FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal against decision of Director of Equality Investigations Dec-E2001-034.
BACKGROUND:
2. This is an appeal by the Company against an Equality Officer’s Decision DEC-E2001-034 which found that the Company had discriminated against the worker on ground of disability in terms of Section 6(2)(g) of the Employment Equality Act, 1998, (the Act) and contrary to Section 8 of the Act when the worker failed to meet performance targets. The Company believe's, without prejudice to the argument of discrimination on the grounds of disability, that the level of compensation awarded is excessive.
The worker was interviewed and offered the job of general operative with the Company on 26th September, 2000. On 5th February, 2001, his employment was terminated, the reason for the dismissal was the inability of the worker to meet the required standards.
The Equality Officer found that the Company had discriminated against the worker by failing to examine the options available to accommodate his needs given his disability. The Company was ordered to pay the worker £8,000 (€10,158) in compensation for the stress suffered as a result of the discrimination.
The Company appealed to the Labour Court in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place in Wexford on the 5th July, 2002.
DETERMINATION:
Claimant's Case:
The claimant's case was that he was discriminated against by his employer in that they failed to examine the options available to accommodate his needs given his disability.
He claimed the Company made no effort to understand his disability, to discuss it with him or show any genuine support for him. Instead he was put under pressure to reach production targets, which he believed affected his performance, and eventually lead to his dismissal.
He was adamant that he had informed the Company of his disability during his interview for the position. He also claimed that the employer failed to make any effort to get any information on his disability and refused help from the National Rehabilitation Board.
His view was that the compensation level awarded by the Equality Officer was correctly set to reflect the humiliation and upset caused to him by the Management's failure to provide support for him and their failure to try to understand his condition.
The Employer's Case:
The employer argued that he was unaware that the claimant had any disability and that this was not disclosed at the interview stage. Every effort was made to facilitate him during his training period and it was only after his failure to meet the required training targets that they became aware that he had a difficulty. The Employer stated that in Week 6 of the claimant's employment his supervisor noticed that his performance in certain jobs was deteriorating so they re-enforced his earlier training. The claimant informed them when asked about this problem that he was, in fact, a slow learner.
The Company states that it was not until December, at a meeting to discuss his poor performance with the shop steward present, that the claimant stated that he had a disability. This, according to management was the first time he had told them of any disability, which he described as a slow hand. The Company argued that they then gave him another 4 weeks to try and reach his targets but that when he failed to do so his employment was terminated.
The Company did acknowledge that they had received a telephone call from the National Rehabilitation Board indicating that an employment support scheme was available but they did not follow this up because it would not have been possible for the Company to keep the claimant on, even if they had received a wages subsidy for him. Without prejudice, the Company also appealed the level of compensation.
The Equality Officer's Report:
The Company took issue with the Equality Officer's statement that the claimant's deteriorating performance could be as a result of pressure put upon him to reach targets during training, and that this could have had an adverse effect on his work performance. The Company made a point that they did not discuss the claimants performance with him until Week 8 of his employment, and by this stage his performance was clearly unsatisfactory. It also took issue with the criticism of the Equality Officer, claiming that it implied that an employer cannot "seek an improvement in an employee's performance." This, it argued, would clearly be an unacceptable situation in a modern business environment.
In relation to the Equality Officer's findings that the Company made no effort to establish the impact of the claimant's disability on his performance, and that the Company failed to examine the options available to accommodate the needs of the claimant, the Company argued that they did create a special less demanding job for the claimant. They had also extended his training period and asked him to do less-demanding work than that required of others. The claimant was given the opportunity over a substantial period of time to prove that he could do job.
Findings:
The Court believes that there may have been some confusion in regard to whether the claimant made it known that he had a disability when he applied for the job and accepts that the employer may not have been aware of the claimant's disability when first employing him. Therefore, the Court in this case must consider what action the employer took on becoming aware that the claimant had a disability.
Section 16 (1) of the Act outlines the obligations of employers towards persons suffering from a disability. It states as follows:
"Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position if the individual-
(a) will not undertake... the duties attached to that position or will not accept.... the conditions under which those duties are, or may be required to be, performed, or
(b) is not...fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under those duties are, or maybe required to be, performed."
Section 16(3) of the Act, provides as follows:-
(a) a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment facilities to which paragraph(a) relates.
(c)a refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer."
While Section 16(1) of the Act does not require an employer to employ any person who is not competent to carry out the duties attached to the position, an employer must have regard to the provisions of Section 16(3) of the Act. Under these provisions, an employer must do all that is reasonable to accommodate a person with a disability unless such a provision would give rise to a cost, other than a nominal cost, to the employer.
The Court is satisfied that every reasonable effort was made to facilitate the claimant during his training period, and that he failed to reach the required standard and was unable to perform the duties of the position. In this particular case, it is clear that the first requirement of the legislation, that the person be able to do the job, was not met by the claimant although he was given extra periods of training over and above the length of time given to others recruited at the same time.
However, in relation to the action taken by the Company when they found that the claimant had a disability, the Court is not satisfied that sufficient effort was made to identify the effect of his disability on his performance.
In this particular case, the employer appears to have made no attempt to understand the nature of the complainant's disability and the effect of the disability on his performance. While the Rehabilitation Centre telephone call would appear to have been about a financial subsidy, it clearly was an opportunity to get expert advice on possible options to assist the complainant and the employer did not avail of the opportunity to seek any special treatment facilities which might be available for the claimant. The employer indicated to the Court that it was committed to implementing the provisions of the Act and that it has and does employ people who are disabled and has made special provisions for them. The Court accepts the employer's contentions in this regard and it is all the more regrettable that in this particular case it has failed to utilize procedures it has obviously adopted in the past.
The Court, therefore, finds that the Company was in breach of the provisions of Section 16(3) of the Employment Equality Act, 1998, by failing to do all that was reasonable to accommodate the needs of the complainant given his disability.
DETERMINATION
The employer discriminated a against the claimant in breach of Sections(6 )(2)(c) and sections 2(b) and (c) of the Act. The Court does not agree with the Equality Officer's findings that the Company discriminated against the claimant in the first instance with regard to his employment, and this finding is overturned. The Court does agree with the Equality officer's finding that the Company failed to accommodate the needs of the claimant by providing this special treatment facilities for him when his disability became known to them. In the circumstances of the case, the Court believes that the sum of
£8,000 (€10,158) ordered by the Equality Officer was excessive and, therefore, reduces the amount of compensation to €5,000.
The Court so decides.
Signed on behalf of the Labour Court
17th December, 2002Finbarr Flood
CH/MB.
Chairman
DETERMINATION:
Signed on behalf of the Labour Court
September, 2002______________________
CH/MB.Finbarr Flood
Chairman
NOTE
Enquiries concerning this Determination should be addressed to Caroline Hayes, Court Secretary.