DEC-E2013-198

The Equality Tribunal

Employment Equality Acts 2000 to 2008

DECISION

NO: DEC-E2013-198

A Complainant

(Represented by Ballymun Community Law Centre)

v

Tesco Ireland Ltd.

(Represented by IBEC)

Date of Issue: 30 December 2013

File No. EE/2011/443

Keywords: Employment Equality Acts - race - working conditions - reasonable accommodation - discriminatory dismissal - prima facie case

1. Dispute and delegation

1.1 This dispute concerns a claim by an employee (hereafter “the complainant”) that he was subjected to discriminatory treatment in his working conditions by Tesco Ireland Ltd. (hereafter "the respondent") on grounds of disability. The complainant also alleges that he was discriminated against in relation to his dismissal and in relation to the failure to provide him with reasonable accommodation.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 16 May 2011 under the Employment Equality Acts. On 27 August 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 19 November 2013.

2. Summary of Complainant’s case

2.1 The complainant commenced working for the respondent on 4 March 2000 at its Ballymun store. At the time of his application for the job, he notified the company that he had a disability, in that, he suffered from diabetes. He was offered and accepted a permanent post as a general sales assistant. The complainant states that he was a very diligent worker eager to please his employer and worked very hard carrying out whatever tasks his employer directed him to do. The complainant contends that the more work he undertook, the more the employer sought of him. The complainant’s official hours were 7am to 4 pm on Mondays, Wednesdays, Thursdays, Fridays and Saturdays. However, he states that he frequently did longer hours. The store operated a practice of time in lieu rather than payment for extra hours. The complainant submits that he was put under severe pressure to do extra hours and very difficult work. He was sent out to collect shopping trolleys in bad weather a distance from the store. He was responsible for cleaning warehouses that were rat infested but other employees were not requested to do such duties. He also alleges that he was not given the correct protective equipment to carry out his duties.

2.2 In 2003, the complainant states that he started to find it difficult to manage his illness due to the long working hours and unpredictability of those hours. On two separate occasions, he suffered hypoglycaemic seizures while at work and in April 2006, the complainant’s GP wrote to the respondent requesting that more regular hours of employment be provided in order that the complainant could manage his diabetes. This arrangement was facilitated by the respondent. The complainant contends that he rarely took sick leave however, he had to attend hospital to have his appendix removed in 2004. On that occasion, he states that his mother informed his employer that he was in hospital but despite this, he received text messages from his manager enquiring when he was returning to work. He submits that he felt under extreme pressure to return to work. In October 2009, the complainant recalls being brought by the duty manager in his car to a location over a mile from the Ballymun store to collect two shopping trolleys. The complainant contends that he was not feeling well and it was a very cold day. The manager brought one trolley back to the store in his car and directed the complainant to push the other one back to the store. The manager indicated that once he had delivered the trolley to the store, he would come back to collect the complainant and the second trolley but this did not happen. By the time the complainant returned, he was very hot and sweating and was immediately directed to continue work at the freezer section. The extreme changes of temperature combined with the physical exertion made the complainant extremely ill and he began to vomit. He had to go home and he attended his GP the following morning. The complainant was prescribed “tammi flu” medication for suspended swine flu and had to take a week off work. The complainant contends that he had known from the previous incident, that his employer was quite intolerant of illness so he was anxious to return to work as soon as possible.

2.3 The complainant returned to work as soon as he felt able but found himself frequently sick, vomiting, dry retching and feeling anxious and he was unable to attend work continuously. He states that his manager was not understanding and became impatient with him advising him in an angry tone that he would have to get himself sorted. This went on for a few weeks but the complainant’s health did not improve. The complainant commenced long term sick leave in October 2009 but a firm diagnosis could not be made. The complainant’s symptoms varied but he consistently felt anxious, stressed and would experience dry wretching when approaching the store. The complainant furnished regular sick certs to the company from his GP which at the beginning stated “diabetes complication” but changed to “depression” subsequently. The complainant states that the change in certified illness was met with suspicion by his employer. The complainant states that in or around May 2010, the respondent commenced a process to assess him for return to work. The complainant states that at no stage did the employer consider any form of reasonable accommodation and that no fair procedures were followed by the respondent prior to his dismissal.

