DEC-E2013-186

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2013-186

PARTIES

Alan Gallagher

(Represented by Eilis Barry B.L. instructed by the Equality Authority)

-V-

McCosker & Sons Ltd

(Represented by Peninsula Business Services)

File Reference: EE/2010/441

Date of Issue: 19th December 2013

Keywords: Employment Equality Acts 1998-2011, Disability - 6(2)(g), Dismissal - Section 8(6), Section 6(1) - less favourable treatment, discriminatory dismissal, Section 16(3) - failure to provide reasonable accommodation, Section 85A - prima facie case.

1. Dispute

This dispute concerns a complaint by the above named (herein after referred to as the complainant) that he was discriminated against by the above named employer (herein after referred to as the respondent) on the disability ground, in terms of Sections 6(1) and 6(2)(g)of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to his conditions of employment and dismissal. The complainant alleges that the respondent discriminated against him in that they failed to provide him with reasonable accommodation for a training course to take account of his disability and as a consequence of not attending he was dismissed

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 9th of June 2010 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on the 4th of September, 2012 to me, Marian Duffy, 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 the complainant on the 28th of October 2010 and from the respondent on the 14th of February 2011. As required by Section 78(1) of the Acts and as part of my investigation, I proceeded to hearing on the 23rd April 2013, 5th September 2013 and the 15th November 2013.The final correspondence was received on the 25th of November 2013.

3. Summary of the Complainant’s Case

3.1 The complainant is deaf and has very limited ability to read and he communicates through sign language. At the age of 15 his father, who was employed by the respondent, asked the respondent for a job for his son. This was agreed, and the complainant commenced work as a trainee painter in 1981. The complainant said that he worked with the respondent for 30 years and during that period they had a very good relationship, and he subsequently trained in other employees that the respondent took on. Since the Safe Pass Course was introduced he said that he attended the classes every 4 years and a sign language interpreter was provided by the respondent. At the end of the course he received his Safe Pass Certificate. In 2008 a new health and safety statement was introduced and all the employees were asked to attend a course. The complainant said that he did not attend as no sign language interpreter was provided. He was then asked to sign the statement, however he refused because it was not explained to him by a sign language interpreter and he has limited reading ability and he could not understand the statement.

3.2 In early 2010 the complainant’s Safe Pass Certificate had expired and the respondent’s Quantity Surveyor (Mr.McN and the person responsible for health and safety training) sent a text message to the employees to say that the employees had to obtain their own Safe Pass Course. The company would not be paying for the course as they could not afford it. The complainant said that the painters employed for a long time objected and eventually the respondent agreed to fund the course for these employees. The course was arranged for Saturday the 29th of May 2010. There would be a mixture of employees from different companies in the area on the course. Mr. McN asked him for the number of a sign language interpreter and he provided both the name and number of an interpreter. He said that Mr. McN texted him 2 days before the course to say that he had everything organised. Subsequently the respondent texted him to say that he should get either his sister or his work colleague (Mr C) to interpret for him on the course. The complainant said that he was surprised because he thought that the interpreter had been organised. Mr. McN told him that the interpreter was cancelled because FÁS would not cover the interpreter’s fees and it was too expensive for the company to pay. He went on to say that he would ask Mr C to interpret for him. The complainant said that Mr. C is a work colleague and they both have worked together for a long period of time and they developed a method of communications through gestures, but he never had any sign language training. The complainant accepted that he would attend the course without a sign language interpreter because he said that he did not want to lose his job. As a result of what happened, that evening he became very upset about the prospect of having no sign language interpreter for the course.

3.3 He attended the course the following morning and he told Mr. C about his concerns attending the course without a sign language interpreter. He was concerned that he would not be able to understand the information presented and that he would not be able to do the examination at the end of the course. He said that Mr C laughed at him which upset him more and he decided to walk out of the course. The complainant then texted Mr. McN to inform him that he could not do the course without the assistance of a sign language interpreter. He then got a text from the respondent telling him that if he did not have Safe Pass certification he could not work on sites. The respondent texted him to say that he was sorry to hear he was leaving his employment after all the years and asked him to call sometime during the next week. On Monday he texted the respondent requesting his P45 and he received it later in the week.

