The Equality Tribunal
Employment Equality Acts
Decision DEC-E2012-177
PARTIES
A Fisheries Officer
(Represented by Purdy Fitzgerald Solicitors)
- V -
A Regional Fisheries Board
(Represented by IBEC)
File reference: EE/2009/446
Date of issue: 18 December 2012
Keywords - Employment Equality Acts - Discriminatory Dismissal - Disability - Victimisation - Prima Facie case - Appropriate measures - capability - rebuttal
1. DISPUTE
1.1 This dispute concerns a claim by Fisheries Officer that he was subjected to discriminatory dismissal, victimisation and a failure to provide reasonable accommodation by A Regional Fisheries Board on the ground of disability in terms of Section 6(2), Section 16 and Section 76 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 1 July 2009 under the Employment Equality Acts. On 28 May, 2012, 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 22 June 2012. Additional submissions were received up to 25 October 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 The victimisation element of the complaint was withdrawn during the course of the hearing on 22 June 2012.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed by the respondent as a temporary Fisheries Officer on a fixed term basis, initially from June 2007 and subsequently under a contact running from 1 January 2008 until June 2010.
2.2 The complainant submitted that the termination of his employment relates to an event which took place on 19 October 2008 when he was working on a river bank meeting with local anglers. The complainant had an epileptic seizure, an ambulance was called and he was taken to hospital. The complainant submitted that he was discharged following medical attention and returned to work a number of days later having taken leave in lieu rather than sick leave. During this period he was seen by his own GP who referred him to a Consultant Neurologist.
2.3 The complainant submitted that following his return to work no formal meeting concerning the event took place but that a medical was arranged for him with the respondent's Doctor, an Occupational Physician (OP) on 6 November 2008. The complainant also submitted that he had a medical assessment carried out by his own Consultant Neurologist who concluded that he "would see no restrictions either on driving or work practice arising from this unfortunate episode"
2.4 The complainant submitted that on 17 November 2008, he was given a memo outlining the recommendations that the respondent's OP had made, including that the complainant should not drive a vehicle or operate machinery. On receipt of his own Neurologist's report the complainant made it available to the respondent and was informed that it would be sent to the respondent's OP so that the situation could be re-assessed. The Occupational Physician then provided a subsequent opinion wherein he opined "from a purely Occupational Health point of view, I feel that my original opinion should stand.
2.5 The complainant submitted that he was informed that a meeting was arranged for 6 February 2009 "to have a chat". The complainant brought a copy of the information "A Guide to Epilepsy & Employment" from the website 'brainwave.ie'. The complainant submitted that he was informed that the company doctor still believed regardless of what a specialist in the field's opinion was, that he was considered a high risk and that he was unfit for the job, that the respondent had a 'duty of care' to himself and to his fellow workers and that they had no choice but to terminate his employment. Accordingly, the respondent gave the complainant almost two months notice.
2.6 The complainant submitted that he reported this to his Trade Union official who appealed the decision to dismiss him. No appeal meeting took place and the respondent reaffirmed its decision to terminate his employment.
2.7 The complainant submitted that it is clear that epilepsy represents a disability as defined under Section 6(g) of the Acts. The complainant is seeking re-instatement.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant was recruited as a Fisheries Officer on 9 July 2007 on a contract up to 31 December 2007. He was awarded a further contract from 1 January 2008 until 30 June 2010. The post was specifically funded to carry out salmon protection duties for a set period.
3.2 The respondent submitted that the duties of this post include enforcement and other outdoor activities including dealing with possible offenders on river banks, in boats on lakes or out to see. The responsibilities are demanding and the role is frequently carried out at night under dangerous conditions.
3.3 The respondent submitted that the complainant successfully carries out his duties until 19 October 2008 when he had a seizure on the river bank. Neither the anglers present nor a colleague present were aware of the complainant's medical history and the complainant was subsequently taken to hospital.
3.4 The respondent submitted that when the complainant's supervisor visited him in hospital later that day he was informed of the existence of the complainant's epilepsy and following this the complainant wrote a note to one of his supervisors stating that he had developed epilepsy ten year previously and that he had a seizure because he missed his medication and that his doctor believed that it was an isolated incident and hopefully should not reoccur. In addition, the complainant stated that he did not tell the Board about his condition as he felt it would go against him when he applied for the job.
3.5 The respondent submitted that upon the complainant's return to work, 10 days later, he was informed that he would be based in the office until a full assessment could be carried out. Following the complainant's return to work he was requested to attend the respondent's medical advisor. The medical advisor's report outlined the complainant's medical history, noting that the complainant had not taken his medication for four days prior to the seizure, that the complainant had not kept up his appointments with his specialist and that his attitude to his disability showed a lack of insight and an irresponsible attitude to that disability. The report also include that fact that the complainant had been seizure-free for eight years but that this most recent seizure effectively put the complainant back to square one with regard to the necessary precautions and restrictions to be followed in relation to the complainant.
