THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC - E2013- 080
An employee
(represented by Mr Liam Bell B.L. instructed by Dermot McNamara and Company Solicitors.)
versus
A transport company
(represented by Purdy Fitzgerald Solicitors)
File reference: EE/2010/617
Date of issue: 24th July 2013
Keywords: Employment Equality Acts, Disability, Discriminatory Dismissal, Failure to provide reasonable accommodation,
Dispute
1.1 The case concerns a claim by Mr. A that he was discriminatorily dismissed on the grounds of disability in terms of 6(2) (g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as 'the Acts']. He also claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them and discrimination in relation to his conditions of employment.
1.2 Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 15th August 2010. On the 30th November 2012, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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. Submissions were received from both parties and a hearing was held on 30th April 2013 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant was employed from November 2009 until he was dismissed in June 2010.
2.2 The complainant submits that during this period of employment he was absent as follows:
- Two uncertified days as he had overslept.
- One day due to a family emergency.
- Two days in March 2010 absent with was on certified sick leave due to sinuses problems.
- Ten days in April 2010 due to a back injury.
- Ten days from the 31st May 2010 to the 14th June 2010 on certified sick leave due to stress and depression.
2.3 The complainant submits that upon his return to work on the 15th June, following a two week certified absence due to stress and depression, that he completed the usual absence/return to work form with Mr B. The complaint maintains that Mr B was his direct manager and that Mr B acknowledged in writing that he was aware that the complainant was suffering from depression, was taking medication for same and that the company would arrange for holidays if the complainant needed more time off.
2.4 The complainant submits that on the 22nd June 2010 that he was summoned to the office of Manager A. At this meeting, where he was unaccompanied, Manager A informed him that as he had been absent for 23 days during his period of employment since the 6th November that he was being dismissed, with immediate effect. The complainant says he was told to collect his belongings and leave immediately.
2.5 The complainant submits that he was discriminated against by the respondents because he was suffering from depression. He submits that the respondent was aware of his condition but had made no allowances.
Summary of the respondent's case
3.1 The respondent maintains that the complainant's employment was terminated due to poor performance as exemplified by instances when he did not report for work.
3.2 The respondent submits that the complainant is alleging a disability because of sinus trouble, a back injury and an absence in May due to stress. The respondent cites Colgan v. Boots Ireland Limited ( DEC-E2010-008) and the finding of the European Court of Justice in Sonia Chacón Navas v Eurest Colectividades SA [C-13/05], to argue that these conditions do not constitute a disability under the act as they are
- Not significant
- Did not last for any length of time
- Have not been verified by a Medical Practitioner as a disability.
3.2 The respondent states that Mr B was not a manager and therefore the respondent was not on notice that the complainant was taking medication.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant was dismissed due to a disability and whether the respondent failed to provide reasonable accommodation in order to enable him to take up a position with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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 In relation to the respondents contention that the complainant was not suffering from a disability, it was clarified during the hearing the complainants argument is that depression alone is the disability in question. Arguments in relation to the back pain and sinus trouble are not relevant to this case.
4.4 The definition of disability as defined in Section 2 of the Acts:
(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 form a person without the condition or malfunction
(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.
It is clear that depression is covered by this definition. The complainant was medically certified as suffering from depression and presented this certification to his employer at the relevant time, I therefore find that he was suffering from a disability as set out in the Acts.
4.6 I find that Mr B was Mr As manager for the period of his employment. There is ample evidence through company forms that Mr A reported to Mr B in relation to his day to day work, including reporting to him in relation to all absences over the full period of his employment. As written evidence by Mr B states he was aware of the complaints depression and treatment, I therefore conclude that the respondent was on notice of the complainants' disability and that a prima facie case has been established.
4.6 It is clear that the complainant had a poor attendance record and that the respondents dismissal of the complainant specifically related to 23 days of absence during his working year. It is clear that 10 of those days related to a disability. The respondent asserts that the complainant was dismissed due to poor performance, yet the company's written record indicates that the 23 days of absence was the sole reason for dismissal. Aside from reprimands for the two days when the complainant slept in there is no record of the complainants work performance being an issue for the company. Therefore, I must decide if it was reasonable for the respondent to terminate the complainants employment based on 13 days absence, that majority of which were certified. Given, the absence of documentation required under the companies own procedures, I find that it is not credible that the complaints employment would be terminated on the basis of the 13 days alone. The respondents absence policy did not at that time contain relevant provisions regarding persistent absences.
4.7 Evidence given at the hearing was that Mr B and Manager A were located close to each other and discussed the employee's absences as a matter of course. I find that it is reasonable that Manager A would have been aware of the complainants' disability before terminating his employment. Given all of the circumstances above and the fact that the respondent decided to terminate the complainants employment seven days after being made aware of his disability, I find that the respondent was aware of the complaints disability when the decision to dismiss him was made and were aware that the disability was a major contributing factor under the criteria used (the 23 days) to reach that decision.
4.8 As the respondent terminated the complainants employment seven days after being made aware of his disability it is clear that the issue of reasonable accommodation was never considered by the respondent.
Decision
5.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent discriminatorily dismissed the complainant on the ground of disability
(ii) the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them
5.2 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. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate
5.3 I order the respondent to pay the complainant €22,000 which I consider to be a fair and equitable figure in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
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Peter Healy
Equality Officer
24th July 2013