Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-062
PARTIES
An employee
(Represented Mr. John Currran BL on the instructions of Hayes Solicitors)
- V -
A company
(Represented by Mr. Alex White BL on the instructions of Byrne Wallace Solicitors)
File reference: EE/2007/380
Date of issue: 6 May 2010
Keywords
Employment Equality Acts - Discriminatory Dismissal - Disability - Appropriate measures - Nature and extent of employer's obligations in certain cases
1. Dispute
1.1. This dispute concerns a claim by An employee (hereafter "the complainant") that he was subjected to discriminatory dismissal by A company on 12 April 2007 (hereafter "the respondent") on the grounds of his disability. The complainant maintains that the respondent failed to adhere to far procedures in relation to his dismissal and denied him reasonable accommodation.
1.2. The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 24 July 2007 under the Employment Equality Acts. On 13 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 4 February 2010. A second day hearing was held on 26 March 2010.
2. Case for the complainant
2.1. The complainant was employed as a Facility Assistant with the respondent since 1994. He had a successful career with the respondent until he became ill in 2002. Subsequently to him becoming ill, the complainant was discriminated and victimised during the course of his employment and that this finally culminated in an unfair and discriminatory dismissal. The complainant believes that the respondent failed to provide reasonable accommodation to the complainant. The complainant submitted A Government Department v. An Employee [Determination No. EDA 062] as an authority that there shall be no direct or indirect discrimination on the grounds of disability. It was submitted that until the complainant was dismissed on the 12 April 2007, he had a successful career with the respondent until he became ill in January 2002.
2.2. It was submitted that due to his illness the complainant was absent from work. He received a number of letters from the respondent during this time (letters submitted to the investigation). The complainant believed that the tone of the letters sent to him were threatening and that such a tone exasperated the complainant's condition.
2.3. It was submitted that the complainant was certified incapable of returning to work and was placed on the Disability Benefit Scheme.
2.4. It was submitted that during his sick leave the complainant was invited to lunch by a named colleague. Afterwards the complainant attended the offices to discuss a work related matter with the Director General. As the Director General was not present, the complainant discussed the matter with his supervisor instead. The complainant believed that he was bullied and victimised at this meeting. It was submitted that the supervisor said he would call the complainant's mother and that the complainant replied that he "was 37 not 17". Such comments were humiliating and constituted discrimination. The complainant was informed in writing on 21 February 2005 that he was banished from the building. It was submitted that no account was taken of the complainant's disability when imposing such a sanction.
2.5. It was submitted that by January 2006 the complainant felt fit to return to work and submitted that his psychiatrist confirmed this to him. The complainant made an appointment to meet with the Director General to discuss his return to work. The complainant also sought information from the Health and Safety Authority about his return because he had heard that people with depression or anxiety can be stigmatised or bullied and he was concerned that the company were making no efforts to facilitate his return to work. The complainant was assessed by his insurers and removed from the Disability Benefit Scheme on 31 July 2006. As a result, the complainant expected, and was entitled, to return to work.
2.6. It was submitted that the respondent ignored a report from a doctor and instead referred the complainant to a different psychiatrist. This was a "set up". The complainant claimed that the respondent wrote to the doctor beforehand setting out the most tendentious and one sided manner about the respondent's concern about the complainant. It was submitted that the respondent gave a shallow and potted version of events and included a damaging list of anonymous allegations suggesting that the complainant was a dangerous and unstable person. It was submitted that these allegations had never been put to the complainant. Furthermore, it is noteworthy that the report was requested by the respondent's solicitors.
2.7. It was submitted that the outcome of the report was predestined. The doctor had indicated to the complainant that the purpose of the report was to prevent the matter from ending "across the way" (indicating the Four Courts building). It was submitted that the doctor found that the complainant was not fit to return to his post and that there were no steps that the respondent could take to accommodate the complainant. It was submitted that in A Government Department v. An Employee the Labour Court stated that the prohibition on discrimination on disability grounds means that the Court must be alert at all times to the fact that the discrimination may be the fact that the person with a disability is perceived to be less capable or dependable than a person without a disability. Furthermore, it was submitted, the Court must be alert to the possibility of unconscious discrimination.