3.6 The respondent submitted that it subsequently received a report from the complainant's consultant which was passed to the medical advisor for his consideration. The medical adviser considered the consultant's report but in his subsequent report he outlined that his recommendations should stand.
3.7 The respondent submitted that following this consideration, the CEO wrote to the complainant outlining the reasons for the termination of the complainant's contract, primarily that the complainant made no mention of his illness at any time prior to his seizure. The respondent submitted that it gave the complainant two months notice of the termination of his contract.
3.8 The respondent submitted that it received suggestions from the complainant as to possible alternative work he could carry out, but ultimately was not in a position to make up a job for the complainant given that he was recruited to fulfill a specific role which they had received specific funding for.
3.9 The respondent submitted that an unfortunate situation has arisen due to the complainant's failure to disclose the existence of his illness. This put the complainant's life and that of his colleagues at risk and having regard to all of the issues raised, renders the complainant unsuitable to continue in the role to which he was recruited. The respondent further submitted that it does not accept that it should be obliged to create an alternative post for an employee who deliberately withheld critical information on an application form and in medical examinations.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant was subjected to discriminatory dismissal by the on grounds of disability, in terms of section 6 of the Employment Equality Acts, and contrary to section 77 of those Acts; and whether the respondent failed to provide appropriate measures under Section 16 of the Acts.
4.2 Section 85A of the Employment Equality 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.
4.3 In the case of Dyflen Publications Limited v 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 ...".
4.4 I note from the respondent's submissions and direct evidence that it accepts that the complainant was dismissed and that the dismissal was occasioned, inter alia, by the complainant's epilepsy. I find that epilepsy falls within the definition of a disability as outlined in the Acts. Having regard to the complainant's submissions in light of the foregoing, I am satisfied that the complainant has established facts sufficient to raise an inference that his disability exerted a significant influence upon the respondent's decision to dismiss him. Accordingly, the onus shifts to the respondent to rebut the raised inference of discrimination.
4.5 As identified by the respondent, it is useful to consider the Labour Court's approach in the case of 'A Health & Fitness Club and A Worker' (Determination No EED037, ED/02/59)
"However a dismissal which appears to be discriminatory within the meaning of Section 8 of the Act may be saved by Section 16. This section provides, as follows:
16. -- (1) 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) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(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.
(2) [Not relevant]
(3)(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. 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."
4.7 During the hearing the respondent outlined the steps it took in coming to its decision. I note that during its deliberations the respondent had regard to the medical evidence from two practitioners, one from the complainant's perspective, the other of whom specialises in Occupational Health. I consider that by asking their medical adviser to review the medical evidence from the complainant's medical advisor before finalising their decision the respondent allowed the complainant to fully participate in this stage. Having regard to that evidence, I consider that the first stage of the Labour Court's test, outlined above, has been satisfied when the respondent formed a bona fide belief that the complainant was not fully capable of performing the duties for which he was employed.
4.8 Thereafter, the respondent gave consideration to what 'appropriate measures' it could take to enable the complainant to be fully capable of performing the duties for which he was employed. During the hearing, the respondent outlined how it consulted informally with staff members at various levels as to what measures could be undertaken on behalf of the complainant. Additionally, the CEO took on board the alternative duties that the complainant himself outlined for the respondent. Ultimately the decision was taken that these duties amounted to a substantially different position from the one to which the complainant had been recruited into, and that the funding which was ring-fenced for the fisheries protection position would not be available to fund such an alternative position.
4.9 Having heard to evidence from both parties, I am satisfied that the respondent formed a bona fide belief that the measures sought by the complainant amounted to completely different duties to those to which the complainant was recruited and furthermore that such duties would not be covered by the funding set aside to fulfil the specifically funded salmon protection duties. In the circumstances outlined I find that the respondent has satisfied each stage of the enquiry into the provision of appropriate measures as outlined by the Labour Court.
4.10 I also note that the letter of termination issued by the respondent also made reference to the complainant's decision at the recruitment and later stages of his employment to withhold important and pertinent information from the respondent on the existence of his medical condition and on failure to follow medical advice in relation to the management of his condition.
4.11 In all the circumstances of this case, I am satisfied that the respondent has rebutted the inference of discrimination raised.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent has not subjected the complainant to discriminatory dismissal and, therefore, this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the respondent has not failed to provide appropriate measures and, therefore, this element of the complaint fails.
Conor Stokes
Equality Officer
18 December 2012