3.4 About four weeks later he got a text message from the respondent asking why he had not called and asking him if he wished to come back to work as they were very busy. The respondent also enquired if he had done anything about the Safe Pass Course or did he want him (the respondent) to arrange it.

3.5 The complainant said that he could not return to work for the respondent after all the bad treatment he received. He said that he would have gone to the course had an interpreter been provided. He said that he attended this course in FÁS in 2002 and 2006 and a sign language interpreter was provided by the respondent for both training courses.

3.6 Mr SG, a sign language interpreter, said that he was contacted by Mr Mc N requesting a sign language interpreter for a Safe Pass course that the complainant would be attending. He said that he knew the complainant and moreover had interpreted for him on a Safe Pass course. He passed the request on to the Centre for Sign Language Studies ( C.S.L.). He subsequently learned from the director of C.S.L. that she had been in contact with FÁS and they were going to pay for one interpreter. He said that 2 interpreters were required for the course; however the respondent would only pay for one. He said that the course is an intensive technical course and it lasts for about 8 hours. He was subsequently informed it was a refresher course and he agreed to do it on his own. The day before the course was due to begin he was informed that he was not required.

3.7 The Director of C.S.L., Ms C, said that Mr. SG had passed on the request he had received from the respondent for a sign language interpreter for the complainant to take a Safe Pass course on the 29th of May 2010. She said that she contacted the respondent and spoke to Mr. McN, the person dealing with the booking. She said that she wanted to find out details about the day and to advise him of the price of 2 interpreters for the day. She said that she then contacted FÁS to request that they book the interpreting service. FÁS agreed to pay for one interpreter and she sent a booking form to FÁS which was signed and returned. She said she then telephoned the respondent requesting him to pay for a second interpreter. She was told that the sign language interpreter was too expensive. She said that she could not remember the name of the person she spoke to, but he became angry and upset and told her that the employment of the sign language interpreter had nothing to do with him. She said that she tried to remind of his obligations to provide reasonable accommodation for a person with a disability under the Employment Equality Acts. It was subsequently agreed that because the course was a refresher course one interpreter would be able to manage the course for the day.

3.8 A number of expert witnesses in the use of sign language for a deaf person gave evidence on behalf of the complainant. The Advocacy Manager of the Irish Deaf Society stated that the complainant has low literacy skills. He attended a deaf school, however the use of Irish sign language was prohibited and this effected his level of education, and he left school at 15. She said that the complainant’s ability to understand the Safe Pass Course would have been limited without the benefit of a sign language interpreter.

3.9 The complainant’s barrister, in her submission, referred me to the Charter of Fundamental Rights of the EU, Article 15 provides:

Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

I was also referred to the non-discrimination prohibition contained in Article 21 of the Charter which prohibits discrimination on a wide range of grounds including disability.

Counsel also referred me to the Council Directive 2000/78/EC and in particular Article 3(1)(b) in relation to vocational training and the Labour Court’s application of the Directive in the case of A Government Department v An Employee ADE/05/19 relating to discrimination on the disability ground. She submitted that the complainant’s primary argument was that the respondent failed to provide reasonable accommodation for him. She further submitted that the complainant was discriminated against on the disability ground in relation to conditions of employment.

3.10 Counsel submitted that the respondent made assumptions about the complainant’s disability and his capacity as a consequence of that disability. She submitted that the complainant’s first language was Irish Sign language and he has limited ability to read, and given the importance of the Safe Pas Training there was a positive obligation on the respondent to ensure that the training could be easily understood by him by providing a sign language interpreter, and the failure to do so constitutes discrimination. A person without a disability would have been able to understand the course.

3.11 The requirement imposed by the Article 5 of the Directive and section 16 of the Equality Acts requires the respondent to put appropriate measures in place to enable the complainant to access training such as the Safe Pass Course. There is a statutory requirement on the respondent under the Safety, Health and Welfare at Work (Construction) Regulations 2006 to provide Safe Pass training for employees working on construction sites and for those employees to hold a valid safety awareness FÁS Safe Pass registration or one from an approved equivalent trainer. It was submitted that the provision of a sign language interpreter for the complainant for such an essential course was a necessary and appropriate measure for such training in circumstances where the complainant is profoundly deaf, and has limited literacy and lip reading skills. I was referred to two Equality Officers decisions under the Equal Status Acts concerning the provision of sign language interpreters, Fogarty v EAT DEC-S2009-087 and Regan v Old Bawn Community School DEC-S2010-043.

