Bernadette Treanor writes:

Employment Equality Decisions published in November 2014 Reviewed

1. The first case, DEC-E2014-067 was not upheld but will be of interest to many because it describes a successful defence of an alleged failure to provide reasonable accommodation in a manufacturing environment.

2. The second case, DEC-E2014-069, also considers reasonable accommodation. It was taken by a Speed Monitoring/Surveying Operator whose speed survey van was set alight after having petrol thrown on it while he was in it. The complainant suffered severe psychological injury as a result of the attack. He was dismissed when he informed the occupational health person that he would never go back working as a speed monitoring operator.

3. The third case, DEC-E2014-070 includes a finding that events after the lodgement of the complaint were encompassed by the. Two of the three events upheld occurred after the complaint was lodged.


1. DEC-E2014-067, Szczepanska v ArcRoyal Limited

Issues: Disability, reasonable accommodation – successful defence

The complainant was employed by the respondent since 2007. In 2009 she suffered an accident at work injuring her shoulder. Her usual duties were as a general operative in the warehouse and occasionally she worked in the “clean room” and on a computer printing labels. The complainant was initially allocated duties at the computer station and was subsequently put back to her pre-injury duties. She had subsequent intermittent absences and on her return from one was subject to a disciplinary process.

There was a volume of correspondence between the parties, some being requests for lighter work and others related to H&S. Her GP’s report to the employer resulted in her not receiving any further accommodations.

The respondent asserted that the complainant failed to follow detailed training in respect of her safety resulting in her injury. The respondent contributed to the cost of her physiotherapy and when she returned to work she was retrained in all aspects of the role. A number of alterations were made to her duties to help with her recovery and return to work. However, the employer received notice from the company doctor that the complainant had again ignored a direct instruction, her training and retraining when she lifted a heavy box. At a meeting she was told her behaviour was unacceptable and that the instructions were to protect her health. She was also advised that failure to adhere to the H&S requirements could result in disciplinary action. Minutes of the meeting were submitted to the Tribunal.

Following a visit by the complainant to her own doctor the respondent outlined in writing what the light duties would be and stressed that she should not lift any heavy weights. She was also notified in writing of a phased return to work. Some two months later the respondent asserts the complainant injured herself again while not following agreed procedures which was witnessed by other staff.

The complainant again returned to work in January 2010 and was completely fit to resume all work duties but that lifting 5kg or more would reactivate old injuries. The respondent wrote two letters to the complainant later that month explaining why such accommodation was not possible. “The respondent maintains that in the meantime they continued to manage the complainant’s absence by periodically reviewing the situation, in addition to providing free GP access and along with her physiotherapy sessions and payment for an MRI scan”.

When the complainant was fit to resume in June 2010 following further sick leave the respondent called her to a disciplinary meeting resulting in a verbal warning. The complainant made two unsuccessful appeals of the warning.

Following a period of annual leave the complainant returned to work with a medical certificate from her GP stating she was not fit to engage in manual labour. She was asked to refrain from work until a meeting was arranged with HR who placed her on sick leave until an appointment could be made with the company doctor.

The respondent argued that the period she was certified as fully fit for work did not require any reasonable accommodation. The requirement “no work with lifted arms” rules out even computer work. Although contested by the respondent the Equality Officer accepted the complainant’s injury as a disability. The Equality Officer considered section 16 of the Acts and the Labour Court Determination Humphries v Westwood Fitness [2004]EIR 296.

He went on to find that the respondent was exemplary in how it worked with the complainant at the outset and accepts that the adjusted tasks set the complainant could not amount to employment in the long term. He found that the respondent worked with the complainant in a responsible and diligent manner to identify alternative roles but were unable to do so. He accepted the respondent’s arguments that the administrative roles were not similar work and required a higher level of academic qualifications.

In conclusion he found that

1. The employer established the employee’s capacity,

2. Provided the complainant with a full opportunity to participate at all stages, and

3. Put in place a number of agreed special treatments before reaching the conclusion that the complainant could not carry out the duties for which she was employed.

On that basis the Equality Officer found against the complainant.


Why is this case of interest

- This case is an example of what is required to satisfy the reasonable accommodation requirements and is worth considering in terms of the various steps taken, and records kept, by the employer.


2. DEC-E2014-069, McDonald v Road Safety Operations Ireland Ltd., T/A Go Safe

Issues: Disability, discriminatory dismissal, failure to provide reasonable accommodation

The complainant began working with the respondent on 12 January 2011 as a Speed Monitoring/Surveying operator. Just two months later on 13 March 2011 he suffered severe psychological injury as a result of a petrol attack on his speed survey van which was set alight while he was inside. His employer paid him while he was on sick leave and he forwarded his cheques from the Department of Social Protection to the employer. He was sent to occupational health (OH) twice, on 27 June 2011 and 10 October 2011. He was dismissed after this second visit when according to the respondent he was adamant with OH that he would never go back working as a speed monitoring operator.

