EQUALITY OFFICER'S DECISION NO: DEC-E/2012/006
PARTIES
HOWELL
(REPRESENTED BY CATHAL MCGREAL BL
INSTRUCTED BY EUGENE SMARTT - SOLICITORS)
AND
CRONINS RACKING AND SHELVING CENTRE LTD
File No: EE/2009/312
Date of Issue: 13 January, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 & 16 - disability - discriminatory treatment - dismissal - reasonable accommodation.
1. DISPUTE
This dispute involves a claim by Mr. Martin Howell that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts and (ii) dismissed in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998- 2008 and contrary to section 8 of those Acts. The respondent rejects the complainant's assertions in their entirety.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a General Operative until November, 2008 when he contends his employment was terminated in circumstances amounting to discrimination on grounds of disability contrary to the Employment Equality Acts, 1998-2008. There is a dispute as to when he commenced employment. He further contends that on informing the respondent of the nature of his disability in September, 2008 the respondent advised him that it was no longer in a position to offer him full-time employment and was instead only able to do so on a day to day basis. It is submitted on the complainant's behalf that this constitutes less favourable treatment of him on grounds of disability contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 -2008 to the Equality Tribunal on 13 May, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 30 September, 2011- the date the complaint was delegated to me. A Hearing on the complaint took place on 1 December, 2011. A small number of points emerged at the Hearing which required clarification and gave rise to subsequent correspondence between the Equality Officer and the parties. This process concluded in late December, 2011. At the Hearing the complainant stated that he wished to forego his anonymity in respect of these proceedings - contrary to the established practice of the Tribunal in complaints involving a disability of this nature - and on that basis the parties are identified.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he worked for the respondent as a General Operative. He contends that he commenced employment with the respondent approximately five years before he was dismissed - 17 November, 2008. He adds that during 2008 he had "felt down and things were getting on top of him" for a while and this feeling was exacerbated when his car was stolen in mid-September of that year. He states that he contacted his employer the day after his car was stolen to ask for some time off work to "sort things out" but was unable to speak with him and left a message on his voice mail. He adds that when he received no response from the respondent he decided to attend his General Practitioner (GP) who diagnosed him with depression and certified him as unfit for work from 15 September, 2009 for one week. The complainant states that he sent this medical certificate to the respondent immediately and received a letter dated 16 September, 2009 from Mr. Cronin confirming receipt of the voice mail he (the complainant) had left on his mobile phone. The complainant adds this letter also advised that absenteeism due to illness must be supported by a doctor's certificate if over two days and that due to a decline in business the respondent could only offer him employment on a day to day basis in the future and the respondent would contact him in due course if necessary. The complainant states that during his period of employment with the respondent he had previously only been absent for two days due to illness. He adds that in the weeks immediately before his absence on sick leave commenced he had worked full weeks, although some of these duties were on properties owned by Mr. Cronin as distinct from the work he was originally recruited to do - assembly etc. of racking and shelving. It is submitted on the complainant's behalf that the behaviour of the respondent in this regard constitutes less favourable treatment of him on grounds of disability contrary to the Acts.
3.2 The complainant states that he continued to furnish the respondent with medical certificates from his GP on a weekly basis covering his sick absence. He states that the first contact he had with the respondent was when he received a hand delivered letter from Mr. Cronin dated 6 November 2008 which noted that the complainant had been absent from work on sick leave from 15 September 2008 and requesting he attend a meeting with Mr. Cronin on 10 November, 2008 to discuss his "position within the company". The complainant states that on receipt of this letter he contacted the respondent by phone to advise him that he (the complainant) did not feel well enough to attend such a meeting. The complainant adds that the respondent enquired as to when he might return to work and he (the complainant) advised that that he was unable to say. He adds that when the respondent continued to press him for a date the discussion became heated and he told the respondent that it "might be one year, two years or six years". The complainant states the respondent then mentioned that he (the complainant) might attend the respondent's physician for a medical examination. He states that he had no problem in doing so until Mr. Cronin stated that it would be at the complainant's expense. The complainant adds that he did not have the finances to attend for such an examination and the discussion grew more heated. The complainant accepts that the conversation concluded by him telling Mr. Cronin to "f*** off". The complainant states that he furnished the respondent with two further medical certificates - one covering the period 10-16 November, 2008 and the other covering 17-24 November, 2008. He adds that the next he heard from the respondent was the letter dated 17 November, 2008 terminating his employment with it and enclosing his P45 and outstanding holiday pay etc.
