This case is really interesting on both a human level and a technical level. It is a relatively long decision reflecting the history involved. 

The complaint was taken by a medical secretary employed since April 2001, who was diagnosed in 2004 with quite serious medical conditions of diverticular disease and a debilitating bowel condition. She worked in an office shared with one other person who knew and understood her condition. This office was adjacent to toilets. In September 2006 she and her colleague were told that they would have to move to another location and share with two others. The new location was not quite so close to toilets. 

The complainant explained that her condition is difficult to manage and she sometimes experiences acute attacks which could cause embarrassment in a shared environment. Although her colleague was moved the complainant was permitted to stay (following the submission of information relating to her disability to her manager), which was an accommodation in its own right, until her manager went on term time in June 2007 around which time the complainant was told she would have to move. She received a letter while on leave instructing her to attend to the new location on her return thereby removing the accommodation she had had until that point. 

The complainant’s evidence details the various events occurring following this including the actions taken by her trade union to support her. The key issues are that the complainant’s GP assessed her as requiring an office to work in alone adjacent to a toilet. This was supported by the respondent’s own occupational health doctor who also said if the accommodation was not available it may not be possible for the complainant to return to work as hers was a chronic medical condition.

It is worth noting the complainant had been capable of performing her work (there is no mention of any difficulties with her work) when she was in her original room and the needs of her condition were satisfied. Therefore, when provided with the appropriate accommodation she was fully competent and capable of performing her role.

The respondent’s position was that the room the complainant had previously worked in was required for research and study. If the hospital could not provide this then it might lose its teaching status and it indicated the dire consequences to another hospital in such circumstances.

However, perhaps the most important point made by the respondent is described in the Decision as follows: “The respondent does not accept that the new office accommodation was unsuitable for the complainant’s needs.”

This entirely ignores the medical advice given to it in relation to the complainant working alone. The respondent goes on to say that some indignity and embarrassment was inevitable for the complainant and that she appeared to have pinned her ability to work “to an unrealistic expectation that a single office close to a toilet could save her embarrassment of the indignities associated with her condition”. Even when the respondent was in receipt of the agreed medical assessments it continued to hold this view and this is very important. 

It's important because the respondent was either ignoring the medical advice it was given as to the complainant’s need to work alone or was attempting to look behind it. The complainant had been working in a shared office. The medical advice was now that she required an office alone. An Equality Officer is extremely unlikely to look behind agreed medical findings and, frankly, a HR manager is not generally qualified to do so. Ultimately, the Equality Officer could not accept, in a large hospital in addition to the Nurse’s Home with 90 offices, that it was not possible to find, or customise, a single room adjacent to toilets to suit the complainant’s needs. This failure to provide reasonable accommodation was found to be ongoing. 

A finding that the treatment complained of is ongoing is unusual. Events complained of may be individual events, a chain of related events or can be ongoing. In general, establishing that discrimination or other prohibited conduct is ongoing is a very difficult hurdle to clear. It was accepted in this case that the circumstances were ongoing and therefore all bets are off in terms of ring-fencing the case on a temporal basis. In other words, time limits are not relevant. 

In addition, the complainant alleged direct discrimination on the disability ground (which is quite distinct from any failure to provide reasonable accommodation) when the respondent did not appoint her to her original post following a promotion process. The Equality Officer found that she was not appointed to her original post, in other words promoted in situ, because she had been moved due to her disability. As others had been promoted in those circumstances the Equality Officer concluded that the complainant had been treated less favourably than those other colleagues who did not have a disability.

Finally, it is also worth noting that the Equality Officer was critical of the lack of engagement from the respondent with the complainant’s difficulties, particularly on the part of HR. 

The complainant was awarded €70,000, almost two years salary, and the respondent was ordered to return the complainant to her medical secretary role.

Why is this case of interest?

* When considering reasonable accommodation ensure that you take note of the medical advice received especially when it is agreed. Where it is not agreed, then a third, independent, opinion may be necessary.
* Be proactive in assessing the situation. The requirements are well settled since the Labour Court Decision Humphreys v Westwood Fitness Club EED037 and are included in this decision. 
* Satisfy yourself as to the capability of the employee. 
* Identify if and what special treatment is required. 
* Finally, ensure that the employee is permitted a full opportunity to participate in these considerations. 

Full case decision:
http://bit.ly/17PhUHM