The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-220
PARTIES
Mark Langford
- V -
An Grianan Hotel
(Represented by P.A. Dorrian & Co., Solicitors)
File reference: EE/2008/433
Date of issue: 30 November 2011
Keywords - Employment Equality Acts - Discriminatory Dismissal - Failure to provide Reasonable Accommodation - Disability - Jurisdiction - Prima Facie Case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory dismissal and that the respondent failed to provide reasonable accommodation on the grounds of disability in terms of sections 6(2) & 16 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 2 July 2008 under the Acts. On 16 October 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties in advance of the hearing. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 10 November 2011. Further written information was received in the Tribunal on 16 November 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he was employed as a manager, second only to the General Manager, from 12 February 2007 and was employed for eleven months until he was dismissed on 9 January 2008. The complainant submitted that he worked between 46 and 60 hours per week. He also submitted that when a new General Manager was appointed in October, he affirmed to him that his role was that of Assistant Manager.
2.2 The complainant submitted that in November 2007, he was involved in a road traffic collision while on his way home from a management meeting and that he was off on sick leave from 5 November until 28 November, 2007. The complainant submitted that he returned to work with a Doctor's note stating that he was to stay on light duties for at least two weeks.
2.3 The complainant submitted that he was not given reasonable accommodation in that, following his return to work he was put on an 11-12 hour shift with two waitresses - the normal staffing complement when all were fully fit. On his fourth shift, one of the waitresses left during the lunch service as she was pregnant and didn't feel well. This meant that the complainant had to lift heavy plates and trays or run the risk of incurring complains and delays. The complainant submitted that he asked the General Manager for assistance and his request was brushed aside.
2.4 The complainant submitted that he went to see his Doctor at the end of the lunch service as he was in great pain from having to do too much physical work and the Doctor put him back on sick leave. The complainant submitted that he continued to supply sick certs to the respondent at the appropriate times but was never asked for an update on his condition, for access to his Doctor's notes or to see a doctor of the respondent's choosing.
2.5 The complainant submitted that he was contacted by the receptionist and asked to meet the General Manager on 9 January 2008. He arrived early but was asked to wait. When the General Manager came he enquired as to how the complainant was, was told that he was still in some pain and then informed the complainant that he was no longer required as he was not capable of doing the duties required. He was also informed that the position no longer existed. He was also informed that this had been decided two weeks previously.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the complainant does not appear to aver to any of the nine protected grounds and therefore submits that the Tribunal is precluded from dealing with this application
3.2 The respondent submitted that the complainant was dismissed due to his absence from work, effectively from 5 November 2007 until his dismissal on 9 January 2008. The respondent also submitted that the complainant was dismissed as he was no longer capable of doing the work which he was employed to do and that the respondent had to look at the needs of their business, and compare same with the nature of the complainant's illness and the likely length of his continuing absence.
3.3 The respondent submitted that a decision was taken to dismiss the complainant as the respondent could not keep his position open indefinitely, given the needs of their business.
3.4 The respondent submitted that the complainant was unhappy with his dismissal and that he made applications to the Labour Relations Commission which were settled in full. The respondent further submitted that the complainant is seeking to have matters re-opened before the Equality Tribunal and they cannot see how the complainant's grievance is based on discrimination and that they expect the Tribunal to refuse to have the matter heard.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
Preliminary matter - Jurisdiction
4.1 At the hearing of this matter the respondent's representative submitted a copy of a settlement letter relating the proceedings taken before the Rights Commissioner's service of the Labour Relations Commission. This letter, which accompanied the settlement cheque contains the words "we enclose herewith cheque in the sum of €XXX being full and final settlement of all claims which (the complainant) has against our client (the respondent). The respondent's representative stated that this wording encompasses all proceedings and accordingly, the Tribunal does not have jurisdiction to hear this matter. The complainant stated that the letter and settlement related to the issue of notice and holiday pay and did not relate to the proceedings before the Tribunal.
4.2 I note that the covering letter contained a second paragraph which stated "please confirm that your client will withdraw all claims before the Rights Commissioner and the Employment Appeals Tribunal. Please hold these funds in trust pending receipt by us of the said confirmation"
4.3 Having considered the submissions from both parties I consider that had the letter simply contained the first paragraph, and in circumstances where the two parties were legally represented, I would be bound to consider that this matter had been settled. However, the inclusion of the second paragraph clarifying what the respondent expected of the complainant, fundamentally changes the interpretation of the letter. The letter refers explicitly to the all claims before the Rights Commissioner and the Employments Appeal Tribunal (sic) and does not refer to the proceedings before the Equality Tribunal. Given that this letter emanated from the respondent's solicitor, and refers to two employment rights bodies explicitly, I do not consider that they can now seek to advance the argument that the letter also implicitly refers to another employment rights body.
4.4 In addition, I note that the settlement letter issued from the respondent's solicitor on 3 December 2008, while the respondent's submissions to the Equality Tribunal in the instant case issued from the same firm of solicitors on 22 December 2008, undermining the argument put forward at the hearing that this matter was already settled.
4.5 Having regard to the foregoing, I do not consider that this matter has been settled and accordingly, I am acting intra vires in proceeding to hear this complaint.
