DEC-E2012-134- Full Case Report

Employment Equality Acts

Decision DEC-E2012-134

PARTIES

An Employee
(Represented by Deirdre Canty, SIPTU)

- V -

A Nutritionals Production Company

File reference: EE/2010/057
Date of issue: 23 October 2012

Keywords - Employment Equality Acts - Discriminatory Dismissal - Disability - Prima Facie case

1. DISPUTE

1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory dismissal by the respondent on the grounds of his disability in terms of Section 6(2) 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 February 2010 under the Employment Equality Acts. On 7 September 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 13 September 2012. 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 CASE

2.1 The complainant submitted that he was employed by the respondent from August 2003 until he was dismissed on 1 October 2009. The complainant submitted that he suffered from a series of brain haemorrhages which resulted in brain surgery. The complainant further submitted that he began to suffer from depression and took consolation in alcohol, and that this problem grew to the extent that he was medically diagnosed as an alcoholic.

2.2 The complainant submitted that the respondent were not aware of the complainant's problem with alcohol as the complainant himself did not believe that he had a problem with alcohol and was in denial. The complainant submitted that the respondent was fully aware of his depression.

2.3 The complainant submitted that he was subjected to disciplinary warnings due to his unsatisfactory attendance record to the level of a final written warning, stage 4 of the company disciplinary procedures, issued on 25 May 2009, to remain on his record for 12 months.

2.4 The complainant submitted that in June 2009, he accepted that he was an alcoholic and took steps to rectify this, he arranged through his doctor to attend a full-time comprehensive treatment programme for a period of three months. The complainant submitted that he made the respondent aware prior to his admittance to the programme by sending in a copy of his medical certificate and through telephone contact between a member of his family and the HR Manager.

2.5 The complainant submitted that following successful completion of his treatment course, he sought to return to work. The complainant met with the company on 1 October 2009 and outlined the steps he had taken to deal with the matter. The complainant submitted that he was informed that the respondent would take time to deliberate over his comments and would revert to him.

2.6 The complainant submitted that on 6 October he was issued with a notice of dismissal for 'failing to meet the required standards of the company with regard to attendance at work for the period 19 May 2009 to 22 June 2009'.

2.7 The complainant submitted that as soon as the company discovered that he had been suffering from alcoholism they made the decision to dismiss him and that this amounts to discrimination on the grounds of disability. Furthermore, the complainant submitted that the respondent's failure to send him for a medical examination amounted to a failure to reasonably accommodate him.

2.8 The complainant submitted that it should be noted that the respondent has in the past assisted at least two other employees with their alcohol problems and gave those employees an opportunity to prove that they were successful with their treatment.

2.9 The complainant is seeking to be reinstated, engaged and/or compensated and afforded the same opportunities as other employees.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent submitted that the complainant was dismissed from employment on 2 October 2009 upon the culmination of progressive disciplinary action which commenced in January 2009 and that decision was based on the complainant's ongoing unacceptable attendance record during the period in question.

3.2 The respondent submitted that in January 2009 the complainant had an attendance counselling session based on his unacceptable attendance record during 2008. During this session he was informed that his attendance record was unacceptable, that if his record was not maintained at a satisfactory level in 2009 then disciplinary action up to and including dismissal could result. He was also informed that the company would provide whatever assistance was necessary to support him in improving and maintaining his attendance record.

3.3 The respondent submitted that the complainant was absent from work from 2 February until 9 February, and on 13 February he left work without permission and failed to make contact with it until 23 February. At this point, the complainant contacted the respondent to cancel an attendance review meeting scheduled for 2 March. The complainant continued to be absent from work and failed to attend the rescheduled attendance review meeting on 11 March.

3.4 The respondent submitted that the complainant was instructed to attend work on 23 March and although he confirmed his intention to return to work, failed to do so. The respondent submitted that upon receipt of further correspondence for it, the complainant returned to work on 26 March. Upon his return, the complainant was informed that disciplinary action had been invoked as a result of his continuing absence. Additionally, upon his return to work the complainant was unfit to work in the opinion of the management and was subsequently certified as unfit until 5 May 2009.

