FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : AN EMPLOYER (REPRESENTED BY MICHAEL MCINERNEY SOLICITORS) - AND - A WORKER (MR. O) (REPRESENTED BY O'MARA GERAGHTY MCCOURT) (NUMBER 2) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998
BACKGROUND:
2. A Labour Court hearing took place on the 26th of October, 2004. The following is the Court's determination:
DETERMINATION:
Mr O (the complainant) claims that he was discriminated against on grounds of disability by his former employer (the respondent) by being constructively dismissed from his employment.
The complainant was employed by the respondent in a specialist occupation. On or about April, 2002, he was admitted to hospital suffering from a psychiatric illness. The complainant was discharged from hospital in June, 2002, and was advised by his psychiatrist that he could return to work, preferably on a phased basis. The respondent did not allow the complainant to return to work. The complainant was referred to a psychiatrist nominated by the respondent and later to an occupational physician. He was eventually allowed to return to work on 9th October, 2002.
The complainant contends that on his return to work he was told that he would not be allowed access to the respondent’s clients and that his work would be monitored. He further claims that he was treated with hostility by the respondent. The complainant resigned from his employment on 11th October, 2002, in circumstances which, he claims, amounted to a constructive dismissal. He brought a claim before the Court pursuant to Section 77 of the Employment Equality Act, 1998, (the Act).
The complainant also brought a claim alleging that he had been discriminated against on grounds of his disability during the currency of his employment when the respondent failed to facilitate his return to work following his discharge from hospital. That claim was referred to the Equality Tribunal and was heard by an Equality Officer who held with the complainant. The respondent then appealed to this Court. Since the claim heard by the Equality Officer and the dismissal claim being heard at first instance by the Court are grounded on interrelated facts, the Court, with the consent of the parties, determined to hear both cases together. However, since they constitute separate referrals, and are subject to separate avenues of appeal, the Court decided to issue separate Determinations in each case.
The submissions made by the parties on both issues and all of the evidence adduced at the combined hearing are summarised in the Determination of the appeal against the decision of the Equality Officer, Determination DEC E 2003/052 entitled Mr O and an Employer, Number 1. This Determination should, therefore, be read in conjunction with that determination.
Facts.
Based on the submission of the parties and on the evidence adduced, the Court, as a matter of probability, has reached the following findings of fact material to the complainant’s dismissal claim.
- The Court accepts that the working environment with the respondent was pressurised and that a least one of the partners would, at times, publicly remonstrate with staff in robust language. The testimony of two independent witnesses, Mr McQ and Ms K who gave evidence on behalf of the complainant, supports this conclusion. Nonetheless, there is no evidence to suggest that the respondent was other than a reasonable employer in its overall dealings with its staff. In the case of the complainant, he appears to have been content in his employment for over 14 years. He had extended periods of sick leave in respect of which he received his full pay, except on those occasions on which he declined to accept his salary, believing that he would be under less pressure to return if he was not paid. No issue was taken with the complainant concerning the length or frequency of his absences on sick leave.
When the complainant indicated that he had difficulty in his reporting relationship to Mr B it was agreed that he should generally report to Mr H instead. Mr H befriended the complainant during times of personal difficulty for him and he did not disagree with the suggestion that Mr H had provided him with a shoulder to cry on. Further, when the complainant’s state of health deteriorated in April, 2002, the respondent arranged for him to be admitted to hospital and one of the partners drove him there. The partners also remained in contact with the complainant’s wife to check on his progress.- The respondent contends that at all material times it treated the complainant sympathetically and with consideration in relation to his illness. The Court accepts that at the commencement of his illness the respondent did provide commendable assistance to the complainant. However, its later treatment of the complainant could not be so characterised.
The Court has found that the respondent failed to do all that was reasonable to accommodate the complainants needs by providing him with special treatment or facilities so as to enable him to return to work on a phased basis. Moreover, after his discharge from hospital, the respondent appears not to have had any personal contact with the complainant. Apart from one meeting with Mr H on 14th June, 2002, the respondent communicated with the complainant by letter. These letters, which were delivered by courier, were terse and business like. They contain no expression of interest in his state of health or enquiry as to his well-being.
- The respondent contends that at all material times it treated the complainant sympathetically and with consideration in relation to his illness. The Court accepts that at the commencement of his illness the respondent did provide commendable assistance to the complainant. However, its later treatment of the complainant could not be so characterised.
