THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013 - 077
PARTIES
Mr Fergal Reilly (represented by Ms Aoife Carroll, B.L., instructed by James H. Murphy and Son, Solicitors)
and
United Parcels Service CSTC Ireland Ltd (represented by IBEC)
File References: EE/2010/915
Date of Issue: 23rd July 2013
Keywords: Disability - reasonable accommodation - obligations of an employer under S. 16 of the Acts - constructive dismissal - Mr O (Nr. 2) - reasonableness test - discriminatory dismissal
1. Claim
1.1. The case concerns a claim by Mr Fergal Reilly that United Parcels Service CSTC Ireland Ltd discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, failure to provide reasonable accommodation and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 22 December 2010. A submission was received from the complainant on 4 July 2011. A submission was received from the respondent on 12 August 2011. On 16 January 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 1 May 2013, which was adjourned, and concluded on 5 July 2013.
2. Summary of the Complainant's Written Submission
2.1. The complainant started in the employment of the respondent in 1999. In 2002, he was promoted to the position of lead driver, supervising a group of drivers to make deliveries within specified times and doing deliveries himself.
2.2. On 17 November 2009, the complainant suffered trauma to his left knee in the course of his duties. He had to undergo surgery for this, and was certified as unfit for work from late 2009 until 11 May 2010. He was then certified as being fit for doing light duties. According to the complainant, the respondent did not allow him to return to work on the reasoning that he would not be able to work as Lead Driver, and there were no other open positions for which he could be considered. The complainant further states that the respondent had stopped paying his salary on 1 January 2010, which placed him in considerable financial difficulty.
2.3. The complainant states that he tendered his resignation on 10 June 2010, citing the failure to give him work, the failure of the respondent to pay his wages, failure to process grievances previously raised by the complainant and which are not relevant to the case on hand, and failure to communicate. Following this letter, the parties engaged in correspondence, which led to an offer of a job in the respondent's call centre for the complainant. However, the complainant considered that he had no prior relevant experience for this position, including IT skills, and refused. According to the complainant, the respondent accepted his resignation 4 November 2010. The complainant contends that this amount to a discriminatory constructive dismissal on the ground of disability.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the knee injury is subject to separate personal injury proceedings. It states that it disputes responsibility for the injury and that with proper application of the health and safety training received, the injury could have been avoided. It further states that the complainant had a period of long-term sick leave from May 2007 to January 2008, during which his full salary was paid to him, and that the complainant was paid for six weeks while out on sick leave with his knee injury. The respondent points out that it does not have an obligation to continue to pay an employee while he or she is on sick leave.
3.2. With regard to the complainant's complaint of a refusal of reasonable accommodation, the respondent states that the complainant showed up on 11 May 2010 unannounced, and with a certification from his GP that he was fit to work on light duties. A meeting had been arranged for 13 May between the complainant and Mr. D. of the respondent's HR department to discuss his return to work. According to the respondent, Mr D. and Mr C., the manager of the Dublin centre, reviewed the situation with the complainant on 11 May 2010. As the complainant was also certified as unable to do manual lifting, it was not possible to accommodate him in a warehouse role. It is the respondent's case that no suitable alternative roles were available at the time and that the complainant would have to be certified as fully fit for work in order to return to work.
3.3. The respondent also disputes that the circumstances in which the complainant's employment ended amount to discriminatory constructive dismissal. It states that it did not wish to accept the complainant's resignation, due to his length of service and also because it wanted to ensure that his concerns were fully addressed. The respondent expected the complainant to return to full health and resume his normal duties. It states that it had no medical report to state that the problems with the complainant's knee were permanent or that he suffered from a permanent disability. According to the respondent, it only issued the complainant's P45 on 11 October 2010, following a letter from his solicitor, in which the respondent was also advised of the complainant's intention to take a personal injuries action.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, and discriminatorily dismissed, within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. There is no dispute between the parties that the complainant was out sick from work from November 2009 with a knee injury. Furthermore, there is no dispute that the complainant's condition constitutes a disability within the meaning of the Acts. The fact that the respondent disputes that it was a work-related injury is not really relevant for the case on hand. The complainant had surgery on his knee late in 2009. Salary payments to staff who are on sick leave is entirely within the discretion of the respondent, which is also outlined in the employee handbook. The complainant had been facilitated with sick pay during a lengthy sick absence previously, where he received sick pay for some eight months. On this occasion, his pay was stopped on 1 January 2010, and he was advised of this in writing. However, it is important to emphasise that due to sick pay being wholly within the discretion of the respondent, it was not because he had used up a sick leave entitlement or similar.
