THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 149
PARTIES
A Worker
and
A Company
(represented by Management Support Services Ltd)
File References: EE/2008/711
Date of Issue: 10 August 2011
Claim
1.1. The case concerns a claim by Mr A. ("the complainant") that a company ("the respondent") discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 29 October 2008. A submission was received from the complainant on 22 April 2009. A submission was received from the respondent on 9 October 2009. On 27 January 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 17 May 2011. Additional evidence was requested from both parties at the hearing and received on 19 and 23 May, respectively. The last piece of correspondence relating to the complaint was received on 23 May 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he commenced working for the respondent on 14 October 2008. Before that, he had gone through a lengthy application process, including three interviews with staff of the respondent company at different levels of seniority. The complainant received a number of standard induction materials, but it was not until two days later that he was asked to fill in an application form. On this form, there was a question about existing illnesses. The complainant disclosed that he suffers from epilepsy. The complainant assured his supervisor that the condition was well controlled through medication.
2.2. According to the complainant, his supervisor contacted him the next day, 17 October and said to him he would have to leave his employment, due to concerns about health and safety; how the complainant would react to computers, and what would happen if he were to suffer an epileptic seizure while on his own in the control room.
2.3. The complainant submits that he was discriminated against in that the respondent made no serious enquiries about his condition or how it could be accommodated before terminating his employment.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It accepts that the complainant filled in the job application form belatedly, due to an oversight on the respondent's part. Once the respondent was aware that the complainant suffered from epilepsy, concerns arose what would happen if the complainant was on his own in the control room and had an epileptic seizure, and how he would respond to any emergency in such a situation.
3.2. The respondent states that it was agreed that the complainant should be assigned a guardian function temporarily until this matter had been determined. According to the respondent, the control room manager contacted the complainant on 17 October 2008 to communicate these concerns and to convey that the company would like to have a medical examination carried out on the complainant before making a determination on the complainant's role within the company. The respondent states that the complainant did not return to work the following Monday and indicated to the respondent that he was no longer interested in the position.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. It is not disputed, and I am satisfied from letters submitted from the complainant's consultant neurologist, that the complainant does suffer from epilepsy. I am further satisfied that epilepsy is a disability within the meaning of the Acts, and that the complainant therefore has standing to bring a complaint of unlawful discrimination.
4.4. There is further no dispute that the complainant did commence his employment with the respondent and was therefore an employee of the respondent. It is settled law that any employment relationship, no matter how short in duration, engages the protections of the Employment Equality Acts. (See, for example, Equality Tribunal decision DEC-E2001-033, Theresa Nevin v. The Plaza Hotel).
4.5. With regard to the circumstances surrounding the complainant's dismissal, the following evidence was given:
4.6. The complainant stated in evidence that shortly after making the respondent aware of his disability, he received a phone call from the control room manager, Mr B., to tell him that he was no longer suitable for employment in the control room. Mr B. then proceeded to offer him as a job as a static guard, which was a position that attracted considerably less pay. Furthermore, the complainant could not see a difference in terms of health and safety between the two positions, given that static guards are often on their own on sites. The complainant stated that no medical investigation or visit to the company doctor was mentioned. ]
4.7. With regard to the alternative job offer, the complainant indicated to Mr B. that he wanted to think things over, but declined it when he next spoke to Mr B. He was then asked to come into the office, hand back his uniform and collect his pay and P45 form.
4.8. By way of background, the complainant stated that he had first been diagnosed with epilepsy when he was 14 years old. He had worked in the security industry since the late 1990s. He had never requested reasonable accommodation from any of his previous employers, because none had been needed. He had previously worked in a control-room environment for a major retailer, with lots of television screens, for shifts between 10 and 12 hours, and had never experienced any problems. When his manager from that employment moved to take up employment with the respondent, he had recommended the complainant to the respondent.
4.9. The complainant further stated that he would have been happy enough to take the static guard job for the same pay and conditions as the control room job, but that this was never offered to him.