2.8. It was submitted that the complainant received an invitation to a meeting on 1 December 2006, which would consider the termination of his employment. He was not provided with a disciplinary procedure. The respondent indicated that it would not consider any reasonable accommodation measures. Furthermore the respondent took no cognisance of the fact that in April 2006 the company psychiatrist had suggested that the complainant could have returned to work part-time. The insurers certified the complainant fit to work in May 2006. And his Social Welfare Benefit was withdrawn 28 December 2006.
2.9. It was also submitted that the complainant was not given appropriate notice about a possible dismissal. Furthermore, based on the previous experience of such threats, could not have foreseen that this time the respondent was serious about terminating the contract of employment.
2.10. The complainant submitted A Complainant v. Bus Eireann (DEC-E2003-004) and Lawless v. Dublin City County Council (1990) ELR 101 as authorities in this matter. It was submitted that the complainant wishes to distinguish Humphreys v. Westwood Fitness Club (2004) ELR 296. It was submitted that the test set out in that case refers to situations where the employer is acting in bona fide belief that the complainant was not capable of performing his duties. It was submitted that the manner in which the respondent ignored one report over another indicates that the respondent did not have such a bona fide belief.
2.11. It was submitted that the complainant is seeking maximum award for the distress, anxiety and humiliation caused to the complainant because of the discriminatory dismissal and failure to provide reasonable accommodation. Furthermore, it was submitted that the complainant seeks reinstatement to his post as he really enjoyed working with the respondent.
3. Case for the respondent
3.1. The respondent fully denies the complaint made by the complainant. It is submitted that the complainant has failed to adduce any evidence of disability discrimination. The respondent submitted that the reason why the complainant was dismissed was because he was incapable of performing the work he was paid to do. It was submitted that the respondent has formed a honest belief that this was the case. It was submitted that in arriving at this decision the respondent considered all relevant matters, including the complainant's performance and demeanour whilst at work and, in particular, the medical evidence available to it. It was submitted that the respondent has complied with the requirements set out in Bolger v Showerings (Ireland) Ltd [1990] ELR 184.
3.2. The respondent refutes that it failed to provide the complainant with reasonable accommodation. The respondent submitted that it wishes to rely on the provisions of section 16(1)(b) of the Acts. The respondent further submitted that the complainant has failed to set out the appropriate measures which it is alleged the respondent ought to have taken such that section 16(3) could apply. While the respondent has noted that the complainant has made a reference to the possibility of a phased return to his job, it is submitted that such a measure would have been entirely impracticable and unrealistic in the circumstances of this case. It was further submitted that especially in light of the medical evidence available to the respondent, which concluded that owing to the complainant's lack of insight, there were "no recommendations that could be made in relation to accommodations that it would be appropriate in managing future risk within the workplace". It was submitted that the suggestion made in a previous report by an other named doctor, about a short trial period, was not feasible as the there was nothing in this report to suggest that the complainant's conduct and performance would be any different than it was prior to him being admitted to the Disability Benefit Scheme.
3.3. The respondent submitted that contrary to the complainant's contention in his submissions, the respondent did make "adequate enquiries to establish fully the factual position in relation to the claimant's capacity" as per Humphreys v Westwood Fitness Club [2004] ELR 296. Furthermore, the respondent submitted that it wholly rejects the contention that it acted other than bona fide in concluding, on foot of medical advice, that the complainant was not fit to return to work. It was furthermore rejected that the report was 'flawed, biased and shallow'. It is submitted that such an allocation has no basis in fact.
3.4. The respondent refutes that it disregarded a report by a named doctor. It was submitted that this report clearly stated that the physician was unable to furnish a conclusion with regard to the complainant's fitness to return to work.
