EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-229
PARTIES
An Employee
(Represented by J. A. Shaw & Co. Solicitors)
AND
A Retailer
File reference: EE/2009/030
Date of issue: 7 December 2011
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Disability - Conditions of Employment - Discriminatory Dismissal - Victimisation & Victimisatory Dismissal - Failure to Provide Reasonable Accommodation
1. DISPUTE
1.1 This dispute concerns a claim by An Employee that he was discriminated against in relation to conditions of employment, dismissed in a discriminatory manner in terms of section 8 of the Employment Equality Acts, that he was victimised and dismissed in a victimisatory manner in accordance with section 74(2) of the Acts by A Retailer who also failed to provide him with reasonable accommodation on the grounds of disability contrary to section 6(2) of the Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 28 January 2009 under the Employment Equality Acts. On 19 July 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 21 September 2011. The respondent did not attend but I am satisfied they were aware of the hearing.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started work for the respondent in a shop in the midlands in February 2007. He submits that he had worked the previous nine days in a row when he went out for a drink with the Manager and a mutual friend on 23 December 2007. In the course of the evening he was told by the Manager that he could take the next day off. He did not work on 24 December but he did call into the shop which seemed to upset the Manager.
2.2 When he returned to work after Christmas he was told by the Manager that he was being disciplined for taking Christmas Eve off. The complainant submits that he was very upset by this and it triggered a stressful reaction which required medical assistance. He submits that due to a stress related illness he went on sick leave. He handed in sick certificates to the respondent. He was hospitalised for a period whilst on sick leave. On 28 January 2008 the complainant's solicitor wrote to the respondent informing them that the complainant was on stress related illness and he intended to return to work when certified as fit to do so.
2.3 On 15 March 2008 the complainant was certified fit to return to work by his doctor. The next day he telephoned the manager to ask when he should return to work. He was told not to return to work and that he would hear from the respondent's solicitor. On 20 March 2008, as he had heard nothing, his solicitor contacted the respondent's solicitor and he was told he could return when medical certificates for the middle of February to March were submitted. When these certificates were submitted his solicitor wrote to the respondent's solicitor on 14 April 2008 asking about a return date for the complainant but got no response. The complainant's solicitor wrote again on 21 May and 23 June 2008 looking for a return date and advising that proceedings may be initiated with the Employment Appeals Tribunal if this was not given. These proceedings were initiated when no response was received to the last letter.
2.4 The respondent's solicitors wrote on 30 June 2008 to arrange for the complainant to be medically examined. On 23 July 2008 the complainant attended for an independent medical examination. He has never been given a copy of the report. Subsequently on 28 July his solicitor wrote requesting that the complainant be allowed to return to work and for the respondent to make up his lost pay or he will proceed to submit a claim to the Equality Tribunal. On 15 September 2008 the complainant's solicitor wrote again advising that the complainant considered the respondent had failed to provide him with reasonable accommodation. The respondent did not reply.
2.5 The complainant's solicitor wrote to the respondent's solicitor on 27 January 2009 stating the complainant no longer considered himself employed by the respondent.
2.6 The complainant submits that he was discriminated against on the grounds of disability as the respondent was aware of his stress related illness and because of this they did not allow him to return to work and his position was filled.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent disputes the cause of the complainant's stress. The complainant was not rostered to work on nine consecutive days and he chose to work on the days that he had been rostered not to work.
3.2 The respondent denies the complainant was disciplined in the manner he alleges. They submit that he came into work in an intoxicated state.
3.3 The respondent confirms that the complainant did submit medical certificates and he was paid 10 days sick leave in accordance with their policy. Because he had not particularised the details of his stress related illness their solicitor wrote to the complainant's solicitor on 5 February 2008 asking for details of the stress related illness, so that it could be investigated. The respondent submits that, as a prudent employer, it should obtain an independent medical assessment. During the course of this assessment the complainant indicated that he had been arranging an exhibition of his art in the run-up to Christmas 2007. The respondent submits that his working environment was not the only cause of any illness that the complainant may have had.
3.4 The respondent submits that it is incorrect to state that the complainant was not permitted to return to work during this period as the circumstances around his allegations were the subject of discussion between his and the respondent's solicitors.
3.5 The complainant initiated proceedings with Employment Appeals Tribunal on 24 June 2008 and the respondent submits that the complainant clearly considered that he had ended his employment relationship with the respondent at this time and it was therefore inappropriate for him to want to return to work as well.
3.6 The complainant terminated his own employment on 27 January 2009.
3.7 The respondent submits that it did not know what the complainant's disability was and therefore it could have not discriminated against him and in these circumstances it could also not have failed to provide reasonable accommodation. Furthermore in March 2008 the complainant said he was fit to return to work and therefore had no disability.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the hearing the complainant confirmed that he had taken a claim to the Employment Appeals Tribunal (EAT) under the Unfair Dismissals Acts. Section 101 (4) of the Employment Equality Acts states; "an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if- ... (c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal." The EAT looked into this claim on 3 November 2008 and decided "The Tribunal is satisfied that the Claimant has not, and certainly had not before the lodgement of the T1A, terminated his contract of employment. Given that the contract of employment has not been terminated either by the Respondent or by the Claimant, the Tribunal is satisfied that this claim has been brought prematurely. The Tribunal makes no finding in relation to the substantive matter." Given this outcome at the EAT I conclude that the complainant was not dismissed at the time his claim was before the EAT and they were therefore unable to hear the claim. Accordingly, I find that I can investigate the claims of discriminatory dismissal and victimisatory dismissal.
