The Equality Tribunal
Employment Equality Acts
Decision DEC-E2009-078
PARTIES
Patrick Kennedy
(Represented by Marguerite Bolger, B.L.
instructed by Hayes Solicitors)
- V -
Stresslite Tanks Ltd. & Stresslite Floors Ltd.
(Represented by Walsh & Associates)
File reference: EE/2006/393
Date of issue: 09 September 2009
Keywords - Employment Equality Acts – Discriminatory Dismissal – Failure to provide Reasonable Accommodation – Age – Disability – Prima Facie case -
1. DISPUTE
1.1 This dispute concerns a claim by Mr Patrick Kennedy that he was subjected to discriminatory dismissal by Stresslite Tanks Ltd and Stresslite Floors Ltd. on the grounds of age and disability in terms of Section 6(2) of the Employment Equality Acts, and contrary to Section 77 of those Acts and that the respondent failed to provide reasonable accommodation in accordance with Section 16 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 17 October 2006 under the Employment Equality Acts. On 28 January, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - 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 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 May 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed by the respondent as a factory foreman since 2000. It is submitted that when the complainant was interviewing for the position, he expressly advised the Respondent that he had undergone bypass surgery in 1985 from which he had recovered well. The complainant further submitted that his work was administrative, looking after production and liaising with various staff within the factory and was not responsible for physically demanding tasks.
2.2 On 30 October 2005 the complainant was taken ill and underwent various cardio-surgical interventions which required him to take certified sick leave. The complainant submitted that he sent in medical certificates and kept in touch with the respondent on a very regular basis.
2.3 The complainant submitted that in January 2006 he received a call from the respondent enquiring when he expected to return to work. Subsequently the complainant advised the respondent that he hoped to return, initially on a part-time basis, in mid-February and ultimately to return on a full-time basis.
2.4 The complainant submitted that subsequently the Respondent’s Managing Director called to see the complainant at his house. The complainant submitted that the Managing Director stated that the respondent would pay sick pay for six months - three months on full pay and three on half pay. The complainant had no difficulty with this and expected to return to work within six months. The complainant submitted that he was shocked and surprised when the Managing Director referred to putting a package together and was immediately put in fear about his future employment.
2.5 The complainant submitted that he continued to submit sick certificates and met again with the Managing Director in February 2006. The Managing Director advised the complainant that he would have to see their doctor before he could return to work. Accordingly the complainant attended the respondent’s nominated doctor (a consultant in emergency medicine). The complainant submitted that the subsequent report stated that the complainant was likely to be able to return to administrative work but on a regular hour basis. The report further suggested that the complainant was not able to return to work at the moment but suggested that his cardiologist be contacted after three or four months for an updated opinion.
2.6 The complainant submitted that he met with the respondent again at the end of April to discuss the medical report and was subjected to an aggressive outburst from the Managing director wherein he was told that he should have informed the respondent of his heart problem. The complainant submitted that he was not listened to or told that his employment was terminated. The complainant further submitted that he received a telephone call the following day to inform him that his P45 was in the post.
2.7 The complainant submitted that at no time did the respondent advise him that they were considering terminating his employment or give him the opportunity to produce his own medical evidence in advance of terminating his employment. The complainant further submitted that the respondent failed to provide any reasonable accommodation to him to enable him to discharge his duties.
2.8 The complainant believes his position has been given to his former colleague who is younger than him. The complainant submitted that on this basis he believes he has also been subjected to discrimination on grounds of his age.
2.9 The complainant submitted that he furnished the respondent with a copy of Form EE.2 setting out certain questions for the respondent and seeking copies of documentation. A response was not forthcoming. The complainant submitted that the Tribunal should draw such inferences as seem appropriate from the failure to supply the information sought.
