THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-114
PARTIES
Eugena Carroll
(represented by Woods Ahern Mullen Solicitors)
-V-
H.J. Heinz Frozen & Chilled Foods Limited
(represented by IBEC)
File Reference: EE/2007/665
Date of Issue: 15th June 2011
Decision DEC - E2011- 114
Eugena Carroll
(represented by Woods Ahern Mullen Solicitors)
-V-
H.J. Heinz Frozen & Chilled Foods Limited
(represented by IBEC)
Keywords
Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment - 6(2)(g) - disability ground, Section 8(1))and 8(6) - conditions of employment and dismissal, Section 16(1)-defence to dismissal for incapacity- Section 16(1) reasonable accommodation, Section 77(5)(a) - time limit for referring complaint, prima facie case.
1. Dispute
This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the gender and disability grounds, in terms of section 6(1) & 6(2)(a) and (g), contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to her dismissal. She also claims that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Acts. The complaint on the gender ground was withdrawn at the start of the hearing.
Background
The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 31st December 2007 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd September, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 1st December 2008 and the 3rd March 2011 and from the respondent on the 1st March 2011. A hearing on the complaint was held on the 3rd March 2011 and the last correspondence was received on the 29th March 2011.
2 Summary of the Complainant's case
2.1 The complainant was employed as a general operative by the respondent on the 12th July 1993 and she was dismissed on the 15th June 2007. She was initially worked in the bakery department but after it was closed she was transferred to clerical work in the purchasing area. She was not happy there because she had no training. She then moved to engineering stores doing stock taking and later was transferred to the chilled food department. At first she worked on the frozen food line which involved lifting up to 25kgs. And she then moved to the production line which involved putting food into trays.
2.2 The complainant went out sick from work on the end of March 2004 with repetitive strain injury and was referred for physiotherapy. Unfortunately her condition did not improve and she was referred to a consultant and it was diagnosed she was also suffering from fibromyalgia. The complainant remained out of work on sick leave and she had to have an operation for a different complaint in August 2004 and had a baby in July 2006. The complainant was seen by the company's occupational health advisor on a number of occasions. The complainant's medical advice, which the company had been kept fully informed about, was that she could not work in a cold environment such as that which obtained in the chilled department and that she could not lift heavy weights. The complainant said that she was anxious to go back to work and she believed that the company could have found work for her in the non chilled area or in the clerical area. She said that she had clerical experience before she joined the company and after the bakery closed she worked for a short while in the purchasing area but she requested a transfer from there because she got no training. She said that she had several meetings with Occupational Health and with HR but no suitable position was offered to her other than to return to the chilled area or in an area where she was required to lift weights which she could not because of her medical condition. She said that she wanted to return to work but could not give a return date because she was not fit to return to the position in the chilled area. She was called to a meeting with her manager and HR on the 15th of June 2007 and because she was not able to give them a return to work date and there were no alternative positions in the company which could accommodate the restrictions, she was informed, given that she was on sick leave for over 3 years the company had decided to terminate her employment. She was advised of her right to appeal. The appeal was unsuccessful.
2.3 The complainant submits that the dismissal was discriminatory in that she was not offered reasonable accommodation because of her disability. She said that she was available to return to work but could not return to the production position or to a position which required heavy lifting and both areas were chilled and these were the only positions offered to her. She accepted she was told that if a vacancy came up in another area she would be considered. She said that she was notified of a vacancy in sanitation but she was after having an emergency caesarean at the time and could not get in touch with the company.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against on any of the grounds claimed. The complainant was employed by the respondent as a general operative by the respondent from 12th July 1993 until her employment was terminated on the 15th June 2007. The complainant went on sick leave on the 30th April 2004 and did not return to work after that date. On the 28th July 2004 she was seen by the company's occupational health officer and at that time she was attending physiotherapy and also a specialist. The complainant was reviewed by the OH on the 27th September 2004 and the possibility of her return to work on reduced hours was discussed. The OH Advisor met with the production manager and HR to discuss the options and it was agreed a three day week would be the best option for the complainant. The complainant was informed of the plan to give her shorter hours and light duties and that she was expected back to work on the 18th of October 2004. There was no contact from the complainant and on the 22nd of October 2004 the complainant forwarded a medical certificate stating she would not be fit to return to work until the New Year and that she could not work in a cold environment. The complainant's GP in a response to a letter from the respondent confirmed that the complainant could only be exposed to temperatures of 18 to 20 degrees. The HR department emailed all the department heads to see if any suitable work could be found for the complainant given that she could work in a cold environment and she could not lift heavy weights. The respondent stated that all operator roles in the factory were below 10 degrees and any roles identified in production which were higher than 10 degrees involved heavy lifting and was also chilled and consequently no suitable position could be found for her.