Summary of Respondent’s case

3.1 The respondent states that while the complainant contended that he was in the grade of general sales assistant (GSA) from 2007, in fact this was by virtue of a 2006 collective agreement. In this regard, all GSA’s from that date were on a standard set of employment terms and conditions and were, as a consequence, liable for the full range of duties of the grade without restriction. The respondent states that on occasion and well before 2009, he had to regulate his condition by appropriate treatment which is not untypical of a person with a diabetes condition. For a significant period of time, he was able to carry out his duties as a GSA while a diabetic. The respondent denies the allegations that the complainant was singled out for, as he alleged, difficult work i.e. cleaning out warehouses, collecting trolleys a considerable distance from the store etc. The respondent submits various personnel are required to do such duties. The respondent also denies the allegation that correct protective equipment was not provided to the complainant. In that regard, it states that the company meets the highest standards with regard to health and safety requirements. The respondent submits that no such complaints were brought to its attention during the complainant’s tenure with the company. It also states that the complainant is a member of the union which is very active within the company and no complaints were received through those channels either. The respondent contends that the complainant commenced a period of certified sick absence in October 2009 and was not in a position to return to work thereafter. The respondent submits that the former store Personnel Manager maintained contact with the complainant in the early days of his absence. Thereafter, the respondent accepted without question the complainant’s sick absence certificates when supplied.

3.2 The respondent states that the complainant was sent to see the ‘company doctor’ in May 2010. In the first instance, the protocol used by the respondent to company doctor referrals is prescriptive. The process steps are that the store Personnel Manager requests that the respondent’s central Occupational Health Advisor arrange a doctor appointment to ascertain the prospects of a return to work and what facilitation might be required for same. The actual doctor’s report is sent to the Occupational Health Advisor and not to the place of employment in order to protect the personal details of the individual. The store Personnel Manager is given a response, a Health Referral Report, directed only at the question of a possible date of return and arrangements to facilitate same. The store Personnel Manager was advised on 7 June 2010, in a Health Referral Report, that the complainant who is a diabetic had another condition and was seeing a specialist in a number of weeks and he should be reviewed again in September, 2010, if he had not returned. He was deemed by the doctor unfit to return following his consultation with the complainant in June 2010.

3.3 The new incoming store Personnel Manager (previous manager had gone on maternity leave) who commenced with the respondent in June 2010, arranged to meet the complainant on a number of occasions at his home. These were ‘welfare’ visits as part of policy. These meetings took place in September 2010 and October 2010. However, the respondent states that the company doctor report was not available prior to the September meeting. Consequently at the September 2010 meeting, the discussions encompassed the complainant’s view of his own condition and the respondent’s desire for him to return to work. The new Personnel Manager states that, at the introductory meeting, the complainant stated to her that he did not want to go near the store and made some comments about the previous Personnel Manager. At that meeting, she asked the complainant would he find it easier to transfer to another store nearby and do 1 / 2 days per week given that he seemed to have issues with some of his peers at his current location and that a new environment might better suit him. The Personnel Manager states that the complainant turned down the offer stating that he was not fit to return to work at that time. The Personnel Manager contends that at that meeting the complainant asked her “if redundancy was on the table” and she advised him that redundancy was not feasible. The Personnel Manager explained to the complainant that he could be accommodated in a work function role different to his current produce role but not on a front line role (checkouts/customer service) as long as the complainant was in a position to resume work. However, the complainant stated that he could not resume work at all and that he had an aversion to coming to the store, in that, he experienced dry wretching at the thought of returning to the store.