- On his return to work on 9th October, 2002, the complainant attended a meeting with Mr H and Mr B. At this meeting he was presented with a job description which defined in detail the role and responsibilities attaching to his job. Whilst this job description was provided to an occupational medical specialist (to whom the complainant was referred by the respondent), and was shown by him to the complainant, the Court is satisfied that over his 14 years with the respondent, the complainant had never previously been given a detailed job description. The complainant was also told that he could no longer deal with clients. The respondent told the Court that because of the complainant’s illness this limitation was considered necessary in order to protect the interest of their business.
The complainant had suffered from an anxiety related illness for some time and there was no evidence before the Court that his illness had in any sense adversely affected the relationship between him and the clients with whom he dealt. The respondent contends that this change was made because the complainant suffered from memory loss. The evidence does not support this. While the complainant may have presented with this symptom in the period before his hospitalisation, the evidence indicates that it was no longer a problem by the time he returned to work. In his report to the respondent, Dr S (the psychiatrist nominated by the respondent) stated that he had given the complainant a Mini Mental State test and that this showed that his memory function was reasonably good. There was no mention of memory deficiency in the report prepared by Dr D (the second specialist nominated by the respondent). Moreover, the complainant received no indication that this was a temporary restriction or that the position would be reviewed at a later stage.
The complainant described the atmosphere at the meeting of the 9th October as antagonistic. The Court believes, as a matter of probability, that the meeting was business like and formal and was intended to redefine the working relationship between the respondent and the complainant. The Court further accepts the complainant was told that his standard of performance would have to improve relative to what it was previously. In that context he was told that the respondent would be monitoring his work. The complainant also told the Court, and the Court accepts, that he was ignored by Mr H and Mr B over the following two days.
In the Court’s view the respondent’s approach to the complainant on his return to work was not indicative of a caring or sympathetic attitude towards an employee who had been absent from work with a serious psychiatric illness.
- On his return to work on 9th October, 2002, the complainant attended a meeting with Mr H and Mr B. At this meeting he was presented with a job description which defined in detail the role and responsibilities attaching to his job. Whilst this job description was provided to an occupational medical specialist (to whom the complainant was referred by the respondent), and was shown by him to the complainant, the Court is satisfied that over his 14 years with the respondent, the complainant had never previously been given a detailed job description. The complainant was also told that he could no longer deal with clients. The respondent told the Court that because of the complainant’s illness this limitation was considered necessary in order to protect the interest of their business.
- The Court also accepts that on his return to work the complainant felt that he was not wanted and that the respondent was intent on making his life difficult. This perception was evidenced by the demeanour of the partners of the respondent towards the complainant and by what was told at the meeting on the morning of 9th October. The complainant testified that he felt demeaned and threatened and that he became concerned that he might suffer a relapse of his illness. The Court accepts the general thrust of the complainant’s evidence in this respect and it further accepts that there was a reasonable basis for those concerns.
After the second day the complainant discussed the situation with his wife and decided to resign. He had been absent from work since early the previous June. He had been without pay since 19th July. His wife had been made redundant and he was the only breadwinner in his family. He had spent the previous three months actively tying to resume his employment, partially because he wanted to work but mainly because he needed an income. He had 14 years' service with the respondent and a history of illness. Because of his health record, his prospects of obtaining alternative employment would have been limited.
- The Court also accepts that on his return to work the complainant felt that he was not wanted and that the respondent was intent on making his life difficult. This perception was evidenced by the demeanour of the partners of the respondent towards the complainant and by what was told at the meeting on the morning of 9th October. The complainant testified that he felt demeaned and threatened and that he became concerned that he might suffer a relapse of his illness. The Court accepts the general thrust of the complainant’s evidence in this respect and it further accepts that there was a reasonable basis for those concerns.
- Against that background, the complainant’s resignation might appear to have been an irrational and inexplicable act. The respondent suggested that the complainant was intent on resigning at the time he returned to work and that he contrived to lay the basis for a claim against the respondent in the manner of his resignation. The Court can see no basis for this suggestion and it is rejected. In the Court's view, what occurred on 11th October is more consistent with the complainant’s explanation of why he resigned, and the Court accepts that what he told the Court on this point is substantially correct.