2.10 The complainant submitted that he is seeking substantial compensation for the financial loss he suffered from the termination of his employment and further compensation to reflect the pain and suffering he has undergone as a result of the discrimination to which he has been subjected by the respondent.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant was recruited in September 2000 and carried out administrative tasks in an industrial environment. The respondent confirmed that the complainant may not have been responsible for performing physically demanding tasks on a daily basis, but also confirmed that he operated in a high risk environment requiring him to wear safety boots, high visibility vest and a hardhat.
3.2 The respondent confirmed that the complainant discharged his duties extremely well, that he was frequently commended, and that it had never raised any issue regarding the complainant’s performance.
3.3 The respondent submitted that it does not ordinarily provide sick pay to its employees but that on this occasion the decision was taken at Board level to continue the complainant’s basic salary. This decision was communicated to the complainant.
3.4 The respondent submitted that in early 2006, it made enquiries of the complainant as to when he expected to return to work. In response, the complainant confirmed that he would like to return to work on a part-time basis in mid-February. The MD of the respondent company visited the complainant in his home in early January. The respondent submitted that it informed the complainant that it could not continue to pay the complainant indefinitely and that it would continue to pay the full rate of pay until the end of January (three months after the sick leave commenced) and thereafter, for a further three months, it would pay half the rate of pay. After that all payments would cease. The respondent submitted that it indicated to the complainant that the Board had a responsibility to the remaining employees and its suppliers and that trading conditions were tight. The respondent also submitted that it indicated to the complainant that it may be more beneficial for him to cease employment and secure a tax-free lump sum from the respondent, but that he would need to discuss this with his family and a personal advisor
3.5 Towards the end of January the respondent met with the complainant again. The respondent submitted that the complainant arrived clearly distressed. The respondent enquired if the complainant had sought independent advice and was informed that he had not. The respondent enquired whether the complainant was still focused on returning to work. When the complainant indicated that he was, the respondent indicated that its insurer, as a routine requirement, would require an independent medical review of his ability to return to work. The respondent submitted that the complainant agreed to attend a medical prior to a re-start.
3.6 The respondent submitted that following this medical assessment, it was furnished with a report which it subsequently copied to the complainant for his review. The respondent submitted that no comments were received from the complainant. At the end of the second three-month period the respondent requested a further meeting with the complainant.
3.7 The respondent submitted that at the meeting at the end of April, it drew the complainant’s attention to a number of key points within the report including the conclusions that “he is not fit at the moment to return to his normal type activity”. The respondent submitted that it had no reason to question the integrity or content of the report and that it did not think that it could provide the complainant with alternative work as he could not drive a machine and was not computer literate. The respondent further submitted that it confirmed to the complainant that it could not continue to pay him and that his employment would have to cease. The respondent submitted that it informed the complainant that it would be happy to re-employ him if a suitable position became available.
3.8 The respondent submitted that, in relation to the allegation of age discrimination, it did not replace the complainant with a younger replacement but rather the complainant’s duties were re-distributed among a number of existing staff.
3.9 The respondent submitted, in response to the complainant’s allegation that he suffered severe financial loss, no evidence has been produced of that loss and, furthermore, that the respondent is aware that the complainant has owned and operated a successful hackney cab business since shortly after his employment with the respondent ceased.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the Mr Kennedy was subjected to discriminatory dismissal by the on grounds of age and disability, in terms of section 6 of the Employment Equality Acts, and contrary to section 77 of those Acts and whether the respondent failed to provide appropriate measures under Section 16 of the Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”.
4.4 Having regard to the foregoing, and on the balance of probabilities, I am satisfied that the following points accurately reflect the reality of relationship between the parties in relation the disability aspects of this case:
· The complainant informed the respondent of his heart condition at the outset of his employment.
· No evidence was given that there were disciplinary, economic or other issues which would necessitate the complainant's dismissal.
· The complainant fell ill in October 2005, and although the respondent does not ordinarily provide sick pay, on this occasion it did so – three months at full pay and three months at half pay.
