EMPLOYMENT EQUALITY ACTS 1998-2011
DEC - E2012-192
Mr A
(represented by McIntyre O'Brien Solicitors)
versus
A Hospital
(represented by Purdy Fitzgerald Solicitors)
File reference: EE/2010/429
Date of issue: 21st December 2012
Keywords: Employment Equality Acts, Disability, Discriminatory Dismissal, Failure to provide reasonable accommodation, No prima facie case
Dispute
1.1 The case concerns a claim by Mr A against a private hospital. His claim is that he was discriminatorily dismissed on the grounds of disability in terms of 6(2) (g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as 'the Acts']. He also claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them.
1.2 Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 2nd June 2010. On 10th August 2012, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 6th September 2012 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant was employed as a Healthcare Assistant from 14th May 2009 until he was dismissed on 8th April 2010. His role was to provide assistance to theatre staff. This included the manual lifting of patients.
2.2 He submits that he was summoned to the office of Mr Z, Human Resources Manager on 8th April 2010. According to him, his Line Manager, Ms Y, merely told him that it 'had something to do with his sick leave'. At this meeting, where he was unaccompanied, Mr Z informed him that he had taken too much sick leave throughout the year and was being dismissed, with immediate effect and that he would receive payment in lieu of notice.
2.3 The complainant submits that he was shocked and dismayed by this. He states that he did not see it coming. He submits that he was a diligent employee. He said he never received a negative performance review nor was he previously informed that his position was in jeopardy.
2.4 Following this conversation with Mr Z, the complainant rang his uncle. His uncle, in turn, telephoned Mr Z. The Human Resources Manager reiterated that the complainant was dismissed because he had 'too much sick leave' and that he would not consider reinstating him.
2.5 The complainant admits that he took sick leave on a few occasions:
* Between 14th September 2009 and 23rd September 2009 he was on certified sick leave due to contracting the H1N1 virus (swine flu).
* On 19th March 2010 (a Friday) Mr A lifted a heavy patient onto the patient's side which hurt his middle back. The complainant did not report at the time as he hoped it would heal over the weekend. The following Monday he reported to work but was unable to carry out his duties due to the pain in his middle back. He was referred to a doctor within the hospital who gave him a medical certificate until 1st April 2010. He also had two sessions of physiotherapy with the Head of Physiotherapy at the hospital as recommended by the doctor
* There were a few shorter uncertified absences:
- From 16th June to 17th June 2009 he was absent due to a stomach bug
- From 19th August to 20th August 2009 he was again absent due to a stomach bug
- On 23rd November he left work early due to a heavy cold
- He was absent from 17th December to 21st December due to a 'flu.
- From 8th January 2010 to 11th January 2010 he was absent due to a stomach bug.
2.6 Mr A submits that Ms Y once asked him whether he was more susceptible to illness than others. He submits that he is. Mr A maintains that she suggested that he undergo tests. He submits that the hospital never offered such tests. The complainant submits that all of the above illnesses and injuries are disabilities within the meaning of the Acts.
Summary of the respondent's case
3.1 The respondent refutes the suggestion that Mr A was not on notice that his attendance at work was a problem. Following a performance appraisal on 5th February 2010, his probation was extended for a further three months. In numerous places on the performance review form Ms Y, his line manager, pointed out that his attendance pattern needed to improve as well as willingness to work on his own initiative. Ms Y also categorically denies that she ever suggested he undergo tests to see whether his immune system was weak.
3.2 The respondent cites the CJEU judgment Chacon Navas where it states that sickness in a different concept to disability and therefore they cannot be simply treated as being the same.1 The respondent interprets this to mean that sickness in itself is not a disability. The respondent also refers to Colgan v Boots Ireland Ltd where the Equality Officer found a minor ankle injury (the injury was so slight that the complainant was not even referred to a doctor) was not a disability within the meaning of the Acts.2
3.3 Another case referred to by the respondent is O'Rourke v Dublin City Hotel where the Equality Officer found: In applying the above mentioned Labour Court test, I am satisfied that the complainant has failed to establish that he suffered any effects or symptoms as outlined in paragraph (e).The complainant had a one day illness which cleared up very quickly and in my opinion a short one day illness does not satisfy the test. The medical tests were also clear. I am not satisfied that the medical precautions the complainant takes because of a fear of getting an illness due to a family history of cancer can be regarded as a disability within the meaning of the Act. Likewise I am not satisfied that the complainant has established that he has any condition, illness or disease which comes within any of the definitions of disability under the Acts.3
3.4 The respondent also cited Maloney v MJ Clarke & Sons Ltd where the complainant argued that dizziness and anxiety while on a ladder was a disability for the purposes of the Acts. The Equality Officer found that 'no diagnosis of a condition, illness or disease was provided to the Tribunal to show that complainant was disabled within the meaning of Section 2(e) of the Acts.'4
3.5 The respondent interprets the above case-law to mean that that for any illness or injury to be deemed a disability it must be significant and that where there is doubt, a disability must be verified by a Medical Practitioner.