4. Summary of the Respondent's Case

4.1 The respondent stated that the complainant worked for him as a painter for 30 years. He had employed his father, and the complainant had worked with him during the school holidays. When he was 15 years old he came to work with the respondent full time. He said that he had a very good relationship with the complainant. He taught him to drive, and arranged to insure him. On one occasion he left the job and went to work in Dublin and after about a year and a half he returned looking for his job back and the respondent said that he re-employed him without any difficulty.

4.2 He said that the complainant managed other employees on site for him and he regarded him amongst his top three employees. The respondent said that he had up to 60 employees at one stage and most of them were made redundant, but he kept the complainant on because he was such a good and reliable worker. He said that the complainant came into the office at least three times per week and they would have a conversation through a combination of an exchange of notes, text messages and gestures. Since Safe Pass was introduced the complainant had completed the course on two occasions and a sign language interpreter was provided by the company, for which they obtained a grant from FÁS.

4.3 In February 2010 a number of employees including the complainant’s Safe Pass certification had expired. It was difficult to get courses in the Donegal area. The safety manager (Mr. G) of another company arranged a course for his company’s employees and offered a number of spare places to the respondent for his employees. Mr. G had worked with the respondent previously. The respondent said that he got very short notice of the course, but he accepted places for the complainant and two other employees. A sign language interpreter was engaged for the complainant by the person responsible for health and safety training (Mr. McN). On the evening of the 27th of May, just two days before the course was due to start, he took a telephone call from the course organiser Mr. G. He expressed concern to him about a telephone call he received from the sign language company engaged to provide interpreting for the complainant on the course. Mr. G told him that he was concerned because the sign language company would not commit to a price for the interpreter. Mr. G told him that he had spoken to the course provider Safetech who had suggested that a competent person could assist the complainant with the course as had happened during a recent course they had delivered. On that occasion the participant’s brother assisted his deaf brother.

4.4 The respondent decided to cancel the interpreter and texted the complainant to ask him to get his sister or a friend at work to interpret for him during the course as he believed they were competent to assist him. The complainant replied enquiring if the respondent had an interpreter for him. The respondent said that he received a telephone call the following morning saying that the complainant had left the course before it started. The respondent texted the complainant to tell him that if he did not take the Safe Pass course he could not work on sites and that he should return to the course. The complainant texted back to say he could not do it because he was stressed. The respondent replied saying “sorry to hear your leaving your employment like that after all these years, but look after your health. Call sometime during next week.” He said that he was very annoyed that the complainant did not attend the course. He said that it was in Power Point format and he was sure that with the arrangements put in place with the tutor the complainant would have no problem. He sent another text warning him of the consequences, telling him that he would deduct the price of the course from his wages in the belief he would change his mind. He said that he was not dismissing the complainant when he sent those texts. They were a wakeup call so that he would attend the course. In the past he would have spoken to the complainant’s father about any difficulties which had arisen, but the complainant’s father was ill at that time.

4.5 The complainant did not attend work on Monday and texted during the following week seeking his P45 and it was sent to him. The respondent texted the complainant about 4 weeks later asking him if he wanted the Safe Pass course arranged and inviting him to return to work, but got no response. He sent a message to the complainant through his solicitor that he had work for him, but the complainant did not contact him. He said that he found the complainant an excellent employee. He said that that he still has work for him and he would take him back if he wished to return. He said that he would have gladly paid for the sign language interpreter for the course if the complainant had let him know that the alternative arrangements that he had put in place were not suitable. He said that the complainant had worked for him for 30 years and if he had known that the complainant would not do the course without a sign language interpreter he would have cancelled the course for him and rearranged it later with an interpreter.

4.6 Mr. McN said that he is responsible for health and safety in the respondent’s company. A local company was organising A Safe Pass Course for their employees and they were offered some spare places. The complainant was selected to attend. The complainant requested sign language interpretation and he got the number of a sign language interpreter from him. He contacted Mr. SG who had previously interpreted for the complainant on the Safe Pass course 4 years ago, and booked him. He was also referred to the office of C.S.L. He said he spoke to a woman in that office, but she would not confirm a price and told him that she would come back to him. He texted the complainant confirming that he had booked Mr. SG for him. He said that the company had obtained a grant from FÁS for interpreter services when the complainant did the course in 2006. He contacted FÁS and he was informed that there was no grant available anymore for people in full time employment. She referred him to a different scheme and told him that if he applied he would get a small grant and she sent him the application form.

