THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-218
PARTIES
A Complainant
and
A Retail Chain
(represented by Ms. Clodagh Brick B.L.
on the instructions of Ronan Daly Jermyn Solicitors)
File Reference: EE/2009/278
Date of Issue: 25th November, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 sections 6 and 8 - discriminatory dismissal - disability - failure to provide reasonable accommodation - jurisdictional issue- section 101(4) of the Acts - parallel claims - no jurisdiction
1. Dispute
1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts, 1998 to 2008 in terms of the manner in which she was dismissed from her employment while she was absent from work on certified sick leave.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 30th April, 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 22nd September, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 7th September, 2009 and from the respondent on 21st October, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 19th October, 2011.
3. Summary of the Complainant's Case
3.1 The complainant was employed by the respondent from October, 1992 until her employment was terminated on the grounds of ill health on 23 March, 2009. The complainant was granted a career break from her employment with the respondent in August, 2004 for a period of one year. The complainant extended this career break for a second year and she was due to return to work on 22 August, 2006. She had been working in the position of Personnel Manager prior to date that she commenced her career break. The complainant was unable to return to work after her career break in August, 2006 due to ongoing problems that she was experiencing with a back injury which she had sustained a number of years earlier (the complainant had a prolapsed inter-vertebral at that juncture). The complainant remained absent from work on certified sick leave for approx. two years and she was requested by the respondent to attend the company doctor on 13 August, 2008 for a review of her medical condition.
3.2 The complainant submitted that the she attended the company doctor and that in his subsequent report he stated that "The nature of her back problems makes it unlikely that she can resume a job where the job description includes lifting etc.". The complainant claims that the job description which was furnished to the company doctor was not her job description but rather was an updated job description (for the role of Personnel manager) that had been issued whilst she was absent on sick leave. The complainant submitted that one of the areas in this new job description upon which the doctor based his decision was that she would have to "partake to the rumble and hands to the pump daily (shelf filing) which may include lifting and handling, bending and stretching and pulling cages on wheels which weigh up to 500 kgs". The complainant claims that the respondent made an attempt to mislead the company doctor by providing him with a job description that was not hers and thereby leading the company on the pathway to dismiss her without any attempt to offer her reduced working hours in a reduced capacity and without attempting to provide her with reasonable accommodation in relation to her position.
3.3 The complainant attended a meeting with the respondent on 7 November, 2008 during the course of which she claims the respondent suggested that it would explore the possibility of facilitating her with regard to reduced hours or amending her job description in order to accommodate her return to work. The complainant stated that the issue regarding the provision of reasonable accommodation was not mentioned by the respondent during the course of any further contact she had with it prior to her dismissal. The complainant stated that the respondent informed her at the meeting on 7 November, 2008 that it would allow her a period of three months to provide it with a date for her return to work. However, she claims that she subsequently received a letter from the respondent dated 18 November, 2008 in which it was stated that her job would only be kept open for four weeks. The complainant received a letter from the respondent on 17 December, 2008 to advise her that it would like to arrange a meeting with her on 6 January, 2009; however, she replied to the respondent on 19 December, 2008 to inform it that she would be unavailable on the proposed date and suggested that the meeting be rescheduled to 28 January, 2009. The complainant received a further letter from the respondent dated 31 December, 2008 stating that the Store Manager, Mr. A was not available to attend a meeting on 28 January but it was re-scheduling the meeting for 23 January, 2009.
3.4 The complainant wrote to the respondent on 14 January, 2009 and informed it that her representative was unavailable for the meeting on 23 January, 2009 and stated that she would be available to attend a meeting on 17 February, 2009. On 19 January, 2009 the respondent wrote to the complainant and informed her that it was not in a position to reschedule the meeting which had been arranged for 23 January, 2009. This letter also stated that if she failed to attend this meeting that the respondent would revert back to the company doctor's initial report in relation to her medical condition and it would place her on notice of the termination of her contract of employment on the basis of ill health. The complainant wrote to the respondent on 20 January, 2009 and informed it that she felt she was being unfairly treated and that her natural right to representation at the meeting was being ignored. The complainant confirmed in this letter that she could not attend the meeting on 23 January, 2009 without her representation and would not be bullied and harassed into attending this meeting alone. The complainant received a further letter from the respondent dated 26 January, 2009 stating that her contract of employment would be terminated on 23 March, 2009 on the grounds of ill health. The complainant replied to the respondent on 3 February, 2009 to express her disappointment with the decision to terminate her employment. The complainant claims that the respondent dismissed her on the grounds of her disability and that it failed to provide her with reasonable accommodation in terms of facilitating her return to work.
