DEC-E2012-011- Full Case Report

The Equality Tribunal

Employment Equality Acts 2000 to 2011

EQUALITY OFFICER'S DECISION
NO: DEC-E2012-011

Parties

An Employee
(Represented by Ms. Grainne Fahey BL on the instructions of E.P. Daly and Company Solicitors)

V

A Logistics Company
(With Mr. Brendan Meehan FCCA CPA of Meehan & Associates, Registered Auditors)

File No. EE/2009/397

Date of Issue: 6 February 2012

Keywords:
Employment Equality Acts - Discriminatory treatment - Failure to provide appropriate measures - Conditions of employment, training, promotion/re-grading - Discriminatory dismissal - Victimisation - Victimisatory dismissal - Disability - Prima Facie Case

1. Dispute and delegation

1.1 This dispute concerns a claim by An Employee (hereafter "the complainant") that he was subjected to discriminatory treatment, including a failure to provide reasonable accommodation, victimisation and dismissal by A Logistics Company (hereafter "the respondent") on the grounds of his disability. The date of dismissal was 30 March 2009.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 June 2009 under the Employment Equality Acts. On 30 September 2011 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 15 December 2011. The decision has been anonymised to protect the privacy of the complainant.

2. Case for the complainant

2.1. The complainant has worked with the respondent since it took over from a previous company in January 2008. The complainant submitted that in early 2008 he began suffering with stomach complaints and was also diagnosed with depression. As a result of these health issues the complainant was absent on sick leave for a significant period of time. It was submitted that these absences were certified if he was absent for more than one day.

2.2. The complainant received a letter dated 12 January 2009 stating that the respondent was bringing in a new sick leave policy. This new policy allows for 4 uncertified sick days in one calendar year. If the 4 sick day leaves are exhausted, an employee must avail of the appropriate benefits provided by the State. Prior to the introduction of this policy to company had paid staff who were out sick. The new policy limits such pay to 4 days per calendar year.

2.3. The above letter also informed the complainant that his level of absenteeism was unacceptable. The complainant was informed that he had been absent for 26 days in 2008 and that he would be issued with a final warning in relation to this matter.

2.4. The complainant replied to this letter stating that he had been genuinely sick on each occasion that he had been out. He informed the respondent that he is receiving treatment and is hopefully that this will improve his attendance. The complainant took exception with the threatened final warning and informed the respondent that such action may be unreasonable. The complainant submitted that he responded to this letter by a letter where he stated that:
"I handed in doctor's notes on numerous occasions, even one from the hospital where I was forced to visit due to illness. And every time I was absent I was genuinely sick and sometimes even came to work before being forced to leave early.
I have been getting treatment and hope this will improve my attendance as I understand your concern.
I apologise for the inconvenience caused by my illness and I have being doing everything in my power to regain full health.
I was disappointed with the last paragraph of your letter as I made every effort to get into work even on occasion when I was not very well and therefore your threatened action may be unreasonable. Assuring you of my best intentions at all times."
It was submitted that the complainant's mother personally handed in this letter to the respondent offices sometime in January 2009.

2.5. In February 2009 the complainant went on indefinite sick leave. On medical advise the complainant sought a meeting with the respondent in late March 2009. At this meeting the complainant indicated to respondent's manager that he may be able to return to work on a part-time basis as he believed that work was contributing to his illness. The next day, on 26 March, 2009, the director told the complainant's mother that the respondent would not accept the complainant back. He then indicated to the complainant's mother that he would revert back to her with a settlement offer. The next day, on 27 March, 2009 the director reiterated to the complainant's mother that the complainant could not return to work and that the complainant was entitled to one months notice. In addition to this the respondent would offer an additional two months' pay to the complainant.

2.7. The complainant submitted that the respondent had taken no steps to attempt to accommodate his disability. He was never medically examined by the respondent. The complainant relied on the labour Court decision in Humphries v Westwood Fitness Club that was up held in the Circuit Court by Judge Elizabeth Dunne

2.8. The complainant submitted that he suffered from a disability within the meaning of the Acts at all material times. As a result of this disability the complainant was absent on a number of occasions. He was discriminated against by virtue of the fact that he received a final warning for his absences without any fair procedures and without any hearing. His conditions of employment were impacted by the action of the respondent in serving him with such warning.

2.9. The respondent's refusal to allow the complainant to return to work because of his disability in March 2009 amounts to a discriminatory dismissal.

2.10. The complainant submitted that he most likely did hand in more sick certificates in 2008. However, he was not certain of this and has no documentation that could assist his memory in this regard.

