EMPLOYMENT EQUALITY ACTS 1998 - 2007
EQUALITY OFFICER’S DECISION DEC-E2008-026
PARTIES
Mr Sean Rattigan
(Represented by Roscommon Advocacy Network)
AND
Connacht Gold Co-operative Society
(Represented by IBEC)
1. DISPUTE
1.1This dispute concerns a claim by Mr Sean Rattigan that he was discriminated against by Connacht Gold Co-operative Society on the grounds of disability in terms of section 6 (2) (g) of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts when he was dismissed.
1.2The complainant referred his claim of discriminatory treatment to the Director of the Equality Tribunal on 15 April 2005 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought and received from the parties, a hearing was held on 31 January 2008 and further information received 25 March 2008.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complaint submits that on 8 June 2004 he started work with the respondent as a General Assistant in what he thought would not be a stressful job. For the first ten weeks he worked in the stores and liked the job. For the next two weeks the Store Manager was on leave and the complainant had to do a lot of his work, including work on the computer for which he felt inadequately trained. He found this stressful and on 27 September 2004 he was unable to go to work and went to see his psychiatrist who prescribed medication and certified him to take 3-4 weeks off and advised him to go to his GP to get a certificate for work. His GP advised the complainant that it was best not to mention depression to his employer and issued weekly medical certificate stating he was suffering from ‘medical illness’.
2.2 The complainant submits that when his wife left in a third medical certificate on 11 October 2004 she spoke to the Store Manager who said they needed the complainant back at work. The complainant’s wife stated he was sick and would be out for another two weeks. As the complainant and his wife were concerned with the Store Manager’s questions and attitude the complainant’s wife rang the Area Manager in the afternoon of 11 October 2004. During this conversation his wife mentioned that the complainant was suffering from depression and the area manager asked if this meant the complainant would be out all the time.
2.3 On 20 October 2004 the complainant received a letter dated 18 October 2004 from the respondent dismissing him.
2.4 The complainant submits that on 8 November 2004 he and his wife had a meeting with the Area Manager where his wife repeated that she had told him during the phone call on 11 October 2004 that the complainant was suffering from depression and that the Area Manager had denied this initially but then said that this was not the reason he was dismissed but because of uncertainty about his overall presence at work. The complainant further submits that the Area Manager said that if he had known when the complainant was coming back then things would have been different. Despite a request at this meeting the respondent did not provide a reference. The complainant has not worked since he was dismissed.
2.5 The complainant submits that the dismissal was discriminatory on the grounds of his disability and that the respondent made no efforts to take appropriate measures for the complainant to be fully competent.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submits that no discrimination took place as they were not aware that the complainant suffered from depression until 3 December 2004 when his representative wrote to them, and therefore the complainant’s disability had no influence on the respondent’s decision to dismiss the complainant. The respondent confirmed the details of the complainant’s employment and that his work was satisfactory up until the time he went on sick leave.
3.2 The respondent submits that the complainant did not mention that he suffered from depression before he started work, or during his employment or during his sick leave when his medical certificates stated ‘medical illness’. On 11 October, when the complainant’s wife dropped in the third medical certificate, the Store Manager asked what was wrong with the complainant she told him that her husband had stomach trouble. The complainant’s wife rang the Area Manager later that day to complain about the Store Manager’s attitude. The Area Manager said that the Store Manager was about to go on leave and did not want to be short staffed. The Area Manager asked what was wrong with the complainant and was told that it was a “private matter” and at this time he believed that the complainant was genuinely sick. The complainant’s wife also said that during the Store Manager’s leave the complainant was coming home from work stressed but the respondent did not see any connection. The respondent submits that this was the only conversation that the Area Manager had with the complainant’s wife prior to the decision to dismiss the complainant and there was no mention of depression.
3.3 The following day the Area Manager phoned the complainant’s previous employer and was advised that the complainant had a high level of absenteeism and had also tried to lead workers out on strike. Following this conversation and after discussion with another senior manager he decided to dismiss the complainant on the basis of the conversation with the complainant’s previous employer. The respondent submits that they were within their rights to dismiss the complainant without going through the full disciplinary process as he was still on probation.