3.2 The complainant attended the company's occupational physician in February 2005 and it was his opinion that her condition had improved and she was anxious to return to work. The OH Advisor invited the complainant into the factory to do a tour and to identify any roles which she considered would be suitable. The complainant contacted the company and the OH Advisor they did a virtual tour and talked through all the areas in the company and identified a number of areas which were office based and which would be suitable given her medical condition. HR then emailed all the department again and there were no vacancies in any of the office based roles and the complainant together with her union representative was called to a meeting with her manager and HR and advised of this. The complainant was attending physiotherapy and was not able to give a date when she would be fit to return to work. The complainant's union representative enquired about a post in purchasing which the complainant had occupied in the past for a brief period and she was informed that there was no vacancy there and also that a post identified in engineering involved heavy lifting which was not suitable. The complainant's manager pointed out that he had a number of jobs on the line in temperatures of 8 - 10 degrees and may be suitable if she wore more protective clothing.
3.3 The OH Adviser sought the opinion of the complainant's GP about her returning to work on a trial basis in temperatures of 8 -10 degrees but her GP certified her unfit to return and pointed out again that she could only work in temperatures of 18 - 20 degrees. In June 2005 the HR department again e-mailed the managers of the departments to see if there were any suitable positions available in their teams taking into account the restrictions on where the complainant could work. No suitable positions were located. The complainant informed the respondent that she was pregnant in March 2006 and that her baby was due in August. The respondent had meetings with the complainant in April and May 2006 about returning to work but the complainant's GP could not certify her fit to return to work. At these meetings and in letters, the complainant was advised that the company could not keep her job open indefinitely. Further meetings were arranged in July 2006 but the complainant informed the company she could not attend until after the birth of her baby.
3.4 On 2nd of March 2007 a meeting was arranged between the complainant's manager and HR and her union representative and a possible return to work was discussed. The complainant said that she was willing to return on light duties. It was agreed that the complainant could return to work on light duties subject to her GP confirming her fitness and clarification about temperatures the complainant could work in and the light duties that she could perform. The respondent would put a rehabilitation programme in place for her. In a letter to the company the complainant's GP confirmed that the weight and temperature restrictions still applied and that the complainant was not fit to do shift work either. Following this report the HR department again surveyed the heads of department seeking a suitable vacancy for the complainant and there were no vacancies which could accommodate her needs. The respondent met the complainant and her union representative on the 24th of April 2007 and again on the 25th of May to review progress. The complainant was still unfit to return to work because the restrictions in relation to temperature and weights still applied and in addition to these restrictions her GP certified her unfit for shift work. The respondent pointed out to the complainant that she was on sick leave for 3 years and that the company could not hold the job open indefinitely. A detailed discussion took place about her condition and management told her that they would review all the matters put to them by the complainant and her trade union representative and the parties agreed to meet on the 15th of June 2007.
3.5 On the 15th of June 2007 the Production Manager and a HR representative met with the complainant and her union representative. The complainant was unable to give the respondent a return to work date and confirmed that the restrictions as regards temperature, weights and shift work still applied. The Plant Manager outlined to the complainant the unsuccessful efforts that the company had made in trying to find her an alternative position within the company which would accommodate her needs. The Production Manager informed her that after reviewing the position and taking all the matters into account, including the work restrictions imposed because of her medical condition, he was left with no option but to terminate her contract of employment. A letter of dismissal dated the 15th June 2007 was sent to the complainant. She was informed of her right to appeal the decision. The appeal was heard by the Plant Manager and the Human Resources Manager on the 16th of August 2007 and the decision to dismiss her was upheld
4. Conclusions of the Equality Officer
4.1 Before making a decision on the substantive issue I must be satisfied that the complaint is properly and validly before the Tribunal. Section 77(5)(a) of the Acts provides:
"Subject to paragraph (b), a claim for redress in respect of
discrimination or victimisation may not be referred under
this section after the end of the period of 6 months from
the date of occurrence of the discrimination or victimisation
to which the case relates or, as the case may be, the
date of its most recent occurrence."
The respondent submitted that the complainant referred the complaint outside the statutory 6 month time limit and therefore the Tribunal does not have jurisdiction in the case. They submitted that the date of the most recent occurrence of the discrimination was the 15th June 2007 when the complainant was notified of her dismissal and the complaint was not referred to the Tribunal until the 31st of December 2007 which is outside the statutory time frame. The respondent rejects the contention that the date of the outcome of the appeal process was the most recent occurrence of the discriminatory treatment and that date brings the referral within the 6 month time period. I was asked to apply the reasoning in the case of Bermingham v Mater Christi Secondary School & ASTI/JMB Appeals Board DEC-E2007-004 where the Equality Officer stated "I am satisfied that the alleged discriminatory act, that is the decision of the interview board, occurred no later than the 3rd of December. The Arbitrators determination did not constitute a new decision by the interview board, and the eventual appointment of the male colleague was the culmination of the appointment process as opposed to being another incident which could in itself constitute a separate cause of action."