3.5. The respondent accepts that it did write to the complainant outlining concerns. It was denied that such letters constituted 'threats'. It was submitted that any employer is entitled to enquire as to the likely future availability about a complainant who is frequently absent from work. It was submitted that such absence causes legitimate concerns for an employer and that they ought to be addressed. It was submitted that it is well settled law that an employer is not required to hold open a position indefinitely for an employee in relation to whom there is no clear prospective date of return for work. Furthermore, it was submitted that there is an onus to indicate to an employee that the respondent may have to consider his future employment.
3.6. It was submitted that there were a number of incidents as well as performance related concerns relating to the complainant prior to the complainant going on sick leave. Furthermore, a number of incidents that took place while the complainant was certified sick gave rise to further concerns.
3.7. It was submitted that the named supervisor may have mentioned the complainant's mother to him during the incident but that this was because the supervisor had received a number of calls from the complainant's mother who was worried about her son. It is denied that any reference about the complainant's mother was made in order to bully the complainant. It was submitted that such a reference was made out of concern for the complainant's well-being.
3.8. It was submitted that subsequent to the incident on 18 February 2005 the complainant was not barred from the premises. It was submitted that the complainant was on certified sick leave and that the respondent merely requested that he make an appointment before he would attend the offices again.
3.9. It was submitted that the respondent met with the complainant to discuss the findings of the medical report. It was submitted that the complainant attended with a friend. It was submitted that the complainant had been informed that the purpose of this meeting was to consider a possible termination of his contract of employment. It was submitted that neither the complainant or his friend asked for a second opinion to be sought, nor to appeal the decision. It is denied that the complainant was dismissed without adherence to fair procedures and/or natural justice.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. I am satisfied that the complainant's condition is a disability within the meaning of section 2 of the Acts. Having heard the evidence, I am also satisfied that the complainant was dismissed because of this disability.
4.3. Section 16(1)(b), 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 in accordance with Humphreys v Westwood Fitness Club.
4.4. Furthermore, in Bolger v Showerings Ltd - a case concerning unfair dismissal - The High Court stated:
"In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:
(1) It was the ill-health which was the reason for the dismissal;
(2) That this was the substantial reason;
(3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and
(4) That the employee was afforded an opportunity of being heard."
4.5. In the context of the above test, I find that it is absurd to suggest that an employer communicating its concerns about an employee's future within the workplace could be construed as a form of 'threats' on a person who is trying to recuperate . While it is clear that any person with an acquired disability has plenty to deal with when attempting to come to terms with their health issues, it is equally important to bear in mind that this includes coping with the concerns about their working life. It is clear from a legal perspective, that the respondent had an onus to keep the employee informed of any issues concerning him. The letters sent to the complainant clearly outline the issues from the respondent's perspective while also recognising the concerns the complainant may have. Furthermore, it is clear that the respondent had an absolute right to seek legal guidance in such matters and this Tribunal will not take adverse inferences from such conduct.
4.6. The Tribunal heard direct evidence from named employees who recounted their experiences of working with the complainant before he went on sick leave. Furthermore, the Tribunal heard direct evidence of two incidents that occurred while the complainant was on sick leave. It is clear that the complainant was ill during these incidents and that his conduct did genuinely upset and unnerve his colleagues. I also note that a witness submitted that she had spoken to the complainant about his behaviour around female colleagues. I accept that complainant did not appreciate that entering a room unannounced and silently staring at female colleagues would have such an effect on the other person. Furthermore, I appreciate that the complainant wanted to make contact with his colleagues during his sick leave period. However, it is clear that complainant did not appreciate the fact that an employee should not enter the workplace while certified ill and that while he was on a social visit, the others were actually in their place of work. It is clear that the complainant did not appreciate the reasons why he was asked to remain in the public areas of his place of work and that he could meet with his colleagues there in an informal manner. I note that this visit culminated in an aggressive incident where the complainant stated he was provoked by a supervisor patronising him and the supervisor stating that he thought the complainant would hit him. I note that all the witnesses indicated that prior to becoming ill the complainant was a placid and liked colleague. All witnesses agreed that it was clear that during these incidents the complainant was "not like himself".
