FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : A COMPANY - AND - A WORKER (REPRESENTED BY DERMOT MC NAMARA AND COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2007
BACKGROUND:
2. The worker appealed the Equality Officer's decision to the Labour Court on the 27th April, 2009. The following is the Court's determination:
DETERMINATION:
This is an appeal by the worker (herein after called “the Complainant”) against the decision of an Equality Officer in a claim alleging discrimination on the disability ground by the Company (herein after called “the Respondent”).
The Complainant complained that he was discriminated against on the disability grounds when he was dismissed from his employment, in breach of terms of Section 6(2)(g) of the Employment Equality Acts, 1998 and 2004 (The Acts) and in contravention of Section 8 of the Acts. He also claimed that the Respondent did not make sufficient efforts to accommodate his disability, in contravention of section 16 (3) of the Acts.
The Equality Officer found that the Respondent had not dismissed him on grounds of his disability in contravention of the provisions of Section 8 and had not subjected him to victimisation in contravention of the provisions of Section 74(2) of the Acts.
Mr. Peter Leonard B.L. on behalf of the Complainant clarified for the Court that the Equality Officer’s decision on the claim of victimisation by the Respondent under section 74(2) of the Acts was not under appeal.
Background
The Complainant was employed by the Respondent as a Lorry Driver from June 2005 until 16th May 2006 when he was dismissed. He had an accident on 13th February 2006 and as a result incurred some injuries to his neck and back and commenced a period of sick leave. He was informed by letter from the Respondent dated 16th May 2006 that his employment was terminated due to its review of a number of serious breaches of company policy which had been brought to his attention on 7th February 2006.
The Complainant’s case
Mr. Leonard B.L. submitted that the Complainant was discriminated against on the grounds of his disability when the Respondent dismissed him and failed to provide him with adequate accommodation to take account of his disability. He disputed the reasons submitted by the Respondent for the dismissal and submitted that the Complainant had been dismissed as a result of his periodic unavailability for work while he recovered from injuries sustained in the course of his employment with the Respondent.
Mr. Leonard submitted that at no time did the Respondent enquire as to the Complainant’s recovery from his injuries and his likely to return to work date. Furthermore, he submitted that the Respondent failed to make enquires regarding the Complainant’s ability in the short term for lighter duties or duties, not involve heavy lifting etc.
Mr. Leonard referred to a report of an examination into the Complainant’s condition carried out on 7th June 2006 by a Consultant whichinter aliastated :
- “At present I consider he is fit for light duties and I can see no reason he should not be able to return to truck driving where he does not have to load or unload……”
The Respondent’s case
Mr. David Sheedy, Operations Manager in employment of the Respondent denied that the Company discriminated against the Complainant on the disability grounds and stated that his dismissal was directly related to his performance in his role as a lorry driver. The Respondent disputed the Complainant’s contention that it did not enquire about his recovery.
In the early weeks following his accident the Respondent stated that a number of calls were made to the Complainant to enquire about his health and to ascertain a possible date for his return to work. The Complainant was supplying certification declaring him unfit for work right up to the time of his dismissal, and at no time did he indicate his availability for any form of work with the Company.
The Respondent told the Court that there were serious disciplinary issues still outstanding at the time the accident occurred on 13th February 2006 which needed to be dealt with. By letter dated 7th February 2006, the Complainant was issued with a final warning which stated:
- “These matters, together with the number of accidents you have been involved in since you joined us, indicate a performance level well below that required for your continued employment with the company, and I must advise that I will be monitoring your performance carefully over the next month and we will meet again on Monday 27th February to review your performance, but, if any further incidents as outlined above occur, your employment with the company will be terminated immediately.
Your performance will then be under review until such time as I am satisfied that you are operating in the manner as required and outline at the transport meeting of Monday 6th February last.”
Mr. Sheedy explained that attempts were made on two occasions to set up a disciplinary meeting with the Complainant for Friday 12th and Tuesday 16th May 2006, however, both had to be cancelled due to the Complainant’s unavailability. He submitted that the purpose of the planned 27th February 2006 meeting was not only to review the Complainant’s performance following the issuing of the final warning but to seek a response to a number of issues raised at the 6th February 2006 meeting for which adequate explanations had not been given.