The respondent submitted that the decision of the appeal committee in the case herein did not constitute a new decision or a separate course of action and the referral of the complaint on the 31st December 2007 is outside the statutory time limit.
4.2 The complainant's representative submitted that the complainant was entitled to take the notice period of 4 weeks into account and this would bring the date of dismissal forward by 4 weeks from the 15th June 2007, which would bring the referral of the 31st December 2007 within the time limit. He also submitted that the complainant was entitled to rely on the letter rejecting the appeal which gave the date of her dismissal as the 15th July 2007 and taking this later date as the date of dismissal the referral was within the statutory time limit. Notwithstanding the above arguments the representative submitted that the complainant was entitled to avail of the disciplinary procedures under the contract of employment and to appeal the decision to dismiss her. Therefore the outcome of the appeal is a further act of alleged discrimination and the relevant date for the purposes of complying with the six month time limit.
4.3 In considering the time limit issue, I am guided by the decision of the Labour Court in a recent case DET No. EDA0923 HSE v Tom Whelehan in relation to time limits. The Labour Court stated "A time limit of the type in issue is analogous to a limitation period for the bringing of actions in civil law. It is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary. In that regard the Supreme Court, in Hegarty v O'Loughran [1990] 1 IR, 148 rejected the view that a cause of action accrues when the plaintiff could reasonably discover its existence. The Court held that a cause of action accrues at the time when all the requisite elements of the action existed whether or not the plaintiff knew of their existence."
4.4 Having examined the evidence and taking into account the above juris prudence, I am satisfied that the date of the outcome of the internal appeal against the decision to dismiss the complainant is the relevant date for the purposes of calculating the six month time limit as this is the date when "all the requisite elements of the action existed". The complainant pursued the grievance procedure and appealed the decision to dismiss her and would have done so in the expectation that after putting her case to the appeal committee that the initial dismissal decision would not stand. Therefore the confirmation of the dismissal only occurred on the date the appeal was not upheld and this is the "most recent occurrence" of the alleged discriminatory treatment for the purposes of complying with section 77(5)(a) above. The Equality Officer's decision in the Bermingham case cited by the respondent's representative can be distinguished from the case herein on the facts of that case. The notification of the outcome of the appeal was dated the 6th of September 2007 and the complainant was referred to the Tribunal on the 31st of December 2007 and is therefore within the six month time limits specified in Section 77(5) of the Acts and I have jurisdiction to hear the complaint.
4.5 I must now consider the complainant's claim that the respondent directly discriminated against her on the disability ground in terms of sections 6(1) and 6(2)(g) of the Employment Equality Acts 1998 and 2008, in contravention of 8(6) in relation to her dismissal. The complainant also alleges that the respondent failed to provide her with reasonable accommodation in accordance with Section 16 of the Acts. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.
4.6 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof as follows:
"(1) 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 her or her, it is for the
respondent to prove the contrary."
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 these 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 was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on the disability ground. If the complainant does not discharge the evidential burden, the claim cannot succeed.
4.7 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
"..... discrimination shall be taken to occur -
a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds')"
Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
and Section 8(6)(c) provides (6) without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
......................
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
The definition of disability in Section 2(1) of the Acts is as follows:
''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;
I am satisfied that the complainant's condition is a disability within the meaning of the Acts. Having heard the evidence I am satisfied that the complainant was dismissed from the employment for reasons connected with her capacity to perform her job due to her disability. Therefore she has established a prima facie case of discriminatory dismissal.
4.8 Therefore next matter I have to consider is whether the respondent failed to provide the complainant with reasonable accommodation in accordance with Section 16(3) of the Acts or if the defence under Section 16(1)(b) applies. The complainant disputes that she was provided with reasonable accommodation. Section 16 of the Acts provides:
"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.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
................
(4) In subsection (3) --
''appropriate measures'' in relation to a person with a disability --
(a) means effective and practical measures, where needed in a
particular case, to adapt the employer's place of business
to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes
the adaptation of premises and equipment, patterns of
working time, distribution of tasks or the provision of
training or integration resources, but
(c) does not include any treatment, facility or thing that the person
might ordinarily or reasonably provide for herself or
herself;"
Section 16(1) provides a defence to a claim of discrimination:
"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) .............
(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."
4.9 The complainant case is that the respondent failed to provide her with reasonable accommodation in that there was no investigation carried out to find out what appropriate measures could be put in place to accommodate her on the production line or move her to a position within the company which would meet her needs as regards temperature levels, restrictions on weight and shift work. It was submitted that the company failed to identify the complainant's capacity and capabilities and to identify within the employment a role suitable to her needs existed. It was also submitted that the company did not carry out adequate enquires with the heads of the department to find her alternative work within the company and the company failed to up skill and retrain her so that she could work in an administrative area in the company. It was submitted that for these reasons the dismissal was discriminatory.