3.6 The respondent also states that the complainant in not in receipt of a disability payment and that he is working abroad.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant suffered discriminatory treatment in relation to access of employment and whether the respondent failed to provide reasonable accommodation in order to enable him to take up a position with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 There is some imprecision in the respondent's contention that the Chacon Navas decision means that sickness is not a disability. The CJEU decision is more nuanced: Article 22 of that decision states that 'sickness is capable of causing defects which disable individuals'. There is no definition of disability in the Equal Treatment Directive5. We rely on the definition of disability as defined in Section 2 of the Acts:
(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 form a person without the condition or malfunction
(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.
While it is a generous definition, it cannot be interpreted to mean that all employees are protected on the ground of disability every time they develop minor illness or injury. In the circumstances of this case, to include complaints like a temporary stomach bug or the common cold within the definition of disability would be an absurd interpretation of the Acts. In some contexts, the H1N1 virus or back pain may be considered disabilities within the statutory meaning but certainly neither were severe enough in the complainant's case to be covered under the definition of disability in the Acts. The complainant also argued that he had a weakened immune system and that this is also a disability within the meaning of the Acts. Perhaps it is but I accept the respondent's contention that where there is doubt, a disability must be diagnosed by a medical practitioner. In the context of this case, it is complainant's responsibility to seek this diagnosis in the first place. He did not declare it at his pre-employment medical nor did he take steps during his employment to seek diagnosis. Therefore, in the context of this case, I find that none of the conditions or illnesses (either individually or collectively) cited by the complainant fall within the definition of disability under the Acts.
4.4 It also must be remembered that an employer is not obliged to retain an employee who is not fully competent, capable and available for work so long as reasonable accommodation, in the case of a disability, is provided. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ....
(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.
4.5. It is undeniable that the complainant had a poor sick leave record; he missed 18.5 days due to sick leave (certified and uncertified) in 11 months of employment. Both his inadequate attendance record as well as his unwillingness to work on his own initiative were brought to his attention at his interim review and his probation was extended for these reasons. Therefore, the respondent denies that the decision to dismiss him was made solely on his deficient attendance pattern. His lack of enthusiasm for being a self-starter was also a factor. This is highlighted in the complainant's interim review two months (which the respondent submitted as documentary evidence) before he was dismissed. I also have to take cognisance that the complainant was responsible for bringing patients to and from a hospital theatre. If he was unavailable for work, this had significantly negative consequences in a healthcare environment. In some situations it is prudent for an employer to refer an employee to an occupational health specialist. I do not find the respondent was remiss for not referring the complainant in this case for two reasons. The first reason is because it is a hospital and therefore has expertise in these matters. Indeed it was the hospital physiotherapist who recommended that the complainant return to work after his minor back injury. The second reason is because all of the complainant's illnesses and injuries were minor and disparate.
4.6 Procedurally, the manner of his dismissal fell short of Human Resources best practice - he was not offered the opportunity to bring a representative nor was there a right of appeal. However, the claim before me is not an unfair dismissal complaint but a discriminatory one on the grounds of disability. Because, as stated in Chacon Navas sickness is a different concept to disability and cannot be treated as being the same, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal. The complainant never declared a disability nor sought appropriate measures as defined in Section 16(3) of the Acts to allow him to continue to be employed by the respondent so therefore this aspect of his case also fails.
4.7 To reiterate, I find that none of the conditions cited by the complainant fall within the definition of disability within the meaning of the Acts. Even if they had, in the context of this case, the respondent is entitled to avail of the defence in Section 16 (1). Therefore, the complainant's case fails in its entirety.
Decision
I have concluded my investigation of Mr A's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has not discriminatorily dismissed the complainant on the ground of disability
(ii) the respondent has not failed to provide appropriate measures that would allow the complainant to continue to be employed by them
Therefore, I find against the complainant.
______________
Orlaith Mannion
Equality Officer
1 Paragraph 44 Case C-13/05 Sonia Chacon Navas v Eurest Colectividades SA
2 DEC-E2010-008
3 DEC-E2010-045
4 DEC-E2010-140
5 Council Directive 2000/78/Ec of 27 November 200 establishing a general framework for equal treatment in employment and occupation