3.4 The Personnel Manager renewed the request for another review by the company doctor in September and wrote to the complainant on 21 September 2010 in that regard. The medical report was forwarded to the store manager on 5 October 2010. The complainant was invited to meet with the respondent to discuss this report by letter dated 7 October 2010. The respondent disputes the proposition put forward by the complainant in the claim that this report had an effective ‘lifetime’ of only four months. The medical report in October 2010 which was discussed with the complainant stated “Mark states that he is keen to return to work but agrees with the doctor that he is unfit at present. The doctor does not anticipate a return to work within the next four months, and is willing to review him again at this time if needs be. Mark is following his treatment and is attending a specialist but is making slow progress. Unfortunately for Mark, his support period according to the Company’s Supporting Your Attendance (SYA) policy is near an end, therefore it is a management decision on the way forward.” The respondent states that the report is unequivocal, in that, the complainant advised the company doctor at the date of his examination in October 2010 that he considered himself unfit to return to work. The report, which states that the support period is ‘near an end’, indicates that the complainant was then absent from work for a period of about one year. Consequently, it was a matter for management to decide now, in the light of the report, what the way forward might be. In order to assess the way forward, the complainant had two meetings with management.

3.5 The respondent submits that the report does not put a limit of four months on its ‘lifetime’ as claimed. The report indicated that the company doctor was available to see the complainant in four months ‘if needs be’. The respondent argues that this is entirely a different construction than that which was chosen to be put on this report by the complainant. The respondent contends that it simply indicated the availability of the company doctor, not a pre-requisite to visit that doctor at the four month point or any point. The respondent facilitated a meeting with the complainant at his home on 12 October 2010. The respondent requested the complainant’s input in consideration of this new medical report and welcomed any input that the complainant might offer. The respondent submits that the signed notes of that meeting indicate that “Mark says that he is in agreement with the company doctor and is not fit to return to work for the foreseeable future”. The respondent argues that this was a categorical statement by the complainant and speaks for itself. The respondent contends that it subsequently invited the complainant by letter dated 12 November 2010 to attend a meeting where the stated concern was “for your own health and wellbeing and where there is an expectation that you will achieve a full level of fitness in the near future that will facilitate a return to full and normal working”. The respondent was not seeking either an immediate return to work or that normal working would similarly be achieved. The respondent states that it was open to consider how to facilitate the complainant.

3.6 The respondent made it clear that the purpose of the meeting (bearing in mind the one year accumulated absence) was to “review your position here with us as we cannot continue holding your position open if this is the case”. The reference to ‘this’ was the content of the Health Referral Report and his reply to same which was discussed with the complainant previously on 12 October 2010. This was not a new issue at 12 November. Consequently the respondent commenced the meeting of 18 November 2010 having taken note of the complainant’s opinion provided on 12 October 2010. The respondent submits that it was giving the complainant an opportunity to further review the position he was then on the record as having already given. The respondent contends that it also said “in the event that you have an alternative view from your own doctor who indicates that you will be fully fit in the near future, please bring that report to the meeting for consideration”. The respondent contends that the complainant had been given fair notice that an opinion, contrary to the company doctor and contrary to himself would be welcomed, if provided. The respondent also warned that non-attendance could lead to a termination of his contract on the grounds of ill-health in effect that a decision would be made on same if he had made no input to the process of decision making. However, the complainant did attend the meeting.