3.3 Counsel for the complainant states the respondent was on notice that the complainant was suffering from depression and when the complainant was unable to attend the meeting on 10 November, 2008 the respondent unilaterally decided to terminate his employment. It is submitted on behalf of the complainant that the manner in which the respondent terminated his employment constitutes discriminatory dismissal on grounds of disability contrary to the Acts. Counsel relies on the judgement of Humphries v Westwood Fitness Club in this regard where Dunne J held that before taking any decision to dismiss an employee an employer "should take advice from the plaintiff's own doctor or from an independent doctor". Counsel adds that in the instant case the respondent made no effort to enquire as to how it might allay any fears it may have had about the complainant's capacity to return to work. Counsel further states that it disregarded the medical opinion of the complainant's GP and a week after Mr. Cronin had spoken with the complainant on the telephone and was advised he (the complainant) was unfit for work due to depression, the respondent dismissed him. Counsel submits that its decision to terminate the complainant's employment amounts to discriminatory dismissal on grounds of disability contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It accepts however that depression is a disability for the purposes of section 2 of the Employment Equality Acts, 1998-2008 and that it was aware from 15 September, 2009 the complainant has been diagnosed as suffering from depression by his GP. The respondent disputes the complainant's assertion that he was employed by it for five years, stating that he commenced employment on 5 October, 2005 and was employed as a General Operative. The respondent (Mr. Cronin) accepts he wrote to the complainant on 16 September, 2008 advising, inter alia, that due to a decline in business he was only able to offer him employment in the future on a day to day basis. In the course of the Hearing Mr. Cronin stated that this was the first occasion he had to lay-off staff but he had no other option. He added that he had retained the complainant in employment for as long as he could - sometimes engaged on work in property he (Mr. Cronin) owned - but that work was not structured or continuous. He further stated that he chose the complainant for lay-off because he was absent on sick leave at the time and he (Mr. Cronin) was unsure when the complainant would be in a position to return to work.
4.2 The respondent (Mr. Cronin) states that after the letter of 16 September, 2008 he had no contact with the complainant until he wrote to him on 6 November, 2008. In the course of the Hearing Mr. Cronin confirmed he received medical certificates on a weekly basis from the complainant covering his absence and that these certificates stated he was unfit for work due to depression. The respondent states that he wrote this letter because he had received no indication from the complainant when he might be able to return to work. In the course of the Hearing Mr. Cronin stated that the work which the complainant performed required the employee to be mentally and physically fit and he (Mr. Cronin) was unsure whether or not the complainant was at that level. Mr. Cronin added that he needed to know "where he was going with staff" and that was why he requested the complainant to attend a meeting with him. The respondent concurs with the complainant's version of the telephone conversation around that time and that it was a heated exchange. He adds that he considered the complainant's attitude to be unreasonable as all the respondent was seeking to do was clarify the situation and he had expected the complainant to meet with him as requested. Mr. Cronin adds that when he heard nothing further from the complainant he decided to terminate his employment with effect from 17 November, 2008. In the course of the Hearing Mr. Cronin stated that he took no independent medical advice on the complainant's disability before making this decision and accepted that he was in receipt of a medical certificate covering the complainant's absence due to depression for the week in question.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts and (ii) dismissed in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998- 2008 and contrary to section 8 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 The parties are in dispute as to when the complainant commenced employment with the respondent and whilst nothing major turns on this point I consider it necessary to address it insofar as it has a bearing on the quantum of redress which might be appropriate. The complainant is unable to indicate even the month he commenced employment with the respondent and can only say that he believed he worked for it for approximately five years before he was dismissed. This would give rise to a commencement date in late 2003. In the course of the Hearing a former colleague of the complainant (Mr. B) gave evidence that he started working for the respondent in late 2007 and that as far as he knew the complainant had worked there for two and a half - three years at that time. The respondent states that the complainant commenced employment on 5 October, 2005. It furnished the Tribunal with a copy of a tax deduction card in respect of the complainant in support of this contention. It also furnished a copy of a contract of employment for Mr B which shows that he commenced employment on 10 January, 2008. Having considered all of the evidence adduced by the parties on this point I prefer, on balance, the evidence of the respondent. Indeed, Mr. B's evidence supports, to some extent, the proposition that the complainant only commenced employment with the respondent in October, 2005 and I am satisfied that this was the case.