4. Summary of the Respondent's case
4.1 The respondent submitted that the complainant was employed from 1992 until her employment was terminated on 23 March, 2009. The complainant commenced a one year career break on 23 August, 2004 which was due to run until 23 August, 2005. The respondent stated that the complainant was informed before commencing her career break that that her position as Personnel Manager could be filled by another interested party. However, it was agreed that she would return to the store as part of the senior management team upon the expiry of her career break. Shortly before the complainant was due to recommence working at the store, she requested the respondent to extend her career break by a further year and once again the respondent agreed to this request. The complainant was due to return to work in the store on 22 August, 2006; however, in or around August, 2006 she furnished the store management with a doctor's note/sick certificate which stated that she was unable to return to work because of "back pain". The complainant continued to furnish the respondent with doctor's notes, all of which stated that she was unable to work because of back pain, for a period of two years up to July, 2008.
4.2 In or around July, 2008, the new Personnel Manager in the store, Ms. A, contacted the complainant and arranged a meeting with her for 17 July, 2008 in order to discuss when she would be in a position to return to work. At this meeting the complainant indicated that she had two bulging discs in her back and as a result of this her doctor would not give her a back to work date. The complainant was unable to give any indication as to when her doctors would allow her to come back to work even in a reduced capacity. The respondent enquired as to whether the complainant could come back to work doing lighter duties, for instance maybe working in the cash office for a few hours; however, the complainant was adamant that her own doctor would not allow her to do even this. The respondent stressed to the complainant that it wanted to do all that it could to help her to return to work. It was agreed that the complainant would attend the company doctor for a review of her medical condition on 13 August, 2008. On foot of the examination carried out the company doctor concluded that the complainant would remain unable to resume work in the long term.
4.3 The respondent denies that it tried to mislead the company doctor in terms of the job description which it furnished to him prior to the complainant's medical examination. The respondent submitted that while the complainant was absent from work in August, 2007, up to date job descriptions were created by the company. The job description that was forwarded to the company doctor to be used in reference to his examination of the complainant was the correct job description for the role of Personnel Manager in 2007. Further, the job description was accurate for any member of the store's senior management. The respondent subsequently wrote to the complainant on 18 September, 2008 setting out how the company doctor was of the view that she would not be fit to resume normal duties in the foreseeable future and requesting that she attend a further meeting. It was indicated to the complainant that if she obtained an alternative view with regard to her medical condition from her own doctor which indicated that she would be fully fit in the future, she could bring that report to the meeting.
4.4 This meeting with the complainant took place on 7 November, 2008 and during the course of this meeting the complainant furnished the respondent with a letter from her own General Practitioner (dated 1 October, 2008) stating that she was being referred to an orthopaedic surgeon to query her suitability for surgery for a prolapsed disc. The complainant's G.P. indicated in this letter that if the complainant was deemed suitable for surgery, she anticipated that the complainant would make a complete recovery and return to work in the "not too distant future". The respondent submitted that there was no suggestion in the report from the complainant's G.P. that she was available at that time to work in the store in a reduced capacity, either with lighter duties or reduced hours. At this meeting the respondent requested the complainant to obtain a more conclusive opinion as to when she may be in a position to return to work. The complainant was reminded that the respondent's long term absence process provided that an individual on long term leave would normally be supported for a period of in or around a year and that she was now out of work on sick leave for two years, still without any indication as to when she might return to work.
4.5 The respondent wrote to the complainant on 17 November, 2008 seeking to clarify some issues that she had raised during the course of the meeting on 7 November, 2008 including her contention that it had not discussed the provision of reasonable accommodation to facilitate her returning to the workplace. The respondent denies this contention and it stated that it was clearly pointed out to the complainant during the meeting on 7 November, 2008 that it would be happy to facilitate her with regard to the number of hours which she was required to work or even amend her job description if needed be. The respondent also informed the complainant in this letter that the possibility of facilitating her return to work in a reduced capacity (i.e. in the cash office or with lighter duties), had been discussed with her at the meeting on 17 July, 2008. The respondent further pointed out to the complainant that both the company doctor and her own G.P. had certified her unfit to work in any capacity at that time. The respondent informed the complainant that it noted she was due to have an MRI scan and indicated to her that her position would be held open for a further six weeks.
4.6 In a further letter to the complainant dated 17 December, 2008, the respondent suggested a follow-up meeting with her on 6 January, 2009 in order to discuss the contents of a report which she was due to have received from her medical consultant regarding the up to date prognosis regarding her medical condition. By way of letter dated 19 December, 2009, the complainant sought to reschedule this meeting to 28 January, 2009 and advised that she would be joined at the meeting by her husband and an employee representative. Because of the unavailability of the store manager on 28 January, 2009, the meeting was eventually rescheduled to 23 January, 2009. The respondent informed the complainant that if she did not attend this meeting that it would have no option but to revert to the company doctor's report and on that basis placed her on notice of the termination of her contract of employment on the grounds of ill health. The complainant wrote to the respondent on 14 January, 2009 stating that as her employee representative was not available to attend the meeting, the complainant herself would not going to attend. The respondent replied by way of letter on 19 January, 2009 indicating that as the meeting has been rescheduled on a number of occasions, it was not in a position to cancel same. The complainant was reminded that if she did not attend the meeting, it would have no option but to revert to the company doctor's report and on that basis would place her on notice of the termination of her employment on the grounds of ill health.
