DECISION NO: DEC-E/2013/032
PARTIES
Ms. Gillian Donaldson
(Represented by O'Brien Ronayne Solicitors)
Vs
Marks and Spencer (Ireland) Limited
(Represented by IBEC)
FILE NO: EE/2010/783
DATE OF ISSUE: 26 April, 2013
1. Dispute
This dispute involves a claim by Ms. Gillian Donaldson that she was discriminated against by Marks and Spencer (Ireland) Limited on the grounds of her disability in terms of section 6 (2)(g) of the Employment and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to her dismissal and in relation to the failure to provide her with reasonable accommodation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 22nd of October, 2010.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 21st of December, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 28th of February, 2013.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, from 3rd of April, 2006 to 9th of June 2010.
3.2 The complainant submits that she was employed by the respondent as a Sales Advisor in the food department.
3.3 In 2005 the complainant was diagnosed with a condition called Benign Intracranial Hypertension (BIH) a condition which causes an excess of fluid on the brain. In March 2005 the claimant underwent an operation to put a shunt into her brain which would drain the excess fluid. This condition when untreated can cause blindness.
3.4 It is submitted that from about 6 months after she commenced her employment members of staff were aware of the complainant's condition. It is submitted that the complainant discussed her condition with her Store Manager, Ms. S as well as with other named members of staff.
3.5 On 6th of May 2009 the complainant became very ill and was brought to hospital with stroke like symptoms. It transpired that the shunt in her brain had twisted into her spine. This required another procedure whereby the shunt was replaced. The complainant remained in considerable pain post operation.
3.6 It is submitted that the complainant remained off work from this time and was dismissed on 9th of June 2010. The complainant submitted medical certificates initially every two weeks and thereafter on a monthly basis citing post operative difficulties. The complainant was also in contact by phone with members of HR on a regular basis during this time.
3.7 The complainant was paid for the month of May 2009 and thereafter apart from a bonus payment and Bank Holiday pay, she received no payment from the respondent while on sick leave.
3.8 In March 2010 the complainant suffered gynaecological problems (unrelated to her BIH) which required her to undergo another operation on 1st of June, 2010.
3.9 It is submitted that in March and April 2010 the HR Manager, Mr. K contacted the complainant and requested her to come in to discuss her situation. A meeting was arranged for 17th of May 2010. By letter of 7th May 2010, Mr. K informed the complainant that the purpose of the meeting was to discuss her "welfare, absence and a potential return to work date". This letter also indicated that if the complainant did not attend the meeting he would be left with no option but to assume that she no longer wished to work for the respondent.
3.10 From her phone conversation with Mr. K, the complainant assumed the meeting of 17th of May was to be an informal meeting to discuss her condition.
3.11 It is submitted that at the meeting Mr. K asked how the complainant was and that she advised him of her condition and of the fact that she had an operation for a gynaecological procedure scheduled for 1st of June, 2010. Mr. K asked if she thought she could come back to work after the operation and stated that the did not want to have to tell the complainant that he was left with no option but to dismiss her on grounds of ill health. The complainant indicated that she didn't know if she could do heavy work with her back and the issue of lighter duties, such as working on tills, was discussed. Mr. K asked the complainant to contact him on 8th of June with a return to work date.
3.12 Mr. K in follow up to the meeting, wrote to the complainant on 17th of May 2010 requesting that she provide a return to work date by 8th of June. This letter also stated that the return to work date should be no later than 14th of June, 2010. The letter stated that failure to contact him by 8th of June would result in termination of her employment.
3.13 The complainant replied to Mr. K by letter dated 4th of June, 2010 (sent by registered post) indicating that she would not be able to return to work by 14th of June, 2010 but that her doctor had advised that she would be fit to return in a short period. The letter went on to state that her doctor recommended that she should look to return to a different work area and stated that she wished to take up the company's offer to allow her to have a four week period on tills. The letter also asked Mr. K to contact the complainant to organise a meeting to arrange for her return to work as soon as possible.
3.14 By letter dated 9th of June 2010, the complainant was dismissed on grounds of ill health. This letter referred to the complainant's letter of 4th of June which Mr. K indicated was received by him on 9th of June. He stated that the complainant's doctor had not clarified when she would be able to return to work. He stated that he had confirmed at the 17th of May meeting that he would try to facilitate the complainant's request to work on tills but that this was based on her returning to work by 14th of June, 2010.