4.10. Mr B., who is no longer employed by the respondent, attended the hearing as a witness for the Tribunal. His evidence was as follows:
4.11. On instructions from the respondent's managing director, Mr C., he phoned the complainant and told him he could not continue in the control room due to his epilepsy. He offered him the static guard job which in his recollection carried an hourly pay of about €10, compared to the control room position which attracted an hourly wage of €14.20 after probation, and €13.50 during probation. There was no mention of seeking medical advice or sending the complainant for a medical examination. According to Mr B., it was only when the complainant's complaint was received from the Tribunal, that the respondent's management decided to say in response that medical advice would be sought, and that the static guard position would carry the same pay and conditions as the complainant's control room position. Mr B. later clarified that the respondent's representative was at no time involved in the making of that particular decision. However, Mr B. was unequivocal that at the time he was instructed to make the phone call to the complainant, that it had been decided by management that the complainant would not continue in employment with the respondent. Mr B. was not aware that anyone had contacted the complainant to discuss his condition with him.
4.12. The respondent's managing director, Mr C., said that when Mr B. brought the complainant's condition to his attention, he had limited knowledge of epilepsy. He confirmed that Mr B. dealt with the complainant at all stages. He and Mr B. had numerous short conversations once Mr B. had pulled some information about epilepsy from the internet. According to Mr C., the offer to work as a static guard would have been on the same terms and conditions as the control room position.
4.13. With regard to the latter, Mr C. explained that the decision not to continue the complainant's employment in the control room was made, first of all, because of the number of video unit there, and second, because the control room was a sealed environment and it would be difficult to attend to the complainant should he suffer an epileptic seizure while inside. Another staff member, Mr D., elaborated that the control room is sealed with bullet proof glass panel and double interlocking doors, and is only accessible through iris recognition technology. On further questioning by me, Mr C. stated that because the control room is a sealed environment, there are normally two staff members employed in the control room. When asked, again by myself, how the complainant's situation would be different from a staff member suffering an unexpected heart attack, Mr C. accepted that a general level of risk attached to have only one staff member in the control room at any given time.
4.14. The complainant, in response to this evidence, stated that the training programme for the control room would have lasted six weeks, during which time he would not have been alone in that environment, and that this training phase would have afforded the respondent ample time to arrange for a medical examination.
4.15. I further want to note the letters from the complainant's consultant neurologist from 21 January 08 and 23 June 2010 respectively, which were submitted in evidence. Both letters state very clearly that the complainant's epilepsy is not photosensitive, and that it is well controlled by medication. The 2008 letter states that the complainant had one seizure in November 2006, and that this seizure was his first in five years. The 2010 letter states that the complainant did not have a seizure in 18 months.
4.16. While the complainant did not make a complaint with regard to the refusal of reasonable accommodation pursuant to S. 35 of the Acts, and I can therefore not make a finding in this regard, I find it important to note, in the context in which the complainant's dismissal took place, that it would have been very easy for the respondent to accommodate the complainant in the role, by simply ensuring that the complainant would not be asked to do control room shifts on his own, which by the respondent's own evidence, was not their normal practice anyway.
4.17. However, from all of the evidence before me, I am satisfied that the respondent made no effort whatsoever to consult with the complainant, and to find out details about how his disability affected him or would affect him on the job, before deciding on his dismissal. I am further satisfied, on the evidence of both the complainant and Mr. B., that the static guard job offered to the complainant was not on the same terms and conditions as the job for which the complainant had been hired, and can therefore not be said to be reasonable accommodation within the meaning of the Acts. I am therefore satisfied that the communication to the complainant, that he could not continue to work for the respondent in the role for which he had been hired only three days earlier, constitutes discriminatory dismissal on the ground of the complainant's disability, and that the complainant is entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent discriminatorily dismissed the complainant on the ground of disability contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant €25,000, or slightly less than what the complainant would have earned potentially in one year in the respondent's employment. This is in compensation for the discrimination endured, is not in the nature of pay, and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
10 August 2011