FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MCCRORY SCAFFOLDING (N.I.) LIMITED (REPRESENTED BY PAUL W TRACEY SOLICITORS) - AND - A WORKER (REPRESENTED BY O'MARA GERAGHTY MCCOURT) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Application for redress under Section 77(2) of the Employment Equality Act, 1998.
BACKGROUND:
2. The complainant was employed by the respondent Company as a Scaffolding Labourer from March 2002 until the time of his dismissal in January, 2004. It is claimed that his summary dismissal constitutes discrimination on the disability ground and is in breach of the Employment Equality Act, 1998.
The complaint was referred to the Labour Court in accordance with Section 77(2) of the Employment Equality Act, 1998. A Labour Court hearing took place on the 1st February, 2005.
DETERMINATION:
The Complainant was employed for approximately 22 months as a scaffolding labourer, beginning in March 2002.
On 16th October 2003, he suffered a seizure while working on a rooftop in Ballymun dismantling a handrail. He fell on the roof and was near the edge. A colleague who was a qualified scaffolder held on to him and another scaffolder, also qualified, who was driving a cherry picker, assisted him to the ground. He attended hospital for tests but was declared fit to return to work the following week.
On 23rd January 2004, the Complainant had a second seizure while looking for equipment, in a building under construction. His colleagues went in to look for him and found that he had fallen down, blacked out and had bitten his tongue. They helped him up but he went out onto the scaffolding (approx 1 or 2 floors up) in a dazed condition.
These colleagues assisted him to the ground and one of them drove him home.
The incident took place on a Friday, and the Personnel Manager of the Company advised the Complainant not to come to work on the following Monday (19th). On that day, the Personnel Manager called to the Complainant's home, inquiring as to his health but informed him that the Company would have to let him go “on safety, health and welfare grounds”. He was dismissed at that point and later received his notice pay.
The Complainant claims that he was, in being dismissed, discriminated against under Section 8 of the Act by virtue of the less favourable treatment under Section 6(1) of the Act than a person not suffering a disability (as defined in Section 2(1) of the Act). The Complainant is seeking redress under Section 77(2) of the Act claiming that he was dismissed in circumstances amounting to discrimination. The Respondent denies the allegation.
Complainant’s Case:
The Complainant’s case is as follows:
1. Because of his disability, he was summarily and arbitrarily dismissed. The Respondent did so because he had at the time two unexplained seizures while at work and without waiting for any explanation. It is the Complainant's case that this constitutes prima facie evidence that in dismissing him, the plaintiff discriminated against him because of his disability.
2 The Respondent made no attempt to make any kind of reasonable accommodation as required by Section 16(3) of the Act for the Complainant’s problem or to offer him any suitable alternative work – in fact, in dismissing him, the Company pointed out that it had “no other work to offer him”.
- 3 The Respondent was aware that the Complainant had medical tests carried out after his first episode. The results of his tests at the time of his dismissal had not yet come back. The Respondent had no grounds upon which to tell the Complainant that “he couldn’t continue to work on a building site”.
4. The Complainant disputes the Respondent’s contention that he agreed that the Respondent “had a moral and statutory obligation to ensure the health and safety of (other) employees”.
Respondent’s Case:
1. Following the first seizure, the Respondent sought, on several occasions, details of the result of medical tests carried out. These were never supplied by the Complainant.
2. Following the second seizure, the Respondent Company formed the view that the Complainant’s illness was of a type likely to cause harm to himself or others, particularly when working on a building site and at heights. The Company felt that it had a moral and statutory obligation to ensure the health and safety of all employees. It felt that the Complainant understood this and was in agreement.
3. The Respondent Company also felt, and contends that the Complainant agreed, that there was no other suitable work within the Company for the Complainant. It therefore had no choice but to let him go, especially in the continued absence of definite medical evidence as to the precise nature of the illness.
4. The Company made every attempt to establish the facts – evidence was given by the Personnel Manager and the Managing Director of attempts they had made to get access regarding the tests, but the Complainant was evasive and uncommunicative in this regard. One of the Complainant’s fellow workers also gave factual evidence about the occurrence of the episodes, in October 2003 and January 2004.
5. The Company agreed that the Personnel Manager had gone to the Complainant’s home with the prior intention of dismissing him. It contended, however, that this was done without rancour on either side and the Complainant understood the Company’s reasons.