4.10 The respondent denies that the dismissal was discriminatory or that they failed to provide appropriate measures for a person with a disability. The respondent submitted that the decision to dismiss the complainant was only taken after exhaustive efforts were made by the company to put appropriate measures in place to accommodate the complainant's needs while she was out of work on sick leave. The complainant, who worked on a production line in low temperatures, could not longer work there because of her medical condition. The company said that they engaged with the complainant, her medical advisers, the company doctor and the occupational health adviser throughout her absence and sought to accommodate her within the area she worked and in other areas of the company which were less cold such as stores but these areas required lifting boxes and the complainant could not lift heavy weights. In 2007 her GP certified in addition to the other restrictions that she was not fit to do shift work. The complainant could only work in temperatures of 18 to 20 degrees and these areas in the company were administrative and even if her skills were updated the company had no positions to offer her because the company had a restructuring programme and lost 14 staff and management positions. The company submitted that the had no option but to terminate the complainant's contract of employment because due the restrictions as regards temperature weights and shift work because of her medical condition she could no longer fulfill her contract of employment.
4.11 In considering this case I am guided by the Labour Court determination in the case of Humphrey's v Westwood Fitness Club Det. No. EED037 and which was upheld by the Circuit Court. The case concerned a complaint of dismissal on the disability ground and whether the defence under section 16(1)(b) of the Acts was applicable. The Labour Court set out the test which should be applied to by an employer if they have formed a bona fide belief that the complainant is no longer able to perform the duties for which they are employed and stated:
"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."
Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant's own doctor or an independent doctor where there are concerns in relations to the health of a worker.
4.12 In relation to the first part of the test which requires the respondent to obtain facts about the complainant's medical condition, I note that the respondent had several medical reports about the complainant's medical condition both from her GP and the company's own doctor and these medical reports stated that she could not work in temperatures below 18 to 20 degrees or lift weights in excess of one or two kilogram's. I note also that the respondent called the complainant to a number of meetings with the company where the option of returning to work in the light of her medical condition was discussed. I am satisfied that the respondent appraised himself of the full facts about the medical condition, through reports from the complainant's GP and the company's own doctor, before making a decision to dismiss her. I am also satisfied that the respondent gave the complainant notice that he was considering her dismissal due to her incapacity.
4.13 In relation to the second leg of the above test which relates to reasonable accommodation, I have examined the evidence and I note that the respondent made several suggestions about the complainant returning to work in the chilled department but her medical condition prevented her working there as all the operator roles were below 10 degrees and she required a temperature of between 18 and 20 degrees. The company offered her subject to medical certification to bring her back to work on a three day week, light duties and a rotational position but the complainant's GP would not certify her fit to return to the positions offered because of the temperature restrictions. I note that the respondent e-mailed all the heads of department on four occasions over the three year period of the complainant's sick leave seeking alternative roles but there were no suitable vacancies except in the production area were available. Likewise I note that the complainant was also asked to do a virtual tour of the company with OH to identify roles which were suitable for her. A number of roles were deemed suitable and she was advised that the position would only be available if a vacancy existed. There were a number of vacancies in these areas over this period but the complainant did not have the qualifications or experience required.
I am satisfied that the respondent, in the light of the medical reports on the complainant's condition, examined all the options in relation to what appropriate measures could be put in place to allow the complainant to return to work in the production area where the temperature was about 10 degrees and could not be changed because of the nature of the work. The only appropriate measure the respondent could put in place was to move the complainant from the chilled area to an administrative area where temperatures were between 18 to 20 degrees but there were no suitable vacancies for which the complainant was qualified to do. I am satisfied that there were no appropriate measures that the respondent could put in place which could accommodate the complainants disability and allow her to return to work to perform the duties which she was employed to do. It is clear that the complainant was no longer capable of performing her job in the chilled area of the production line because of her medical condition. I am satisfied that the dismissal of the complainant was due to her incapacity because of her disability to perform the work she was employed to do and in the circumstances the dismissal was not a discriminatory dismissal. Having regard to the provisions of Section 16(1)(b), I find that the dismissal was lawful in accordance with that provision.
5. Decision
5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the disability grounds pursuant to section 6(2)(g) of the Acts and contrary to section 8(6) of the Acts in relation to her dismissal and that the defence under Section 16(1)(b) applied;
(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(g) of the Acts in relation to the provision of reasonable accommodation to the complainant in accordance with section 16(3)(b) of the Acts.
____________________
Marian Duffy
Equality Officer
15th June 2011