3.7 The respondent submits that the complainant was well aware what the various factors and potential influences to be considered were before that meeting in terms of the facts available, of his own opinion given previously and of the further opportunity to provide new information that would influence the decision making. The respondent argues that while the complainant claims that the entire context of the meeting was not made clear to him before or at that time, the facts speak otherwise. The respondent’s notes of the meeting of 18 November indicate in detail what was stated by each party. The complainant was asked for an alternative medical opinion and for his own opinion. The respondent contends that he had no alternative opinion even though he was offered a further two weeks to supply same. The respondent submits that the complainant stated that he was not fit to return to work. The complainant stated that if the company doctor had said ‘give him a month or two he would be jumping through hoops’. The respondent considered the position. It took into account that an appropriate notice had issued to the complainant, a full opportunity was given to the complainant to make an input as to whether, in his own opinion, he could resume or to offer a contrary medical opinion that he had genuine prospects of returning to work. Having evaluated the position and taken into consideration the information available, the respondent concluded that it was left with no option but to terminate the complainant’s employment on the grounds of ill-health. The respondent re-iterated to the complainant that it was open to the complainant to make a fresh application for re-employment when the complainant regained full fitness.

Conclusions of Equality Officer

4.1. I have considered all the evidence both written and oral presented to me. 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 his conditions of employment, his dismissal and failure to provide reasonable accommodation. In addition, I must consider whether the respondent failed to provide the complainant with reasonable accommodation. 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 in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows -

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

4.2 The complainant has alleged that he was discriminated against on the grounds of his disability by the respondent. 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”.

It was accepted by both parties that the complainant’s illnesses which relate to diabetes and depression are considered to be a disability within the meaning of the Acts and I am satisfied that his disability comes within the meaning of the definition as above.

Working Conditions

4.3 Having evaluated all the evidence in relation to the claim of discrimination on grounds of disability in relation to the complainant’s working conditions; I find that none of the incidents which allegedly occurred (i.e. non-provision of protective clothing, clearing out rat-infested warehouses, having to work on days off, collecting trolleys a considerable distance from the store) during the tenure of his employment were presented to the Tribunal within the six month time limit as required by the Acts. The EE1 form was submitted on 16 May 2011 and the last date of discrimination was given as the 9 January 2011, the date on which the complainant was dismissed. Therefore, I find that the issues raised in relation to discriminatory working conditions are statute-barred as they were referred outside of the time period prescribed in Section 77 of the Acts and I have no jurisdiction to examine same.

Reasonable Accommodation and Dismissal

4.4 The complainant submits that he was not provided with reasonable accommodation. Therefore, the matter I have to consider is whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts. Section 16 of the Acts 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,

 

(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;”

4.5 I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club EED037 which was upheld by the Circuit Court. The Labour Court stated:

“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…………….. 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.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

4.6 Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant’s own doctor or an independent doctor where there are concerns in relations to the health of a worker. An incident occurred on 25 October 2009, where the complainant was requested to push a trolley a considerable distance and got sick after returning to the store. The complainant attended the doctor the following morning and provided a sick certificate to his employer to cover him until 2 November 2009. A number of other sick certificates were provided to the respondent up to late November 2009 certifying the complainant unfit for work due to flu and vomiting. Thereafter, further sick certificates were submitted and subsequently the respondent sent the complainant to Occupational Health on 4 May 2010 for a medical assessment. Dr M noted that the complainant had a stomach problem with dry wretching and had developed depression. Dr. M found the complainant to be unfit to return to work for the next three months. The complainant was reviewed again by Occupational Health on 27 September 2010. In his report, Dr. C stated “M states that he is keen to return to work but agrees with the doctor that he is unfit at present. The doctor does not anticipate a return to work within the next four months, and is willing to review him again at this time if needs be. M is following his treatment and is attending a specialist but is making slow progress. Unfortunately for M, his support period according to the Company’s Supporting Your Attendance (SYA) policy is near an end, therefore it is a management decision on the way forward.”

