EDA1318

In this Determination the parties are referred to as they were at first instance. Hence, the Fisheries Officer is referred to as the Complainant and the Fisheries Board is referred to as the Respondent.

Facts

The Complainant commenced employment with the Respondent in or about June 2007, pursuant to a fixed-term contract. The contract was renewed in or about January 2008 and was due to expire on 30^thJune 2010. The duties of a fisheries officer involve patrolling rivers by walking along the bank or by the use of boats. They also involve driving either the officers own car or the Respondent’s vehicles.

On or about 19^thOctober 2008, the Complainant suffered an epileptic seizure while attending to his duties on a river bank. He was taken to hospital by ambulance but was discharged later on the same day. The Complainant took some annual leave and he returned to work on or about 30^thOctober 2013.

It transpired that the Complainant has suffered from epilepsy for some ten years. Prior to the episode on 19^thOctober 2013 he had not suffered a seizure for eight years. The Complainant had failed to disclose his condition on being employed by the Respondent. The Complainant was on medication for his condition and it appears the seizure that he suffered was brought on by his failure to take his medication over a number of days.

On becoming aware of what had occurred on 19^thOctober 2008, the then Chief Executive Officer of the Respondent, Mr EC, directed that the Complainant be confined to office duties. He also arranged for the Complainant to be seen by an Occupational Physician, (Dr F), nominated by the Respondent. The Complainant met with Dr F on 6^thNovember 2008. In a report subsequently furnished to the Respondent Dr F made certain recommendations in relation to the implications of the Complainant’s condition for his employment. The Complainant attended his Consultant Neurologist, Dr T C, who prepared a report which was furnished to the Respondent. Dr TC gave it as his opinion that there was a low risk of the Complainant suffering a further seizure. Dr TC stated that he “would see no restrictions either on driving or work practice arising from this unfortunate episode”

The medical evidence was evaluated by the Respondent’s CEO, Mr EC. He told the Court in evidence that he interpreted Dr F’s report as meaning that the Complainant was medically unfit to perform the duties of a fisheries officer. Dr F was furnished with a copy of Dr TC’s report but he did not revise his earlier opinion. Dr F did indicate a willingness to discuss the matter with Dr TC if he obtained the Complainant’s consent to do so. Mr EC told the Court that he advised Dr F not to contact Dr TC as in his opinion the situation regarding the Complainant’s continued employment was adequately dealt with in Dr F’s report. He decided to terminate the Complainant’s employment and he did so by letter dated 18^thFebruary 2009.

The Complainant appealed against the decision to terminate his employment. The appeal was heard by Mr EC, against whose decision the appeal was being taken. In the course of the appeal the Complainant offered to attend an independent neurologist for the purpose of obtaining a third opinion on his capacity to undertake his duties. Mr EC told the Court that he could see no value in adopting the Complainant’s proposal. The appeal was disallowed.

The Issue

There is no dispute between the parties concerning the reason for the Complainant’s dismissal. The representative of the Respondent fairly accepted that it was because he suffered from epilepsy. This was confirmed in evidence by Mr EC. It is also accepted that the Complainant’s condition constitutes a disability within the statutory meaning of that term. It follows that the Complainant’s dismissal was.prima facie, an act of discrimination on grounds of disability. The Respondent seeks to rely on the defence provided by s.16(1) of the Act for the purpose of avoiding liability. In these circumstances the only issue arising for consideration in the case is whether the Respondent can avail of the defence provided by s.16(1) of the Act.

The Law

Section 16(1) of the Act provides: -

• (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
  • (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

    (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

• (a) 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.]

In its decision this Court held as follows: -

• This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

  The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

  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, s.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.

Conclusion

It is clear from the evidence that Mr EC decided to terminate the Complainant’s employment wholly or mainly on the basis of Dr F’s report. Dr F was summoned to appear as a witness for the Respondent but he failed to attend the hearing. Dr F’s report was furnished to the Court but in the absence of direct evidence from its author this report has little probative value. The Court cannot speculate as to the evidence that Dr F might have given had he attended the hearing. Nor can the Court attach any weight to Mr EC’s evidence of what he understood Dr F’s report to mean.

However, it is noteworthy that the report nowhere states that the Complainant was medically unfit to continue in his employment as a fisheries officer. It is also noteworthy that Dr F recommended that the Complainant be reviewed after 12 months. That recommendation is wholly inconsistent with an imputed intention to recommend that the Complainant could not continue in his employment. Mr EC told the Court in evidence that Dr F regularly advised the Respondent on medical matters affecting its staff and that he was fully familiar with the range of duties that a fisheries officer would be required to undertake. In these circumstances it can reasonably be assumed that if Dr F believed that the Complainant could not safely undertake the duties of his post he would have said so in express terms.

The general principles set out inHumphries v Westwood Fitness Clubrequire an employer to make abona fideand informed decision concerning a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive.

Applying that test in the instant case the Court is satisfied, having heard the evidence of Mr EC, that he gave little or no weight to the clear and unambiguous opinion of Dr TC to the effect that the Complainant was at low risk of a recurrence of the seizure that he suffered and that he could see no requirement for restrictions on the Complainant either driving or undertaking his normal work practice. The Court also accepts that Dr F canvased the possibility of discussing the Complainant’s condition with Dr TC but was dissuaded from so doing by Mr EC. Furthermore, Mr EC was unable to offer any cogent explanation for his refusal to act on the Complainant’s proposal that he be assessed by an independent Consultant Neurologist so as to resolve any apparent conflict in the opinion of Dr F relative to that of Dr TC.

In all the circumstance of this case the Court is not satisfied that the Respondent could have reached an informed decision that the Complainant was not fully capable of undertaking the duties attached to the position of Fisheries Officer. Accordingly the defence provided by s.16(1) of the Act is not available to the Respondent. The Complainant was dismissed because of his disability and in these circumstances he is entitled to succeed in his claim of discrimination.

Redress

Where a worker is dismissed in circumstances amounting to discrimination the most effective form of redress is an order requiring his or her reinstatement together with adequate compensation. However, the Court is satisfied that an order for reinstatement or reengagement in this case would not be viable as the Respondent has neither the work nor the resources to provide the Complainant with continuing employment. Moreover, the Complainant was employed pursuant to a fixed-term which would have expired on 30^thJune 2010. The Court is satisfied, as a matter of probability, that the Complainant’s employment would not have been extended beyond that date.

In these circumstances the appropriate form of redress is an award of compensation for the effects of the act of discrimination. Section 82(4) limits the monetary jurisdiction of the Equality Tribunal, and by extension of this Court, to an amount equal to 104 time the Complainant’s weekly pay. The provision of s.84 must be read in conjunction with Article 17 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Occupations (the Framework Directive). That Article provides: -

• Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.

The Complainant’s salary, at the time of his dismissal, was €24,381 per annum. There was approximately 16 months remaining on his fixed term contract at the time of the dismissal. His direct pecuniary loss therefore amounted to some €32,000. Having regard to the obligation on the Court to make an award that is effective, proportionate and dissuasive the Court measures the appropriate quantum of compensation in this case at €48,000, which amount is at the limits of the Court’s jurisdiction. The Respondent is directed to pay the Complainant compensation in that amount. No part of this award is in respect of loss of remuneration and is for the effects of the act of discrimination found to have occurred.

Determination

The Complainant’s appeal is allowed. The decision of the Equality Tribunal is set aside and substituted with the terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
10th June 2013______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.