FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : CUSTOMER PERCEPTION LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS. GEMMA LEYDON (REPRESENTED BY ALAN DONNELLY & CO) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998
BACKGROUND:
2. The complainant referred her case to the Labour Court on the 21st of December, 2001. The following is the Court's determination:
DETERMINATION:
Ms Gemma Leydon (the complainant) commenced working with Customer Perception Limited (the respondent) in April, 2000. She had previously worked with an associated company, Optimum Results Limited, for a short period in 1999.
The respondent is involved in the business of providing customer based information for retail and other businesses by way of targeted market research. The complainant was employed as a business development executive and as an assessor. In the latter capacity the complainant worked on a contract for services and this work was ancillary to her main duties with the respondent.
In April, 2001, the complainant was involved in a road traffic accident as a result of which she sustained personal injury. Her car was also written off.
On the 19th June, 2001, she was given notice that her employment would be terminated on the 26th June, 2001. The complainant contends that she was dismissed because of the injuries she sustained in the road traffic accident and that those injuries amounted to a disability within the meaning of Section 2 of the Employment Equality Act, 1998 (The Act). She referred a complaint to the Court pursuant to Section 77 of the Act seeking redress for discrimination on the disability ground.
The Evidence:
The evidence adduced by the parties can be summarised as follows:
Summary of the Complainant's evidence:
The complainant worked for the respondent on a part-time basis while at college and worked full time during holidays. Her duties involved attendance at meetings and travelling to retail outlets to engage in what was described as “mystery shopping surveys”. She owned a car which she used in the course of her work and for which she claimed expenses. She frequently travelled in the company of Ms. Janet Johnson who was her manager. Ms. Johnson did not own a car and did not hold a driving licence. Ms Johnson would use public transport in the course of her employment on occasions when the complainant was not available to drive.
In April, 2001, the complainant was involved in a road traffic accident. She sustained injuries which resulted in pain and reduced movement in her shoulder, back and neck. Her car was a write-off. She was hospitalised for a few days after the accident and she then took time off to complete her final exams at college.
Following her exams, the complainant had a discussion with Mr. Adrian Harte, who is managing director of the respondent, in relation to her return to work. It was the respondent’s recollection that this meeting took place on the 1st June, 2001. Mr. Harte offered her a full time position with the respondent at an increased salary of €14,000 per annum.
The complainant subsequently had a meeting with Ms. Johnson to discuss her work programme and range of duties in this position. The duties outlined to her at this meeting did not differ greatly from those which she had during her earlier period of employment. The complainant had no recollection of being told that it was a requirement of the job that she replace her car nor had she any recollection of being offered financial assistance to acquire a new vehicle.
The complainant had been advised to undertake a course of physiotherapy as part of the treatment for the injuries she had sustained in the road traffic accident. This would have required her to take one day off work per week for treatment. She told the Court that she discussed this matter with Mr. Harte on the 19th June, 2001, and asked to be facilitated with the necessary time off. Her recollection was that she had specifically told Mr Harte that she required one session per week over six weeks.
Later on the same day, Mr Harte met with the complainant and told her he had decided to terminate her employment with effect from the following week. She said Mr. Harte had told her this was because she was immobile as a result of her accident and because he believed that the job would be too stressful for her in her condition.
The complainant told the Court that she had instigated proceedings in the Circuit Court seeking damages for personal injury and other loss and damage arising from her accident. These proceedings were subsequently settled on terms, details of which were provided to the Court. The proceedings were issued after she had been dismissed and while she was unemployed. On advice from her then solicitor, a claim for loss of earnings was not included in particularising her loss and damage and she did not recover damages for loss of earnings.
In cross examination it was put to the complainant that she had attended a meeting with Mr Harte in a local bar on or about January, 2001, at which it had been made clear to her that the only position likely to be available to her when she left college was a sales position working in the field. The complainant had no recollection of such a meeting or of being so advised.