3.4 The respondent submits that at the meeting on 8 November 2004 with the complainant and his wife they discussed monies owed. The Area Manager referred to his telephone conversation with the complainant’s previous employer and his level of absenteeism. From his recollection there was no mention of depression at this meeting. The respondent confirms that the complainant asked for a reference and he said he would think about it.
3.5 The respondent submits that they heard nothing further directly from the complainant and the next contact was from their representative in a letter dated 3 December 2004 when they became aware of the complainant’s depression for the first time.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant claims that he was discriminated against in relation to his dismissal by the Connacht Gold Co-operative Society on the grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The complainant gave direct evidence of his illness during the hearing and submitted a letter from a Consultant Psychiatrist dated 6 January 2005 which confirms that the complainant had been a patient under his care since November 2003 and suffers from depression intermittently. The respondent did not challenge that the claimant suffered from depression but that they were unaware of his illness whilst he worked for them. I am satisfied that at the time of his dismissal he was suffering from a disability in accordance with Section 2 of the Employment Equality Acts 1998 – 2007.
4.3 It is accepted that the complainant did not disclose his disability during the recruitment process or before he went on sick leave on 23 September 2004. The first issue in this case to be decided is whether the respondent was aware of the complainant’s disability before he was dismissed on 18 October 2004. Following the conversation on 11 October 2004 the Area Manager said he believed that the complainant was genuinely sick. He denies that depression was mentioned but does agree that the complainant’s wife said that the complainant was coming home stressed when the Store Manager was on leave. The next day he rang the complainant’s previous employer who had given him a good written reference. Following this conversation the Area Manager claims to have decided that the complainant was not genuinely sick. I cannot accept that the respondent would have rung the previous employer if he thought that the complainant was genuinely sick. I do, however, find the complainant’s wife’s evidence more credible that she told the Area Manager that the complainant was suffering from depression and that the Area Manager then expressed concern that the complainant would be out of work all the time.
4.4 Therefore, on the balance of the evidence, I conclude that the respondent became aware of the complainant’s disability on 11 October 2004. As the complainant was dismissed one week later I further find that under section 85A of the Employment Equality Acts, 1998 – 2007 that facts have been “established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
4.5 The respondent dismissed the complainant because he was out sick for a total of four weeks in his first five months employment and therefore considered him unreliable. As the complainant was still in his probationary period he was dismissed without recourse to a disciplinary procedure. It should be noted that the respondent’s Disciplinary Procedures are extremely brief and make no mention that their procedures could be curtailed during an employee’s probationary period. Furthermore the letter of dismissal gives no reason but states: “It is with regret I wish to inform you that you are no longer required as an employee of Connacht Gold Co Op.”.
4.6 Section 16 (1) offers employers a defence in dismissing people with disabilities when it states:
“Nothing in thisAct 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.”
However, section 16 (3) (a) of the Employment Equality Acts 1998 – 2007 tempers that defence: “For the purposes 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 (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.” The Labour Court in A Health and Fitness Club v A Worker (EED037)¹ (and upheld on appeal in the Circuit Court) set out an approach that should be taken in order that a respondent can rely on this defence ………“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 enquiries 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 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 may be 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.”
4.7 In applying that approach to this complaint I must first look at the materials facts of the complainant’s condition. The medical certificates submitted whilst he was working for the respondent gave no indication of the disability. However once they were aware of the disability it was incumbent on the respondent to ascertain the nature of the complainant’s illness in order that they could assess the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. The respondent made no attempt to do this, either by discussing his illness with the complainant or by seeking a medical assessment.
4.8 If this assessment had indicated that the complainant was not fully capable then the respondent should have looked into what appropriate measures could have made him fully capable. However this was not done as the first stage assessment was not carried out.
4.9 I find that as the respondent failed to carry out any assessment of the complainant’s disability the dismissal was discriminatory.
5. DECISION
On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2007. Therefore in accordance with section 82 of those Acts I award the complainant €17,500 in compensation for the distress suffered for the discriminatory dismissal. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
_________________
Hugh Lonsdale
Equality Officer
28 May 2008
¹A Health and Fitness Club v A Worker, ED/02/59, Det No EED037