impact on the complainant I make an award of €8,000 to the complainant.

I find that the complainant has not established a prima facie case of discrimination on the grounds of race in conditions of employment and on that part of her complaint I do not find that the respondent discriminated against on the grounds of race.

Disability, reasonable accommodation, discrimination, race, access to work.