Mr. Vincent Kavanagh
(Represented by Ms. Honan, B.L. instructed by
O'Mara Geraghty McCourt Solicitors)
vs
Aviance UK Limited
(Represented by IBEC)
1. DISPUTE
1.1 The dispute concerns a claim by Mr. Kavanagh that he has been subjected to discriminatory treatment and discriminatory dismissal by Aviance UK Limited on the grounds of disability within the meaning of Sections 6(1) and 6(2) of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts. The complainant further alleges that he was subjected to victimisation in terms of Section 74(2) of the Employment Equality Acts, 1998-2004.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a Ramp Supervisor. He sustained an elbow injury in the course of his work and was out on sick leave for about a month when he was asked to attend the Company Doctor. During the course of his visit to the Company Doctor his cardiac condition was raised (the complainant had undergone a number of cardiac procedures). The Company Doctor expressed concern at the complainant's fitness to work where she held he carried out baggage handling activities. She consulted on various occasions with the complainant's consultant cardiologist. At no stage did the Company Doctor certify the complainant fit to return to work because of his cardiac condition. The respondent ultimately dismissed the complainant on medical grounds.
2.2 Consequently the complainant referred his complaint of discriminatory treatment, discriminatory dismissal and victimisation to the Director of Equality Investigations on 24th March, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 29th January, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 30th May, 2007. Further documentation was received after the hearing relating to the complainant's request for a reference. The final documentation on this issue was received on 2nd July, 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 It is the complainant's contention that he has been discriminated against by the respondent contrary to the provisions of the Employment Equality Acts, 1998-2004 on the grounds that the respondent refused to allow him to return to work. In April, 2004 and subsequently the complainant submits that the respondent unreasonably terminated his sick pay, that the respondent failed to discharge its duty regarding reasonable accommodation and that the respondent dismissed him in circumstances that constituted discrimination and victimisation on 29th March, 2005.
3.2 The complainant states that he was employed by British Midland as a Ramp Service Agent (RSA) in August, 1993. Subsequently British Midland sold its Ground-Handling Department to the respondent and the complainant's work was transferred to the respondent organisation. According to the complainant he was promoted in November, 2001 to the position of Ramp Supervisor (RS). The complainant says that he was first diagnosed with hypercholesterolaemia and resulting heart disease in 1989. He had coronary bypass surgery in 1991 and angioplasty procedures in 1995, 1997 and January, 2004. In 2002 the complainant had a left carotid endarterectomy, which necessitated sick leave from work for about 5 weeks and he returned to work after that period without any difficulty. The complainant says that during his employment with the respondent organisation prior to March, 2004 and during his employment with his previous employer (British Midland), he experienced no difficulties as a result of his medical condition. Furthermore there were never any complaints about his work either in relation to the performance of his duties or his attendance.
3.3 The complainant states that in January, 2004 he suffered from a problem with his elbow which necessitated sick leave. In February, 2004 the complainant was asked to attend the respondent organisation's doctor (hereinafter to be referred to as Dr. M) in respect of his elbow injury and during this appointment he informed Dr. M about his cardiac condition. Then on 10th March, 2004 Dr. M wrote to the complainant's cardiologist, (Dr. S of the Mater Hospital) advising that the complainant's work involved him in 'both supervising and participating in the loading and unloading of the baggage from aircraft'. She expressed concern about the safety of allowing the complainant to continue to work in his present position and she asked Dr. S for his input. The complainant notes that Dr. S replied on 23rd March, 2004 in which he detailed the complainant's cardiac history and stated that the complainant 'has had chronic stable angina for years'. According to the complainant Dr. M again wrote to Dr. S on 15th June, 2004 stating that his elbow injury was well resolved but noting that he had not returned to work due to her concerns about his fitness to work as a Baggage Handler. In her letter Dr. M noted that the complainant had undertaken a stress test and she asked for Dr. S's comments on this in the context of the complainant's work as a Baggage Handler. She asked Dr. S if there were any further investigations he would recommend in attempting to clarify his fitness to work as a Baggage Handler in the light of his cardiac condition. The complainant says that in a further letter from Dr. M to Dr. S on 2nd July, 2004 she refers to a telephone conversation she had with Dr. S in which he indicated that the complainant required a further stent to be inserted, after which in his opinion the complainant would be fit to return to work as a Baggage Handler. In his reply on the 9th July, 2004 Dr. S stated that the complainant's coronary situation is very good at present. He notes that he had difficult in placing a stent because conventional instruments were not long enough, but once the stent was placed he says that the complainant should be able to return to work towards the second week of August.
3.4 The complainant says that on 10th August, 2004 a Senior House Officer advised the complainant's GP that the complainant had been doing very well since the insertion of a stent in mid-July, that Dr. S had reviewed him and that he was very happy with his progress and advised him that he is safe to return to work. According to the complainant Dr. M sought an update from Dr. S on 3rd September, 2004 stating that his report would be useful in assessing the complainant's fitness to return to work as a Ramp Supervisor/Ramp Services Agent (Baggage Handler). The complainant says that Dr. S wrote to Dr. M on 12th October, 2004 advising that the complainant was probably fit to resume his duties at that point. Then on 5th November, 2004 Dr. M wrote to Dr. S referring to a phone conversation with him that day during which, she states, he indicated that he shared her concerns and advised that strenuous physical effort with [the complainant's] cardiac problem is unwise. The complainant notes that Dr. M also states that she has spoken to his GP and that he shared their concerns. Dr. M asked Dr. S to confirm his view in writing. In her letter Dr. M also states that she will recommend to the respondent that alternative work not involving significant physical exertion should be found for the complainant. The complainant says that Dr. S replied on 12th November, 2004 in which he stated that it would be unwise for the complainant to participate in strenuous physical effort such as that associated with the position of Baggage Handler.
3.5 According to the complainant he received a letter from respondent dated 17th December, 2004 in which he was advised that his pay would cease from 11th January, 2005 and that he would then be entitled to disability benefit. The complainant replied and noted in his letter that he was available for work since April, 2004; that he was not incapacitated; that he did not accept the view of the company doctor and that he was perfectly capable of returning to work in a suitable capacity. By letter dated 20th December, 2004 the respondent replied stating that, on the basis of the opinion from the respondent organisation's doctor, the complainant would not return to work in his previous capacity and the respondent said that it would have to assess the information he would present to the respondent in their next meeting to ascertain what would be the most suitable and beneficial way forward. According to the complainant he met with the Regional Manager of the respondent organisation on 5th January, 2005 but this meeting failed to resolve the difficulties experienced by the complainant and no alternative work was offered to him.
