The Equality Tribunal
Employment Equality Acts
Decision DEC-E2009-077
PARTIES
A Worker
(Represented by CS Kelly & Co., Solicitors)
- V -
A Manufacturing Company
(Represented by IBEC)
File reference: EE/2006/019
Date of issue: 09 September 2009
Keywords - Employment Equality Acts – Discriminatory Dismissal – Disability – Prima Facie case -
1. DISPUTE
1.1 This dispute concerns a claim by A Worker that he was subjected to discriminatory dismissal by A Manufacturing Company on the ground of disability in terms of Section 6(2) of the Employment Equality Acts, and contrary to Section 77 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 19 January 2008 under the Employment Equality Acts. On 28 May, 2008, 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 3 December 2008. Additional submissions were received up to 14 January 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 since September 1995 on a large mechanical loom weaving fishing nets. The complainant ceased working for the respondent in August 2005.
2.2 The complainant submitted that up until March 2004, he was in good health and had no previous medical complaints. In March 2004, the complainant had his first seizure and was diagnosed as having epilepsy. He was placed on medication to assist in controlling the associated seizures. At this time the complainant took 4 to 5 weeks sick leave. He submitted a medical cert to his employer, which he thinks stated that he had epilepsy.
2.3 The complainant submitted that he returned to work to the job that he had always done. Work continued as normal until February 2005 when he fell over backwards and hit his head on steel railings. He was taken to hospital and kept overnight with a slight concussion.
2.4 The complainant submitted that on 1 July 2005, he was called into the respondent's office. He was informed that they had trouble getting insurance for the factory and that the insurance company wanted a report done on the complainant. He was placed on paid leave until the report was prepared.
2.5 The complainant submitted that when he asked about the report in August 2005, he was handed a letter stating that he had to cease working for the respondent. The complainant further submitted that he was very shocked as he had been given no indication that he was going to lose his job.
2.6 At the beginning of September 2006, the complainant returned to the respondent to ask for his job back. He provided the respondent with an information pack for employers from Brainwave, the Irish Epilepsy Association. The complainant submitted that the respondent told him that their insurance did not cover him to work anywhere there were stairs or things on the floor.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant was employed to work in a relatively hazardous industrial environment and that his primary duties included the operation of a 16-tonne weaving machine which must (for technical reasons) operate without a guard device.
3.2 The respondent submitted that it came to the its attention that the complainant suffered from epilepsy in 2005. The respondent further submitted that the complainant was let go after an it conducted an investigation lasting eight weeks to which appropriate and fair procedures applied. The respondent also submitted that prior to dismissing the complainant, the respondent took appropriate advice in this matter - both the complainant's own GP and the independent occupational health practice nominated by the respondent indicated that it would not be safe for the complainant to be allowed to work in an environment where the loss of consciousness would be dangerous.
3.3 The respondent submitted that it explored the possibility of taking appropriate measures in respect of the complainant. The respondent submitted that the complainant was dismissed on grounds relating to his incapacity to safely carry out his duties (having regard to the conditions under which those duties were performed) within the meaning of Section 16 of the Acts.
3.4 The respondent submitted that it was aware of the nature of the complainant's illness until 2005 when it's new insurance company required a medical report in relation it the complainant. Following a request from the respondent, the complainant submitted a medical report from his GP which gave a qualified certificate of fitness. The complainant was informed that the certificate provided was not sufficient to allow him to continue to work. The respondent submitted that the complainant was afforded the opportunity to comment on this report and did not contradict the respondent's interpretation of what the report meant. The respondent informed the complainant that this qualified certificate necessitated a further examination and that he was being sent on a period of paid leave while the matter was resolved.
3.5 The respondent engaged an independent Occupational Health & Safety practice. The practice gave two reports on the complainant, the first following a medical examination, and the second following a review of the consultant who saw the complainant following an earlier seizure. The respondent submitted that neither report indicated that there was any likelihood that the complainant's condition would come to an end in the future and that the recommendation was that the complainant should not work in any situation where a loss of consciousness could pose a risk of injury to the complainant or his colleagues.
3.6 The respondent submitted that it had given consideration as to whether appropriate measure could be taken such as to render the complainant capable of continuing to perform his duties. The respondent considered placing guards on the weaving machine but discounted this option as they must be open to operate properly. It also considered that there were a variety of hazards independent of the machine which existed on the factory floor. The respondent submitted that it considered the possibility of redeploying the complainant. However, there is only one administrator position and it was occupied. The respondent also submitted that, prior to being aware of the diagnosis of epilepsy, it had tried to redeploy the complainant to a spooling machine but that there was not sufficient work on that machine to enable a redeployment.
3.7 The respondent submitted that the test for the application of Section 16 of the Acts was laid down by the Labour Court in the case of A Health & Fitness Club and A Worker (ED/02/59). It further submitted that its efforts to accommodate the complainant satisfy the test as laid down in that case.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant was subjected to discriminatory dismissal by the on grounds of 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 The evidence presented by both the complainant and the respondent at the hearing was broadly consistent, even though there were minor discrepancies as to some dates. 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 I note from the respondent's submissions and direct evidence that it accepts that the complainant was dismissed and that the dismissal was occasioned by the complainant's epilepsy. I find that epilepsy falls within the definition of a disability as outlined in the Acts. Having regard to the complainants submissions in light of the foregoing, I am satisfied that the complainant has established facts sufficient to raise an inference that his disability exerted a significant influence upon the respondent’s decision to dismiss him. Accordingly, the onus shifts to the respondent to rebut the inference of discrimination raised.
4.5 As identified by the respondent, 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."
4.7 During the hearing the respondent outlined the steps it took in coming to its decision. In considering the medical reports submitted by the complainant and engaging an independent Occupational Health & Safety Practice to review the complainants position, I am satisfied that the respondent made adequate enquiries such as to establish the factual position concerning the complainants capability, including the degree of impairment arising from the disability and its likely duration.
4.8 In addition, the respondent gave consideration to what 'appropriate measures' it could take. During the hearing, the respondent outlined how it obtained detailed medical reports from the complainant's doctors and independent experts. This was broadly supported by the complainant's evidence. In response to a query from the Tribunal, the respondent also outlined how it could not engage an international expert on the machinery as they were considered to be the experts relating to the machinery, having been called upon to provide advice to a number of international firms. This contention was supported by a range of evidence brought before the Tribunal by the respondent. I accept this contention and the respondents submission that the machine could not be adapted to fit a suitable safety guard. I am satisfied that there were no other suitable vacancies which could be offered to the complainant. I am further satisfied that the respondent afforded the complainant the opportunity to participate at each level of the enquiry.
4.9 In the circumstances outlined I find that the respondent has satisfied each stage of the enquiry into the provision of appropriate measures as outlined by the Labour Court.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent has not subjected the complainant to discriminatory dismissal and, therefore, this complaint fails.
Conor Stokes
Equality Officer
09 September 2009