4.7 Personnel of the respondent met with the complainant at his home on two occasions. These were ‘welfare visits’ and took place in September and October 2010. At the September meeting the Personnel Manager stated that she offered the complainant a transfer to a different store nearby 1 /2 days per week but this was rejected as the complainant stated he was unfit to return to work on medical grounds. The Personnel Manager also stated at that meeting that the complainant requested redundancy but she advised him that it was not feasible. The complainant denies that he was offered a transfer or reduced working hours and refuted the notion that he requested redundancy. Having taken testimony of various witnesses at the hearing, I find the evidence of the Personnel Manager more cogent and convincing. Having examined the documentation, I note that on a number of occasions, he stated he was not fit to return to work and was on a course of treatment with his doctor. I also am satisfied that he asked the Personnel Manager if redundancy could be considered. At the October meeting, the respondent requested the complainant’s input in relation to the medical report but the complainant did not offer up any alternative opinion and the signed notes (copy of which given to the Tribunal) of that meeting state that “m says that he is in agreement with the company doctor and is not fit to return to work for the foreseeable future”.

4.8 The respondent subsequently wrote to the complainant on 12 November 2010 requesting a meeting where the stated concern was “for your own health and wellbeing and where there is an expectation that you will achieve a full level of fitness in the near future that will facilitate a return to full and normal working”. The respondent made it clear that the purpose of the meeting, bearing in mind the one year accumulated absence, was to “review your position here with us as we cannot continue holding your position open if this is the case”. The reference to ‘this’ was in relation to the medical report which stated “not fit to return to work for the foreseeable future”. The respondent also stated in the letter that if the complainant had an alternative medical opinion contrary to Occupational Health’s medical report to bring it along to the meeting. The complainant has alleged that the entire context of the meeting was not made clear to him prior to the meeting. However, given the sequence of events and the content of letters sent by the respondent to the complainant, I am of the view that the complainant was aware that, as he had been out on sick leave for over a year at that point, the company were considering terminating his employment if there was no contrary medical opinion to Dr. C’s assessment of him. At the meeting of 18 November, 2010, the complainant stated “I am obviously not fit to return to work, all I can do is hand in notes and stay on my medication”.

4.9 I am satisfied that based on the sequence of events and the witness testimony of the various persons on the day of the hearing that the respondent did carry out a thorough assessment in line with what is required in the test in Humphrey’s v Westwood Fitness Club EED037. Having evaluated the situation and taking into account Occupational Health’s medical assessment, the respondent met with the complainant in his home on different occasions and discussed the medical report and requested the complainant to provide an alternative medical opinion. The complainant was also requested to offer up his own view but he stated on each occasion that he was unfit to return to work and the thought of approaching the store resulted in him suffering dry wretching. I am satisfied that the Personnel Manager asked the complainant if he wished to transfer to a store nearby but this option was rejected by the complainant. Having regard to this offer by the respondent of an alternative work location, I am satisfied that the respondent has not failed to provide appropriate measures (reasonable accommodation) to the complainant and accordingly, this element of the complaint must fail.

4.10 Based on all the evidence, I am satisfied that the complainant has not demonstrated evidence of a prima facie case of discriminatory dismissal on grounds of disability. I find that the respondent did carry out an assessment of the complainant’s condition and that the respondent did give fair notice that the question of the complainant’s dismissal for incapacity was being considered. The complainant was also requested to supply an alternative medical opinion which it would consider and requested the complainant’s own views. However, the complainant stated that he himself felt that he was unfit to return to work and his own GP had no time-frame for him to return to work. I find that the complainant’s employment was terminated on the basis of his prolonged absence from work (over 14 months at that point) with no prospect of a return date in sight. I also note that three years on, the complainant continues to be on long term disability benefit and has not being in a position to re-enter the workforce. Given the documentation and the witness testimony, I am satisfied, having examined all the evidence in relation to this complaint that the complainant has not demonstrated prima facie evidence of discriminatory dismissal on grounds of disability and therefore, I find in favour of the respondent.

5. Decision of the Equality Officer

In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find the complainant was not discriminated against by the respondent in relation to his conditions of employment on grounds of disability. I find that the complainant was not discriminated against in relation to the provision of reasonable accommodation and was not discriminatorily dismissed on grounds of disability, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts.

____________

Valerie Murtagh

Equality Officer

30 December, 2013

Footnotes:

[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.