3.6 The complainant says that on 11th January, 2005 Dr. S wrote to Dr. M advising that the complainant was doing very well and that she had been misinformed regarding the duties of Ramp Supervisor as the complainant had informed him that his role involved supervision and that he did not lift baggage. Dr. S concluded that, if this is the case then, there should be no medical or cardiac contradiction to the complainant resuming his activities. The complainant says that the Human Resources (HR) Manager wrote to him by letter dated 14th January, 2005 advising him that he was unable to perform the duties of Ramp Supervisor and that the respondent was reviewing other positions available. Then on 4th February, 2005 the HR Manager wrote to the complainant stating that there were no suitable positions available and asking him to forward any further information that might change the 'current opinion' regarding his fitness. The HR Manager also stated that if no further information were received the respondent would have no option but to review his position. The complainant says that on 11th February, 2005 he sent a Certificate of Fitness to return to work as supervisor from his GP. As the respondent continued to refuse to allow the complainant to return to work his solicitors wrote to the respondent on his behalf on three occasions and these letters were unanswered.
3.7 The complainant says that on 21st February, 2005 the HR Manager wrote to him referring to his GP's view that he was fit to return to work 'as supervisor only' and advising that the respondent would require clarification from his GP on this statement. The HR Manager attached a copy of a job description for Ramp Supervisor (dated 21st February, 2005) which the complainant had never seen before. She asked that the complainant pass this job description to his GP and obtain clarification from his GP that he was fit to resume duties as Ramp Supervisor as set out in the job description. The complainant disputes the accuracy of this job description and it is his contention that his work as a Ramp Supervisor since November, 2001 has not required heavy lifting. The complainant says that the HR Manager wrote to him on 16th March, 2005 reiterating her previous request for clarification from his GP and failing which, the decision of the respondent organisation would be based on the advise of the company doctor and the complainant's consultant that due to his medical condition he is unable to perform a significant proportion of the duties of Ramp Supervisor. It is the complainant's contention that at this stage the only issue preventing him from returning to work was the 'clarification' from his GP. The complainant notes that in none of the respondent's correspondence had it referred to Dr. S's letter of 11th January, 2005 qualifying his earlier opinion of 12th November, 2004.
3.8 The complainant states that on 29th March, 2005 the HR Manager wrote to him advising that the respondent had no alternative but to base its decision on the advice of the company doctor and the complainant's consultant and terminate his employment with effect from 21st June, 2005. The complainant appealed the respondent's decision and a hearing was scheduled for 26th April, 2005. Present at the appeal hearing were the Station Manager, Belfast and the HR Manager. The complainant says that he objected to the HR Manager having any role in the appeal process as she had been involved in the decision to dismiss him on the basis that the respondent's own disciplinary policy states that an appeal shall be conducted by a member of management more senior than the manager who initially administered the decision. The decision to dismiss the complainant was upheld in the complainant's absence and the complainant was informed that there was a final appeal process available. The complainant says that he again appealed this decision and a hearing was arranged for 17th June, 2005. The General Regional Manager and the Station Manager, Belfast City Airport heard the appeal. There was a delay in reaching a decision on this appeal as the respondent wished to fully investigate the issues raised and to seek further clarification from Dr. M. In this appeal the complainant says that he challenged the accuracy of the job description and the ICOR job analysis but the respondent did not address these matters. As the respondent was unable to obtain further clarification from Dr. M and Dr. S on the issues raised in the appeal the respondent asked the complainant to attend an occupational health specialist (Dr. F) for the purpose of clarifying his fitness to resume work and the complainant was informed that the job description and a query form had been furnished to Dr. F. The respondent pointed out to the complainant that it wished to make a decision 'with the benefit of all relevant medical information' and that it was in the complainant's interest to make full disclosure of all such information. It is the complainant's submission that the decision to dismiss him was no longer confined to the question of whether any further clarification from his GP was necessary but it had shifted to a much wider preoccupation with his state of health thus effectively ignoring the history of his case and in particular the opinions of his medical advisers. The complainant states that he advised the respondent that the job description misrepresented the level of physical work required of a Ramp Supervisor and that he would not participate in the assessment process until accurate information was furnished to Dr. F. Then by letter dated 21st October, 2005 the General Regional Manager wrote to the complainant advising that based on the 'medical advice received to date' he was unfit to resume duties and that his dismissal was upheld.