3.15 By letter dated 1st of November Ms. H, the then HR Manager replied to correspondence about the complainant's dismissal. Ms H stated that a request for lighter duties for a period of four weeks would have been considered, if such a request had been received from the complainant's doctor. This letter went on to state that the complainant's failure to provide a return to work date by 8th of June was the deciding factor in the decision to dismiss.
4. Summary of respondent's case
4.1 The respondent, agrees that the complainant was employed with them from 3rd of April, 2006 as a Sales Advisor and that she was dismissed on 9th of June 2010 on grounds of ill health.
4.2 It is submitted that the respondent was not advised that the complainant had a disability and that she informed the respondent that she did not suffer from any serious illness or disability.
4.3 On 6th of May 2009 the complainant went out sick. Her medical cert indicated that it was for medical investigations. Medical certificates continued to be sent indicating reasons such as 'investigation and treatment of headaches', 'illness requiring surgery' and 'post operative'.
4.3 It is submitted that the respondent wrote to the complainant on 5th of March, 2010 requesting a meeting with her. After some further communication between the complainant and respondent a meeting was scheduled for 17th of May 2010. The respondent wrote out to confirm the arrangement and stated that if the complainant did not attend they would assume that she no longer wished to work for them.
4.4 At the meeting of 17th of May the complainant informed the respondent that she was undergoing an operation on 1st of June, and that this related to a gynaecological issue.
4.5 It is submitted that the respondent, at the meeting, indicated that they could not hold her position open indefinitely and requested that the complainant provide them with a return to work date by 8th of June and that this date should not be any later than 14th of June, 2010.
4.6 It is submitted that it was also agreed that the company would consider a request for lighter duties for a period of four weeks but that this request would have to come from her doctor.
4.7 The complainant wrote to the respondent on 4th of June 2010 indicating that she would not be in a position to return to work on the 14th of June as per her doctor. The letter stated that her doctor had advised that she should be fit to return to work within a short period.
4.8 The respondent replied on the 9th of June, 2010 and stated that as she could not commit to a return to work date as requested they were terminating her employment on grounds of ill health.
4.9 Ms. H for the respondent wrote to the complainant on 1st November, 2010 outlining the respondent's position
5.1 Preliminary Issue-Disability Ground
5.1.1 It is submitted that the respondent does not accept that the complainant has a disability as no confirmation of such has ever been provided. It is also submitted by the respondent that the complainant did not ever make the respondent aware of this disability either in the course of her employment or in her application for employment.
5.1.2 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability" is defined in Section 2 of the Acts as meaning -
"(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".
5.1.3 It is submitted that the complainant suffers from a condition called Benign Intracranial Hypertension (BIH) a condition which causes an excess of fluid on the brain. This condition when untreated can cause blindness. The complainant at the hearing gave evidence that it was through going blind initially that she discovered that she had this condition. In March 2005 the claimant underwent an operation to put a shunt into her brain which would drain the excess fluid.
5.1.4 The complainant prior to the hearing submitted a medical report from Dr. R, Consultant Neurosurgeon which verified her condition and detailed the treatment which the complainant had undergone since her diagnosis including the operation in 2005 to have a shunt inserted into her brain to drain excess fliud and another in 2009 to have the shunt revised. This report was sent to the respondent in advance of the hearing.
5.1.5 On the day of the hearing Dr. R appeared as witness for the complainant. The respondent objected to Dr. R giving evidence on the complainant's condition. As it is a matter for the complainant to prove the existence of a disability for the purposes of the Act I have found no reason why Dr. R's evidence should not be allowed.
5.1.6 At the hearing Dr. R gave evidence relating to the complainant's condition and stated that the complainant had to have a shunt fitted in 2005 after efforts to control her condition through medication and lumbar punctures had been unsuccessful. Dr. R stated that the operation had been successful initially and had controlled the complainant's condition until May 2009 when she started to experience problems such as blurred vision and headaches. Dr. R indicated that the complainant underwent a shunt revision operation in May 2009 after which she had significant pain and discomfort in her back along the site of the shunt revision, this pain was exacerbated when bending over.
5.1.7 Dr. R when questioned as to how the complainant's condition could be considered a disability referred to Section 2 of the Act and stated that in his opinion it would fall under the definition in Section 2 (c) of the Act i.e.