4.7. The Tribunal also heard of a subsequent incident where the complainant made a phone call to a female colleague. He did not initially identify himself and made what the colleague described as threatening comments to her about the incident accounted above before identifying himself and asking her to look out her office window. The colleague stated that she looked out the window and saw the complainant sitting on his motorbike outside, waiving. I find that such conduct is objectively viewed very intimidating and inappropriate.
4.8. The above incidents have satisfied this Tribunal that the respondent had a legitimate concern about the complainant's future conduct. I am satisfied that this was not a situation where, due to sometime ignorance and stereotypical attitudes in our society concerning mental health issues, the respondent presumed that because the complainant suffers from mental health problems there would be a problem with the complainant. It is clear that an employer is entitled to take account of possible dangers occasioned by a disability from which an employee suffers. It is equally clear that in some circumstances an employer has an obligation to do so. In the circumstances of this case, I find that it was reasonable for the respondent to seek medical opinion and do not find that the respondent did so because they wished to oust the complainant from the company.
4.9. It is clear from existing case law that in situations where a person acquires a disability during the course of their employment the employer has onus to:
1. obtain a prognosis of then complainant's condition,
2. discuss the situation with the employee before taking a decision on the employee's future,
3. seek professional advice or assessment of risks associated with his/her condition.
I note that the respondent has complied with the above test.
4.10. I have been presented with no evidence to support an argument that the respondent was out 'to get rid' of the complainant. It is worth noting the time period between the time that the complainant became initially ill and the date of his dismissal. Furthermore, I have no reason to doubt the professionalism and medical expertise of the named medical professional. I note that it was submitted that the assessment ought to have contained more materials which may have altered the professional's opinion. It is not a matter for this Tribunal to assess the quality of the medical report. I do not accept that the earlier report referred to by another doctor contradicts the report that the respondent wishes to rely on. I am satisfied that the complainant was made aware of the report and its contents and had ample opportunity to seek a second opinion. I note that the complainant did not avail of this opportunity.
4.11. I note that the complainant submitted that there was a failure to provide appropriate measures that would have enabled the complainant to return to the workplace. I note both parties refer to Humphreys v Westwood Fitness Club. In this case Dunne J. sets out a process lead approach to a person with a disability which essentially holds that:
- even if there is a strong possibility that the employee may in fact be incapable of doing the job, the obligation to provide appropriate measures comes first
-that an employer is thus obliged, when on notice of an employee's disability, to go in good faith through a process of checking objectively, with qualified expertise where needed, what is the actual medical situation, what are the necessary implications for work, and what can be mitigated by appropriate measures,
- and that an employer who has failed to go through that process will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is probably serious enough to render the employee not fully capable of undertaking their duties under section 16(1).
It was submitted by the complainant that the respondent failed to consider any alternatives to enable the complainant to return to his post. The complainant's representative referred to a letter from a named doctor that suggested that it a phased approach might be suitable. I note that the medical opinion sought by the respondent specifically states that: "no recommendations that could be made in relation to accommodations that it would be appropriate in managing [the complainant's] future risk within the workplace". I am satisfied that the respondent has completed a process-oriented approach when considering the complainant's return.
4.12. I note that the complainant submitted that the respondent had not sought recommended therapeutic treatments that were not available for him through the health service. Such matters relating to the clinical management of the complainant's condition do not constitute measures within the meaning of the Acts.
4.13. I am satisfied that the respondent gave the complainant adequate opportunity to be heard and that, in all the circumstances, the dismissal was fair and lawful. Therefore, I am satisfied that the complainant's dismissal was lawful in accordance with section 16(1)(b).
5. Decision
5.1. Having investigated the above complaint, I hereby conclude the said investigation and make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant was dismissed because of his disability. However, I am satisfied that the respondent carried out appropriate enquiries and did so in accordance with section 16(1). Therefore, the respondent did not discriminatorily dismiss the complainant and this claim fails.
5.3. I find that the respondent did complete a process-oriented approach in relation to any appropriate measures that could have been put in place to facilitate the complainant's return. Therefore, the claim that such measures were not taken, fails.
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Tara Coogan
Equality Officer
6 May 2010