5.3 Section 85A of the Employment Equality Acts 1998 - 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.4 The first element of the complainant's claim concerns as assertion that the respondent discriminated against him on grounds of disability when, in the course of its letter of 16 September, 2008 advising him, inter alia, that it could no longer provide him full-time employment and instead could instead only offer work on a day to day basis as and when it arose. The respondent states that it had no other option but to lay-off the complainant due to a decline in business. The respondent adduced no evidence whatsoever to the Tribunal in support of its assertion in this regard, indeed it appears that it took no action to allay these alleged financial/business difficulties until the complainant commenced sick leave due to his depression. I also note that the complainant had been working full-time hours in the weeks preceding his sick leave. Moreover, in the course of the Hearing Mr. Cronin stated that he selected the complainant for lay-off because he was on sick leave at the time - circumstances that had emerged that day. The respondent could not possibly have known how long the complainant was likely to be absent from work and on Mr. Cronin's own evidence his decision was premised on the fact the complainant was absent from work as a result of a disability in terms of the Acts. Taking the evidence as a whole I am satisfied that the complainant has established a prima facie case of less favourable treatment under the Acts and the respondent has failed to rebut that inference so raised. The fact that the decision did not ultimately impact on the complainant - because he did not resume his duties - does not alter this position, but is a factor which should be considered in deciding the appropriate redress.
5.5 It is common case that the respondent terminated the complainant's employment on 17 November, 2008. The complainant asserts that this amounts to dismissal of him in circumstances amounting to discrimination on grounds of disability contrary to the Employment Equality Acts, 1998-2008. The respondent states that it made efforts to ascertain when the complainant would be able to resume duty and he (the complainant) failed to engage with it and consequently it had no option but to dismiss him. The respondent's attempts to engage with the complainant commenced on 6 November, 2008 when Mr. Cronin wrote to him requesting his attendance at a meeting on 10 November, 2008. It is common case that shortly after receipt of this letter by the complainant there was an acrimonious telephone conversation between him and Mr. Cronin. There is general agreement between the parties as to the content of this conversation, in particular that (i) the complainant advised he was not in a position to attend any meeting at that time and (ii) the respondent suggested the complainant might attend at the respondent's Occupational Physician and that he (the complainant) would bear the costs associated with that attendance. The complainant states that he had no objection to attending the respondent's Occupational Physician but he was unable to afford to do so. It is also common case that this conversation ended abruptly and the next communication between the parties was the respondent's letter of 17 November, 2008 terminating the complainant's employment.
5.6 The Employment Equality Acts, 1998 - 2008 transpose, inter alia, EU Council Directive 2000/78/EC into Irish law. In A Company v A Worker the Labour Court held that section 16(3) of the Acts transposed Article 5 of the Directive into Irish law and that the obligations set out in that Article - the requirement on employers to take appropriate measures, where needed in a particular case to enable a person with a disability have access to, participate in or advance in employment - were incorporated in that statutory provision. It went on to say that "there is a clear duty on an employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment". In essence therefore, it requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability - an approach which is endorsed in Humphries v Westwood Fitness Club . It is accepted by the respondent that at the relevant time it was aware the complainant was medically certified as unfit for work due to depression. Mr. Cronin wrote to the complainant on 6 November, 2008 seeking a meeting with the complainant. The complainant subsequently telephoned him and a heated conversation ensued. The meeting never took place and the respondent dismissed the complainant seven days after the date the meeting was scheduled for.
5.7 Article 2 of EU Council Directive 2000/78/EC provides that there shall be no discrimination whatsoever on the ground of disability. It is well settled that in interpreting domestic legislation this Tribunal must do so in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive . In A Technology Company v A Worker the Labour Court set out what it - and consequently this Tribunal - should address in assessing that there was no discrimination whatsoever by a respondent. It stated that it "must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived because of their disability to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.". The Court added, in adopting the approach considered by the UK Court of Appeal in Wong v Igen Ltd & Others that "if the protected factor or characteristic is more than a " trivial influence" in the impugned decision, a claim of discrimination will have been made out.".
5.8 As stated in paragraph 5.6 above the respondent waited only one week after the date of the proposed meeting with the complainant before dismissing him. During this period Mr. Cronin made no efforts to ascertain the exact nature of the complainant's disability or its effects on him, nor did he make any further effort to engage with the complainant with a view to proposing another medical examination, this time at the respondent's expense. I further note Mr. Cronin's evidence at the Hearing that he needed to know "where he was with staff". Having carefully considered the evidence adduced by the parties I am satisfied that the respondent's decision to terminate the complainant's employment was entirely premised on the fact that the complainant was absent on sick leave - an absence which resulted from a disability in terms of the Acts. Consequently, the dismissal of the complainant amounts to unlawful discrimination of him contrary to the Employment Equality Acts, 1998-2008 and this aspect of his complaint must succeed.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the respondent discriminated against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of his conditions of employment, and
(iii) that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts.
6.2 The Tribunal notes the principles enunciated by the ECJ (as it then was) in Von Colson and Kamann v Land Nordrhein-Westfalen that sanctions for breaches of Community rights must be effective, proportionate and dissuasive. Having regard to these principles, the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €25,000 to be just and equitable. In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the discrimination This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
_______________________________________
Vivian Jackson
Equality Officer
13 January, 2012