The complainant worked with the employer company since 1978 and was diagnosed with Multiple Sclerosis in 2006.  In May 2012 the complainant commenced a period of certified sick leave. In October 2012 on a phased basis and in November she was again absent on sick leave.  Her employer sent her to its Occupational Health specialist.

While being assessed the complainant described difficulties in her team at work arising from sporadic peaks in work and a grumbling among her colleagues that she was not pulling her weight at these peak times.  She asserted that these grumblings among the team created a “palpable tension” in the team which in turn exacerbated her anxiety which in turn fuels her condition.  The OH suggested that management should meet with her prior to her return to work to discuss the matter.

The employer met with the complainant the following day and during that meeting she was told of the difficulties in the team with one person already on restricted duties and that she was to move to alternate duties in a different area of the operation.  When the complainant asked she was told she would not have been moved from her area if she did not have MS.

The Equality Officer found that this established a prima facie case of discrimination on the disability ground.  She found that “instead of carrying out risk assessments of the job and duties based on the complainant’s illness management made a decision to move her”.

She was satisfied that the respondent formed a view that the complainant was unable to undertake the duties of her position and that moving her without consultation was “ill-considered and ill-thought out”.   She also found that the complainant was not afforded any opportunity to take part in the assessment process and that the decision to move her was taken before the meeting.

Of course, regular readers will know that this in itself, (lack of appropriate consultation), constitutes a failure to provide reasonable accommodation in accordance with the Labour Court Humphries v Westwood Fitness case, EED037.  This case was underpinned by its appeal to the Circuit Court that found an employer has a legal obligation under the Acts to take advice from either the complainant’s own doctor or an independent doctor.

There was no attempt by the respondent to deal with the tension in the team as requested by the OH and therein appears to lie the confusion.  It appears that the respondent understood that the complainant was not fully capable of working in her existing area when in fact her difficulty was with the tension in the group.  Perhaps a more appropriate approach, at least in the first instance, might have been to address the tension rather than take a unilateral decision to move her.  On that basis the Equality found that the employer failed to provide reasonable accommodation.  Based on both findings, the Equality Officer awarded the complainant €20,000 and ordered that the complainant be reinstated into her former role.

Why is this case of interest?