4.7 He stated that later in the day he got a call from C.L.S., and the caller (Ms. C) insisted that she had to talk to the course organiser. When he requested the reasons she said that the course provider was responsible for paying for the interpreter. Mr. McN said that he explained that the respondent employees were only sitting in on a course run by another company and the costs of the interpreter would have to be agreed with him. She insisted on getting the number of the course organiser and he reluctantly gave her Mr. G’s number.

4.8 Mr. McN said that he never got a written quotation or booking form from C.L.S. He said that he learned next day that the interpreter had been cancelled. He spoke to the complainant on the Friday evening before the course commenced on Saturday, and he seemed very happy with the arrangements that were put in place to assist him do the course. He learned later that the complainant had not attended the course and the following Monday the complainant texted him looking for his P45.

4.9 Mr G, the course organiser, stated that a number of employees in the company where he worked requested him to organise a Safe Pass course. He needed 20 participants and offered a number of spare places to the respondent for his employees. It was agreed that 3 employees, including the complainant, would attend the course. He knew the respondent and the complainant as he had worked in that company for over 10 years. The course was arranged for Saturday, and on the Thursday before he got a telephone call from the Sign Language Agency Ms. C enquiring if he had made any arrangements for an interpreter for the complainant for the course. He informed the caller that the respondent had made arrangements to provide an interpreter. She informed him that as the course organiser it was his responsibility to organise and pay for the interpreter, and the person had to come from her agency and if he did not do so he would be taken before the Equality Tribunal in respect of discrimination.

4.10 He said that she refused to specify the exact charge because in addition to an hourly charge, meal and travel expenses had also to be paid. She informed him that an interpreter could be sent from anywhere in Ireland. Mr G said that he felt it was extortion, and threatened to cancel the course. He said that he was again warned that he would be taken before the Equality Tribunal if he cancelled the course. Mr G said that he felt irate at the tone of the conversation, and when the caller continued to refuse to provide the exact costs of the sign language interpreter he terminated the conversation. Mr G said that he telephoned the respondent and told him what happened. He agreed with the respondent that he would talk to the course provider about the matter.

4.11 Mr. G said that he was informed by a representative of the course provider that they had a similar case a few weeks previously and had been advised that a family member or a work colleague could do sufficient interpretation for the course as most of the Safe Pass was pictures on Power Point and there was very little written word content. Following this conversation it was agreed with the respondent that the complainant’s sister, or a work colleague, who was a very good friend would assist the complainant at the course. Mr. G said that he spoke to the course tutor and explained the matter to him. On Saturday the complainant arrived at the course but he left before it started. Mr. G said that he went to his home to persuade him to return but he refused.

4.12 It was submitted by the respondent’s representative that any claim in respect of dismissal is outside the statutory time limit. In relation to booking the sign language interpreter, she submitted that C.L.S. caused the problem and there was interference by them in contacting the company organising the course and contacting FÁS and providing them with a booking form. She noted that there was no booking form provided to the respondent. She further submitted that the training had to go ahead on the day and the respondent was confident that the complainant could complete the course with the arrangements put in place for him. She further submitted that the complainant had a full day to inform the respondent that these arrangements were not suitable and that he required a sign language interpreter. If he had done so it would have given the respondent a chance to get an interpreter, but it was too late on the Saturday morning to find one.

5 Conclusions of the Equality Officer

Time Limit Issue

5.1 The first matter I have to consider is whether the complaint in relation to dismissal is validly before me and if the complaint was referred within the statutory time limits. The complainant referred a complaint on form EE1 on the 9th of June 2010. He ticked the disability box and stated that the respondent discriminated against him in the following respects by ticking the boxes; “giving me training” and “failing to give me reasonable accommodation for a disability”. In his written account of the complaint he stated “My Boss texted me saying I can’t work anymore because I have no Safe Pass or insurance.”