3.9 The complainant contends that the provisions of the Equality legislation cover his condition, that the respondent was aware of his condition and that the unfavourable and unreasonable treatment of him was because of his disability. He submits that the respondent's treatment of him in refusing to allow him to return to his duties constituted discriminatory treatment contrary to the 1998 Act on the grounds of his disability in respect of his conditions of employment. The complainant also contends that he was fully competent and capable of performing his duties as a Ramp Supervisor and there is no evidence in his employment history to indicate otherwise. According to the complainant his medical advisers certified him fit to return to work as a supervisor but this has been ignored by the respondent. The complainant submits that, without prejudice to other submissions, he was fully capable of performing his duties had reasonable accommodation been provided by the respondent, such as ensuring that any requirement to undertake lifting was not imposed on him. It is the complainant submission that an appropriate measure by the respondent would have been the proper 'distribution of tasks' which could have eliminated any bona fide concern by the respondent in relation to the performance of his duties. The complainant cites the Labour Court in the case of An Employer v A Worker1 in which it stated that the duty under Section 16 may involve 'relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform'. In that case the Labour Court also stated that an employer has a duty to make a proper and adequate assessment of the work situation before decisions are taken which may be to the detriment of a disabled employee and that this necessarily involves discussing the matter with the employee, or his medical advisers, and adequately considering any reasonable proposal put forward by or on behalf of the employee. The complainant also submits that the respondent failed to assess his needs in respect of his return to work and this is an integral part of the duty imposed by Section 16 of the 1998-2004 Acts. He contends that the respondent failed to consult or engage with him adequately or at all in respect of taking appropriate measures to accommodate his disability on his return to work, the respondent failed to ascertain whether any adjustments might be necessary or desirable and failed to do all that was reasonable to accommodate his disability by taking appropriate measures. The complainant notes that his sick pay was terminated after one year on sick leave. He states that this was terminated notwithstanding that he had been available to return to work since April, 2004 and had only remained absent because of his respondent's unreasonable position in respect of his cardiac condition. The complainant submits that the respondent failed to take account of the recommendations of his medical advisers, compelled the complainant to remain on sick leave against his wishes and refused to pay him after 11th January, 2005 despite the fact that it was the respondent who was forcing him out of work. The complainant submits that this treatment on the part of the respondent was unreasonable and constituted victimisation contrary to the provisions of Section 74(2) of the Act as amended. The complainant notes that Section 8 of the Acts prohibits, inter alia, dismissal on discriminatory grounds. He submits that his dismissal was on the grounds of his disability and it is further submitted that his dismissal constituted victimisation under Section 74(2). The complainant states that he referred two complaints under the Equality legislation to the Equality Tribunal on 23rd March, 2005 and 8th July, 2005. Prior to these referrals he had challenged his treatment by the respondent. It is the complainant's submission that the unreasonable and unfair decision-making process whereby the main issues raised by him (being the recommendations of his GP and consultant and the inaccurate job description and analysis) were ignored gives weight to the argument that the dismissal constituted victimisation.
3.10 The complainant asks that the Equality Tribunal decides that he has been discriminated against on the grounds of disability and victimisation contrary to the provisions of the 1998-2004 Acts and to provide the following remedies:
- A declaration that the respondent has discriminated against the complainant on the above grounds in breach of the 1998 Act, as amended;
- Appropriate compensation for the discrimination and distress caused;
- An order re-instating the complainant to his position as Ramp Supervisor.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent denies that it discriminated against the complainant or that it victimised against him in any way whatsoever. The respondent states that it provides ground-handling services to customer airlines and is based in Dublin. It is responsible for passenger transit through Dublin Airport, flight despatch, handling and ramp services. The respondent says that it operates a labour intensive industry and employs approximately 200 employees. The complainant commenced employment with British Midland Airways Limited on 23rd August, 1993 as a ramp service agent. In April, 2001 British Midland sold its ground-handling division to the respondent organisation and the complainant's employment was transferred. It is the respondent's submission that it was not aware of the complainant's heart condition, related surgery and procedures until so informed by the company doctor in February, 2004. The respondent notes that a ramp services supervisor secondment position was advertised in October, 2001 and the complainant filled this position and was subsequently made permanent with effect from 1st August, 2002.
4.2 The respondent states that the complainant commenced sick leave on 11th January, 2004 as a result of sustaining an injury to his elbow. He received his full sick pay entitlements from this date. On 11th February, 2004 the complainant was referred to the company doctor (Dr. M) and during this visit he told her of his problems with hypercholesterolaemia and resulting ischaemic heart disease. The respondent notes that the complainant informed Dr. M that he was involved in loading and unloading baggage from aircraft and that the bags were frequently heavy. He also stated that on occasion he experienced chest pain particularly on cold mornings. On 28th April, 2004 Dr. M wrote to the respondent about the complainant's medical condition and requested a job analysis to identify the safety concerns associated with the job. The respondent notes that on 31st May, 2004 Dr. M was informed by a Specialist Registrar in Cardiology in the Mater Hospital that the complainant required a coronary angiogram. On 15th June, 2004 Dr. M wrote to the complainant's Consultant Cardiologist (Dr. S) requesting assistance in clarifying the complainant's fitness to work having regard to his cardiac condition and a response dated 22nd June, 2004 stated that the complainant had had a further angiogram and that a further angioplasty was being scheduled. The respondent says that the complainant underwent a serious cardiac operation for his heart condition in July, 2004 and on 3rd September, 2004 Dr. M wrote to Dr. S requesting an update on the complainant's cardiac status and his ability to return to work. Dr. S responded stating that the complainant 'is probably fit to resume his duties'. It is the respondent's submission that 'probably fit' should not be considered enough to convince any reasonable company doctor nor any reasonable employer that the complainant was indeed fully fit to return to work.
4.3 The respondent states that Dr. M followed up her concerns with Dr. S stating that she could not recommend that the complainant was fit for work. According to the respondent Dr. S shared her concerns regarding the complainant's fitness to return to work and stated by letter dated 12th November, 2004 that 'it would be unwise for him to participate in strenuous physical effort such as that associated with a position of baggage handler'. Given these opinions the respondent says that the complainant was misguided when he stated in his letter of 19th December, 2004 that he was perfectly capable of returning to work in a suitable capacity. The respondent says that this reference to 'suitable capacity' indicates that the complainant himself understood that he was not fit for his role as a ramp supervisor but was fit to work in some other capacity more suitable to his medical condition. According to the respondent the complainant was immediately told that Dr. M had not certified him fit to return to work hence he could not return to work in his previous capacity. At a meeting with the complainant on 5th January, 2005 the complainant was afforded the opportunity to explain his concerns and the respondent undertook to look into the matter further with their insurers and revert to him. Then on 14th January, 2005 the HR Manager, on behalf of the respondent, wrote to the complainant and said that other positions were being reviewed to see how best the complainant could be accommodated.
4.4 The respondent states that the letter from Dr. S dated 11th January, 2005 stating that there was no reason for the complainant not to resume his work if it is the case that he never has to haul baggage, is wholly inaccurate and based on inaccurate information. It is the respondent's view that the certificate of fitness from the complainant's GP was not sufficient to allow him (the complainant) to return to work. The respondent says that the reference by the complainant's GP to the complainant being fit to resume his duties 'as supervisor only' was ambiguous having regard to the job description. In an effort to facilitate the complainant the HR Manager requested clarification from the complainant's GP through the complainant. The respondent says that it received no such clarification as the complainant failed to pursue this with his own GP. Given the lack of clear medical certification to return to work the respondent says that it was left with no other option but to terminate the complainant's employment with effect from 21st June, 2005.
