Kerry County Council has been ordered to pay more than €50,000 to an office worker for failing to provide a suitable workstation so that she could gradually ramp up her working hours after developing back trouble.
The Workplace Relations Commission was told it took the local authority more than three years to buy a suitable ergonomic chair for the worker and that other equipment still had not been provided – with the worker, Mary McGaley, left stuck on part-time hours and working “unpaid” to “keep the office going”.
Upholding Ms McGaley’s complaint under the Employment Equality Act 1998, the tribunal said the council had failed to act for seven years on “low-cost, straightforward recommendations made by five different medical experts” that Ms McGaley get the ergonomic set-up and increase her hours.
Senior council managers attended a hearing last month, but did not give evidence after a second application by the council for an adjournment was denied by the adjudicating officer.
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Kerry County Council’s representative said the council would “take it up with another forum”.
Ms McGaley told the WRC that after developing back trouble in 2016, the council’s occupational health assessor recommended an inflatable cushioned chair and a floor mat, neither of which she got.
Her own physiotherapist advised her to look for a lumbar support cushion, which she bought herself, asking to be reimbursed – only to be told the council would pay for either the cushion or the chair, but not both, Ms McGaley said.
“Basically, I am either allowed to pay for my own chair for long-term use or pay for the backup seat which was the only solution available to me at short notice to enable me to return to work,” she wrote in one letter to the council in 2016.
By contrast, the complainant said, a colleague of hers had been given a specialist chair, a standing desk, a kneeling pad – “even a microwave to warm up heat packs”, she said.
Ms McGaley was signed off work sick because of her back issues for the second half of 2016, with the council’s own occupational health doctor deeming her unfit to return to work until May 2017, when a “phased return” to work and a further ergonomic assessment was recommended.
On her first day back, however, the complainant said there was no change to her workstation and she was left in pain that evening, she said.
The council’s HR manager, Liam Quinlan, told the complainant it was “up to [her] to get someone to certify a chair”, Ms McGaley said.
Further correspondence and assessments continued into 2018, with Ms McGaley escalating the matter to the council’s director of services, Martin O’Donoghue, before an ergonomic chair was brought to her desk in August 2018, the tribunal heard.
It was the wrong chair – the original model being out of stock by this point – with a new chair eventually arriving in October, the tribunal was told.
From that point on, Ms McGaley said she was in a position to increase her working hours in line with her GP’s recommendation for six half-days spread over five days. However, the only option Mr Quinlan would give her was to work four half-days and one full day, she said.
Ms McGaley said she could not work the full day, but that Mr Quinlan’s response to her proposals was a “blanket no”.
Ms McGaley lodged a formal grievance with her employer in May 2018 over the matter, but had not received the final outcome by the time of the WRC hearing in August this year, said her solicitor, Siobhan McGowan of Alastair Purdy & Co.
Although further ergonomic equipment had been provided in 2019, the footrest provided at that time was the wrong one and there were still recommended items outstanding, Ms McGaley said.
“I would be tearing my hair out looking for anything else,” she said when she was asked why she had not sought these more recently.
Adjudicator Úna Glazier-Farmer made a finding that Ms McGaley had suffered “continuing discrimination” by the council’s failure to provide an appropriate workstation and increase her working hours.
The adjudicator added that Kerry County Council “fell significantly short of what is expected of an employer” in the workplace equality legislation.
“Low-cost-straightforward recommendations” were made by five different medical experts over the course of seven years and not adopted in full by the county council, she wrote.
“There is no reason for this inexcusable delay on the part of the respondent,” Ms Glazier-Farmer wrote, calling the council’s decision not to accommodate the complainant “egregious”.
Upholding Ms McGaley’s complaint, the adjudicator ordered Kerry County Council to pay her two years’ salary in compensation, a sum of €50,255.
She further directed Kerry County Council to put Ms McGaley on the weekly roster recommended by her GP in August 2019 and provide “all equipment recommended by the physio” in May 2018 within six weeks of her decision.
