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In the recently published decision of A Medical Secretary -V- HSE West [DEC-E2013-083] by the Equality Tribunal, an employee was awarded €70,000 for the effects of discriminatory treatment which was just short of the maximum two years salary of €71,656..

Background

The complainant was employed as a medical secretary by the respondent since April 2001 and suffered from a debilitating bowel condition and was also diagnosed with diverticular disease. In July 2007 the complainant stated that she was informed that she had to move from her existing office which was convenient to the toilet to a different office where it was more difficult to access the toilet. As she was unable to comply with the new working arrangements, the complainant was placed on sick leave. The complainant provided medical evidence to the respondent which stated that she would be fit to return to work if she was provided with a single office close to toilet facilities. It was submitted by the complainant that the respondent failed to make reasonable accommodation despite repeated requests. The Complainant also set out a number of other examples of discriminatory treatment.

The respondent did not accept that the new office was unsuitable for the complainant. It also stated that the new office was only an eleven second walk from the toilet compared with a four-second walk from the new office. The respondent also stated that it had offered the employee alternative employment which complied with its obligations under the Equality Acts.

The Equality Officer however disagreed with the respondent and stated “I am of the view that the HR Manager did not take the complainant’s medical problem seriously and did not make any attempt to resolve the matter…….There was no adequate investigation carried out to find out what could be put in place to accommodate the complainant in her position as medical secretary. The Act requires that appropriate measures should be put in place for a person with a disability and this means effective and practical measures…..to adapt the employer’s place of business. In this case the effective and practical measures required for the complainant at the time was a single office near a toilet and this would have allowed her to continue to work in her position as a medical secretary”.

The Equality Officer referred to a number of cases and further noted “The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. However if this results in a diminution of the person’s prospects of advancement in employment it would seem reasonable to conclude, on a purposive construction of the Section, that the employer should then consider if any countervailing measures could be taken to ameliorate that disadvantage”.

The Tribunal also noted that it was nearly six months after the complainant went on sick leave after she was moved from her office before the respondent had a meeting with the complainant and her union representative and engaged actively in seeking a resolution to the issue. It further commended that the decision to ignore the complainant’s request for a single office on her own near a toilet had serious consequences for her in that her condition was exacerbated.

The Equality Officer was guided by the Labour Court determination in Humphrey’s v Westwood Fitness Club Determination No. EED037 which was upheld by the Circuit Court. The Labour Court stated:

“At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee’s condition……………..

The Equality Tribunal noted that 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 Section 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.”

Decision

(i) the respondent did discriminate against the complainant and failed to provide her with reasonable accommodation for her in accordance with Section 16 of the Employment Equality Acts;

(ii) the respondent did discriminate against the complainant on the disability grounds pursuant to section 6(2)(g) of the Acts and contrary to section 8(6) of the Acts in relation to her conditions of employment;

(iii) The Equality Officer noted that the maximum that would be awarded was two years pay or €71,656 and awarded the complainant just short of this at €70,000 which is non taxable as it does not include any element of remuneration.

(iv) The Equality Officer also ordered the respondent to provide the complainant with a single occupancy office near toilet facilities in the Regional Hospital campus and to make arrangements for her to return to work in a position as a medical secretary as soon as such accommodation is in place and as soon as she could provide a medical certificate of her fitness.

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