3. Case for the respondent

3.1. The respondent is a logistics company that employs a small number of people who ensure customs clearance for a large retailer operating in Ireland. The activity is paper driven and involves the meticulous inputting and recording of product details including tariff codes, weights and values. The imputing must be carried out on an instantaneous basis and, should any member of the respondent 10 staff not arrive in work it can impact heavily on the respondent staff's ability to complete these tasks on time. It was submitted that because of this there is a significant dependence on employees to be in attendance.

3.2. It was accepted that the respondent altered its sick leave policy at the end of 2008. This was done because the existing policy that the respondent inherited when it took over the company in early 2008. It was submitted that the previous policy that ensured payment of uncertified sick leave was no longer sustainable. The respondent does not accept that the policy is discriminatory and submitted that all employees were called in individually to meet with the Director who informed them of the changes. All staff, including the complainant, agreed to these changes.

3.3. The respondent director had a conversation with the complainant on 4 September 2008 where the director advised the complainant's absenteeism was not acceptable. A similar conversation was had between the parties on 22 September 2008 and the complainant again told the respondent that he was sick. The respondent had also offered to arrange an independent medical examination for the complainant but the complainant had refused this stating that his mother had arranged a specialist appointment with a consultant. The complainant had told the respondent on his return from this appointment that his stomach problems had been sorted and thus his absenteeism would no longer be an issue.

3.4. On 13 October 2008 the director received a phone call from the complainant saying that he was sick and that he needed to go home. The respondent told the complainant that his level of absenteeism is unsustainable but as the complainant stated that he needed to go home, the complainant was granted permission to go home. The respondent manager submitted that he was somewhat annoyed to see the complainant sitting on the wall outside the respondent premises approximately 30 minutes after he had told the complainant that he could go home.

3.5. The complainant was absent for 26.5 days in 2008. Six of these days were certified.

3.6. On 3 February 2009 the complainant provided a doctor's note that stated that the complainant was unfit to work until further notice. The respondent denied ever receiving the letter that the complainant claimed his mother dropped in the office.

3.7. The respondent submitted that the complainant was dismissed following the company dismissal policy. The complainant was afforded written and oral warnings and fair procedures were adhered to in relation to documentation of meetings that followed each such warning.

3.8. The respondent submitted that the decision to terminate the complainant's employment was supported by the following reasons:
1. the nature of the respondent work dictates that it was necessary to have reliable staff as the work is of such nature that any delay in getting it done could affect the respondent's client's business.
2. the disrespectful manner in which the complainant spoke to his mother at the meeting,
3. the fact that he was attending anger management; and
4. the complainant's statement that his medical advisors were of the opinion that it was the workplace that was making him ill.

3.9. The respondent had not had sight of any of the medical reports that were presented at the hearing.

3.10. The respondent accepted that the complainant's absenteeism was not the complainant's fault. However, the situation could not continue and combined with a concern for the complainant's welfare and the demands of the respondent business, a decision to terminate the complainant's employment was made.

4. Conclusion of the equality officer

4.1. 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 Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

4.2. It is not under dispute that the complainant was dismissed. I accept that this dismissal was as a direct result of his absences. While I note that the complainant disputed whether it would be burden on colleagues to carry his workload when he was out I find that it is perfectly legitimate for the respondent to consider such matters. Nothing in these Acts imposes an obligation on an employer to retain a person who is no longer fully competent and available to undertake the duties of a given position. The question that this decision must consider is whether such dismissal was discriminatory contrary to the Acts.

4.3. I note that it was submitted that the complainant was covered by the discrimination ground because he had informed his employers that he was suffering with stomach problems. I note that the respondent did not dispute this and stated that they accepted in good faith that the complainant was sick when he said he was sick. The definition of a disability is set out in section 2 of the Acts. I find that the Acts clearly apply a medical model to the definition of a "disability" and while it is obvious that the model contained in the Acts is broader in scope than that set out in Directive 2000/78/EC, I find that it does not include mere references to sickness made without supporting medical evidence. I find that 'disability' and 'sickness' cannot be simply treated as being the same. There is a reason why the word 'disability' was used in the Acts instead of 'sickness'. I find that every person has been 'sick' at some stage of their lives but not every person is entitled to be defined as having a disability within the meaning of these Acts. A person who develops any type of illness is not automatically protected by the disability ground. This is highlighted by the fact that section 16 of these Acts clearly applies to situations where adaptation of the workplace is required where the participation in professional life is hindered over a long period of time. I find that it is therefore reasonable that before a physical, mental or psychological impairment which hinders a person's participation in the workplace be considered to be a disability it ought to be probable that such impairment will have long term effects on that person. I do not therefore accept that a mere reference to 'stomach problems' - mostly without certification from a doctor - can afford the protection provided by the disability ground.

