Employment Equality Acts
Decision DEC-E2013-056
PARTIES
An Employee
(Represented by Higgins O'Reilly Solicitors)
- V -
A Blood Transfusion Service
(Represented by IBEC)
File reference: EE/2011/155
Date of issue: 11 June 2013
Keywords - Employment Equality Acts - Discriminatory Dismissal - Disability - Prima Facie case - Appropriate measures
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory dismissal and a failure to provide reasonable accommodation by the respondent on the ground of disability in terms of Section 6(2) and Section 16 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 3 February 2011 under the Employment Equality Acts. On 29 January 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 April 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent as a Driver Clerk/Donor Attendant on a specified purpose contract for a period of two years but that he was unaware at that time that the contract was for a specified length. The complainant worked in the Transport Department along with ten staff that were employed on the same grade.
2.2 The complainant submitted that sometime in late 2009 he made enquiries of his line manager as to his contract status and was given a further fixed term contract followed by two more contract renewals. The justification provided on all contracts for their renewal on a fixed term basis was stated to be the upcoming transport review. While the public service recruitment moratorium had been in place for the last two contract renewals, this had not been mentioned at the time of renewal nor as objective justification for the failure to offer a contract of indefinite duration.
2.3 The complainant submitted that he went on sick leave on 6 September 2010 after being diagnosed with epilepsy and notified his employer of his condition as per the terms of his contract. He was medically assessed on 10 September 2010 and deemed fit to return to work with modified duties, which were restrictions from driving and to work in the vicinity of another health care colleague with access to first aid capabilities. It was deemed temporary in nature but likely to remain in place for 12 months. The complainant further submitted that on the same day he met with his line manager whose main concern was the current and future status of his driving eligibility and repeatedly questioned him over this as opposed to any other issues regarding his health or capabilities for work.
2.4 The complainant submitted that on 17 September 2010 he telephoned Ms X in the Human Resources division about what possible work he could return to and that he further contacted them on 21 September 2010 to provided an updated diagnosis, that he had a brain tumour. The complainant suggested that he could come back to work either in a registration position in the patient clinics or as a Donor Attendant. The complainant further submitted that on 24 September, Ms X assured him that he could return to a filing position but instead he received a further appointment for a medical assessment. Following this assessment, the Doctor gave the same recommendation as previously, which was that he was fit for work with modified duties.
2.5 The complainant submitted that he returned to work on 18 October 2010 but to a different role than the filing position promised. The complainant worked his last day on 19 November as he had to have an operation to remove the Brain Tumour on 25 November 2010
2.6 The complainant submitted that he was informed in a letter dated 18 November 2010 that his contract would expire on 17 December and that this would not be extended due to the recruitment moratorium. The complainant further submitted that the Transport Review that was stipulated as the reason for not offering him a contract of indefinite duration and as the justification for not renewing his contract on a fixed term basis on the three previous contract renewals had not been completed at that time. The complainant submitted that he was not offered redundancy payment and was informed that he was not entitled to one.
2.7 The complainant submitted that he was very confused and upset by the letter of 18 November and approached his union. The Union, in turn, contacted the HR department seeking a meeting to discuss the non-renewal of his contract at a time when the complainant would be fit following his operation. The complainant further submitted that as he got no reply to that request, he then sought to be place on an interview list for a position that had been advertised some months earlier. The complainant did not receive a reply to this request.
2.8 The complainant submitted that he has had his contract renewed previously on three separate occasions and sincerely believed that he would have a further contract renewal. He further submitted that he is the first employee in this grade to lose his job this way and furthermore it has come to his attention that the Human Resources section have written to at least 6 former employees to offer them interviews for a vacancy as a Donor Attendant.
2.9 The complainant submitted that the respondent breached the legislation, and specifically Section 8(6)(c) of the Acts when he was subjected to the non-renewal of his fixed-term contract (of which he has had three renewals prior to the development of his disability and of which two other staff members employed on the same grade as him were not subjected to the same treatment.