The Respondent:
Summary of evidence of Mr Adrian Harte.
Mr Harte is managing director of the respondent company and has held that position since 1995. The respondent company effectively took over the business carried on by Optimum Results Limited in 1999. The Company is engaged in providing a service to retailers in relation to their sales technique and customer perception. It is a small business with a turnover of less than €127,000 per annum.
He first employed the complainant on a part-time basis with Optimum Results Limited in 1999. She worked for that company for approximately 9 weeks during that year. In June, 2000, the complainant started working for the respondent company and worked full time during her college holidays. Around that time he was reviewing the business methods of the company. He had come to the view that what the business required was a sales representative working in the field rather than the office based approach to attracting new business which was then the practice.
On or about January, 2001, before the complainant returned to college, he had a meeting with her in a local bar to explain his proposals for the future of the business. He told her that the only role available would be as a field representative calling on prospective clients and generating new business. Ms. Johnson was also present at this meeting. The complainant seemed happy and had indicated her interest in fulfilling such a role.
Mr. Harte was aware that the complainant had a road traffic accident before she completed her final exams in Spring/Summer 2001. When she came back to work he was adamant that the only role available to her was in the field. He asked the complainant on numerous occasions if she was replacing her car. She never gave him a satisfactory answer. He suggested on a number of occasions that he could offer financial assistance if the complainant could not afford to replace her car at that time. Again the complainant did not give any definitive response to this offer.
In relation to the complainant’s request for time off to attend physiotherapy, she had not looked to take one day off per week for six weeks. Mr Harte’s understanding of the conversation was that she sought an open-ended facility to take time off work to undergo this treatment. He did not say that he would have to discuss this request with Ms. Johnson.
Mr. Harte had been actively considering the complainants continued employment with the Company in view of her continuing failure to provide a car. He interpreted her request for time off as meaning that she wished to come and go as she pleased. This compounded an already unsatisfactory situation. He decided to meet with the complainant later that day and deal with the matter.
At that meeting, which was attended by Ms. Johnson, he went over the sequence of events in relation to the complainant’s failure to provide a car and the need for her to have private transport in order to discharge her new role. Mr. Harte said that he went on to suggest to the complainant that it would be better if she left the employment until her circumstances improved.
Mr. Harte believed that the complainant was leaving on amicable terms and on the understanding that she could return at some point in the future if she was in a position to fulfil the sales representative role. The reason why he suggested that the complainant leave her employment was because she did not have a car. It was not because of her injuries, although he did accept that her request for time off, as he interpreted it, was a contributory factor.
Summary of Evidence given by Ms Janet Johnson:
Ms. Janet Johnson was the complainant’s immediate manager at the material time. She is no longer employed by the respondent. She recalled the meeting in the local bar at which Mr. Harte had explained to the complainant that the only position open to her would be as a sales representative. She also recalled the meeting at which the complainant was told that her employment was being terminated. Ms Johnson said that the reason given was that the complainant had failed to replace her car. It was her understanding this was the only reason for the decision.
Ms Johnson confirmed that she had attended a meeting with the complainant in the first week of June, 2001, to discuss her future role within the Company. She had prepared a document which set out the duties which the complainant was to undertake. These functions did not differ greatly from those which the complainant had previously held with the company.
Ms Johnson accepted that a number of these tasks could be carried out from the office and did not require the use of a car. Other functions such as “field mystery shopping” and “field sales meetings” would involve working away from the office and would necessitate travel.
As far as she was aware, the possibility of the complainant using public transport, as a temporary measure, had never been considered. She herself had carried out similar functions to those assigned to the complainant at a time when she did not have a car or a driving licence. She used public transport and taxies in travelling to the various locations at which she carried out this work. This had not caused any difficulty.
Conclusions.
Was there a Dismissal?