(c) the malfunction, malformation or disfigurement of a part of a person's body,
5.1.8 Dr. R stated that the complainant was fit to return to work but would be restricted to tasks which would not involve a lot of bending, twisting kneeling or standing. He added that for these reasons the complainant would not be able for stacking shelves but would be fit for cashier duties to the extent that this would not involve a lot of bending twisting etc.
5.1.9 I am satisfied based on the totality of the evidence presented that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.
5.1.9 I must now consider whether the respondent was aware of the complainant's disability.
5.2 Notification of Disability
5.2.1 The complainant at the hearing stated that she had advised the respondent of her condition about 6 months after she commenced employment. She stated that she had told her Line Manager, Ms. S, in or around August 2006 and that she had even shown her the scars from her operation. The complainant stated that she had never kept her condition a secret and stated that most of her colleagues knew what she had been through. The complainant stated that she had been asked in her preliminary interview whether she suffered from diabetes epilepsy or a heart condition to which she answered 'No'. She stated that she was not asked whether she had any other condition or disability. The complainant added that in any case her condition had not in any way affected her ability to do her job until she went out sick in 2009 and had to undergo an operation to revise the shunt. She also stated that she had not needed any special measures to enable her to do her job up to this point.
5.2.2 The complainant, at the hearing, went on to state that she had, during her sick leave, phoned the respondent's HR Department to keep them informed about her condition and treatment. She also stated that she had on one occasion called into the HR Department and spoken to Ms. J. The complainant stated that this took place about ten days after her shunt revision operation in May 2009 as she had just had her stitches removed, the complainant described how she had dropped in a medical cert to HR and was accompanied by one of her children whom she said had been allowed to cut one of the stitches. She stated that she had chatted to Ms. J in HR about her operation and had told her that she had just had her stitches removed.
5.2.3 Witness for the respondent, Mr. K advised the hearing that he was not aware that the complaint had a disability until he saw it mentioned in the complainant's submission.
5.2.4 The complainant, at the hearing, stated that she had discussed her condition with Mr. K at the meeting of 17th of May, 2010 and previously in April 2009. Mr. K when questioned, stated that the complainant had told him about her condition and about the shunt operation at the meeting of 17th of May 2010 but that he couldn't recall whether she had informed him at the April 2009 meeting. Mr. K conceded that he was aware of her condition but that he did not know that it was a disability as he had no medical knowledge.
5.2.5 I am thus satisfied, from the totality of the evidence adduced on this matter, that the respondent was aware of the complainant's condition at least from the 17th of May 2010.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to the termination of her employment. In addition, I must consider whether the respondent failed to provide the complainant with reasonable accommodation. 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 at the Hearing.
6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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".
6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
6.4 Discriminatory Dismissal
6.4.1 The complainant has submitted that following her operation to have a shunt inserted in her brain in March 2005 she had not experienced any problems in relation to her condition from the commencement of her employment in April 2006 until May 2009.
6.4.2 The complainant advised the hearing that in May 2009 she became very ill and was brought to hospital with stroke like symptoms. She submits that she was suffering from headaches and blurred vision and that she had difficulty walking due to the pain. The complainant advised the hearing that it transpired that the cause of these symptoms was that the shunt in her brain had twisted into her spine. The complainant had to undergo another operation at this time whereby the shunt was replaced. She advised the hearing that she remained in considerable pain post operation.
6.4.3 The complainant advised the hearing that she phoned the respondent's HR Department to keep them informed about her condition and treatment. The complainant also stated that she had called into the HR Department with a medical cert about ten days after her operation and had spoken to Ms. J, this is detailed above at pgh 5.2.2. The complainant advised the hearing that she had submitted medical certificates throughout her sick leave initially every two weeks and thereafter on a monthly basis (copies provided). The complainant stated that she was also in contact by phone with members of HR on a regular basis during her sick leave.
6.4.4 The complainant advised the hearing that she had received letters from the respondent's HR Manager, Mr. K, in March and April 2010 asking her to attend a meeting with him to discuss her welfare, absence and potential return to work. She stated that she phoned the respondent after receiving the letters and that attempts were made by both parties to agree a date for the meeting but on one occasion the complainant was unavailable due to a hospital appointment and on another occasion Mr. K was on holidays when she phoned. The complainant stated that the meeting was finally scheduled for 17th of May 2010.