4.4. With regard to his injury, the complainant was referred to the respondent's occupational health specialist. The specialist's letter, dated 4 May 2010 and addressed to the respondent HR manager, Mr. A., states that the complainant would be capable of "all non-manual handling activities associated with his job e.g. planning routes, supervising loading, going out with driver to direct them, reports etc." The letter further stated "Mr Reilly will probably remain unable for manual activities until (a) the underlying problem in his knee has settled with the help of his caring doctors; (b) the participation factors leading to his injury have been addressed; (c) A line of communication has been opened between him and the company as he is of the opinion that this injury could have been prevented if his concerns were listened to". Around the same time, on 27 April 2010, the complainant attended his GP, who declared him fit for light duties starting Monday 11 May 2010.
4.5. Mr A. said in his evidence that following the letter from the occupational health expert, he set up a meeting with Mr Reilly for Wednesday 13 May 2010. He did not recall whether he received the note from the GP, and only stated that there was sometimes a delay in taking note of such letters.
4.6. In line with his GP note, the complainant reported to work on 11 May 2010, to the great surprise of the Operations Manager, Mr B., who had had no notice of expecting the complainant back at work. An ad hoc meeting between the complainant, Mr A. and Mr. B. ensued, in which the complainant was told that the company did not have work for him on that particular day, and was sent home. Once the complainant had left, the meeting continued with just Mr A. and Mr B. Mr B. made two statements in his evidence which were partly contradictory: He said that he was not clear on the meaning of the letter from the respondent's occupational health expert, although no evidence exists of further enquiries being made of the doctor by anyone in the respondent organisation. Mr B. also stated that he looked at all available roles, and since they all involved manual handling, it was clear to him that there was no work for the complainant in the organisation until he was 100% fit to work again. There is no written evidence of these deliberations, either, and it would appear that it was an ad-hoc assessment made by Mr B. when he and Mr A. talked on 11 May 2010, after the complainant had left.
4.7. The respondent's overall approach to its legal obligation pursuant S. 16 of the Acts, on reasonable accommodation for staff with disabilities, based on its own extensive evidence, can be summarised as follows: If a staff member has suffered an accident or similar disablement which means they are in need of alternative duties while recovering, they are free to apply for such alternative duties if those happen to be available at the time when the staff member looks for a return to work. According to the respondent, this is how a number of other staff members who experienced temporary disablement after injury were accommodated. There was no evidence that the respondent ever pro-actively sought to accommodate a disabled staff member, even temporarily, upon their return to work, or even to assure them of a position that would happen to be available at that point in time instead of just giving them the option to apply for one. In other words, it very much depends on the circumstances prevailing in the respondent organisation, whether alternative duties are available for any staff member of the respondent's who experiences disablement, just at the right moment when the time comes to them to return to work.
4.8. This approach may have to do with the organisation of the respondent's operations, of which Mr B. gave extensive evidence. It is clear from his overall evidence that the respondent organisation is geared towards maximum efficiency - for example, the time allotted for the administrative duties of a lead driver, such as the complainant was, has been compressed over the years from two hours to about 45 minutes.