The Court first considered if the circumstances in which the complainant’s employment terminated amounted to a dismissal. The Court had no doubt that it did. The decision to bring the employment relationship to an end was taken by Mr. Harte alone and whilst the parting may have appeared amicable, this did not amount to a termination of the employment contract by mutual consent.
Did the complainant suffer from a Disability:
The Court next considered if the complainant’s injuries amounted in law to a disability. If they did not, as was submitted by the respondent, even if the dismissal was by reason of her medical condition, the complainant cannot succeed in her claim.
The evidence disclosed that, as a result of the injuries which she sustained, the complainant has restricted movement in her neck, shoulders and back. This resulted, inter alia, in the complainant being unable to drive any long distances as driving in excess of 20/30 minutes exacerbated her neck and shoulder symptoms. Counsel for the complainant submitted that her condition amounted to a malfunction of parts of her body and came within the definition of disabilities contained at Section 2(1) of the Act. Counsel submitted, moreover, that a temporary bodily malfunction such as that suffered by the complainant is nonetheless a disability comprehended by the statutory definition.
Counsel for the respondent submitted that because the complainant’s condition was temporary in nature and relatively minor in terms of its debilitating effect, it could not be regarded as a disability. In support of this proposition, Counsel relied upon the approach adopted in the United States in construing the term “disability” as it appears in Federal and State Statutes.
The Court was referred to the decision of the United States District Court, D Minnesota, in the case ofFuqua v Unisys Corporation 716 F.Supp1201 (June 30th 1989), and to the decision of the United States District Court MD Mississippi Eastern Division in the case ofRakestraw v Carpenter Company 898 F.Supp. 386 (September 29th 1995). Counsel also referred the Court to interpretative guidelines issued by the United States Equal Employment Opportunities Commission on the interpretation of the American’s with Disability Act, 1990, which prohibits employment discrimination on the basis of disability.
These authorities show that in the United States, the Courts bestow significant relevance to the temporal nature of an injury in deciding whether or not it is such as to constitute a disability. The authorities further show that in that jurisdiction temporary impairments would not be regarded as amounting to a disability. Moreover, the U.S. Courts take the view that a physical or mental impairment must be such as to substantially limit one or more of the major life activities of a person before they can be said to be suffering from a disability.
The Court has considered this material but finds it of little assistance in the instant case. The approach adapted in the United States appears to be based on the definition of disability contained in Section 3(2) of Title 1 of the American’s with Disabilities Act 1990. This statue defines disability as
- (2) Disability. - The term ``disability'' means, with respect to an
individual-- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
This definition is wholly different to that contained in the Irish statute.
Definition of Disability:
Section 2(1) of the Act defines disability as follows:
- “(a) the total or partial absence of a persons bodily or mental function, including the absences of part of a persons body,
(b) the presence in the body of organisms causing or likely to cause chronic disease or illness.
(c) the malfunction malformation or disfigurement of a person’s body
(d) a condition or malfunction which results in a person learning differently than a person without the condition or malfunction or
(e) a condition, illness or a disease, which affects a person’s thoughts process, perception of reality, emotions or judgements of which results in disturbed behaviour,- and shall be taken to include a disability which exists at present, or which previously existed but which no longer exists, or which may exist in the future or which is imputed to a person”.
The disability provisions in the Irish statute appears to be modelled on the Australian Disability Discrimination Act 1992. Section 2(1), recited above, defines disability in terms which appear to have been taken almost verbatim from Section 4(1) of the Australian statute. No authorities were opened to the Court, nor has the Court’s own research discovered any authority, to indicate that the corresponding language in the Australian statue has ever been given a modified or strained meaning.
In the instant case, Counsel for the complainant relies upon paragraph C of the statutory definition quoted above, and asserts that the condition from which she suffered amounted to a malfunction of a part of her body. Moreover, Counsel submitted that the statue expressly provides that a temporary malfunction is sufficient to come within the term disability.