The Equality Officer found that the complainant suffered from post traumatic stress manifested in “depression, anxiety sleep disturbance following the incident” and that this amounted to a disability in accordance with the Acts. She found the complainant established a prima facie case of discriminatory dismissal on the basis that the dismissal was influenced by his disability, which in turn caused his absence and inability to return to work.

The Equality Officer then considered whether reasonable accommodation had been appropriately considered by the employer. She considered the Humphries v Westwood Fitness case both in the Labour Court (EED037) and in the Circuit Court ([2004] ELR 296). She was satisfied that the employer had informed itself as to the nature and extent of the complainant’s condition.

The employer described the changes made to vehicles since the attack. These were not undertaken for the complainant but were applied generally. The complainant was not made aware of these changes and therefore it would appear that the assertion he would never return to his role (and the complainant does not appear to have denied stating this) was made without the knowledge of changes undertaken. She found, therefore, that the employer had not consulted with the employee before coming to the conclusion that he was not capable of performing the duties for which he was employed. On this basis the employer was not entitled to avail of the defence in section 16(3).

There is significant discussion of whether the employer gave consideration to placing the complainant in an alternative role. The employer asserts that this was considered and that no suitable alternative role existed as its head-office is in Listowel and cleaning is outsourced. However, and perhaps more importantly, there appears to be a suggestion that an employer is required to consider alternative roles.

The employer also argued that section 37(3) provides a complete defence as considered in Department of Justice, Equality and Law Reform v William Kavanagh (EDA1120). The Equality officer found that the respondent company in the instant case did not fall within the definition of “employment within the Garda Síochána, prison service or any emergency service”..

The complaint was upheld against the respondent for both failing to engage with the complainant in evaluating alternatives and in considering is any special measures could enable him to return to work (presumably in his own role) and the complainant was awarded €28,000.


Why is this case of interest?

- It is well established that employers are required to consult with employees, having informed themselves of the nature of the employee’s disability, about appropriate measures that would permit the employee remain in employment. Ensure in such circumstances that you engage with the employee in considering options.

- It remains to be seen whether a requirement to consider entirely different roles is congruent with the recent Labour Court case EDA1430 where it stated that the employer “has a duty to fully consider the viability of a reorganization of work and a redistribution of tasks amongst all of the SNA so as to relieve the Complainant of those duties that she was unable to perform”


3. DEC-E2014-070, Jankowski v Tesco Ireland Ltd.

Issues: Race, conditions of employment, time limits, collective findings relating to multiple allegations,

The complainant lodged his complaint with the Tribunal on 1 March 2012. He made multiple allegations relating to his conditions of employment that roughly break down into three groups, those relating to 2010, those relating to 2011 and 2012 until the date of his complaint, and those that occurred after the date of his complaint that were included in his submission to the Tribunal.

The complainant’s allegations related to issues such as the treatment of his various applications for leave including Christmas leave, not being permitted to wear runners and not being permitted to go home when sick.

In respect of the first group of allegations, the Equality Officer found that the complainant had not established a link between the 2010 allegations and those that occurred later and therefore the first group of allegations were out of time.

When considering the allegations in the third group, those that occurred after the lodgement of the complaint and included in the submission of 2013, the Equality officer was satisfied that they all related to the Race ground. She stated “It is not envisaged that a complainant should have to submit an additional claim form for each and every alleged incident of discrimination”. She was satisfied that the respondent was on notice of the allegations having received the submission and therefore found she had jurisdiction to investigate them. However, in Determination EDA1124, Ann Hurley v County Cork VEC and in EDA122 A School and a Worker, the Labour Court stated that matters arising after the date of the lodgement of the complaint were not comprehended by the complaint, could not be regarded as part of the complaint, but may have probative value in respect of those incidents that could.

The Equality Officer’s conclusion that she had jurisdiction is important as only three of all of the complainant’s allegations were upheld. Two of them, occurring in December 2012 and January 2013, occurred after the date of the lodgement of the complaint. The third matter upheld relates to incidents that occurred in October 2011 and June 2012 when the complainant made a complaint of discrimination, along with other colleagues, to a manager in October 2011 and raised it a second time on his performance review in June 2012. The respondent could not offer an explanation as to why neither complaint was actioned. The Equality Officer found that as no action was taken this established a prima facie case of discrimination on the grounds of race which the respondent failed to rebut. While, of course, it is inadvisable for an employer to ignore such serious allegations, there appears to be no reference to how others were treated in similar circumstances.

Having considered some 10 allegations the Equality Officer concluded that the remainder did not amount to discrimination of him on the race ground. She referred to Ms. Angela Carr and the Financial Services Ombudsman v EBS Building Society ([2013] IEHC182) where the judge stated that it was not necessary “to deal on a point by point basis with every argument made by the complainant”.

The complainant was awarded €12,000 for the discrimination in the three matters upheld.

Why is this case of interest?

- The Equality Officer decided that incidents that occurred after the complaint was lodged were encompassed by the complaint.

- The respondent’s failure to handle an employee’s complaint has been upheld as discriminatory. Regardless of whether this is ultimately upheld employers should ensure that managers know how to respond to such allegations.