The Respondent submitted that the Complainant’s dismissal had nothing to do with his accident but was purely related to his ability to do the job correctly and given his reluctance to attend a disciplinary meeting to discuss these issues, it decided to dismiss him.
The Respondent disputed the application of section 16 (3) as the quoted extract from the Consultant’s report of the Complainant declaring him fit for light duties, dated 7th June 2006 was well after the date of his dismissal and the Respondent was not aware of it at the time.
The Complainant’s Witness Testimony
The Complainant told the Court that he had been employed with the Respondent as a lorry driver from June 2005 until his dismissal on 16th May 2006. He accepted that a number of difficulties arose concerning his performance. These related to accident involving injury to a colleague, mistakes made in Company documentation, problems regarding the number of pallets delivered and misuse of a Company provided telephone. He was called to a disciplinary hearing on 7th February 2006 following which he was issued with a final written warning and provided with retraining. He told the Court that “he was given a second chance” to improve his performance.
On 13th February 2006 he told the Court about the accident which occurred and details of the injuries he sustained. He explained that a number of days after the accident he was referred to a Consultant, who referred him for an MRI scan. He was diagnoised as having sciatica and nerve damage to his back and was expected to be out of work for approximately one year.
The Complainant told the Court that the Operations Manager telephoned him asking when he was coming back and wrote to him making arrangements to set up a meeting for 12th May 2006, which he cancelled due to his medical condition. Subsequently the Respondent organised another meeting to take place on 16th May 2006. However, he was unable to attend due to his medical condition and the Operations Manager was informed of this. The following day he received a letter terminating his employment with one week’s notice.
The law applicable:
Burden of proof
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.
In the jurisprudence of this Court the test for applying this notion is that developed inSouthern Health Board v Mitchell[2001] ELR 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive, upon which Section 85A is now based: -
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
1. The Complainant must prove the primary facts upon which they rely in alleging discrimination,
2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination,
3. If the Complainant fails at stage 1 or 2 he or she cannot succeed. If the Complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.
In support of his contention that the Complainant was discriminated against on the disability ground, Mr. Leonard citedGoode Concrete v Oksana Shaskova,Labour CourtDetermination No EDA0919. In that case the Court held that : -
- “where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This involves a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
Conclusions of the Court.
It is common case that the Complainant is a person with a disability within the meaning of section 2 (1) (c) of the Act “the malfunction, malformation or disfigurement of part of a person’s body”.Furthermore, there is no dispute that the Complainant was dismissed while he was certified absent from work due to injuries sustained in an accident.
Hence, the only fact in issue in this case is whether the Complainant’s disability was a factor which influenced the decision to terminate his employment to a degree which renders the Respondent liable for unlawful discrimination.
The Respondent’s explanation for the decision to terminate the Complainant’s employment is that his level of performance was unacceptable. The Respondent must prove that this, and not the Complainant’s disability, was the operative reason for the dismissal.
In reaching a decision on his matter, the Court notes the following:
•the Complainant was dismissed while absent from work due to an accident,
•there were no reported misdemeanors between the conclusion of the meeting on the 7th February 2006 and the date of his accident, some six days later,
•the Respondent told the Court that the Complainant was not held responsible for the accident which occurred on 13th February 2006.
In such circumstances the Court is satisfied that a clear causal connection exists between the Complainant’s disability and his dismissal and therefore the primary facts established do raise an inference of discrimination.The Respondent now bears the onus of satisfying the Court, on the balance of probabilities, that the principle of equal treatment has been applied to the Complainant.
The Court must now examine the evidence presented by the Respondent to discharge the burden of proof. The requirement to establish that there was no discrimination whatsoever means that the Court must examine whether the Complainant’s disability was a factor in the decision to dismiss him.
InWong v Igen Ltd and others[2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson LJ pointed out, in a sex discrimination case, that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. That decision was made having regard to the wording of Article 2 of Directive 2000/78/EC which provides that there shall be no discrimination “whatsoever” on any of the grounds proscribed by that Directive.Gibson LJ considered the scope which should be ascribed to the notion of “no discrimination whatsoever”. He held that if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.