It is settled law that where a statue defines its own terms and makes what has been called its own dictionary, a Court or Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
Applying these well-known principles of statutory construction, it is clear that the termdisabilitymust only be given the meaning ascribed to it by section 2 of the Act. It would be impermissible for the Court to rely upon a definition derived from any other source, including the American authorities to which it was referred by the respondent. Further, in construing the plain language used in this definition, words must be given their ordinary and natural meaning.
Taking the ordinary and natural meaning of the termmalfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.
For all of the foregoing reasons, the Court has no doubt that the complainant’s condition amounted to a disability within the meaning of the Act.
Findings of fact.
In considering if the complainant was dismissed on grounds of her disability, the Court had carefully considered all of the evidence adduced and has reached the following findings of fact.
The Court is satisfied that a meeting was held, at a local bar, between the complainant, Ms. Johnson and Mr. Harte on or about January, 2001, at which the future direction of the respondents business was discussed. The Court is further satisfied that Mr Harte outlined his plan to convert the claimant’s role to that of a sales representative in the field. The complainant is mistaken in her evidence that no such meeting took place.
The Court accepts that the complainant’s injuries impaired her ability to drive for more than a limited period of time.
Before she returned to full time employment on the 6th June, 2001, the claimant was provided with particulars of the role she was to have within the respondent company. This role differed from that which she had previously exercised, but not significantly so.
The Court is satisfied that the complainant could have carried out the full range of duties attaching to her job using public transport, at least in the short-term.
The complainant was not expressly told that her continued employment was contingent upon obtaining a replacement car, and she was never given anything in the nature of an ultimatum to replace the car within a particular timescale or risk loosing her job.
The respondent, in the persons of Mr. Harte, knew that the complainant had been involved in a traffic accident and that she had sustained injuries. Whilst he may not have been fully aware of the nature and extent of those injuries, he nonetheless had a general idea of their effect on the complainant. When the complainant sought time off to undergo physiotherapy, Mr. Harte must have known that this course of treatment was for those injuries.
There may have been some misunderstanding between Mr. Harte and the complainant about the amount of time which she needed to take off. It would, however, have been a simple matter for Mr. Harte to have asked the complainant how much time she needed and for how long the treatment would last.
On Mr Harte’s own evidence, the Court finds that the complainant’s request for time off to undergo a course of physiotherapy was a factor which influenced the decision to dismiss her.
Burden of Proof:
It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities.
The Court is satisfied that the primary facts established in this case do raise an inference of discrimination. Consequently, the probative burden of establishing that the complainant’s dismissal was unrelated to the disability from which she suffered rests on the respondent.
Conclusions.
The respondent’s explanation for the decision to terminate the complainant’s employment is that because she did not have a car she could not do the job for which she was employed. The respondent must prove that this, and not the complainant’s disability, was the operative reason for the dismissal.
It has not been established that a private car was the only suitable mode of transport which the complainant could have used in the course of her employment. The evidence of Ms Johnson indicated that public transport was a viable alternative, at least in the short term.
Taking the evidence as a whole the Court cannot accept that the proximity in time between the complainant’s request for time off and her dismissal was mere coincidence. The Court is satisfied that the correct inference to be drawn from the facts established on the evidence is that the decision to dismiss the complainant was triggered by that request. The evidence adduced by the respondent does not go far enough to negate that inference.
The complainant required time off to undergo treatment for a disability. Having found that she was dismissed because she required this accommodation, the Court is satisfied that a clear causal connection exists between the complainant’s disability and her dismissal.
Decision of the Court.
For the reasons given, the Court holds that the complaint herein is well founded and, accordingly, the complainant is entitled to succeed.
The Court considers that the appropriate redress in this case is an award of compensation. While the award should not be limited to financial loss suffered in consequence of the dismissal, this is a factor to be taken into account. Having regard to all the circumstances to the case, the Court believes an award of €9,500 is fair and reasonable and the respondent is ordered to pay compensation to the complainant in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
12th December, 2003______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.