FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A FIRM OF SOLICITORS - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Application for redress under Section 77(2) of The Employment Equality Act, 1998.
BACKGROUND:
2. The Labour Court investigated the above matter on the 20th February, 2004. The Court's determination is as follows:
DETERMINATION:
The complainant was employed by the respondent as a Legal Secretary/Conveyancing Clerk. She commenced her employment on 18th March 2003, and was dismissed on 6th May 2003. The complainant suffers from a medical condition called Addisons Disease, which is a disability within the meaning of Section 2 of the Employment Equality Act, 1998 (the Act). The respondent denies that the dismissal was unfair under the terms of the Act. She contends that her dismissal was on the grounds of her disability and constitutes unlawful discrimination within the meaning of Section 8, contrary to Section 6 of the Act. The complainant brought a claim for dismissal in circumstances amounting to discrimination under Section 77(2) of the Employment Equality Act (The Act).
The Complainant’s Case:
The complainant commenced employment in Location A Office of the firm on 18th March 2003. Shortly after taking up her employment the complainant submitted a form for completion by the respondent concerning a Social Welfare ‘Back to Work Allowance Scheme’ and she informed partner A in the firm, that she suffered from a medical condition known as Addisons Disease. Partner A assured the Complainant that she could not see any difficulty as she could not see it interfering with her employment in any way. Partner A referred to the fact that she also suffered from a medical condition. The complainant stated to the Court that she wore a medical alert bracelet (SOS bracelet) at all times which gave details of her condition.
The complainant's performance was satisfactory, and after a few weeks she was transferred to Location B Office to work as secretary for one of the solicitors employed in that office - Solicitor A.
On Thursday night/Friday morning, 1st/2nd May 2003 the complainant was out socialising and her car was stolen. This incident, coupled with the tragic loss of her uncle a few days beforehand, resulted in her being distressed and unable to sleep that night. On the Friday morning, despite her father’s protestation, she reported for work. Her father feared that her stressful state could affect her Addisons’ condition.
During working time that morning, a member of the Gardai Siochana came to the office to take a statement regarding the stolen car. The car was subsequently recovered and her father drove it to her office at 1.30pm at which time she requested permission to go home, as she was not feeling well.
The Complainant’s father represented her at the hearing. He stated to the Court that she was suffering from an “impending Addisons crisis” on the Friday.
The following Tuesday (Monday was a public holiday) when she reported for work she was informed that she was to report to Location A office, for a meeting with Partner A and Partner B, partners in the firm. She was duly dismissed at this meeting. The reason given for the dismissal was that she had been under the influence of alcohol on Friday 2nd May 2003 and as a consequence she was unable to carry out her duties.
The Respondent’s case:
The respondent denies strenuously that the dismissal was on disability grounds or that the complainant was treated less favourably than another would have been treated in the same situation.
The respondents admit that they were aware of the Complainant’s medical condition. When Partner A queried the nature of the disease, the Complainant explained that it had to do with her glands and when Partner A enquired if this would affect her day-to-day life, she indicated that it would not.
The dismissal arose from the immediate events of Friday morning 2nd May 2003 when the complainant presented herself for work in a dishevelled state, not appropriately dressed, and appeared to be still wearing clothes from the night before. There was a smell of alcohol from her breath and she was possibly still under the influence of alcohol. She appeared exhausted having apparently had little or no sleep. She could not keep her eyes open and lay for part of the time with her head on her desk.
She seemed to be in no fit condition to work and should not have reported to work in such circumstances. She was repeatedly told to go home by both her colleagues and her superiors but she refused to do so. Her work made no sense and had to be scrapped.
During that morning, the Complainant spent a lot of time dealing with the events of the previous night, including taking telephone calls from her family and boyfriend – particularly her father with whom she had apparently irate calls. At approximately 12.30m she went to the toilet and remained there for 30 minutes. Staff in the office made every attempt to offer her assistance. When she eventually emerged from the toilet, it appeared as though she had been sleeping on the floor. She still refused to go home and returned to her desk. The Complainant sought no medical attention at any stage during this period.
The incident was reported that afternoon by Solicitor B, to Partner A in the Location A office. On the Tuesday morning when Partner A telephoned Location B office she was informed that the Complainant had reported for work but had made no effort to explain or apologise for what happened on the Friday. She was therefore summoned to a meeting in Location A Office with Partners A and B.
At the meeting she was given many opportunities to explain what had happened on the Friday but made no effort to do so. When the reasons for the meeting were made known to her, she explained that on the Friday she was tired and upset due to her uncle’s death and her car been stolen. She insisted that she had not been drunk.