4.5 The respondent states that the complainant appealed the decision to terminate his employment and a hearing was scheduled for 26th April, 2005. The Station Manager for the respondent at Belfast International Airport heard the appeal. The HR Manager was also present at the appeal hearing, but according to the respondent she had no part in making the decision on appeal. It is the respondent's submission that it is company policy that a member of HR staff accompanies a manager throughout any disciplinary or grievance meetings. The respondent notes that the complainant objected to the presence of the HR Manager on the basis that she had notified him of the termination of his employment and he contended that it was against company policy for the person who made the decision to terminate the employment to be part of the appeal process. According to the respondent the HR Manager was the only HR person who was in Ireland at the time. The respondent says that the Station Manager made the decision on this appeal independently of the HR Manager. However the complainant refused to participate in the appeal process and the Station Manager had to base his decision on correspondence and he upheld the decision to terminate the complainant's employment.
4.6 In accordance with his rights the complainant further appealed this decision and the General Regional Manager and the Station Manager at Belfast City Airport heard the appeal on this occasion. Following on from this appeal the HR Manager wrote to the complainant on 22nd June, 2005 noting the delay in the issue of the final decision and stating that the General Regional Manager, in seeking to ensure a fair outcome, was going to seek further clarification from Dr. M and Dr. S. On 2nd August, 2005 the HR Manager wrote to the complainant noting that Dr. M and Dr. S were unavailable to provide clarification and asking if the complainant would attend an occupational health specialist for an appointment/assessment. The respondent notes that the complainant refused to participate in this assessment. According to the respondent it received another letter from Dr. M dated 30th August, 2005 in which she stated that the complainant was not fit to return to work as a ramp supervisor but would be fit to return to work as a ramp allocator. The respondent says that there were no other positions for the complainant as an allocator or otherwise. Following the final appeal the General Regional Manager wrote to the complainant on 21st October, 2005 explaining the reasoning behind upholding the decision to terminate his employment and noting that the decision had to be made on the basis of medical advice received to date.
4.7 The respondent states that baggage handling is a normal and significant part of the role of ramp supervisor. Not only do the job analysis and the job description identify this point but the respondent says that there are also many incidents which are indicative of the physical nature of the complainant's role which underpin the job description. For instance the respondent says that the complainant reported an incident, which allegedly resulted in him sustaining a groin strain. Then on 12th March, 2003 the complainant had an incident regarding the pulling of a trolley during the course of his ordinary working day. The respondent says that the complainant's own description of this incident is indicative of the physical nature of the complainant's role whereby he describes his pulling a trolley with 32 bags on it while loading aircraft. It is the respondent's position that accident records of three other ramp supervisors show the extent of physical requirements of the role of supervisor. One report was of a ramp supervisor who sustained back pain while he was loading a bag into the hold of an aircraft - this record reports that the supervisor was carrying out his normal duties of loading bags. Another records an incident in which the ramp supervisor was off-loading barrels of freight from the belt loader into containers. This supervisor describes how he found the barrels too heavy and waited for another employee to assist him but the other employee had hurt his back with these same barrels. In another incident the ramp supervisor pulled a muscle in his lower back while disconnecting a tow bar from an aircraft. The respondent says that it does not understand how the complainant views his role as being any different to the roles of the three supervisors involved in the accidents described above. It is the respondent's submission that the degree of heavy physical work involved in the supervisor role is not only inherent in the job description but is also sufficient in practice to preclude the complainant from safely carrying out his former role.
4.8 The respondent states that a functional analysis of the ramp supervisor was carried out by the Ramp Manager in May, 2004 and this analysis records the lifting, the carrying, the pulling and the pushing which the role entails. According to the respondent the supervisor is required to work in the two main areas of the ramp and the baggage hall. The very nature of the environment in which the complainant was working involves manual handling, an environment whereby all employees of the respondent are required to undergo a manual handling course on the commencement of their employment and once every 24 months thereafter. The respondent says that due to the unique environment in which the manual handling may be undertaken e.g. the hold of the aircraft, it provides specialist training for the difficulties in the manual handling aspects of its operation. It is the respondent's submission that the job description referred to in this case is the same job description for all ramp supervisors at the time. The respondent says that this job description was not prepared solely for the complainant but is a true reflection of the duties of a supervisor from an objective view. The respondent notes that the complainant has held that any lifting involved in the role is minor and it would be possible to avoid this aspect of the work completely. It is the respondent's contention that the job description, job analysis and record of supervisors' accidents clearly show that this is not the case.
4.9 In terms of reasonable accommodation the respondent states that under Section 16(1) of the Employment Equality Act, 1998 as amended a person must be fully capable of doing the job under the conditions attaching to the job. It is the respondent's submission that the use of the word 'fully' implies that a person must be able to perform 100% of the job under the conditions attaching to the job. The respondent says that medical evidence in this case is quite clear that the complainant was not capable of doing the job. According to the respondent it was fully aware that the complainant wished to return to work and in that regard it undertook to endeavour to accommodate him in any way reasonably possible. The respondent says that the HR Manager carried out an extensive review of any other roles that might have been vacant but there were no alternative roles available, which could have been offered to the complainant. It is the respondent's submission that its policy on vacancies is that they are advertised internally in the first instance. The respondent says that there was no recruitment at this point and in the first quarter of 2005 a number of redundancies were implemented.
4.10 In relation to the complainant's argument that a 'distribution of tasks' would have eliminated any concerns of the respondent regarding his performance of his duties the respondent says that this is wholly impracticable given the manual handling environment of its business. The respondent says that it is a matter of commonsense that a supervisor's role may not always involve pure supervision and will involve practical, physical direction or assistance to other employees and the respondent submits that this is clearly evident in the accidents which the complainant and others incurred while carrying out the role of supervisor. According to the respondent it could not envisage a situation where a supervisor merely looks on when over 50% of his role consists of manual handling. The respondent notes that nowhere in Section 16 of the 1998 Act as amended is it required to consult or engage with the complainant in respect of its assessment of the role of supervisor and how to accommodate the complainant in such role. However the respondent says that it provided the complainant with copies of the job description and the job analysis and made regular contact with him with regard to its attempts to clarify medical matters in order to facilitate his return to work.