6.4.5 The complainant advised the hearing that when she arrived at the meeting Mr. K asked her if she wanted someone to accompany her, the complainant stated that she declined at first as she didn't see any reason why she would need to be accompanied. She then stated that Mr. K had advised her that it would be in her best interests to have someone accompany her at the meeting. The complainant then asked Ms. A from Mandate to accompany her. Mr. K advised the hearing that it is in everyone's best interests to be accompanied at such a meeting. The complainant advised the hearing that she was not advised prior to the hearing that she should be accompanied. Mr. K acknowledged that this was the case.
6.4.6 The complainant advised the hearing that the meeting began with a brief discussion about how she was feeling and about her condition she stated that she had told Mr. K about her shunt replacement operation and advised him that she was to undergo a another operation on 1st of June 2010. She indicated that this operation was a 1 day gynaecological procedure and was unrelated to her BIH. The complainant clarified that her absence from work was due to her BIH and the treatment and complications she had suffered as a result of this disability. Mr. K at the hearing agreed with this account of the meeting but added that although the complainant had told him about her condition and he was aware that she had a shunt operation, he didn't know that this was a disability as he had no medical background.
6.4.7 The complainant advised the hearing that she had no idea that dismissal was to be discussed at the meeting of 17th of May and stated that she was shocked and distressed when Mr. K began speaking, almost immediately, about her potential dismissal. The complainant added that she was so distressed that they had to take a short break during the meeting (the minutes of the meeting reflect this). Mr. K at the hearing stated that the dismissal was not discussed straight away but that it was discussed after the complainant couldn't give an indication of when she would be returning to work. The complainant advised the hearing that Mr. K had told her that he was left with no option but to dismiss her on grounds of ill health. He then added that they could cut their losses now (by dismissing her immediately) or wait until 8th of June giving her an extra 2/3 weeks. The minutes of the meeting reflect the complainant's account of the discussion.
6.4.8 Mr. K when questioned, at the hearing, as to what he meant by "cut our losses now or wait until the 8th of June" indicated that he was referring to dismissing the complainant there and then or waiting until the 8th of June to dismiss her. He added that if she was dismissed there and then, he would have to follow up by sending her a letter of dismissal.
6.4.9 Following the break in the meeting Mr. K again reiterated that they were left with 2 options i.e. "finish up today or leave it until 8th of June".
6.4.10 The complainant advised the hearing that the meeting continued and that Mr. K told her that he would need her to provide a return to work date by 8th of June 2010. The complainant advised the hearing that she told Mr. K that she would be able to return to work but that she didn't think she would be fit to do heavy work but that she could return to lighter duties such as working on the tills. The complainant advised the hearing that Mr. K stated that he was "not obliged to give light duties to any member of staff". Mr. K reiterated this point at the hearing. However, at the meeting, Mr. K had also added that if the complainant's doctor said light duties were required this would be considered, but this would only be for a period of 4 weeks and then she would have to return to full contractual duties.
6.4.11 The complainant advised the hearing that at the 17th of May meeting she had asked Mr. K if she could be moved to another area such as General Merchandising but that Mr. K stated that this area could also be demanding and that he wouldn't want to impact on the complainant's recovery. The complainant then added that Mr. K asked her to contact him by 8th of June and let him know and that if she was dismissed on grounds of ill health she could in the future re apply for a position and her application would be looked upon favourably.
6.4.12 The complainant advised the hearing that following the meeting of 17th of May 2010, Mr. K wrote to her reiterating that he required the complainant to provide him with a return to work date by 8th of June 2010 but added that this return to work date was to be no later than 14th of June, 2010. The letter added that if the complainant did not contact the respondent by 8th of June or if she confirmed that she could not return to work her employment would be terminated on grounds of ill health (letter submitted in evidence). Mr. K, at the hearing, acknowledged that he had issued the letter as outlined. Mr. K when questioned as to why the letter stated that the return to work date had to be no later than 14th June 2010 stated that this was mentioned at the meeting of 17th of May but that it was not recorded/reflected in the minutes.