Partner A informed her that her behaviour was completely unacceptable and reminded her that she was still on probation. Partner B made it clear that behaviour of this kind was totally unacceptable and that she would need to think seriously about her situation. Again, the Complainant made no attempt to explain her conduct any further, to apologise or to give any assurance that there would be no repeat. She did not say at any time that what occurred was caused by or connected with her Addison’s condition. It was at that point that her employment was terminated, with immediate effect.
The respondent maintains that her dismissal was due not only to her conduct on the Friday morning but her subsequent failure to make any amends. The respondent stated that the complainant appeared to have made up her mind to pretend that nothing had happened and hoped that she would not be challenged. The decision to dismiss was not one the respondent wanted to take as the Complainant was making good progress during her training period in Location A office and she had a bright future with the company.
The respondents called a number of witnesses to give evidence in relation to the events of Friday 2nd May 2003 and the meeting on 6th May 2003.
Addisons Disease
A letter dated 1st February 2004 was received by the Court from the Complainant's Doctor detailing the Complainant’s condition and giving some factual information on Addisons Disease. It indicated that the Complainant had been diagnosed with the disease in June 2000.
Addisons Disease is a disease of the adrenal gland, which causes excessive tiredness, has an effect on electrolytes levels (body salts) and causes low blood pressure. An Adrenal Crisis can occur causing urgent need for hospital admission. Symptoms of the disease are known to be worsened by stress.
An Addison’s crisis can occur suddenly over a period of hours, or gradually over a period of days. Symptoms of an impending crisis are:
•dizziness/light headiness
•feeling weak
•nausea/vomiting
•severe headache
•drowsiness
•disorientation/mental confusion
Signs of an impending crisis are:
•low blood pressure
•dehydration
•disorientation
•confusion
•drowsiness
•abnormal heart rate either too fast or too slow
•abnormal electrolyte levels
The Doctor stated that if the Complainant was experiencing any or a number of the above symptoms, she would be unable to perform tasks normally performed competently by her.
Evidence of Witnesses
The Complainant gave evidence that she arrived to work dressed in her formal work clothes, that she was not in a dishevelled state and that while she had been drinking alcohol the previous night that it had been in moderation. She stated that she was not under the influence of alcohol on the Friday morning, but that due to recent events (her uncle and the stolen car) that she was stressed and was “fuzzy headed, confused and needed to lie down”.
A member of the Gardai Siochana was called by the Court to give evidence concerning a statement taken by him from the Complainant concerning the stolen car, This statement was taken at 10.15am on Friday morning, 2nd May 2003, in the respondent’s office.
When questioned about the Complainant’s demeanour that morning, the Gardai formed the view that while there was a strong smell of alcohol from her, that “she was not drunk”. He told the Court “she was quiet, appeared stressed, and nervous and that it was difficult to get information from her”.
A number of eyewitnesses called on behalf of the respondent, gave evidence to the Court of the complainant’s demeanour and behaviour on Friday 2nd May 2003.
All these witnesses stated that the Complainant was casually and inappropriately dressed; each described the clothing she was wearing. All recounted the events of that morning, stating that the Complainant arrived to work in a taxi, she appeared to be in a dishevelled state, and that there was a strong smell of alcohol from her. Witness A - a colleague - told the Court that the complainant had admitted to “drinking until 5 in the morning”. Each gave evidence of the Complainant’s recollection of the events of the previous night. Each stated that when recalling these events, she was not in tears or distressed but “ she was giddy, not upset or crying, she was laughing a lot”.
The witnesses gave evidence that the Complainant seemed to become upset as a result of telephone conversations with her family and her boyfriend. Witness B a second colleague, said that at the end of one of the calls from her father “she was crying and seemed upset with her father”. Witness A described one such call from her father - “he was lecturing her on the phone”. Witness A stated that there was no concern displayed by her family or boyfriend for the complainant’s well-being but that the calls were all centered on the problem of her stolen car. Due to the level of disruption and noise caused by these calls in the public office, Solicitor B offered the complainant the use of her office to take some of the calls in private.
Witness B stated that the Complainant’s behaviour on the day was “very disruptive”. Both solicitors present in the office that day told her on at least three occasions to go home but she refused. Witness A told the Court that she was under the impression that the Complainant was afraid to go home. Solicitor B told the Court that she formed the view that the Complainant was “still drunk” and was incapable of doing any work. The letters that she typed that day were ‘gobbledegook’.
All witnesses denied ever seeing the Complainant wearing an SOS bracelet.
The Complainant recalled how, at the meeting on 6th May, Partner A had sought an explanation for the events of Friday 2nd May but that she had not offered any; she stated that she “did not think the onus was on her to explain her Addisons problem”.
The respondent came to the conclusion, that on Friday 2nd May, the complainant was not competent or capable of performing the duties of her employment solely due to being under the influence of alcohol. It denied that the complainant’s dismissal was wholly or mainly attributable to the complainant’s disability but was primarily due to her refusal to excuse, explain or to apologise for her unacceptable behaviour.
