EQUALITY OFFICER DECISION NO: DEC-E/2009/087
PARTIES
MR. Z
(REPRESENTED BY MR. ROBBIE RYAN)
AND
A BUILDING CONTRACTOR .
File No: EE/2007/549
Date of issue:7 October, 2009
Headnotes: Employment Equality Acts, 1998-2007, section 6,8 and 77 - discriminatory treatment - discriminatory dismissal- disability - burden of proof
1. DISPUTE
This dispute involves a claim by a complainant that he was (i) discriminated against by his employer on 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 relation to his conditions of employment and (ii) dismissed by the respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2007 and contrary to section 77 of those Acts in July, 2007.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a joiner in 1995. Shortly after he commenced employment he was diagnosed with vertigo. He states that during his period of employment he was absent from work approximately twice a year as a result of his condition, the normal duration of the absence being two/four days. He states that in July, 2007, following an absence due to his condition, he was transferred from his normal work and assigned internal duties. He further states that two weeks later he was dismissed by his employer as a direct result of his condition.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 18 October, 2007. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 30 April, 2009, the date the complaint was delegated to me. The complainant filed a submission and this was copied to the respondent seeking its response. Despite a number of reminders the respondent did not file its response and a Hearing was scheduled on 25 September, 2009. The Equality Officer was advised by the complainant's representative that the respondent was in examination and the Equality Officer notified both the respondent and the Interim Examiner of the arrangements for the Hearing by registered post. Neither the respondent nor the Interim Examiner attended the Hearing. The complainant and his representative were in attendance on the day. The Equality Officer was satisfied that both the respondent and the Interim Examiner had received the notification of the Hearing and he proceeded in their absence.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent as a joiner in 1995. He states that shortly after he commenced employment he took ill and was diagnosed with vertigo requiring his absence from work for a few days. He states that he notified his employer immediately and consequently it was aware of his condition from that time. The complainant adds that although he was prescribed medication for his condition it did result in his absence from work approximately twice a year for about two/four days on each occasion. He states that each of these absences was certified by his General Practitioner. He adds that his condition did not impede his ability to perform the full range of duties attached to his job, which generally required him to work away from the respondent's premises, regularly on building sites.
3.2 The complainant states that he suffered a bout of vertigo at the respondent's premises early in the morning of 2 July, 2007 - the first occasion his condition had affected him whilst at work. He adds that some of his colleagues panicked and called an ambulance for him but he soon recovered and the ambulance was not required. He was given a lift home by one of his colleagues and attended his General Practitioner who certified him as unfit for work for four days. The complainant states that when he returned to work the following week instead of working at external locations as normal, he was assigned to the respondent's joinery workshop located in its premises by Mr. A, a Director of the respondent. The complainant states that this was very unusual - he had be assigned there on only two occasions in the previous three years - when work on external sites was not available. The complainant adds that he was given no reason for this assignment but contends that it was as a direct result of his condition and therefore constitutes less favourable treatment of him on grounds of disability contrary to the Acts. He states that he continued to be assigned to this workshop until 25 July, 2007 when he experienced another episode of vertigo whilst at work.
3.3 The complainant states that on that morning he felt the bout of vertigo coming on and took his medication - a colleague got him a glass of water. He adds that after a short period of rest he felt fine and continued to perform his duties. He states that prior to leaving work that evening he was called into the Office by Mr. A. The complainant states that Mr. A informed him he "had to let him go because he was not covered by his insurance policy". The complainant adds that Mr. A informed him he would pay him statutory redundancy, pay in lieu of notice, any outstanding pay and holidays and any "back-week" due. He adds that Mr. A stated the company accountant and Mr. B (his brother and another company Director) would sort things out as he (Mr. A) was going on holidays. The complainant submits that the purpose of this meeting was to terminate his employment and that the aforementioned terms constitute a severance package. He further submits that the sole reason for terminating his employment was his condition.
3.4 The complainant states that he attended at the respondent's premises the following day to return company tools. He adds that he was called to the Office by the company accountant and Mr. B. He was presented with a document and requested to sign it. He is unable to say what the document contained - and was not given a copy of it - although he believes it to be an agreement on his severance arrangements. The complainant states that he signed the document because he felt he had no other choice having regard to his conversation the previous day with Mr. A. He adds that he left the respondent's employment that day and made several unsuccessful attempts to contact either Mr. A or Mr. B enquiring as to when he might receive payment of the terms of settlement. He states that when he received no reply to his phone calls and the respondent failed to pay his entitlements he wrote to the respondent on 8 August, 2007. When he received no response to this letter he engaged the services of his representative and he made contact with the respondent on 28 August, 2007. The complainant states that a meeting between the parties took place on 4 September, 2007 at which the respondent stated that the complainant was not dismissed but on "lay-off". The complainant contends that this is not the case as there were no apparent downturn in business at that time which would give rise to a "lay-off" situation and no other employees were laid -off. The complainant states that the respondent wrote to him on 10 September, 2007 requesting him to attend the company doctor for assessment. The complainant's representative replied on 21 September, 2007 setting out his position and advising he intended to pursue the matter through the appropriate statutory channels.