6.4.13 The complainant advised the hearing that she wrote to Mr. K on 4th of June 2010 by registered post advising him that she would not be able to return to work by 14th of June but that her doctor had advised her that she should be fit to return to work within a short period and had recommended that she should look into a different area to facilitate her rehabilitation into the workplace. The complainant went on to state that she would like to take up the respondent's offer to allow her to have a four week period on tills and requested that Mr. K contact her to arrange her return to work as soon as possible. Mr. K had submitted that he did not receive this letter until 9th of June, 2010, but, at the hearing stated that he personally didn't see the letter until the 9th of June but that it may have been received by the respondent before that date.
6.4.14 Mr. K then added that he had asked the complainant to contact him by phone by 8th of June and that she had failed to follow this agreement. The complainant advised the hearing that she had sent the letter by registered post on 4th of June in order to ensure it got to Mr. K before the 8th of June and also that she had thought it better to put it in writing rather than relying on a phone call.
6.4.15 Mr. K wrote to the complainant on 9th of June, 2010 and indicated that as the complainant was unable to return to work by 14th of June her employment was being terminated on grounds of ill health. This letter referred to the complainant's correspondence of 4th of June and stated that the request to work on tills for a period of time could only have been facilitated if the complainant returned to work by 14th of June, 2010.
6.4.16 It is evident from the submissions made and from the evidence adduced that the respondent was aware of the complainant's disability at least from the 17th of May, 2010, after which a decision was made to dismiss the complainant. It is the respondent's position that the complainant's employment was terminated on grounds of ill health and due to the fact that she could not supply a return to work date on 4th of June except to state that it would be in a short period. However, it has been established that the complainant in this case suffers from a disability and that the complainant was absent from work due to this disability. In addition, I am satisfied that the respondent in this case was aware of the complainant's disability.
6.4.18 Furthermore, although it is the respondent's contention that the complainant was dismissed due to her absence and due to her inability to provide a return to work date of 14th of June, it is clear that the complainant's absence and her inability to return to work by a given date were due to her disability it thus follows that the complainants disability contributed to or was the reason for her dismissal. I am thus satisfied that the decision to dismiss the complainant was influenced by her disability in that it was influenced by her absence and by her inability to return to work by a given date. Accordingly based on the totality of the evidence adduced on this issue I am satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of disability in relation to her dismissal.
6.5 Reasonable accommodation
6.5.1 Section 16(3) of the Acts, sets out the obligations and requirements 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. 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 (my emphasis) - this approach was endorsed in Humphries v Westwood Fitness Club1.
6.5.2 The complainant in the present case was dismissed due to her absence and due to her failure to return to work by a given date. I am satisfied from the evidence adduced above that the complainant was a person with a disability for the purposes of the Act and that the respondent was aware of that disability at least from the 17th of May, 2010. It is a fact that the complainant was notified of the decision to dismiss her on 9th of June, 2010 after she had notified the respondent of her disability. I have found that the decision to dismiss was influenced by her disability due to the fact that the complainant had been absent from work for a prolonged period and was unable to return to work by a given date due to her disability.
6.5.3 It is the respondent's evidence that the decision to dismiss the complainant was made due to her prolonged absence from work and the fact that she could not return to work by a given date. I am satisfied from the evidence adduced that the respondent was aware, at least from the 17th of May 2010, that at least part of the reason for this absence and inability to return to work by a given date was being attributed by the complainant to her disability. The respondent once armed with the knowledge that a contributory factor to the complainant's absence from and inability to return to work by a given date related to the complainant's disability was at this point obliged as per Section 16(3) of the Acts to make a proper and adequate assessment of the situation before taking the decision to dismiss the complainant.
6.5.4 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.
6.5.5 In the case of A Health and Fitness Club -v- A Worker2 the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:
"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.
6.5.6 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court where Dunne J. found that an employer that has failed to go through the aforementioned process orientated approach will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is serious enough to render the employee not fully capable of undertaking their duties under section 16(1) of the Acts.
6.5.7 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker3 referenced above, it is clear that there was an obligation upon the respondent, in the first instance, to ascertain the level and extent of the complainant's disability. The respondent in this case when faced with a situation where an employee was absent from work and unable to return to work by a given date due to her disability, did not make enquiries to ascertain the extent of the employee's condition and failed to look at any measures which might facilitate the complainant in returning to work.
6.5.8 I am of the view that the respondent, when it became aware that the complainant was unable to return to work by the given date which the complainant attributed to her disability, was then obliged upon to make further inquiries into what if any special measures could be taken to assist the complainant in returning to work.