4.11 The respondent says that the Equality legislation provides that an employer is required to do all that is 'reasonable' to accommodate the needs of a disabled person by providing special treatment or facilities so that the disabled person becomes competent and fully capable of performing the duties attached to the job. However an employer is not required to provide special treatment or facilities if the cost of such would impose more than a 'disproportionate burden' on the employer. According to the respondent the complainant did not submit any means by which he could have been accommodated in order to be fully capable of performing his role, as there are none, which would be required of it (the respondent). The respondent states that it is not reasonable for it to employ another person to carry out the baggage handling activities, which are inherent in the role of ramp supervisor so that the complainant could continue in his role. If this were possible the respondent says that the complainant would only be doing 50% or less of the work required for his role. The respondent refers to the case of Ms. M v Health Service Executive2 in which the Equality Officer considered the issue of providing full-time supervision of the complainant nurse but concluded that the employment of someone to do this was not a reasonable one to impose on the employer given the restriction in staff numbers under which the employer must operate. In the circumstances the respondent states that it would not be reasonable for it to employ another person to carry out the work that the complainant was already employed to do. According to the respondent the case of Gannon v Milford Care Centre3 reinforces this position. The complainant in this case (a nurse) took an action against her employer alleging that a failure to provide light duties was in breach of the Employment Equality Act, 1998. The complainant's job involved lifting and bending. The complainant was absent from work for a long period after sustaining a back injury, which resulted in her being unable to carry out many of the tasks attaching to her role. The respondent notes that the Equality Officer agreed with the employer and held that there was no obligation on an employer to offer an employee light duties by offering the person an alternative job to that for which they were originally recruited. It is the respondent's submission that it is clear from the extensive correspondence between it and the complainant that adequate enquiries were made about the complainant's medical condition before the decision was made to dismiss him including requests for clarification to support the complainant's position but these were not forthcoming.
4.12 The respondent notes that the complainant received his full sick pay entitlement as per his contract of employment which provides that a permanent employee with more than 6 years service is eligible for a maximum period of up to 52 weeks pay during sickness absence. As the complainant was paid during his absence in accordance with his contract of employment the respondent says that he has failed in his claim of victimisation regarding his sick pay. The respondent argues that it has facilitated the complainant to the greatest extent permissible under his contract of employment. The respondent notes that the complainant has argued that his sick pay should not have been terminated as per his contract as he was allegedly available to return to work in April, 2004. In its submission the respondent points out that the complainant was not only uncertified to work but he also underwent another serious cardiac procedure in July, 2004 and was unfit to return to work during the months of July and August, 2005.
4.13 The respondent strongly denies that it victimised against the complainant in contravention of Section 74(2) of the 1998 Act as amended. It is the respondent's contention that as no breach of the Employment Equality Acts took place the complainant could not have been victimised. The respondent says that any claim of victimisation regarding sick leave should fail and furthermore any claim that his dismissal constituted victimisation is wholly erroneous. It is the respondent's submission that it is clear, from the dates of the correspondence it received from the Equality Tribunal, that it was unaware of the complainant's complaint to the Tribunal before the complainant's employment was terminated on 29th March, 2005. The respondent also says that the reason behind the dismissal did not constitute any form of victimisation but was a reasonable employer's reaction to the facts of the complainant's case.
4.14 In conclusion the respondent contends that the complainant was not discriminated against on the grounds of disability or otherwise. Furthermore he was not victimised pursuant to Section 74(2) of the 1998 Act as amended. The respondent asks the Equality Officer to reject the claims and appreciate its concerns and its underlying duty of care to all of its employees, including the complainant, in respect of the decision it made in relation to the complainant. It is the respondent's contention that it did everything practicable and made every effort to accommodate the complainant's return to work but it was left with no alternative but to dismiss the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment and discriminatory dismissal by the respondent on the grounds of disability within the meaning of Section 6 of the Employment Equality Acts, 1998-2004 and in contravention of Section 8 of those Acts. I must also decide on whether or not the respondent provided the complainant with reasonable accommodation within the meaning of Section 16 of the Employment Equality Acts, 1998-2004. I must further decide if the complainant was subjected to victimisation by the respondent in terms of Section 74(2) of the Employment Equality Acts, 1998-2004 in relation to his sick pay and also in terms of his dismissal. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
Facts
5.2 The facts of this case are that the complainant commenced employment as a Baggage Handler with British Midlands in 1993. In April, 2001 British Midlands sold its Ground Handling Operations to the respondent organisation and the complainant continued in that employment. In August of that year the complainant was successful in his application for promotion to the position of Ramp Supervisor. In January, 2004 the complainant injured his elbow at work and was absent on sick leave. After being absent for about a month the complainant was asked by the respondent to attend the Company Doctor (Dr. M). The complainant did so attend in February, 2004.
5.3 In 1989 the complainant was first diagnosed with heart disease and underwent a series of procedures over the years including bypass surgery, angioplasty procedures on three occasions and a left carotid endarterectomy. When the complainant attended Dr. M in February, 2004 he mentioned his heart condition. Dr. M, with the complainant's permission, wrote to the complainant's Consultant Cardiologist (Dr. S) seeking an input from him on the safety of allowing the complainant to continue to work in his present position which she described as "both supervising and participating in the loading and unloading of the baggage from aircraft". While the complainant did recover from his elbow injury he was not allowed to return to work because of Dr. M's concerns about his fitness to work due to his heart condition.
5.4 There was a number of different communications between Dr. M and Dr. S over a period of time and during this time the complainant underwent further surgical procedures. After all procedures had been completed Dr. M, in a letter to the respondent organisation dated 5th November, 2004 stated that in her opinion the complainant was not fit to return to work as a Ramp Supervisor given the nature of the duties i.e. baggage handling. In December, 2004 the complainant was notified that his sick pay would cease with effect from 11th February, 2005 and on 29th March, 2005 he was informed that his contract of employment with the respondent would cease with effect from 21st June, 2005. The decision to terminate the complainant's employment was based on the advice of Dr. M and Dr. S that due to his medical condition he was unable to perform a significant proportion of the duties of a Ramp Supervisor.