Substantive Case
4.6 The issue for decision by me is whether or not the complainant on was subjected to discriminatory dismissal by the respondent on the grounds of disability and that the respondent failed to provide reasonable accommodation in terms of sections 6(2) & 16 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
4.7 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.8 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
Appropriate Measures/Reasonable Accommodation
4.9 The complainant stated that he sought appropriate measures from the respondent to enable him to return to work. The complainant stated that he sought to be assigned 'light duties' and agreed with the respondent that upon return to duty there was no problem with the duties he undertook during his first three shifts. The complainant indicated that the problem arose during his fourth shift after returning from sick leave when one of the waitresses had to go home sick during the lunchtime service. The complainant indicated that he sought the assistance of the General Manager with the lunch service, carrying heavy trays, etc, but none was forthcoming. In order to maintain a level of customer service and to avoid complaints, the complainant felt obliged to carry heavy trays during the lunch service. Following the lunch service, the complainant went to his doctor for back and neck pain and returned to certified sick leave.
4.10 The respondent noted that the complainant was given light duties upon his return, and this element was not challenged by the complainant. The respondent further noted that the situation whereby the complainant felt obliged to lift heavy trays arose due to unforeseen circumstances, i.e. an employee going off sick during the lunch period, and furthermore was the decision of the complainant, not of the respondent.
4.11 Having considered the evidence put forward by the complainant, in the context put forward by the respondent, I am not satisfied that the complainant has adduced facts from which a failure to provide reasonable accommodation may be inferred. Accordingly, this element of the complaint fails.
Discriminatory Dismissal
4.12. As the hearing progressed, the respondent's representative informed the Tribunal that rather than having been dismissed for the reasons given in its written submissions, i.e. that the complainant was dismissed as he was no longer capable of doing the work which he was employed to do - that the respondent had to look at the needs of their business, and compare same with the nature of the complainant's illness and the likely length of his continuing absence; the complainant was, in fact, dismissed for disciplinary reasons as would be borne out by the testimony of a witness. The witness present at the hearing, Mr X, was one of Directors of the respondent company. When asked to provide details of the disciplinary reasons for complainant's dismissal he replied that the Directors had received complaints and that, as silent directors, they did not want to receive any complaints directly. He stated that the business was only just set up and outlined the timeframe, in months, of the gradual opening of its premises from February 2007 until July 2007. When asked whether the complaints had been put to the complainant, Mr X stated that the complainant had been told about the complaints along with the then General Manager and that these were noted in the minutes of the management meetings. The complainant suggested that these complaints related to the operation of a newly-opened hotel rather than about the complainant specifically. Following questioning by the Equality Officer, Mr X conceded that he could not remember any details of any specific complaints that referred to the complainant, and that the minutes of the management meetings would not reflect any complaints specifically about the complainant but would show that people from the area had come to him and his brother (another Director in the company) directly to complain about aspects of the hotel. In response to a question from the complainant, Mr X also confirmed that he still received complainants about the hotel directly but a lot less now.
4.13 Mr X confirmed that the respondent did not have a disciplinary process in place at the time of the complainant's employment and that the complainant was never notified in writing that there were complaints about him. Mr X also confirmed to the Tribunal that there was no written note of any complaints specifically about the complainant.
4.14 In presenting its evidence at the hearing the respondent suggested that although it did not have all of its procedures in place that there was a clash of personalities about the style of management of the hotel. It was stated that the complainant was dismissed because the employer did not feel that the complainant brought what was needed to the job. Finally the respondent suggested that the complainant's illness does not amount to disability as it was a short illness which is not sufficient to satisfy the any test laid down for disability.
4.15 The complainant, in presenting his evidence at the hearing, stated that the only reason that he was ever given for his dismissal was that he was "no longer suitable to work at the hotel as he was not capable of doing the duties required", that he was out on sick leave when he was told about his dismissal and that he was informed that this decision was made a number of weeks previously. The complainant further stated that he was never asked to provide a prognosis or update on his sick leave; that he was never referred to a doctor of the respondents choosing or asked for any further information on his condition; and, apart from receiving a call from the receptionist inviting him to the short meeting where he was dismissed, the respondent made no effort to contact him. The complainant also stated that he was not informed of the nature of this meeting in advance. There was no evidence given to the Tribunal to refute this version of events.
4.16 From the evidence presented to the Tribunal, I note the following:
The reason given by the respondent for the complainant's dismissal was only raised at the hearing, with no prior indication that the written submissions were being discarded by the respondent
the testimony proffered by Mr X, the witness who attended the hearing, was unsupported by any written evidence
the testimony given by Mr X was vague and hesitant in manner and lacked any detail whatsoever, and appeared to be designed to undermine the complainant rather than to add to the Tribunal's investigation
the complainant was dismissed while on certified sick leave
there had been no attempt made to ascertain the extent of his illness or otherwise clarify matters before the complainant was dismissed
the complainant was dismissed for "not being capable of doing his job"
4.17 Having considered this matter and in the absence of any credible alternative reason being put forward by the respondent for the complainants dismissal, I am led to the conclusion that the real reason for the complainant's dismissal was because the respondent considered, at that time, that he had a disability, in other words, they imputed a disability upon him. Therefore, I consider that facts have been established from which discrimination may be inferred and the onus shifts to the respondent to rebut the inference of discrimination raised.
4.18 The respondent has not put forward any cogent argument which would rebut the inference of discrimination raised and, accordingly, the complainant is entitled to succeed in this element of his claim.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of failure to provide reasonable accommodation on the basis of the disability ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of disability ground has been established and this element of the complaint succeeds.
5.3 In accordance with section 82 of the Acts I award the complainant €14,000 equating to approximately 6 months remuneration, in compensation for the discriminatory dismissal suffered. As this does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
30 November 2011