2.10 The complainant submitted that his employer failed to provide him with reasonable accommodation in accordance with the Acts in that he was deemed fit for work with modified duties from 10 September 2010 and made numerous attempts to engage with the HR section and to resume working as quickly as possible. The complainant was not allowed to return to work until 18 October 2010 and not to the position that had been discussed with him. In addition, the complainant made suggestions as to where he could work but was denied access to those positions. The complainant submits that he was medically fit to work in those positions but was excluded from working in them by the respondent. Furthermore, the complainant made a request to be placed on an interview panel for a position that had been advertised some months earlier and was never given a reply to his request.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent rejects the complainant's claims that he was not provided with reasonable accommodation for a disability or that his was dismissed on a discriminatory basis on the grounds of disability.
3.2 The respondent submitted that it operates in a turbulent environment and that on-going change management programs are necessary, the purpose of which are to review and address efficiencies within all the work activities of the organization. A transport review was identified as necessary due to the disproportionate operating costs of the transport function when benchmarked against industry practice.
3.3 The respondent submitted that it advertised a temporary full-time position for Driver Clerks in the summer of 2007. The complainant applied for and was employed as a Driver Clerk and was the sole Driver Clerk employed through this process. He was employed on a 'specified purpose contract' for two years. This information was contained in the contract sighed by the complainant. The complainant was trained to perform the role of Donor Attendant on the mobile unit only.
3.4 The respondent refutes the complainant's allegation that he was told that offering a specific purpose contract was a common procedure for new roles. Notwithstanding this, the complainant was issued with a two week contract at the expiration of his first contract to bridge a contractual gap and allow it's Board to consider the issue of the complainant's contract. At this point in time the transport review was on-going, the pilot project regarding the mobile unit had been unsuccessful and the Board considered that in the circumstances the complainant's contract could only be extended for up to a maximum of one year. The contract covering the period 16 December 2009 up to 4 June 2010 stated that 'It is not possible at this time to offer you a permanent contract as a review of out transport services is due to take place in 2010 which will clarify out future staff requirements in the transport department.' The subsequent contract covered the period from 30 April 2010 and would terminate on 17 December 2010 or at the conclusion of the Transport Review, whichever was the earlier.
3.5 The respondent submitted that the complainant's line manager and the Senior Driver Clerk met with him to communicate this decision. This meeting was held prior to the signing of the contract so there could be no room for ambiguity in relation to the duration of the contract. At this meeting the complainant's specific attention was drawn to the two paragraphs relating to the duration of the contract. The complainant was advised that the respondent was not in a position to offer him a permanent contract. At the conclusion of the meeting it was agreed that the complainant would review the contract over the weekend and revert with any questions. The complainant did not raise any queries regarding the contract and signed his agreement to the terms which came into force on 5 June 2010.
3.6 The respondent submitted that given that the complainant's role involved driving duties, he was referred for a medical assessment in October 2007, and was found to be fit for post. Additional medical assessments took place in November 2008 and January 2010 and the complainant was found to be fit for post on each occasion. Prior to September 2010, no medical concerns or conditions were notified to the respondent. It is therefore, the respondent's position that until September 2010 the complainant did no have a disability within the meaning of the Act.
3.7 The respondent submitted that complainant commenced a period of sick leave on 6 September 2010 and on this date contacted his line manager to inform her that he had just been diagnosed with epilepsy. In line with its Environmental Health and Safety policy, the respondent submitted that it is a requirement that a medical declaration form be completed by an employee where there is a newly diagnosed medical condition which may effect their ability to fulfill their duties. Therefore the complainant attended for a medical assessment on 10 September 2010. on 14 September the respondent received the recommendation which stated that the complainant was fit for modified duties outlined as 'restrict from driving and to work in the vicinity of another health care colleague until further information is available, otherwise please consider first aid and capabilities in the event of a seizure'.
3.8 The respondent submitted that the complainant spoke to Ms X from the HR section when he was informed that the respondent was considering alternative work to the complainant. The role of Donor Attendant was referenced during this discussion and Ms X, who had prior experience of an employee in this role being diagnosed with epilepsy, informed the complainant that the role was not appropriate (due to the invasive nature of the blood donation process and for the safety of the blood donor, an individual with epilepsy cannot undertake venepuncture or duties associated with taking blood donations through a needle).