Medical Evidence at Hearing
5.5 At the hearing of this claim Dr. S attended to give evidence on the complainant's condition. Dr. S stated that the complainant suffered from a genetic heart condition related to cholesterol which resulted in a narrowing of the arteries in his heart and which manifested itself in chest pain. According to Dr. S this is a common genetic defect which affects 1 in 500 persons and which can manifest itself in many different ways i.e. heart attack, chest pain, stress test. The complainant had angioplasty procedures on three occasions. Dr. S confirmed that these procedures were the same on each occasion but each procedure focussed on different parts of the artery. According to Dr. S the complainant's heart condition was no worse in 2004 to what it was when he was first diagnosed with a heart condition in 1989. Dr. S explained that angioplasty is a stretching of an artery where the artery is narrowing and therefore likely to cause a blockage. The insertion of a stent is effectively the insertion of an implant (a mental tube) into the blockage to prevent the narrowing of the artery and it never needs to be replaced. Dr. S said that with medication the complainant's blood cholesterol level is normal. Also the capacity of the pumping function of his heart is normal. Dr. S noted that the complainant had undertaken a stress test and had passed it with flying colours. This test is a standard measure of cardiac function and its objective is to produce evidence of heart muscle which is starved of blood and in the complainant's case there was no such evidence. Dr. S stated that the complainant had normal cardiac pump function, he was being treated with the best medicine and he passed a maximum stress test.
5.6 According to Dr. S the complainant is capable of undertaking normal physical activities. He said that he would not advise the complainant to run a marathon nor would he advise him to push a tractor up a hill on a cold morning. Dr. S also said that heavy manual labour would be a concern. However Dr. S said that if the complainant was going away on a holiday he would have no concern about him lifting his luggage. Asked about lifting heavy cement blocks Dr. S said that persons with the complainant's condition do perform this function. It was Dr. S's view that the complainant would not be advised to carry out extreme physical activities; he said that it is not an exact science but that the complainant should use his own commonsense. Dr. S also stated that he did not question the complainant about the nature of his occupation at any stage while he was under his care and he said that after surgical procedures the complainant would not have been provided with a list of do's and don'ts. Dr. S noted that the complainant has never suffered from a heart attack. He further stated that moderate intensity exercise is recommended for the complainant. I put it to Dr. S that between 1989 and 2001 the complainant had been employed as a Baggage Handler where 100% of his work related to lifting heavy weights. After November, 2001 when the complainant became a Ramp Supervisor and if it is accepted that 50% of his work related to the lifting of heavy weights, from a cardiac perspective would this have been a problem for the complainant and why? Dr. S stated that, from a cardiac perspective, this would not have been a problem for the complainant. It was put to Dr. S by the respondent that Dr. M, as an occupational physician, was better able to assess the complainant's ability to be fit for work but Dr. S stated that, as a Cardiac Consultant, he was best placed to assess the cardiac condition of his patient.
Assessing Fitness for Work
5.7 In assessing the complainant's fitness for work the respondent only considered the medical certificates it received relating to his condition. It is my submission that in the complainant's case consideration should have been given to all of the following issues:
- The complainant's cardiac condition;
- Medical Certificates;
- The complainant's work history;
- The complainant's work performance;
- The nature of the work performed.
It was clear that the complainant had a cardiac condition and everyone was agreed on this point. There was a serious conflict in the medical certificates regarding the complainant's condition. On the one hand Dr. S always certified the complainant fit for work prior to contact from Dr. M. On the other hand Dr. M, at all times, expressed concern about the complainant returning to work, but purely because of his cardiac condition and the nature of the work her performed. I note that Dr. M sought an update on the complainant's condition, following the complainant's stent procedure, to assist in the assessment of the complainant's fitness to return to work. In response to this Dr. S said that "he is probably fit to resume his previous duties". Dr. M then rang Dr. S and as a result of this telephone conversation Dr. S indicated that strenuous physical effort, such as that associated with the position of baggage handler, given the complainant's cardiac condition would be unwise. In these circumstances Dr. M informed the respondent that the complainant was not fit to return to work as a Ramp Supervisor but he could work in other less strenuous positions e.g. Ramp Allocator. Subsequent to this Dr. S wrote to Dr. M stating that he had been informed by the complainant that he never has to haul baggage and in these circumstances Dr. S stated that "there should be no medical or cardiac contradiction to his resuming his activities". The issue came down to the conflict between the complainant and the respondent as to the level of physical exertion in the role of Ramp Supervisor.
5.8 The complainant was first employed in the role of Baggage Handler in August, 1993 and he carried out this function until November, 2001 when he was successful in his application for the position of Ramp Supervisor. In 1989 he was first diagnosed with hypercholesterolaemia and resulting heart disease. I note that this did not prevent him from getting the position of Baggage Handler with British Midlands Airways Limited. When the business transferred to the respondent in April, 2001 the complainant had had a number of cardiac related procedures. Medical records provided to me by the respondent show that the complainant was absent from work for cardiac reasons. It is notable that one such certificate is from the Department of Clinical Cardiology in the Mater Hospital dated April, 1999 and it states "If you have any problems in relation to Mr. Kavanagh's condition, please do not hestitate to contact a member of Dr. S's team, with Vincent's permission". I note that the respondent, in its submission, has stated that it "was not aware of the claimant's heart condition, related surgery or procedures until the Compnay Doctor informed the respondent in February, 2004". This is clearly not the case and I note that the respondent did not take any action on two medical certificates received in 2002 where the complainant was absent from work suffering from "Post Op Carotid endarterectomy". The complainant returned to work and was not questioned about his cardiac condition. Furthermore there is no evidence that the respondent had any difficulties with the complainant's work performance. So from the complainant's return to work in 2002 following cardiac surgery he continued to work as a Ramp Supervisor with no concern over his health, his fitness to work or his performance.