5.2 On the 28th of October 2010 the complainant sent in a submission to the Tribunal. In it he referred to the text messages he got from the respondent about leaving his employment and also mentioned that he was forced to leave the employment. Following this the complainant obtained legal advice and on the 17th of April 2013 his representative wrote to the Tribunal stating that the complainant forgot to tick the dismissal box on form EE1 and stating that his claim also included discriminatory dismissal. This letter was served on the respondent by the Tribunal. At the hearing on the 23rd of April 2013 the respondent’s representative stated that this referral of alleged discriminatory dismissal was outside the statutory timeframe.

5.3 Section 77(5)(a) of the Acts provides as follows:

“Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

Taking the contents of Form EE1 and the complainant’s submission, I am satisfied that the complainant’s intention was to make a claim for discriminatory dismissal when he referred his claim. Both Form EE1 and the submission were received within 6 months of the date of the alleged dismissal

5.4 In considering whether a claim for discriminatory dismissal is properly before me, I have applied the jurisprudence of High Court in the case of County Louth VEC v The Equality Tribunal [2009] IEHC 370 to the facts of the case herein. Mc Govern J. stated at para. 6.2:

"I accept the submission on behalf of the respondent the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case discrimination on the grounds of sexual orientation) remains the same. What is at issue is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say, that complaints going back over a very lengthy period would have to be considered, as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.

I further note that in his Judgment in Clare County Council v Director of Equality Tribunal [2011] IEHC 303 Hedigan J. in applying the above cited paragraph stated that:-

"It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein.”

In applying the above mentioned jurisprudence it cannot be said that the respondent was taken by surprise by a complaint of dismissal given that the complainant was no longer working for him following the series of text messages which passed between them. I am satisfied therefore, that the complaint of dismissal is validly before me and that I have jurisdiction in the matter.

5.5 The complainant’s case is that he was discriminated against in that the respondent failed to provide him with reasonable accommodation and dismissed him from the employment on the disability ground in terms of Section 6 (1) and 6 (2) (g) of the Employment Equality Acts, 1998 - 2011, contrary to Section 8 and 16(3) of those Acts. The complainant submits that as a deaf person he was denied reason accommodation. The respondent submits that the complainant left the employment of his own volition. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties. The matter I have to consider is whether the complainant has established a prima facie case of discriminatory treatment.

5.6 Section 85A of the Employment Equality Acts, as amended, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

The Labour Court has set out the test for establishing a prima facie case in the case of Mitchell v Southern Health Board [2001] ELR 201. It requires the complainant to prove, in the first instance, a prima facie case of discrimination, that is, primary facts upon which a complainant relies in seeking to establish an inference of discrimination. It is only when this initial burden has been discharged that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.

5.7 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:

"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.

The Labour Court went on to say in that case:

"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."

In applying the above approach, I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts provides:

"….. discrimination shall be taken to occur –

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) (in this Act referred to as the ‘discriminatory grounds’)"

Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),

Section 8 provides:

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

Section 8(7)

 

(7) Without prejudice to the generality of subsection (1), an

employer shall be taken to discriminate against an employee in

relation to training or experience for, or in relation to, employment

if, on any of the discriminatory grounds, the employer refuses to

offer or afford to that employee the same opportunities or facilities

for employment counselling, training (whether on or off the job) and

work experience as the employer offers or affords to other

employees, where the circumstances in which that employee and

those other employees are employed are not materially different.

5.8 The first matter I have to decide is whether the complainant was discriminated against pursuant to section 8 above in relation to training. Counsel for the complainant has argued that the complainant was discriminated against in relation to training in that a person without a disability would be able to understand the course. I am satisfied having regard to section 8(7) cited above that the complainant was offered the same opportunities and facilities as the other employees were offered to go on the course. However offering the complainant, who is profoundly deaf, the same facilities as that offered to the other participants, who did not have a disability constitutes discriminatory treatment in relation to his participation on the course. The complainant could not hear and has limited reading ability and requiring him to attend a course, (delivered by a tutor with a Power Point presentation format and a written examination at the end) with the same facilities as the other participants who did not have a disability is less favourable treatment on disability ground. I am satisfied that the complainant has established a prima facie case of discriminatory treatment.

5.9 I will now examine the matter under Section 16 of the Acts which provides:

"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.

