The complainant was employed in an administrative role working one full day and three half days per week.  After working on a project for some time in 2010, in between her normal duties, she developed injuries to her arms in that “she lost proper movement in her right arm ….Then she had pain in her left arm”.  For various reasons the project was abandoned.  The complainant asserts that she was still expected to close heavy shutters and in March 2011 she submitted a medical cert stating “She is restricted in doing physical work” and she informed her employer that she would have to temporarily stop closing the shutters.  Some weeks later the complainant was asked to file 20 sheets of correspondence into 20 separate files following which she had to go back on anti-inflammatories.  On being told of the complainant’s difficulties the complainant asserts that her manager, Sr. A, reacted badly.

The complainant’s injury, ongoing tennis elbow, was accepted as falling within the definition of “partial absence of a person’s bodily … functions and therefore  a disability in accordance with the Acts”.

The respondent argued that the earlier incidents were out of time.  However, the Equality Officer viewed them, not as isolated and unconnected events, but as related to her arm injury and connected to her contention that the respondent had failed to provide her with reasonable accommodation.

The pivotal piece of evidence would appear to be that the complainant was again asked to carry out the opening of the shutters on Wednesdays sometime after she had produced her doctor’s certificate and pointed out that she was incapable of doing physical work.  This information is not included in either the complainant’s nor the respondent’s case but is introduced as new in the Equality Officer’s conclusions.  It is pivotal because it is this information that is used to indicate that the failure to provide reasonable accommodation was ongoing at least until the complaint was made.

It appears that the complainant was provided with reasonable accommodation in terms of matters in March 2011.  To be clear, she was not required to open and close the shutters after she presented her doctor’s certificate and explained her situation.   The difficulty arises with a subsequent request that she undertake the opening and closing of the shutters on Wednesdays sometime afterwards.  It is not clear when this was re-introduced but as always, I would mention that the Equality Officer may have had information presented that is not included in the Decision.  Therefore, the relevance of this break in time is unclear.  Certainly, the employer did not seek to satisfy itself independently of her capabilities through an occupational health professional but was this a requirement when the accommodation was immediately provided?

However, one question arises.  The complainant asserted that this re-introduction of a requirement to open the shutters amounted to a failure to provide reasonable accommodation and that she did not complain as she was afraid of what her manager would say.  We do not know when this occurred.  However, the need for reasonable accommodation only arises where an employee requires some support in order to undertake the tasks pertinent to their role.  In this case the complainant undertook this task until she submitted her claim.  If the complainant undertook the task with no difficulty apparent to the employer and no further medical evidence was presented to the employer that she remained unable to do it (and of course it was always open to the complainant to seek support from her doctor), it would appear that she was undertaking the task.  The question arises then, whether or not she required reasonable accommodation to continue.  While we do not have sufficient information to conclude these matters one way or the other, bear in mind that this matter is crucial as it is this that beings the entire claim in time.  However, it would have been prudent for the employer to satisfy itself as to the complainant’s capabilities in March 2011 by seeking expert occupational health advice rather than subsequently testing those capabilities by setting tasks such as closing the shutters.

The Equality Officer did not uphold the complainant’s allegation of victimisation but awarded her €7,500 in compensation for the failure to provide reasonable accommodation.

Why this case is of interest?

• Employers should seek professional advice as to an employee’s capabilities rather than testing them themselve