5.9 There is a serious conflict between the parties as to the nature of the work of a Ramp Supervisor and more specifically to the percentage of time spent carrying out baggage handling activities. It is the complainant's contention that he does not have to undertake any baggage handling functions while carrying out the Ramp Supervisor's job. By contrast the respondent, in its submission, submits that over 50% of the role of Ramp Supervisor consists of baggage handling. The respondent carried out a Functional Analysis of the Ramp Supervisor role in early 2005 and this Analysis was carried out by a Ramp Manager. It is notable that this Analysis details weights that need to be lifted e.g. 20 - 32kg but there is no indication as to how much of the Ramp Supervisor's time is spent lifting. In the Job Description for Ramp Supervisor it is stated that the job-holder must supervise and assist, when necessary, the loading and offloading of aircraft. Again there is no indication as to the length of time spend on this activity. At the hearing of this claim I heard from three witnesses (all Ramp Supervisors) on behalf of the complainant and a witness on behalf of the respondent who had carried out Ramp Supervisor duties. All three witnesses for the complainant stated that if there was a full crew (i.e. a team of 4) allocated to the aircraft then there was no need for the Supervisor to get involved in baggage handling. They did say that Supervisors can get involved in baggage handling but this is a matter of personal choice and convenience. The witness for the respondent stated that as a Ramp Supervisor he would get involved in baggage handling activities. His primary responsibility as a Supervisor was to supervise the safe turnaround of flights. If there was not a full compliment of crew members this witness would get involved in the baggage handling functions of the job. He stated that a Supervisor always had to carry out baggage handling functions in the job but these would be significantly reduced where there is a 100% crew. The respondent accepted that the requirement to perform baggage handling duties while employed as a Supervisor is dependent on a number of factors namely:
- Personal Choice
- Seasonal Work - peaks and troughs
- Time of Year
- Timeframe for unloading and loading of aircraft
Taking account of all of the above it is not clear to me how the respondent can determine that the baggage handling function of a Ramp Supervisor's role equates to 50%. From the evidence before me I am satisfied that there is a baggage handling element to the role of Ramp Supervisor (contrary to the complainant's assertion) but with the allocation of a full crew this can be minimised. I cannot, however, accept that the baggage handling function equates to 50% of the role of Ramp Supervisor.
5.10 In determining the fitness of the complainant to return to work given his cardiac condition I note that the respondent focussed solely on medical certificates. No consideration was given to the complete picture of the complainant's working history with the respondent4 . Furthermore the Functional Analysis for the Ramp Supervisor's job was undertaken internally in circumstances where the complainant's cardiac condition was an issue. The respondent has said that the Functional Analysis was not undertaken because of the complainant but it was one of a number of Analyses being undertaken of various jobs in the organisation where a review was being undertaken with a view to reducing staff numbers. It is my view having regard to the following:
- the complainant's cardiac condition as outlined by Dr. S at the hearing of this claim;
- the complainant's employment history;
- the nature of the job of Ramp Supervisor as outlined by the various witnesses;
that with reasonable accommodation i.e. guarantees that the complainant would be allocated a full crew compliment, the complainant could have carried out the duties of a Ramp Supervisor.
Issue of Reasonable Accommodation
5.11 Section 16 of the Employment Equality Act, 1998-2004 provides:
"(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 ... 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 which those duties are, or may be required to be, performed.
(3) (a) For the purpose of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation ... being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular of -
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3) -
"appropriate measures" in relation to a person with a disability -
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself".
5.12 In terms of providing reasonable accommodation the respondent stated that it undertook a review of all positions in the organisation, which entailed a discussion with managers about what positions might be available. The respondent stated that this review was not documented and there were no suitable roles available. In January, 2005 the respondent employed a total of 200 staff and this has been reduced to 140. I asked the respondent if, given that it held that 50% of the job of Ramp Supervisor contained baggage handling functions, it had considered recruiting a baggage handler on a part-time basis to undertake the baggage handling aspects of the complainant's job and retain the complainant on a part-time basis to carry out the functions of a Supervisor. In response to this the respondent said that this was not considered and would not have been considered because even if it had not resulted in an additional cost for the respondent organisation it would have meant an extra head of staff and the priority was to reduce staff numbers. It is my view that, given the climate in the respondent organisation at that time, it suited the respondent to dismiss the complainant on medical grounds with little or no consideration for other factors.
5.13 The complainant was absent from work initially because of an injury to his elbow. In a letter from Dr. M to the respondent dated 10th March, 2004 she states that, in terms of his elbow injury, the complainant should be able to return to work towards the end of March or early April, 2004. She also requests a detailed Job Description for the position of Ramp Supervisor. I note that Dr. M again wrote to the Regional Manager of the respondent organisation on 28th April, 2004 requesting a Functional Job Analysis. In a further letter from Dr. M to the Regional Manager dated 5th November, 2004 she notes that based on their recent telephone conversation that "at least 50% of Mr. Kavanagh's work hours would be spent working as a Ramp Agent while working as a Ramp Supervisor". I note that the Functional Job Analysis has not been provided to Dr. M at that time and that she has assessed the complainant's fitness to work on the basis of a telephone conversation with the Regional Manager of the respondent organisation. The Regional Manager is no longer with the respondent organisation and was not present at the hearing of this claim to clarify how "at least 50%" was established. It was when the complainant expressed concern that his sick pay was to cease that the respondent invited him to a meeting on 5th January, 2005 to assess the information he would present to ascertain the most suitable and beneficial way forward. It is clear from the minutes of this meeting (provided by the respondent) that no effort was made at providing the complainant with reasonable accommodation. When the complainant challenged the fact that 50% of his time as Supervisor is spent on baggage handling functions, there was no discussion on this point. Rather the Regional Manager stated "This is your opinion and not that of the Companies". Therefore on the basis of the documentation provided to me the respondent was aware that there was an issue about the complainant's fitness to work because of a cardiac condition from 28th April, 2004. The respondent failed to provide a Functional Job Analysis for a period of at least nine months while all the time the complainant was on what he considered to be enforced sick leave. Had the Functional Job Analysis been produced when first sought in March, 2004 then the issue of reasonable accommodation could have been explored before the complainant reached the end of his sick pay.
Victimisation
5.14 The complainant has alleged that he was subjected to victimisation when his sick pay was terminated after one year on enforced sick leave. The complainant notes that he was willing and able to return to work but because of the respondent's unreasonable view as to his cardiac condition he found himself without any income and this he claims was victimisation. The respondent says that the complainant was paid fully in compliance with its sick pay policy and it rejects any victimisation as alleged. From the respondent's perspective the complainant was not given a Certificate of Fitness to return to work and in those circumstances he was absent on sick leave. The respondent applied the sick leave provisions correctly to the complainant. Therefore having regard to the provisions of Section 74(2) of the Employment Equality Acts, 1998-2004 I am satisfied that the complainant was not subjected to victimisation in relation to his sick pay.