4.3. I find that depression is a disability within the meaning of the Acts. I note that the complainant was diagnosed with depression in or about March 2008. I am satisfied from the facts provided to the investigation that the complainant did not inform the respondent of this reality until the meeting on 25 March 2009 despite the complainant having been given a number of warnings about the issue of absenteeism.

4.4. I note that the complainant submitted that he believed that he was entitled to privacy in relation to such matters. However, if such matters affect a person's participation in the workplace and the person wishes to avail of the protection that any policy or law may afford a person in such circumstances then there is an onus to disclose honestly and fully any such matters to an employer. It is unreasonable to assume that an employer ought to provide appropriate measures without any knowledge of a disability. Employers who are on notice of such matters, in turn, must treat such matters with utmost confidence and where appropriate engage in a "process oriented approach" to examine whether appropriate measures are required. Such an obligation on employers can only arise in circumstances where an employer is on notice that:
1) an employee has a disability, and
2) this disability restricts them from fully performing their duties that they otherwise would be fully competent in performing.

4.5. Appropriate measures are defined in section 16(4) of the Acts and they refer to measures that are put in place in a particular case to enable a person to access, participate and advance in employment and/or undergo training. It is clear that such measures can apply to reduced hours, phased introduction back into the workplace, etc. Such measures are subject to "disproportionate burden" as set out in section 16(3)(c) and are usually arrived in consultation between the employer and the employee with the assistance of medical and/or occupational advisors.

4.6. The above approach has been approved by the learned judge Dunne (as she then was) in the Humphries case. Such an approach to "appropriate measures" in the workplace means that even if there is a strong possibility that an employee may in fact be incapable of doing the job, the obligation to provide appropriate measures comes first. This means that an employer is obliged, when on notice of an employee's disability, to go in good faith through a process of checking objectively, with qualified expertise where needed, what is the actual medical situation, what are the necessary implications for work, and what can be mitigated by the provision of effective and practical measures to adapt the respondent's place of business to the disability concerned. An employer who has failed to carry out such an approach will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is probably serious enough to render the employee not fully capable of undertaking their duties under section 16(1).

4.7. It is clear from the facts that the complainant sought to return to the workplace requesting appropriate measures on 25 March 2009. I appreciate that this request occurred at a time when the respondent had lost all faith in the complainant's undertaking to be able to attend work and that the complainant is likely to have lost a great deal of good will when he omitted to inform the respondent in early 2008 that he was battling depression and other health matters. It is also clear to me that the complainant was not completely honest with his employers when he refused the offered independent medical examination and argued that his stomach problems would be sorted.

4.8. I am fully satisfied that the respondent was unaware up to 25 March 2009 that the complainant had a disability within the meaning of the Acts. However, I note from the respondent's own evidence that despite learning that the complainant had depression, the complainant was dismissed a couple of days later as it was decided by the respondent that it could not accommodate the complainant's perceived continued absence from the workplace. Such a dismissal is clearly contrary to these Acts. There is no evidence that the respondent sought to examine whether there were any appropriate measures that could have assisted the complainant.

4.9. In relation to the introduction of a sick leave policy. I find nothing in this policy that is inherently discriminatory. The policy merely restricts an employee to 4 paid uncertified sick leave days per annum. An employer has the right to implement policies appropriate to the needs of its business. It was argued that this policy resulted in a change in the complainant's terms and conditions but I find that such issues are not in themselves matters for this Tribunal. While it could be argued that such a policy may result in indirect discrimination in circumstances where it could be argued that a person who has a disability is more likely to be absent than a person without a disability is or would be, I accept that the policy has been put in place to ensure that sick days are not used for absences that are not linked with illness/sickness. A person who is genuinely ill can and must obtain a medical certificate to justify any on-going absences.

4.10. I find that the facts of this case do not support an inference of victimisation and/or victimisatory dismissal.

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:

5.2. I find that the complainant has not established a prima facie case of discrimination on the disability ground. Therefore, this complaint fails.

5.3. I find that the complainant has established a prima facie case of discriminatory dismissal on the disability ground. This has not been rebutted by the respondent.

5.4. In accordance with the Acts I award the complainant €5000, approximately 2 months gross salary. This relatively low amount reflects the fact that I am satisfied that the complainant exasperated the situation by failing to notify the respondent of his disability in a timely manner.

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Tara Coogan
Equality Officer
6 February 2012