3.9 The respondent submitted that on 21 September the complainant informed Ms X that his medical condition had changed, and undertook to revert with a second consultant's advice. It was confirmed to the complainant that there was a potential of a filing project should he be fit for work. Ms X informed him that due to the changed medical diagnosis, it would be necessary for him to undergo a second medical assessment. The respondent further submitted that although it contests that the complainant raised the possibility of working in a donor registration role, the role is not a post in and of itself.
3.10 The respondent submitted that the complainant attended for a further medical assessment on 7 October 2010 and the resulting medical report stated that he is 'fit for duties with proposed modification' whereby he 'should be restricted from driving until further notice and that restriction is likely to remain in place for at least the following 12 months. Otherwise I would recommend that he should work in the vicinity of another healthcare colleague with access to first aid capabilities in the event of a further seizure'
3.11 The respondent submitted that based on the new recommendations, a new role was devised for the complainant. The filing project which had been under consideration for the complainant did not materialize as there was not sufficient work to be done. In addition the respondent could not guarantee the presence of a colleague with first aid capabilities at all times. In the interest of the complainant's health and safety and alternative role was found. This role was primarily in dispatch area where he would continuously be in the company of others and there would be no impact on the complainant's rate of pay.
3.12 The respondent submitted that in November the complainant spoke to Ms X. During the conversation he referenced to the time elapsed before his return to work. Ms X explained that there had been no undue delay as the respondent needed time to devise a role that met the recommendations of the Occupational Health report.
3.13 The respondent submitted that on 16 November 2010 it wrote to the complainant to confirm that his employment would finish in line with the terms of his contract and as notified to him initially in May 2010.
3.14 The respondent submitted that on 22 November, the complainant contacted the Senior Driver Clerk to explain that he was attending hospital the following day to have and operation. He also confirmed that he had received the letter in relation to the ending of his contract. The complainant applied for a permanent position as Accounts Payable/Receivable in October. He interviewed for the position but was unsuccessful as he did not have enough relevant experience working in a computerized financial department (the position was given to a candidate with accounting qualifications that the complainant did not have).
3.15 The respondent submitted that on 10 December 2010, the complainant contacted the respondent in relation to an interview list for a position of Laboratory Assistant, the closing date for which was 22 October 2010. The respondent had not received any applications for the position in October and the role was removed and never filled.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant was subjected to discriminatory dismissal by the on grounds of disability, in terms of section 6 of the Employment Equality Acts, and contrary to section 77 of those Acts; and whether the respondent failed to provide appropriate measures under Section 16 of the Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited v Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 I note from the submissions of both parties that it is common case that the complainant informed the respondent of the existence his disability in September 2010. It is also common case from the oral evidence that the complainant was informed in May 2010 that his position would terminate in on 17 December 2010 or when the Transport review was completed, whichever was earlier and that there could be no extension or renewal of his contract. From the evidence presented to me, it is apparent that this was explained to the complainant in May 2010 and that a new and detailed outline of this position was included in his contract at that time and that this had not appeared in any earlier version of his contract. It is clear that the decision to end the complainant's employment predates the awareness of the existence of the disability by either party by at least three moths. Therefore the decision cannot be related to his disability. Accordingly, the facts established do not support an inference that dismissal came about due to discrimination on one of the nine grounds and this element of the complaint must fail.
4.5 In relation to the alleged failure to provide appropriate measures/reasonable accommodation of the complainant's disability, the evidence presented to me by both parties is that for the remainder of his contract, the respondent did seek and provide an alternative role to the complainant. Therefore, the complainant has not established facts from which discrimination may be inferred and no onus to prove the contrary falls upon the respondent. This element of the complaint also must fail.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent has not subjected the complainant to discriminatory dismissal and, therefore, this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the respondent has not failed to provide appropriate measures and, therefore, this element of the complaint fails.
Conor Stokes
Equality Officer
11 June 2013