(b) The employer shall take appropriate measures, where

needed in a particular case, to enable a person who has

a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate

burden on the employer.

(c) In determining whether the measures would impose such

a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s

business, and

(iii) the possibility of obtaining public funding or other

assistance.

 

(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 herself or

herself;"

5.10 The complainant clearly needed the assistance of a sign language interpreter to participate in the course. I note that the respondent booked a sign language interpreter for the course but the booking was cancelled by him and he texted the complainant and told him to get his sister or his work colleague to translate for him. The complainant’s sister was not available so Mr C (his work colleague) who was also doing the course was expected to translate. I am satisfied that this arrangement was not an appropriate measure to enable the complainant to fully participate and learn the course content so that he could complete an examination. I find that the measures put in place do not comply with the provisions of section 16.

5.11 Counsel for the complainant asked me to apply the reasoning in 2 equal status cases cited above. The Equal Status Acts has a similar provision in relation to reasonable accommodation. In the Fogarty case, which concerned a deaf man pursuing a case before the EAT and was not offered a sign language interpreter to enable him to participate in the hearing, the equality officer stated:

“In my view it was the duty of the respondent to ensure that there was no impediment to the complainant's full participation and understanding of the hearing. From the evidence of both parties it would appear that the complainant was not asked if he required the services of a sign language interpreter. The non-availability of a sign language interpreter was an impediment to the complainant’s participation in the hearing and was in breach of his right to a fair procedures and natural justice and his right to be heard. As sign language is the complainant's first language and his primary means of verbal communication, I am satisfied that without the special facilities of a sign language interpreter it was both impossible and unduly difficult for him to fully participate in his appeal hearing before the respondent.”

5.12 In the Regan case, the complainant was attending a 10 week first aid course as part of an adult education programme. She was deaf but had some lip reading skills and completed the course but found it very difficult without the benefit of a sign language interpreter. The equality officer in finding that it was unduly difficult for her without the assistance of a sign language interpreter stated:

I accept the evidence that Ms. Regan found the course unduly difficult and at times was confused and felt "lost" because of the lack of the appropriate facilities, namely a qualified sign language interpreter proficient in the skills to communicate all aspects of the class work. I note that the respondent's solution to the problem was to approach Ms. B and ask her to assist Ms Regan. I have taken note of the expert witnesses presented by the complainant in relation to the structure of the Irish Sign Language and the importance of having the correct qualified professionals carrying out the interpretation for a Deaf person.

5.13 I am satisfied that the reasoning in the above cited cases is applicable to the case herein. The arrangements that the respondent put in place for the complainant to take the course were wholly inappropriate and it would have been unduly difficult for the complainant to follow the course without a sign language interpreter. It is a requirement of statute and obligatory for the complainant to have a valid Safe Pass certificate otherwise he cannot work on any public building sites. The complainant and the work colleague Mr C designated to assist him had developed a means of communication by signs and gestures, but this level of communication was not appropriate for the complainant to successfully undertake the course and complete an examination at the end. The complainant needed a professional sign language interpreter to interpret the Safe Pass Course for him. I find therefore that the respondent failed to provide appropriate measures for the complainant in accordance with section 16 of the Act.

I have also considered whether the hiring of a sign language interpreter for a day would impose a disproportionate burden on the employer and I am satisfied it would not. I also note that there was a grant available from FÁS.

5.14 The next matter I have to consider is whether the complainant was dismissed and if so was it a discriminatory dismissal? The complainant turned up at the Safe Pass Course on the 29th of May 2010 and when he realised that there was no sign language interpreter employed he went home. A number of efforts were made to get the complainant to return to the course, and the course organiser called to the complainant’s home and he refused to return. I note that the respondent sent a number of texts to the complainant; one telling him he could not work on sites if he did not have Safe Pass and another a few minutes later telling him that he was “sorry to hear your leaving your employment like that after all these years, but look after your health call sometime during next week”. Another text from the respondent stated “I have also paid for you. I will have to deduct same from lying week and holiday pay due. Sorry about that I was sure you would go.

