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Employee Awarded Over 18 Month’s Salary For Discrimination

The Complainant was employed as an executive assistant by the Respondent from  November 1998 until she retired on ill health grounds. The Complainant took a case against the Respondent under the Employment Equality Act for the discrimination on the ground of disability when it failed to make reasonable accommodation to enable her to continue working and another claim for constructive dismissal under the Unfair Dismissal Act. Despite being awarded a significant award for the first claim, her claim for constructive dismissal failed as the Complainant failed to first exhaust internal procedures.

Background

The Complainant suffers from obsessive compulsive disorder (OCD) which required periods of hospitalisation in 2008/2009 and again in 2012. The Complainant became pregnant in 2015 and was out on a combination of both maternity and sick leave. Before she was due to return to work in 2016 she became pregnant with her second child. As with the first pregnancy whe was recommended to take sick leave before commencing maternity due to her OCD. Her second child tragically passed away ten days after birth. The Complaint  was due to return to work in July 2018.

As a result of her OCD the Complainant suffered significant anxiety about contamination when using the toilets at work and often avoided using them if possible. In 2018 she was diagnosed with incontinence as a result of not going to the toilet enough for a number of years. She was advised that she was to go to the toilet every three hours at least. The Complainant knew that this would cause some difficulties when she returned to work and so she contacted the HR Partner in April 2018 to notify the Respondent of her disability and to request reasonable accommodation.

The HR Partner arranged for the Complainant to see the Respondent’s occupational health doctor on 7th June 2018. She informed Dr A of her condition and requested support and reasonable accommodation on returning to work. Dr A requested permission to contact the Complainant’s consultant psychiatrist about the supports requested. The use of the Complainant’s own toilet was discussed as well as the possibility of working from home and the doctor was going to check this with the Respondent. The Complainant met with Dr A for a second appointment on 21st June 2018 after Dr A  had contacted the consultant psychiatrist. He indicated that he did not support the provision of a personal toilet for the Complainant. Dr A also reported that the Respondent would not allow the Complainant to work from home. The supports discussed included part-time work and retirement on ill health grounds. The meeting was fraught. The Complainant was then asked to see Dr A’s colleague, Dr C, which she duly did and Dr C put the Complainant on sick leave until their next appointment.

The Complainant saw Dr C again on four separate occasions the fourth taking place on 18th October 2018. The Complainant raised the issue of working from home at these meetings but was informed by Dr C that the Respondent would not allow this. Dr C sent her to Dr D, another psychiatrist as Dr C was having difficulty contacting the consultant psychiatrist. The Complainant met with Dr D on 24th September 2018. When she met with Dr C again on 4th October 2018 she was asked to meet her own consultant again, which she did on 9th October 2018 and was informed that all along he has informed the occupational health service that she was fit to return to work and that reasonable supports would be helpful. At this point the Complainant felt that if she had not disclosed her disability she would have been back to work in July.

Finally in their meeting of 18th October 2018 Dr C told the Complainant that a phased return would be possible, working four hours per day. She met with the HR Partner who confirmed this phased return would be commencing from 8th November 2018. The Complainant also put several suggestions about working part-time at home and part- time in the office, being accommodated with extra toilet breaks, being allowed time to use her own toilet and working at home but collecting and dropping off work at the office. All these suggestions were rejected. She was informed by HR that she could not take extended toilet breaks in the evening when she returned to full time and so when she met with her consultant psychiatrist again he hand wrote a letter for the Complainant to bring to Dr C and Dr C duly wrote a letter to the Respondent, which the Complainant only received as part of her data access request.

Further discussions with the HR Partner took place but the possibility of working from home was ruled out for data protection reasons despite the fact that another member of staff had been permitted to work from home. The Complainant asked to raise the matter with a more senior HR person but that request was refused. With no supports being made for the Complainant working full time and it becoming too stressful because of the toilet issue she saw no choice but to retire for the sake of her mental health. The retirement was supported by all her doctors and was approved on 25th January 2019.

Decision

The Adjudicator, Maria Kelly, was satisfied that the various options of working from home were not assessed by the Respondent in respect of the Complainant’s individual circumstances and were ultimately disregarded by the Respondent on the simple basis that there was no working from home policy at the time. The Complainant was treated differently to another member of staff who was facilitated with working from home. The Adjudicator was satisfied that by the Respondent not carrying out an individual assessment of the various options of working from home they did not take appropriate measures to enable the Complainant to continue working from home and therefore did not satisfy their statutory duty to the Complainant. She was therefore satisfied that the Complainant was discriminated against on grounds of her disability and made an award of €60,000, just over a year and a half of the Complainant’s salary.

The Complainant’s claim for constructive dismissal failed. Although the Adjudicator noted that the Complainant was clearly having great difficulty in trying to agree reasonable working arrangements that would assist her to manage her OCD, the Adjudicator stated that the Complainant had made her own decision to resign. The Complainant did not raise a grievance with the Respondent or show any attempt to use the grievance procedure to resolve her issues about being facilitated with working from home. The Adjudicator further noted that the Complainant did not give any indication to the Respondent of her intention to resign before her consultant psychiatrist wrote to HR in January 2019.

Take away for employers

It is clear from this decision that employers should carry out an individual assessment of any employee who notifies them of a disability and requests reasonable accommodation. Employers should have  good reasons for refusing suggestions by employees or their doctors on how best to accommodate their disability and at a minimum be able to demonstrate that such suggestions were given proper consideration. This substantial award demonstrates how seriously Adjudicators will take cases in which the employer refuses to reasonably accommodate an employee who is capable of returning to work.

Link

28th June 2020

Author – Anne O’Connell

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

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