The complainant in this case, had requested a return to lighter duties at the meeting of 17th of May in response to which the Mr. K had told her he was "not obliged to give light duties to any member of staff". The complainant again requested lighter duties in her letter of 4th of June, 2010, which she states was recommended by her doctor. The respondents reply to this was that the offer of lighter duties was dependant on her returning to work by 14th of June, 2010. The respondent at the hearing also made reference to the fact that the request for lighter duties did not come from the complainant's doctor. It was of course open to the respondent, to request documentary evidence from the complainant's doctor or to refer the complainant for a medical examination in order to assess the extent of her disability and to ascertain what of any accommodation she would require in order to return to work. The respondent was obliged to look at suitable measures and accommodation and, if it concluded that there were no suitable measures or accommodation, which would enable the complainant to return to work, should have advised the complainant that she was now being considered for termination. Consequently, the complainant was not afforded any opportunity to participate in or influence the decision making process that resulted in her dismissal. In doing so, the respondent, when faced with an employee with a disability failed to carry out the process orientated approach, as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case, but instead made a decision to dismiss the complainant without any enquiries or consultation.
6.5.9 Having regard to the foregoing, I am satisfied that the respondent, did not make appropriate enquiries to ascertain the extent of the employees condition and also failed to consult with or advise the complainant before coming to the conclusion that the complainant was incapable, on the grounds of her disability, of performing the duties for which she had been employed and therefore it cannot rely upon the defence available in section 16(1)(b) of the Acts. In the circumstances, I find that the complainant's disability was a factor which contributed to the respondent's decision to dismiss her and that the respondent failed to provide her with reasonable accommodation within the meaning of section 16 of those Acts.
7. DECISION OF THE EQUALITY OFFICER
7.1 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 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 and that it failed to provide her with reasonable accommodation within the meaning of section 16 of those Acts.
7.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld. The section provides that I can order re-instatement or re-engagement, with or without compensation. In considering the redress in this case, I am mindful of the fact that the complainant throughout the hearing stated that all she wanted was 'her job back'. I am also mindful of the fact that the complainant has been subjected to discrimination on grounds of her disability and that the respondent has failed to provide her with reasonable accommodation. In addition, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the fact that the respondent, in this case, when faced with a situation where an employee was unable to return to her job on a given date and who attributed this to her disability, failed to make appropriate enquiries to ascertain the extent of the employees condition and made the unilateral decision to dismiss without involving the complainant who was the subject of such a decision. I am also mindful that the complainant in this case did request special measures in the form of lighter duties in order to enable her to return to work and the respondent instead of following the process orientated approach, instead made a decision to dismiss the complainant without any enquiries to assess the extent of her disability or whether appropriate measures or accommodation would have enabled her to return to work.
7.3 Having taken the foregoing matters into consideration and having regard to 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 €14,000 to be just and equitable.
7.4 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that
(i) the complainant be re-engaged in the position which she held with the respondent before her dismissal. This re-engagement is to the position she held before the dismissal on the same terms and conditions but also with the following terms and conditions
- Her re-engagement to take effect from the 9th of June, 2010 i.e. the date of dismissal, with all consequential employment rights and entitlements whether arising from contract or statute, save the right to remuneration.
- Her remuneration shall be payable from 21st of July 2010 (6 weeks after the date of dismissal) given that the complainant had indicated that she would not be fit for work by 14th June, 2010 but that she would be fit to return to work within a short period. As this component of the redress is by way of remuneration this is subject to tax and PRSI.
- For all purposes other than the payment of remuneration the service shall be deemed to be continuous with her earlier service under her contract of employment
- This re-engagement should take account of the complainant's disability and the respondent should take appropriate measures to accommodate the complainant within the meaning of Section 16 of the Act, on her resumption.
(ii) the respondent pay the complainant €14,000 in compensation for her discriminatory dismissal and the failure to provide her with reasonable accommodation. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and is therefore not subject to tax.
7.5 In addition I recommend that the respondent ensure that all staff in particular those employed in Human Resource functions receive relevant training in Equality matters.
_____________________
Orla Jones
Equality Officer
26 April, 2013
1 [2004] 15 ELR 296
2 Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)
3 Humphreys -v- Westwood Fitness Club (2004) ELR 296