4.7 The complainant subsequently failed to attend the meeting on 23 January, 2009 and the respondent submitted that as the complainant had not provided any medical report to contradict the findings of the company doctor and in the absence of any indication from her as to when she might be in a position to return the work, a decision as taken to terminate her employment. The respondent wrote to the complainant on 26 January, 2009 and notified her of this decision and confirming that her employment would be terminated on 23 March, 2009. The respondent denies that it discriminated against the complainant on the grounds of her disability or that it failed to provide her with reasonable accommodation in terms of the manner in which her dismissal was effected. The respondent submitted that she had been on continuous sick leave for a period of two years and in accordance with its internal procedures sought an indication when she would be in a position to return to work. The respondent submitted that the complainant failed to provide any confirmation from her medical consultants regarding when she could return to work despite being afforded due process and ample opportunity within which to do so.
5. Issue of Jurisdiction
5.1 At the oral hearing of the complaint, the respondent submitted that the complainant has also referred a claim under the Unfair Dismissals Acts, 1977 to 2001 in relation to her dismissal from respondent the company. The respondent stated that this claim under the Unfair Dismissals Acts was the subject of a hearing before a Rights Commissioner on 17 June, 2010 and that a recommendation in relation to the matter was subsequently issued on 19 November, 2010. The respondent submitted that section 101(4) of the Employment Equality Acts precludes the complainant from seeking redress under those Acts in relation to the alleged discriminatory dismissal given that the Rights Commissioner has already made a recommendation in respect of the dismissal. The respondent submitted that the Tribunal does not have any jurisdiction to investigate the alleged discriminatory dismissal under the Employment Equality Acts.
6. Conclusions of the Equality Officer in relation to the Issue of Jurisdiction
6.1 Section 101(4) of the Employment Equality Acts provides that:
"(4) An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if -
the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,
in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal"
The provisions of section 101(4) of the Employment Equality Acts specifically prevent a person from pursuing duplicate claims at different fora in relation to his/her dismissal. In the present case it was not in dispute that the complainant also referred a claim under the Unfair Dismissals Acts and that a Rights Commissioner has issued a recommendation in respect of her dismissal (on 19 November, 2010). The respondent submitted a copy of the Rights Commissioner's recommendation at the oral hearing of the present complaint. Having considered this recommendation, I am satisfied that the facts addressed by the Rights Commissioner in the claim under the Unfair Dismissals Acts are the same set of facts which are being relied upon by the complainant in the present claim for discriminatory dismissal under the Employment Equality Acts. Therefore, in accordance with the provisions of section 101(4)(b) of the Acts, the complainant is not entitled to seek redress under the Employment Equality Acts in relation to her dismissal.
Reasonable Accommodation
The complainant has also claimed that the respondent failed to provide her with reasonable accommodation in terms of the manner in which it dealt with the issue of her return to work whilst she was absent on sick leave and the manner in which her ultimate dismissal from her employment was effected. The respondent disputes the complainant's contention in relation to this issue and it claims that it had discussions with her prior to the termination of her employment regarding the appropriate measures that could possibly have been put in place to facilitate her return to work if/when she was certified medically fit to resume her employment. In considering this issue, I note that the complainant had been absent from work on continuous sick leave for a period in excess of two years (after a two year career break) prior to the date of her dismissal by the respondent. Based on the evidence adduced, I am satisfied that the complainant had not been certified medically fit (either by her own or the respondent's medical consultants) to resume employment in any capacity, either with or without the provision of reasonable accommodation, prior to the date of her dismissal.
In any event, I am satisfied that any issue which arose surrounding the provision of reasonable accommodation in order to facilitate the complainant's return to work during the period immediately prior to her dismissal was inextricably linked to the decision that was taken by the respondent to dismiss her from her employment. In the circumstances, I am satisfied that the alleged failure in relation to the provision of reasonable accommodation cannot be extricated from the events that precipitated the complainant's dismissal from the respondent company. Accordingly, I find that the alleged failure to provide reasonable accommodation was inextricably linked to the dismissal and that this issue has already been addressed by the Rights Commissioner's recommendation under the Unfair Dismissals Acts.
Having regard to the foregoing, I am satisfied that a Rights Commissioner has issued a recommendation under the Unfair Dismissals Acts in relation to the complainant's dismissal from the respondent company. Therefore, in accordance with section 101(4)(c) of the Acts, the complainant is not entitled to seek redress under the Employment Equality Acts. Accordingly, I find that I do not have jurisdiction to investigate the claim of discriminatory dismissal under the Employment Equality Acts.
Decision
7.1 In accordance with the provisions of section 101(4) of the Employment Equality Acts, I find that I do not have jurisdiction to investigate the claim of discriminatory dismissal under those Acts on the basis that a Rights Commissioner has issued a recommendation under the Unfair Dismissals Acts in relation to the complainant's dismissal from the respondent company.
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Enda Murphy
Equality Officer
25th November, 2011