3.5 The complainant submits that the unilateral decision of the respondent to (i) assign him to the joinery workshop in early July, 2007 and (ii) terminate his employment with it on 25 July, 2007 were unlawful. He adds that the respondent made no effort to discuss his condition with him at any stage, made no requests of him to provide medical opinion from his General Practitioner, made no risk assessment of the situation as it would apply to him, made no effort to obtain independent medical opinion - in essence made no effort to provide him with reasonable accommodation in terms of the Acts - before deciding on the course of action it did. The complainant submits therefore that the actions of the respondent constitute (i) discriminatory treatment and (ii) discriminatory dismissal of him contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent did not file a submission, despite a number of reminders and it did not attend, nor was it represented, at the Hearing.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2007 and contrary to section 8 of those Acts when he was assigned to the joinery workshop following an absence due to his condition in early July, 2007 and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2007 and contrary to section 77 of those Acts when his employment with the respondent ceased in late July, 2007. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal. In keeping with the practice of the Tribunal in certain cases involving discrimination on grounds of disability, particularly those disabilities that are not immediately evident, the identities of the parties have been anonymised.
5.2 Section 85A of the Employment Equality Acts 1998 and 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment on the grounds specified. 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. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 At the outset I believe it is necessary, notwithstanding that no arguments to the contrary were advanced in the course of my investigation, to state that I am satisfied the condition of vertigo amounts to a disability within the definition contained at section 2 of the Acts. I am also satisfied that the respondent was aware of the complainant's condition from close to the outset of his employment with it but that it did not become an issue until he suffered an episode of vertigo on the respondent's premises in early July, 2007. On the complainant's return to work after a short absence following this episode he was assigned to the respondent's joinery workshop. The complainant stated that this assignment to this workshop was a rare occurrence and generally arose when work at external locations was slack or there was a significant increase in work at the workshop, in which case a number of employees would be assigned there. The complainant states that neither of these situations prevailed at that time and I am satisfied that this is the case. In addition, he was given no reason by the respondent for his assignment there and he was the only employee treated in that manner. In light of the foregoing and given the proximity of the complainant suffering his first bout of vertigo at his place of work and his removal from his normal duties, I am satisfied that his disability was the sole factor which influenced the respondent in its decision in this regard and the complainant has established a prima facie case of discriminatory treatment on grounds of disability contrary to the Acts and the respondent must rebut the inference so raised. The respondent failed to attend the Hearing and rebut the inference of discrimination raised and the complainant is therefore entitled to succeed with his complaint on this issue.
5.4 I shall now examine the circumstances surrounding the termination of the complainant's employment. From documentation submitted by the complainant it is clear the respondent disputes that the complainant was dismissed and instead was on "lay-off". The complainant rejects this assertion and his evidence at the Hearing was that during the course of his meeting with Mr. A on 25 July, 2007 he was informed he was being let go because the respondent's insurance policy did not cover him as a result of his condition. I have examined the correspondence issued by the respondent after 28 August, 2007 - the date on which the complainant's representative contacted it for the first time. In this correspondence the respondent refers to the "agreement" reached between it and the complainant on 25 July, 2007. I have also noted the comments contained on one of the respondent's complimentary slips which states " minimum notice, ten to fifteen years' service - six weeks' notice due" which the complainant states was handed to him by the respondent's accountant in the course of their discussion on 26 July, 2007 - a statement which I accept. I am satisfied therefore that termination of the complainant's employment was discussed in the course of both of these meetings, that the matter was raised by the respondent in the first instance and that the reasons underpinning its actions was the complainant's disability as the discussions arose on the same day the complainant had suffered a second bout of vertigo at work.
5.5 It is clear, from the uncontested evidence of the complainant and certain correspondence from the respondent to the complainant, that the respondent decided he was a liability to it because of his condition. Its immediate reaction was to temporarily change his working conditions and then to terminate his employment. In addition, the respondent failed (i) to respond to the complainant's attempts to contact it by telephone, (ii) to reply to the complainant's letter of 8 August, 2007 seeking clarification of the "arrangement" and (iii) to reply to the complainant's statutory request for information (Form EE2) under section 76 of the Acts. When the respondent eventually engaged with the complainant's representative on the matter it contended that the complainant was on "lay-off". The complainant rejects this assertion and states that there was no apparent downturn in business at that time and no other employee were laid-off. In the absence of any evidence to the contrary I accept the complainant's version of events on this matter.
5.6 In light of all of the foregoing factors I find that the complainant was, prima facie, dismissed by the respondent in circumstances amounting to discrimination on grounds of disability contrary to the Acts and the burden therefore shifts to the respondent to prove the contrary. The respondent failed to attend the Hearing and rebut the inference of discrimination raised and the complainant is therefore entitled to succeed with his complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the respondent (i) discriminated against the complainant on 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 relation to his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 77 of those Acts.
6.2 Article 17 of the EU Directive establishing a general framework for equal treatment in employment and occupation requires sanctions for breaches of the principle of equal treatment on, inter alia, grounds of disability to be effective, proportionate and dissuasive. At the time of his dismissal the complainant was 61 years old and had a reasonable expectation that he would continue to work until his normal retirement age. Evidence was adduced by him to show that he has made significant efforts to secure alterative employment since his dismissal but has been unsuccessful and this has undoubtedly exacerbated the distress he has suffered. Having regard to all of the factors of this case I am satisfied that the appropriate form of redress is an award of compensation. I therefore order, in accordance with my powers under section 82(1) of the Acts, that the respondent pay the complainant the sum of €65,000 by way of compensation for the distress suffered by him as a consequence of the discrimination of him. This sum includes an amount of €55,000 in respect of loss of earnings, which represents approximately one years' salary of the complainant at that time, which I consider appropriate in the circumstances. This element of the award is therefore subject to PAYE/PRSI.
_______________________________
Vivian Jackson
Equality Officer
7 October, 2009