Having examined the oral and written submissions of both parties, the witness testimony given by the Complainant and the additional information sought by the Court at the hearing, the Court is not satisfied that the Complainant’s evidence given was entirely credible. In his testimony, he gave conflicting accounts of the Respondent’s attempts to make contact with him to enquire about his injuries. He suggested that the Respondent made no attempt to contact him following the accident, however, in his evidence to the Court he said that the Respondent made a number of telephone calls and the Respondent supplied the Court with two letters dated 9th and 15th May 2006 giving evidence of attempts made the Respondent to set up a meeting with him.
Furthermore, the Complainant’s submission to the Court suggested that he had been declared fit to return to light duties on 7th June 2006 i.e. shortly after he had been dismissed. The submission states:
- “The Plaintiff was examined again by Mr. Noel McMurray on the 7th June, 2006 and in his report inter alia Mr. McMurray states the following:
- “At present I consider he is fit for light duties and I can see no reason he should not be able to return to truck driving where he does not have to load or unload ..etc.””
However, on examination of the Consultant’s report it is clear that it was dated 29th January 2007 and the “At present” related to January 2007 and not June 2006 as suggested; and the remainder of the quoted passages states “…but he tells me he is hoping to get a job driving a mini bus.”
The Complainant told the Court that the reason he did not attend the two meetings arranged by the Respondent was due to his illness. The Court notes that he was able to submit a claim under the Employment Equality Acts 1998-2008 to the Equality Tribunal on 31st May 2006.
The letter of termination sent by the Operations Manager dated 15th May 2006 states:
- “Thank you for your call of this morning, advising of your inability to attend our scheduled meeting tomorrow, Tuesday 16th May. It is unfortunate that we are unable to meet to discuss this matter, as I have tried over the last fortnight to make an appointment to meet.
I left a number of messages on your mobile phone and subsequently wrote to you proposing a meeting on Friday last, which you telephoned to cancel yourself. There I have no alternative but to write to you now outlining the issues I wished to discuss with you at that meeting.
On 7th February last I wrote to you subsequent to a meeting between us, where we discussed a number of serious breaches of company policy that had come to my attention, and I outlined clearly that your continued employment with the company was under review.
Having reviewed those matters again I have come to the conclusion that your continued employment with the company was inappropriate, and unsupportable, and consequently give one week’s notice from the date of this letter, of our intention to terminate your employment.
Enclosed you will find your P45, together with your final pay slip, and the monies due will be transferred to your account over the next two days. I do regret that I must communicate this news to you in this manner, but unfortunately there was no alternative.
Please feel free to call me if you wish to discuss matters further.”
“appropriate measures”
Article 5 of Directive 2000/78 of 27th November 2000, establishing a general framework for equal treatment in employment and occupations. It imposes a positive duty on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment. A similar requirement is now incorporated in section16 (3) of the Act as amended.
There is a clear duty on an employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment. The Court is satisfied that the Respondent did not do so, however, it is clear that attempts were made to have meetings with the Complainant in May 2006, but without success.
The Respondent Company made no attempt to ascertain the exact nature of the Complainant’s disability or to have him independently examined. No consideration was given to undertaking a safety assessment of any kind and the Respondent made no attempt to discuss its concerns with the Complainant.
These factors must be considered by the Court in the weight it attaches to the Respondent’s explanation for dismissing the Complainant. There were no further performance related issues between 7th and 13th February 2006; he was not held responsible for the accident of 13th February 2006 and other than his absence due to his disability there were no further acts to precipitate the termination of his employment.
Consequently, on the evidence as a whole the Court must conclude that his disability was a factor in the decision to dismiss him. Therefore, the Court concludes that the Respondent has failed to discharge the burden which it bears of rebutting the presumption of discrimination which arises on the facts of this case. Accordingly the Complainant is entitled to succeed.
Determination.
For the reasons given, the Court holds that the complaint herein is well founded and, accordingly, the Complainant is entitled to succeed.
The Court considers that the appropriate redress in this case is an award of compensation.Taking all factors into account, the Court believes an award of €5,000 is fair and reasonable and the Respondent is ordered to pay compensation to the Complainant in that amount.
The appeal herein is allowed. The Decision of the Equality Officer is overturned.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st May, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.