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 and are regarded by the Court as of sufficient significance to raise an inference of discrimination, it is for the respondent to prove the contrary on the balance of probabilities. This test formulated in the case ofMitchell v Southern Health Board [2001] ELR 201.
Conclusions of the Court
The Court has carefully evaluated all of the evidence adduced, together with the written submissions of the parties.
Having considered this evidence, the Court is satisfied that the testimony of the eyewitnesses called by the respondent was consistent and clear and that their recollection of the material events is accurate. Moreover, there are crucial differences as to the content and import of the evidence given by both sides.
The Court finds that the complainant’s recollection of the events of Friday 2nd May 2003 is at variance with the evidence given by the other witnesses and is in the Court’s view, unreliable. Additionally, the Court notes the contrast in detail of the complainant’s version of the events of the night/early morning 1st/2nd May, as given to her colleagues, with the statement given to the Gardai. Many of the details are at variance.
The Court accepts that when informed of the complainant's disability the respondent did not raise any concerns and viewed it as unlikely to interfere with her work. There is no evidence to show that the respondent ever indicated that they had a difficulty with the complainant because of her disability. Similarly, there is no evidence to suggest that at the meeting on the 6th May, 2003 the respondent was influenced by the complainant’s disability in deciding to terminate her employment.
In her evidence, the complainant accepts that her work performance on the Friday in question was unacceptable, which she attributes to her medical condition and no other reason.
In this case, the onus is on the complainant to establish facts from which it may be implied that her disability was the determining factor, which led to the decision to terminate her employment. The Court is not satisfied that such facts have been established on the evidence adduced. Therefore, the Court is not satisfied that the claimant has established a prima facie case of discrimination.
The Court is of the view that the procedures adopted by the respondent when the decision was taken to dismiss the complainant were inappropriate. The Court is of the view that greater care should have been taken to ensure compliance with the procedures laid down in theCode of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000, which sets out the procedural stages which an employer should follow in dealing with matters of discipline. Equally, the Court finds that the failure to provide the complainant with a written statement of her terms and conditions of employment in accordance with the Terms of Employment (Information) Act, 1994, in particular, the disciplinary procedures, is a serious omission on the part of the respondents.
However, whilst there may have been a certain degree of unfairness in the manner in which the decision to dismiss the complainant was reached, unfairness is not in itself determinative of discrimination. The Court is not adjudicating on whether the dismissal was fair or unfair but whether under the Employment Equality Act, 1998, she was treated less favourably because of her disability.
On the basis of the complainant’s evidence the Court accepts as a fact that the managers told the complainant that she was being dismissed because of her unacceptable performance in being under the influence of alcohol while at work and her failure to seek to excuse or to apologise for such behaviour. The Court is satisfied that this was the dominant and only reason for the dismissal and not her medical condition. There is no admissible evidence to link the complainant’s medical condition to the respondent’s decision to dismiss the complainant. The Court is aided in this conclusion by the fact that the complainant did not require hospitalization as a result of the events of 1st/2nd May 2003. The Doctor's evidence suggested that an Addison’s crisis could occur suddenly over a period of hours, or gradually over a period of days. Consequently, her requirement for hospitalisation which occurred on 19th June 2003 was, in the Court’s view, unconnected in time, with the events of the beginning of May, to drawn any inference.
Statutory Requirements
Section 6 of the Act provides, in effect, that discrimination shall be taken to occur where, on any of the discriminatory grounds, one person is treated less favourably than another is, has been or would be treated.
Section 8(6)(c) of the Act provides, in effect, that an employer shall be taken to have discriminated against an employee in relation to conditions of employment, if the employee is afforded less favourable terms, on any of the discriminatory grounds, in respect of, inter alia, dismissal and disciplinary measures.
In the present case it is contested that her dismissal arose wholly or mainly from the respondents belief that the disease from which she suffered impaired her ability to carry out the duties for which she was employed. The respondent’s stated reasons for the dismissal were wholly due to her unacceptable behaviour on Friday 2nd May 2003 and also to her refusal to offer any excuse, explanation or apology for such behaviour when given this opportunity on Tuesday 6th May 2003. Thus, the Court accepts that she was not treated less favourably than a person, who did not suffer from a similar disability. It follows that the dismissal was not prima facie discriminatory.
In the circumstances the Court does not accept that the complainant’s evidence goes far enough to establish aprima faciecase of discrimination. The Court is satisfied that the primary facts established in this case do not raise an inference of discrimination. Consequently, the complainant’s case cannot succeed.
Determination:
The Court is satisfied that the complainant herein was not dismissed on grounds of her disability contrary to Section 8 of the Employment Equality Act, 1998. Accordingly, her claim is dismissed.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th April, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.