- The Court also attaches significance to the respondent’s decision to accept the complainant’s resignation there and then. In evidence, the partners of the respondent accepted that the complainant’s resignation had the appearance of an impulsive or irrational act. They knew the nature of the complainant’s illness and of his emotional vulnerability. In the Court's view, a reasonable employer would have paused before accepting a resignation in these circumstances and might have contacted the employee later to ascertain the reason for the resignation or to provide an opportunity for the employee to recant.
From all the surrounding circumstances, and in particular from the respondent’s response to the complainant’s resignation, the Court has come to the view, as a matter of probability, that at that stage, the respondent was, at best, indifferent as to whether or not the complainant remained in its employment. The Court is further satisfied that the complainant had perceived this to be the position.
- The Court also attaches significance to the respondent’s decision to accept the complainant’s resignation there and then. In evidence, the partners of the respondent accepted that the complainant’s resignation had the appearance of an impulsive or irrational act. They knew the nature of the complainant’s illness and of his emotional vulnerability. In the Court's view, a reasonable employer would have paused before accepting a resignation in these circumstances and might have contacted the employee later to ascertain the reason for the resignation or to provide an opportunity for the employee to recant.
The Law Applicable.
Section 2(1) of the Act defines a dismissal as including:
- “[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so….”
This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharp [1978] IRLR 332as follows:
- “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.
Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.
Conclusion.
It is not suggested that the respondent breached any express term in the complainant’s contract of employment. It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.
On the facts which it has found, and set out in this determination, (and in Determination EDA0419) the Court is satisfied that the respondent conducted itself in relation to the complainant in a manner which was destructive of a relationship of mutual trust and confidence. Whilst the conduct of the respondent may not, itself, have amounted to a repudiatory breach of the employment contract, the Court is satisfied that, having regard to the complainant’s undoubted emotional and psychological vulnerability at the material time, the conduct of the respondent was so unreasonable as to justify the complainant in resigning there and then.
Counsel for the respondent submitted that the complainant’s failure to make any complaint in relation to his treatment, prior to his resignation, is fatal to his claim of constructive dismissal. The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address what ever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (seeLiz Allen v Independent Newspapers [2002] 13 ELR 84, Moy v Moog Ltd, [2002] 13 ELR 261 and Monaghan v Sherry Bros [2003] 14 ELR 293. See also the Determination of this Court inNew Era Packaging v A Worker [2001] ELR 122).
There are a number of factors which, in the exceptional circumstances of this case, excuse the complainant’s failure to formally complain to the respondent before resigning. Firstly, the respondent did not have a grievance procedure in place. Secondly, the offending conduct was perpetrated by the principals of the respondent who knew or ought to have known what its likely impact would be on the complainant having regard to his temperament and mental fortitude. Thirdly, the complainant condition was such as to require him to avoid confrontational or stressful situations and this was known or ought to have been known to the respondent.
Determination
Having regard to the foregoing, the Court is satisfied that the complainant’s employment with the respondent came to an end in circumstances amounting to a dismissal within the meaning of section 2(1) of the Act. The Court is further satisfied that the dismissal was on grounds of the complainant’s disability. Accordingly, the Court holds that the respondent did discriminate against the complainant herein in terms of section 6(2)(g) and contrary to section 8 of the Act.
The Court further determines that the appropriate redress is an award of compensation. The complainant did not obtain alternative employment but started in business on his own account. He had little in the way of earnings in the first year but is now deriving an income. The complainant’s gross salary with the respondent was €41,900. The complainant had 15 years' service with the respondent, and the loss of the accrued value of this service must be reflected in measuring the quantum of compensation.
The Court considers that the claimant should receive an award in an amount equal to one year's pay in respect of the economic loss attributable to his dismissal. The Court is further satisfied, on the evidence as a whole, that the complainant suffered stress, anxiety and indignity in consequence of the discrimination to which he was subjected. Further, it is well settled that an award of compensation for the effects of discrimination should not be confined to economic loss but should contain an element which is dissuasive of future infractions of the principal of equal treatment. Accordingly the Court awards additional compensation in the amount of €8,000 under these headings.
An order will be made direction the respondent to pay to the complainant compensation in the amount of €49,900, in accordance section 82(1)( c) of the Act.
Signed on behalf of the Labour Court
Kevin Duffy
5th January, 2005______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.