4.2 Therefore, I have to decide if the complainant was discriminated against on the grounds of disability in relation to his conditions of employment, if he was dismissed in a discriminatory manner and if he suffered victimisation and victimisatory dismissal and if the respondent failed to provide reasonable accommodation. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation, as well as the evidence presented at the hearing.
CONDITIONS OF EMPLOYMENT
4.3 The only claim in relation to the complainant's conditions of employment arises from his treatment before going on sick leave. He contends that he was disciplined on his return to work after Christmas. The respondent submitted that he was not disciplined in the way the complainant alleged. However, because they did not attend the hearing they did not give evidence about any disciplinary action. I conclude that, whilst it may have caused a reaction in the complainant, the disciplinary action had nothing to do with a disability. I therefore find that the complainant has failed to establish a prima facie case of discrimination in relation to his conditions of employment.
DISCRIMINATORY DISMISSAL
4.4 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.5 The complainant was deemed fit by his doctor to resume work on 15 March 2008. I accept his evidence that when he contacted the Manager the following day the respondent told him not to return and he would hear from their solicitor. The complainant heard nothing and despite phone calls and several letters from his solicitor the respondent's solicitor made no formal communication for over three months. Then they wrote on 30 June 2008 to arrange for the complainant to be medically examined. The complainant attended and was medically examined. However, he was never informed of the outcome of the examination and no other communication took place despite three more letters from his solicitor. Eventually in January 2009 he resigned his position. The complainant contends that this amounts to constructive dismissal on the grounds of disability.
4.6 From 15 March 2008 when he was certified as fit to return to work by his doctor the complainant considered himself fit to work with no impediment. Therefore when he contacted the manager about a return to work he could not claim to be suffering from a disability within the meaning of the Acts. Section 2 of the Acts states: "''disability'' means --
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person."
4.7 Whilst the complainant was not suffering a disability I do have to look at why he was not allowed to return to work. The respondent said that the complainant did not particularise his illness and an employer has a right to ensure that an employee is fit to return to work after a period of sick leave, particularly if they have doubts as to the employee's ability to carry out their duties. Yet, despite giving no reason for not addressing the issue earlier, it took the respondent four months to arrange for him to attend for an independent medical examination. I can presume that the respondent was given a report from the doctor who assessed the complainant but they did not pass a copy to the complainant. Nor did they inform the complainant they would not let him return as a result of the medical assessment. Also they gave no indication to the complainant as to his employment status during the whole of this period. From the evidence before me I conclude that the complainant has established facts which show that the respondent considered he was not fit to return to work due to a stress related illness. In these circumstances I conclude that the respondent imputed a disability to the complainant in accordance with the Acts.
4.8 As the complainant has established a prima facie case of discrimination on the grounds of an imputed disability it is for the respondent to prove the contrary. The respondent's written submission gave no reason why they did not let the complainant return to work and they did not attend the hearing and were therefore unable to respond to the evidence adduced by the complainant.
4.9 Section 2 (1) of the Act defines dismissal as including
" the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so .."
Constructive dismissal relates to the "conduct of the employer" and in A Worker (Mr O) v An Employer (No 2) [2005] 16 ELR 132 the Labour Court considered the circumstances in which this provision can apply and concluded:
"This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 -2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the "contract" test where the employee argues "entitlement" to terminate the contract. The second or "reasonableness" test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice."
4.10 The complainant was not directly dismissed by the respondent but as they failed to allow the him to return to work I consider it reasonable for the complainant to resign and this amounts to discriminatory dismissal on the grounds of disability.
VICTIMISATION & VICTIMISATORY DISMISSAL
4.10 I have to decide if the complainant was dismissed in a victimisatory manner. Section 74 (2) of the Acts states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings [under this Act] by a complainant, ......."
The complainant solicitor's wrote to the respondent's solicitor a number of times before the complainant resigned in January 2009. Within these letters he advised them that the complainant was intending to make a claim to the Employment Appeals Tribunal. Then the complainant made that claim and the respondent would have been informed. After that the complainant's solicitor advised the respondent's solicitor that he was considering making this claim to the Equality Tribunal.
4.11 The issue is whether the complainant suffered adverse treatment when his solicitor told the respondent that he was taking claims to the EAT and ET. Clearly the complainant's solicitor advised the respondent that these claims were being taken in an attempt to propel them into some form of action to help the complainant return to work. The lack of action has led me to find that the complainant suffered a discriminatory constructive dismissal. I can, however, find no evidence that the respondent took any action that could be linked to being informed the complainant was taking these claims. I therefore find that the complainant was not victimised or dismissed in a victimisatory manner.
FAILURE TO PROVIDE REASONABLE ACCOMMODATION
4.12 Section 16 (3) of the Acts states:
"(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer.
4.13 In this claim the main issue is that the complainant was not allowed to return to work and from the evidence available the respondent never considered allowing him to return to work. The complainant made no issue that he needed reasonable accommodation to return to work. Nor did he make any requests to the respondent for appropriate measures to be provided. The respondent did not disclose the outcome of the complainant's medical assessment. So there is no evidence that reasonable accommodation was being considered or even needed to be. In these circumstances I conclude that the complainant has failed to demonstrate that the respondent did not provide him with reasonable accommodation.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent:
- did not discriminate against the complainant in relation to his conditions of employment,
- did dismiss the complainant in discriminatory manner,
- did not victimise the complainant, nor dismiss him in a victimisatory manner,
- did not fail to provide the complainant with reasonable accommodation.
Section 82 (i) (c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82 (4) is two years pay. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In assessing the appropriate award in this case I have taken into account the respondent's dilatory approach in dealing with the complainant and the loss of earnings the complainant suffered whilst trying to return to work. I order the respondent to pay the complainant €17,524 in compensation for the discriminatory treatment suffered, which is one year's pay. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
7 December 2011