6. The Respondent Company was aware of the definition of disability in the 1998 Act, and has no disagreement with it. It feels, however, that the particular work environment must also be taken into account. The incidents took place at heights on building sites, which are dangerous workplaces.
7. The Respondent Company must also consider when a disability becomes a liability, given its moral and statutory duty to protect all its employees. If the Company had kept the Complainant in employment, and a more serious incident occurred, injury or fatal accident to the Complainant, another worker or a third party, it would have been guilty of more than discrimination and possibly of criminal negligence.
8. As a scaffolding Company, the Respondent had no other work for the Complainant. He was not dismissed because of discrimination but to protect the health and safety of all, in a situation where the Complainant was unable to perform his work.
Findings
It appears that the Respondent is seeking to rely on Section 16(1) of the Act. The Respondent appears to be making the case that the Complainant was no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to his position, having regard to the conditions under which those duties are, or may be required to be, performed.
The full text of Section 16 subsections (1) to (3), before it was amended by the 2004 Act, which is not applicable in this case, is:
“16.—(1) 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 (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(2) In relation to—
- (a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
(b) the offer to an individualof a course of vocational training or any related facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,
(3) (a) For the purposes of this Act, 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 or 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 suchprovision would give rise to a cost, other than a nominal cost, to the employer.”
Subsection (3) imposes a clear duty on the employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment.
It is unclear how the Respondent arrived at the conclusion that the Complainant lacked full capacity to safely undertake the duties of his employment. The Respondent Company made no attempt to ascertain the exact nature of the Complainant’s disability. The Respondent acted precipitously and made no attempt to have the Complainant independently examined. In fact, the Respondent adduced no medical evidence and did not request access to the opinion or advice of the Complainant’s own medical advisors. No consideration was given to undertaking a safety assessment of any kind and the Respondent made no attempt to discuss its concerns with the Complainant.- (b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
- In this regard, the Court’s decision inA Computer Component Company v a Worker(No. EED-013 of 18th July 2001) is relevant. In that case, the Complainant was dismissed because she had epilepsy, following a telephone call conversation with the Company’s doctor and without reading the doctor’s medical report. The Court noted that the Respondent did not consider undertaking any form of safety assessment which could have identified the extent, if any, to which the working environment presented a danger to the Complainant, and how any such danger could be ameliorated. Further, the Respondent did not discuss its concerns with the Complainant and did not advise her to obtain a second opinion from a neurologist as had been suggested by the Doctor. The Court concluded, “on the evidence, the Court does not accept that the Respondent could reasonably and objectively have come to the conclusion that the Complainant was not fully competent or capable of performing the duties of her employment. Even if the Respondent did reach such a conclusion, it is abundantly clear that it did not give the slightest consideration to providing the Complainant with reasonable special facilities which would accommodate her needs and so overcome any difficulty which she or the Respondent might otherwise experience.”Also in the case ofA Workerv A Health and Fitness Club (ED02/59 of 19th December 2003)the claimant was dismissed as she suffered from anorexia and consequently, her employer stated that she was unsuitable for working in a childcare facility. The Court found that the employer did not obtain any medical or psychiatric advice in relation to the Complainant’s disorder nor did it undertake any form of risk assessment in relation to her condition.
In that casethe Court said as follows:
“This Section [Section 16(1)] on which the Respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the Complainant is not fully capable, within the meaning of the Section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.
The nature and extent of the enquires which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities maybe available by which the employee can become fully capable.
The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”
While the Court acknowledges the health and safety aspect of the particular case, the nature of the working environment and the nature of the business, nevertheless the fact remains that the Respondent acted without the benefit of receiving or assessing the medical evidence. No consideration appears to have been given before dismissal, as to what specific treatment or facilities might be considered so as to provide reasonable accommodation under Section 16(3) of the Act. The Court accepts the Respondent's evidence that the Complainant did not go out of his way to furnish the results of the tests after the first episode. However, the decision to dismiss should not have been taken without first giving the Complainant an opportunity to furnish the results of the test and informing him of the likely consequences if he did not do so.
Determination
The Court finds that the Complainant was discriminated against on the disability ground under Section 6 (1) of the Act and dismissed in circumstances amounting to discrimination in breach of Section 77 (2). The appropriate remedy is compensation. The Court, having taken account of all the circumstances of the case, awards the Complainant €13,600 to include €3600 for economic loss and €10,000 compensation for the effects of the discrimination. The Court so determines.
Signed on behalf of the Labour Court
Raymond McGee
16th March, 2005______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.