5.15 The complainant understood that he was dismissed and he requested his P45 the following week which he received. The respondent denied that the complainant was dismissed and said that he sent the texts’ as a wake up call to the complainant so that he would attend the course. He said that he was sure he would report for work the following week. It may not have been the intention of the respondent to dismiss the complainant, but I am satisfied in considering the wording of all of the text messages, and giving them their plain ordinary meaning, that they conveyed a very strong message that if he did not attend the course he was dismissed. I note that the respondent made no effort to contact the complainant when he requested his P45 the following week to tell him at that stage that he was not dismissed. I am satisfied that the complainant was dismissed for not doing the Safe Pass course. The reason the complainant did not do the course was due to the fact that the respondent failed to provide him with a sign language interpreter. Therefore the reason for his dismissal was connected to his disability. I am satisfied that the complainant has raised a prima facie case of discriminatory dismissal which the respondent has failed to rebut. While I accept it was not the intention of the respondent to dismiss the complainant it was that inference that his text messages had conveyed to the complainant. Accordingly, I find the dismissal was discriminatory on the disability ground.

5.16 There is one further matter which I wish to address, and that is the events which led to the cancellation of the sign language interpreter and the ending of the complainant’s employment after over 30 years service with the respondent. The respondent’s representative submitted that there was interference by C.S.L. which caused problems for the company organising the training and took the organising of the interpreter out of the respondent’s hands. It is clear from the evidence as set out above at paragraph 4.3 above that Mr McN on behalf of the respondent booked an interpreter for the course. I note that Ms C of C.S.L. did not provide a booking form or a quotation to him. However she did contact FÁS about paying for the interpreter and provided them with a quotation and a booking form.

5.17 I note from the booking form that a quotation was provided for two interpreters and this was revised to one interpreter when FÁS said they would only pay for one. I cannot understand why it was necessary for C.S.L. to contact FÁS about paying for the interpreter that the respondent had booked. It is difficult to understand why Ms. C insisted on speaking to the course organiser Mr. G, about providing a sign language interpreter when one had already been booked by the respondent and particularly when she had been informed that Mr. G was not responsible for the matter.

5.18 Ms C said in evidence that she needed to gather as much information as possible, and for this reason she needed to speak to the complainant’s employer, the course organiser and the course provider to find out about the logistics of the day and to establish matters such as the venue, the mode of delivery of the course, the number of participants and to make sure Irish sign language was being used. I do not accept that it was necessary to speak to any person other than the person who made the booking and that was Mr. McN. In any event the sign language interpreter booked, Mr. SG who was attached to C.L.S., knew the complainant for 7/8 years and had interpreted for him on a Safe Pass course in 2006 and would have been familiar with the process.

5.19 It is my view the telephone call to Mr. G which led to the cancellation of the interpreter was totally unnecessary. I note that Ms C said in evidence that she gave advice to Mr. G in relation to his obligations to provide reasonable occupation under the Equality Acts. Therefore I must accept Mr. G’s evidence in relation to this telephone conversation; that he found the tone of the conversation threatening and the refusal to confirm the exact cost of the sign language worried him, because she led him to believe that he was responsible for the costs. It seems to me if this unwarranted interference and meddling had not taken place, and which caused such confusion for the person who had no responsibility whatsoever for providing the interpreter; it is very likely the interpreter booked by the respondent would not have been cancelled and the complainant would have attended the course. Therefore the consequences of this unwarranted interference had very serious consequences for both the complainant and the respondent and ended a very successful employment relationship which had lasted for over 30 years.

6. DECISION OF THE EQUALITY OFFICER.

6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the disability ground and failed to provide him with reasonable accommodation in terms of sections 6(1) and 6(2)(g) and pursuant to section 8 and 16 of the Acts.

I also find that the respondent dismissed the complainant in circumstances which was discriminatory on the disability ground.

6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case including overtime is €45,000. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider, taking in to account all the circumstances of this case, that an award in the amount of €12,000 is appropriate.

6.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €12,000 in compensation for the effects of the failure to provide reasonable accommodation and the effects of the discriminatory dismissal. This figure represents compensation for the infringement of his rights under equality legislation in relation to discrimination and discriminatory dismissal and does not include any element relating to remuneration, and therefore it is not taxable.

6.4 I note that on a number of occasions during the course of the hearing the respondent offered the complainant his job back, but he was not interested. I would strongly recommend to the complainant that he should consider the offer.

______________________________

Marian Duffy

Equality Officer

19th December 2013