· During a conversation in January 2006, when the respondent stated that it would provide sick pay for six months, the complainant interpreted this to mean a further six months.
· Also during that conversation in January 2006, the respondent offered that complainant the opportunity to avail of a package and suggested that the complainant discuss the matter and obtain advice. The complainant did not seek professional advice.
· Following the above-mentioned meeting, the complainant indicated that he wanted to return to work. Accordingly the respondent sought medical advice.
· The complainant underwent a medical examination and the resulting report commented that the complainant was not fit to resume work at that time.
· The respondent allowed the complainant an opportunity to comment on the medical report but this opportunity was not availed of.
· The respondent did not consider that they were in a position to offer the complainant alternative work and then issued the complainant with his P45.
· The respondent dismissed the complainant but did not replace him, choosing instead to distribute his responsibilities amongst existing employees.
4.5 In the case of A Government Department and An Employee (Ms B) [EDA061] the Labour court, when commenting on the law applicable stated that “The proscribed ground - in this case the Complainant's disability - need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a "significant influence" (see Nagarajan v London Regional Transport [1998] I.R.L.R. 73, per Lord Nicholls at p.576). Moreover, it appears to the Court that a complaint of discrimination will be made out where a causal connection is established between seemingly neutral grounds on which a person is disadvantaged and the disability from which he or she suffers.” When considering 4.4 above, I find that the complainant has established facts sufficient to raise an inference that his disability exerted a ‘significant influence’ upon the respondent’s decision in selecting him for dismissal. Accordingly, the onus shifts to the respondent to rebut the inference of discrimination raised.
4.6 The complainant asserted that he was subjected to discrimination on the grounds of his age when he was replaced by someone younger. No further submission was made on this issue and no evidence was put before the Tribunal to substantiate this claim. Accordingly, I am satisfied that the complainant has not established facts from which discrimination on this ground may be inferred. This element of the complaint therefore fails.
4.7 In the instant case it is useful to consider the Labour Court's approach in the case of 'A Health & Fitness Club and A Worker' (Determination No EED037, ED/02/59)
"However a dismissal which appears to be discriminatory within the meaning of Section 8 of the Act may be saved by Section 16. This section provides, as follows:
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) [Not relevant]
(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.
(c) 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.
(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
This Section, 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 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."
4.8 In relation to the first stage of the employer's enquiry, I am satisfied that the respondent made adequate enquiries as to the complainant's condition such as to establish the factual position. However, in relation to the second stage of the stage, as outlined in the Labour Courts decision, the consideration of what 'appropriate measures' could be taken by the respondent, and the cost of those measures must be taken into account. The respondent had paid the complainant six months sick pay and had indicated to him that such payments would cease. In addition, the company had sought to engage with the complainant at a number of occasions during his sick leave. In the medical reports provided to the respondent, the consultant indicated that the complainant's own doctor should be approached in three to four months for an opinion and prognosis. This was presented to the complainant by the respondent at a meeting on 27 April 2006. I therefore find that the complainant was afforded the opportunity to participate and present medical evidence and submissions. The complainant walked out of the meeting. Following this, the respondent proceeded to dismiss the complainant.
4.9 In the circumstances outlined I find that the respondent could have ceased payment of sick pay and left the complainant on the books of the company. I do not consider that this approach would have placed a disproportionate burden upon the respondent. Accordingly, I find that the standard laid down by the Labour Court has not been reached and this element of the complainant's case succeeds.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discrimination on the basis of the age ground has not been established. Therefore this element of the claim fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the disability ground has been established and that the respondent has failed to provide appropriate measures.
5.3 In accordance with Section 82 of the Acts, an award can be made to the complainant in respect of compensation for the discriminatory dismissal suffered. In making this award I am conscious there were discussions under the Acts which led to a payment to the complainant by the respondent. Having regard to the foregoing, I am awarding €21,000 in addition to the sum that has already been paid over (as at the date of the hearing). As this award does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
09 September 2009