3.5 The respondent submitted that on 13 May an attendance review meeting was held with the complainant and his union representative, where his attendance was discussed, with particular reference to his protracted period of absence without leave (20 days). No satisfactory explanation or extenuating circumstances were put forward and thereafter the complainant was issued with a final (stage 4) written warning. This warning informed the complainant that the decision to not to proceed to a dismissal was based on the company's intent to provide the complainant with one final opportunity to address his attendance issues and on the representations of his union. The complainant was informed of the conditions required regarding his attendance at work and the implications, potential dismissal, of any deviation form these attendance requirements. Once again an offer of support was made to assist the complainant in addressing any matters impacting upon his attendance. The respondent submitted that the complainant declined the offer and that the sanction and conditions were accepted in full by the complainant and his union representatives.

3.6 The respondent submitted that from January 2008 until June 2009, it had required the complainant attend a total of 7 reviews with its Doctor, an occupational health specialist, in relation to his capacity to perform his duties and attend work. The issue of alcoholism did not arise as a result of any of these medical reviews.

3.7 The respondent submitted that on 22 June 2009 a disciplinary investigation meeting was held with the complainant and his union representative as the complainant had by that date failed to comply with each of the conditions set out in his final written warning. The complainant was informed that the company would consider the situation and revert in a couple of days. The respondent submitted that upon consideration of the complainant's ongoing unsatisfactory attendance record over a protracted time, the decision was made to dismiss the complainant.

3.8 The respondent submitted that a meeting was scheduled for 29 June 2009 to convey the company's decision to the complainant, however he did not attend for work on that day. The respondent submitted that it subsequently became aware that the complainant was going into treatment for alcoholism. Following this and based on medical advice and an appeal from the complainant's family a decision was made to defer the final meeting and not to issue the termination of his employment by post.

3.9 The respondent submitted that on 2 October 2009 the notice of dismissal was formally issued to the complainant following a final meeting with him on the previous day. This decision was appealed through the grievance procedure but ultimately the decision to dismiss the complainant was upheld.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory dismissal on grounds of his disability, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those 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 At the start of the hearing the complainant confirmed that he was grounding his complaint on the basis of his alcoholism and that this was a disability that comes within the definitions of Section 2 of the Acts. The respondent did not contest that alcoholism may fall within the definition of disability as laid out in the Acts.

4.4 Section 2 of the Acts defines disability as

(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 from a person without the condition or malfunction, or

(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, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

I am satisfied that a diagnosis of alcoholism may fall within the above definition of disability and that the complainant had such a diagnosis.

4.5 Having regard to the written and oral evidence presented to me by both parties, the following facts have been established to my satisfaction:
- The complainant had a poor record of absenteeism in 2008. This record of absenteeism continued on into 2009
- Arising from that record, the respondent dealt with the complainant through its disciplinary procedure resulting in a number of meetings with the complainant and his union representatives
- The result of the disciplinary procedure was that in May 2009, the complainant was given a final chance, subject to conditions (and with the agreement of his union), to change his ways or else he would face dismissal
- Although the respondent directed the complainant to attend a total of 7 reviews with its Doctor, an occupational health specialist, at no time did the complainant bring his disability to the attention of the respondent or its nominated Doctor
- Although the respondent offered the complainant support in addressing matters impacting upon his attendance on a number of occasions, the complainant declined such support
- On 22 June 2009, a disciplinary meeting was held between the parties following the complainant's failure to comply with the conditions laid down in the May communication, the respondent indicated to the complainant that it would consider the mater and revert
- The respondent arranged a meeting for 29 June 2009 to communicate its decision to dismiss the complainant to him, however the complainant did not turn up
- The complainant informed the respondent of the diagnosis and existence of his disability on 2 July 2009, when informing them that he would be attending a residential treatment centre for alcoholism
- As the decision to dismiss the complainant in June 2009 pre-dates the respondent being informed of the existence of the disability, the disability can have no bearing on that decision
- At the same time as being informed of the existence of the complainant's disability, the complainant's family appealed to the respondent not to dismiss him. Based on this appeal and on medical advice, the decision was made to defer the final meeting with the complainant and not to issue notice of termination to him
- Following the completion of a 12 week course of treatment, the complainant sought to return to the respondent's employment at the end of September 2009. As the disciplinary matters were still outstanding, the complainant was invited to attend a meeting, accompanied by his union representatives, with the respondent on 1 October 2009
- At the meeting of 1 October 2009, the complainant was asked to tell the respondent why he should not be dismissed. In response the complainant explained in depth the problems he had encountered due to his alcoholism and assured the company that he had taken relevant steps to deal with these difficulties
- On 2 October 2009 the respondent, having considered his response of the previous day, proceeded to invoke the decision originally made in June 2009 and dismissed the complainant for his absenteeism over a prolonged period of time