4.9. In terms of the accommodation the complainant would have needed, there was little dispute that, in case the respondent insisted on sending him out to do deliveries, he would have needed a helper to do the manual handling of the deliveries for him. The complainant stated in evidence that his duties would have meant climbing in and out of the driver compartment of his truck about 130 times in a single day, each time stressing his injured knee. It was Mr B.s evidence that to provide a helper would have meant hiring an additional person, which would have cost the company about €28,000 per year.
4.10. However, I note that Mr B. was only making the assumption that he would have to engage a helper for the complainant for an entire year. It is clear from Mr B.'s evidence that he never reverted to the respondent's occupational health expert with his queries on what manual handling the complainant was barred from carrying out - essentially, which weight packages were ruled out for the complainant to handle, but there is also no evidence before me that Mr B. ever made enquiries for how long this state of affairs would last, and whether there would be any alternatives to hiring a helper, such as varying the complainant's duties or offering the complainant part-time work. The respondent simply did not engage with either the complainant or its own doctor in this matter. Altogether, I find that apart from having no clear approach in general on how to comply with the requirements of S. 16 of the Acts with regard to staff with disabilities, the respondent therefore fell short in the obligations identified by the Labour Court in its jurisprudence, to get full information on a staff members disability and to be proactive in its approach. The Court's decision in A Government Department v. A Worker [ADE0516] reiterates both of these obligations, where the Court held that
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person's disability. [...]
The scope of an employer's duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. [emphasis added]
4.11. In respect of what is "reasonable" when it comes to the accommodation of a staff member with a disability, this obviously varies with the amount of accommodation needed, the expense attached, and the size and financial position of the company. In that regard, I note that the respondent, for its business in Ireland, had a turnover of €70 million and a net profit of € 4.5 million for the year in question. In such circumstances, I do not accept that the respondent would not have been able to provide reasonable accommodation for the complainant following a full examination of the situation, which, as noted, did not occur. I therefore find that the complainant is entitled to succeed in his complaint of the denial of reasonable accommodation on the part of the respondent.
4.12. The complainant also complains of constructive dismissal. In terms of the law on constructive dismissal, be it discriminatory or victimisatory, S. 2(1) of the Acts specifies that
"dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and "dismissed" shall be constructed accordingly.
4.13. The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the "contract" test and the "reasonableness" test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee's grievance or complaint.
4.14. In the case on hand, the complainant stated in evidence, and I accept, that he was forced to resign from the respondent's employment since he had no income from work and was not allowed to return to work, but that his being in the employment of the respondent barred him from looking for work elsewhere. The complainant gave evidence on how his material circumstances became increasingly difficult over time, as his only income were payments from the Department of Social Protection. Mr A. in his role as HR Manager did engage with the complainant on receipt of his letter of resignation, but only over the complainant's grievances regarding problems related to health and safety at work. In terms of reasonable accommodation, Mr A. suggested to the complainant that the complainant could apply for a role as customer representative with the respondent, and provided the complainant with a job description. It was not a firm offer of such a role, and neither was any other firm offer of getting the complainant back to work coming forth from Mr A. on behalf of the respondent until the complainant's resignation became effective on 4 November 2010. Therefore I find that the complainant is also entitled to succeed in his complainant of discriminatory constructive dismissal. However, as both discriminatory conduct and discriminatory dismissal flow from the same set of circumstances, the complainant will only be entitled to a single award of compensation, as I will set out in my decision below.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) the respondent did discriminate against Mr Reilly in relation to his disability by not providing him with reasonable accommodation pursuant to its obligations set out in S. 16 of the Acts and
(ii) the respondent did discriminatorily dismiss the complainant, by way of constructive dismissal, contrary to S. 8(6) of Acts.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant € 63,000. This sum equals 18 months' salary for the complainant and takes into account the size and financial capabilities of the respondent as a leading multinational logistics provider. In doing so, I am guided by principle enunciated by the by the Labour Court in Citibank v. Ntoko [EED045], which itself followed the jurisprudence of the CJEU on this matter, that "an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive". This award is in compensation for the distress suffered by the complainant and is not in the nature of pay and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
July 2013