5.15 The complainant also alleges that his discriminatory dismissal constituted victimisation under the Employment Equality Acts, 1998-2004. He states that he referred complaints under the 1998-2004 Acts to the Equality Tribunal on 23rd March and 8th July, 2005. Prior to these referrals he had challenged his treatment by the respondent. The complainant submits that the unreasonable and unfair decision-making process whereby the main issues raised by him (recommendations of his GP and his Consultant and the inaccurate job description and analysis) were ignored, gives weight to the argument that the dismissal constituted victimisation. The respondent denies this and notes that any correspondence it received from the Equality Tribunal shows that it was unaware of the complainant's complaint to the Tribunal before it terminated the complainant's employment on 29th March, 2005. The respondent also states that the reason behind the dismissal was a reasonable reaction to the facts of the complainant's case and did not constitute any form of victimisation. Having regard to the provisions of Section 74(2) of the 1998-2004 Acts I cannot accept that the dismissal of the complainant occurred as a reaction to any of the sub-sections of Section 74(2) of those Acts. It is my view that irrespective of any complaint the complainant made, the respondent was going to proceed with the dismissal.
Other Matters
5.16 The complainant denies that, in the letter dated 10th March, 2004 from Dr. M to Dr. S, he said that his position involves "both baggage supervising and participating in the loading and unloading of the baggage from the aircraft". He also says that the comment "Vincent has advised me that on occasion he experiences chest pain particularly on the cold mornings" is taken out of context. According to the complainant Dr. M asked him how he would know if he was having cardiac problems and in response he said that he would experience chest pain particularly on cold mornings. Dr. M was not available at the hearing of this claim to comment on this and I note that she is no longer employed by the respondent organisation as its Company Doctor, having moved to another practice.
5.17 At the meeting on 5th January, 2005 between the complainant and the respondent the meeting concluded with the Regional Manager undertaking to send the complainant's paperwork to HR and checking with the respondent's Insurance Company regarding the complainant's medical condition. The Regional Manager undertook to get back to the complainant in 36 hours. The complainant, at the hearing, stated that he was not aware of the outcome of any discussions with the Insurance Company and likewise the respondent, in the absence of the Regional Manager, could not update me on the outcome of discussions with the Insurance Company.
5.18 At the hearing of this claim on 20th May, 2007 the complainant stated that he had sought a written reference from the respondent by letter dated 26th April, 2007 but it was not forthcoming. The respondent stated that it had no record of having received the request but immediately indicated that there was no difficulty in providing a reference. It was the complainant's contention that he was having difficulty in obtaining alternative employment and a reference may assist in that process. On 11th June, 2007 I received a letter from the complainant's representative dated 8th June, 2007 noting that the reference was still not forthcoming. A reference dated 19th June, 2007 was furnished for the complainant. I clarified with the respondent that this document was indeed the reference and was told that the reference and was told that the reference, which issued to the complainant, was in line with the respondent's policy regarding the issue of employment references. On 22nd June, 2007 the complainant wrote to the respondent drawing its attention to factual inaccuracies contained in the reference.
5.19 At the hearing of this claim the complainant confirmed to me that, in relation to remedies in this case, he did not wish to be re-instated in his position as Ramp Supervisor in the respondent organisation but was rather seeking compensation for loss of earnings.
6. DECISION
6.1 In view of the foregoing I find that Aviance Limited discriminated against Mr. Kavanagh on the grounds of his disability in terms of Section 6(1) and 6(2)(g) of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts.
6.2 I further find that Mr. Kavanagh was the subject of a discriminatory dismissal by Aviance Limited in terms of Section 8 of the Employment Equality Acts, 1998-2004.
6.3 I find that Aviance Limited did not subject Mr. Kavanagh to victimisation in terms of Section 74(2) of the Employment Equality Acts, 1998-2004 in relation to his sick pay and his dismissal.
6.4 In terms of making an award there are two aspects to this claim namely the discriminatory treatment, which resulted in the failure to provide reasonable accommodation and the discriminatory dismissal. Consequently the complainant is entitled to two separate awards, one for discriminatory treatment and one for discriminatory dismissal. Prior to the transfer of jurisdiction of discriminatory dismissal claims to the Equality Tribunal brought about by the Employment Equality Act, 2004 the complainant could have sought redress in two separate forums namely the Equality Tribunal for the discriminatory treatment and the Labour Court for the discriminatory dismissal. Therefore the potential compensation could not have diminished as a result of the transfer of the jurisdiction for discriminatory dismissal claims. In this regard I note that in Council Directive 2000/78/EC of 27th November, 2000 it is stated "the implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by member states in the fields covered by this Directive". The Employment Equality Act, 2004 is referred to, inter alia, as "an act ... to give effect to ... Council Directive 2000/78/EC of the 27th November, 2000 establishing a framework for equal treatment in employment and occupation".
6.5 In the circumstances of the above and in accordance with Section 82 of the Employment Equality Acts, 1998-2004 I hereby order that
- Aviance Limited pay Mr. Kavanagh the sum of €65,000 in respect of loss of earnings due to the discriminatory dismissal. Mr. Kavanagh's annual salary (including shift pay) was in excess of €33,000.
- Aviance Limited pay Mr. Kavanagh the sum of €60,000 by way of compensation for the stress suffered as a result of the discrimination and the failure to provide reasonable accommodation. The amount of this award is to reflect the fact that Mr. Kavanagh had every expectation of continuing in this employment and the difficulty he has since encountered in obtaining alternative employment. It is also in accordance with Article 17 of the Framework Directive, which states "sanctions must be effective, proportionate and dissuasive".
______________________
Gerardine Coyle
Equality Officer
12th July, 2007
1 Labour Court Determination [2005] ELR 159
2 Equality Officer Decision - DEC-E2005-036
3 Equality Officer Decision - DEC-E2004-048
4 See Labour Court Determination in the case of A Health and Fitness Club and A Worker EDA037 [18th February, 2003]