4.6 The complainant stated that he should have been given a chance to prove himself and referred to two other work colleagues who were kept on after admitting that they were alcoholics. The respondent confirmed that two other former and present work colleagues were retained following their diagnosis as alcoholics.

4.7 The evidence given by both parties recounts the attempts to deal with the complainant's absenteeism over a prolonged period amounting to about 20 months. During that period, the respondent requested that the complainant attend its Occupational Health Specialist on seven occasions, and it offered the complainant assistance to rectify his absenteeism in numerous ways. During that prolonged period the complainant never once raised the issue of alcoholism. The complainant was given a number of 'last chances' to improve his attendance record. The respondent indicated that the decision to dismiss the complainant was not taken because of his alcoholism and the fact pointed out by the complainant that the respondent had retained other employees who were diagnosed as alcoholics undermines the suggestion that his dismissal was related to his alcoholism

4.8 Having considered the evidence from both parties, it is difficult to see how the respondent could have acted differently in the period leading up to its decision in June 2009 to dismiss the complainant. It is clear that the respondent made repeated attempts to resolve the situation, and that the complainant did not engage in any meaningful way with the attempts to keep him in employment. The accounts related by both parties detail a progressively failing employment relationship. This was exacerbated by the repeated rebuffing of the respondents attempts to deal with the complainant in a fair manner and to resolve the issue of absenteeism and ultimately resulted in a complete loss of trust on the part of the respondent.

4.9 I am satisfied that the decision of June 2009 was made without any knowledge of a disability on the part of the respondent. It is not possible to conclude that the meeting of 29 June 2009 was called for any reason other than to convey the company's decision to dismiss the complainant on the grounds of his ongoing and repeated absenteeism.

4.10 The complainant suggested that there has been a failure to provide reasonable measures to him in accordance with Section 16 of the Acts by not sending him to see a Doctor when he had informed the respondent of the existence of his disability. In that regard, the following extracts from Section 16 of the Acts are of particular relevance -

(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,
...
(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ''appropriate measures'') being provided by the person's employer.
...
(4) In subsection (3) --

''appropriate measures'' in relation to a person with a disability --

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

4.11 The respondent, upon being informed that the complainant had a disability and following a request to do refrain from doing so, did not dismiss the complainant in July 2009 or thereafter until such time as the complainant had an opportunity to contribute to the process. In his contribution, the complainant sought to explain his past employment history on the basis of having a disability - alcoholism, and looked for a chance to prove himself.

4.12 It was not apparent to the respondent that the employee was not fully capable of performing his duties when he was at work. Indeed, following the complainant's treatment for alcoholism, he informed the respondent that he was fully competent to perform his duties. His capability was never questioned as the matter was never raised. In addition, this is not a case where the provision of appropriate measures, as outlined in Section 16(4) of the Acts would have made the complainant fully competent to perform his duties. In essence the complainant was looking for tolerance in relation to his disability but made no claim in relation to reasonable accommodation or in relation to what measures would be appropriate to enable him to perform his duties.

4.13 Having considered all the evidence, it is apparent that the mutual trust aspect of a functioning employment relationship was absent in this case. Having considered all of the evidence relation to this matter, I find that, on balance, the complainant was not dismissed wholly or partly because of his disability and the nexus to the disability is absent in this case. Accordingly, this complaint fails.

5. DECISION

5.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a nexus to one of the grounds detailed in the Acts and this complaint fails.

Conor Stokes
Equality Officer
23 October 2012