The Equality Tribunal
Employment Equality Acts 1998-2011
DECISION NO: DEC-E2013-110
PARTIES
Hubert Gorski
(Represented by Maguire McClafferty Solicitors)
- v -
Johnston Logistics Ltd.
Date of issue:11 September 2013
File reference: EE/2011/498
Keywords: Employment Equality Acts - discriminatory treatment - disability ground - prima facie case - reasonable accommodation - dismissal
1. Dispute
1.1. This dispute concerns a claim by Mr. Hubert Gorski (hereinafter "the complainant") that he was discriminated against by Johnston Logistics Ltd. (hereinafter "the respondent") on the grounds of his disability, in that, that he was not given reasonable accommodation in his employment and was discriminatorily dismissed on grounds of his disability.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 14 June 2011 under the Employment Equality Acts. The claim was made on the disability ground. In accordance with his powers under section 75 of the Acts, the Director then delegated this case to Valerie Murtagh- an Equality Officer - on 22 May 2013 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 7 June 2013. Final supplemental documentation was received by the Tribunal on 5 July 2013.
2. Case for the Complainant
2.1. The complainant commenced employment as a truck driver with the respondent on 9 January 2008. On 7 September 2010, the complainant had an accident at work where he injured his lower back. He was absent from work on sick leave from 8 September 2010. On 1 March 2011, he issued a letter to the respondent requesting to return to work and enclosed a medical certificate from his doctor. In the following months, the complainant sent a number of letters to the respondent requesting reasonable accommodation for his disability and to return to work. The complainant contends that the respondent consistently stated in his letters that he would contact the complainant "when an appropriate vacancy becomes available" although refusing to actively take appropriate measures such as adaptation of patterns of working time or distribution of tasks. The complainant submits that the respondent indicated that although it's standard "terms and conditions of employment" allow transfer of employees to different working patterns including night driving should business so require, it does not consider the complainant's disability as an event creating the business need for that. The complainant states that the respondent had him medically examined in June 2011 and the only feedback from the respondent was "even in the event that you were fit for work, there is no legal requirement under any legislation to give you work in a different position if there is no vacancy available".
2.2 The complainant states that the respondent could have provided him with appropriate measures to accommodate his disability by moving the complainant to night work where lifting is not a feature of the work. The complainant contends that the respondent's inaction appears even more surprising in light of its letter dated 14 November 2011 "Notice to all Staff" where it stated that the employment in 2011 rose up to 110 from 85 employees and there was major restructuring of the company operations in 2011.
3. Case for the Respondent
3.1 The complainant was employed by the respondent as a day driver on 9 January 2008. His work comprised driving an articulated truck delivering up to 15 consignments per day to a range of customers. The nature of the job involved reasonably heavy physical work as in some delivery points, the driver would have to assist with unloading. It also involved long hours, driving up to 9 hours per day. The complainant reported sick on 6 September 2010 with a medical certificate for a week due to back pain. The respondent was subsequently made aware that the complainant had gone to Poland and had an operation, details of which were supplied by the Radmed Medical Centre who certified him unfit for work from 14 September to 24 October 2010. The respondent contacted and met with the complainant on 1 November 2010. The complainant provided a medical certificate up to 30 November 2010 and said he did not think he would be able to work as a driver again from a lifting point of view. The complainant subsequently informed the respondent that he had a medical certificate from Dr. Salem that would allow him to return to work on 10 February 2011 stating "fit for work as a driver, not allowed to carry heavy boxes".
3.2 The respondent met with the complainant on 8 February and informed him that it would require a copy of the medical report to review and depending on same may require him to attend a company medical. The respondent states that the complainant requested to be allowed return as a night driver as this post requires less physical work. The respondent informed him that it could not consider a return to work until it had reviewed all the medical information. The respondent states that it received a letter on 4 March 2011 from the complainant stating "you should know that I could never come back to full health that I have enjoyed before my accident. My doctor says that I will need another operation and rehabilitation to improve my health may take 2/3 years". The respondent states that these statements made it critically aware to ensure the complainant's fitness before he could return to work. On 1 June 2011, in response to correspondence from the complainant's solicitor, the respondent advised that it would need to have an independent medical performed on the complainant to ascertain his fitness for work so that the issue of alternative employment could be progressed, if a vacancy arose.
3.3 An independent medical assessment was performed by the Meridian Clinic on 22 June 2011 and the respondent wrote to the complainant advising that the Occupational Physician could not recommend him as fit to return to work, night driving or otherwise. The respondent submits that a significant block of its work involves the transportation of hazardous goods and it could not allow any doubt about the fitness for work of a person engaged on these duties. The respondent wrote to the complainant on 30 June 2011 advising him that if he was unfit for work, it could not hold his job open indefinitely and would have to terminate his contract for non-performance. The respondent undertook to have him re-examined if a night driving job became available before 31 August 2011 and if he was not deemed fit by that time, it would have to terminate his contract of employment and this occurred on 7 September 2011. The respondent submits that the dismissal of the complainant was due to his incapacity because of his disability to perform the work he was employed to do and therefore the dismissal was not discriminatory and was lawful in accordance with section 16 of the Employment Equality Acts.
3.4 In relation to the provision of reasonable accommodation, with regard to the complainant's contracted role as a day driver, the respondent submits that the only manner in which it could have provided reasonable accommodation would have been to put another employee on the truck to do the loading and unloading of goods. The respondent argues that this would have been a totally disproportionate burden costing and extra €35,000 per annum. The respondent contends that it proposed quite freely from the outset that it would accommodate the complainant as a night driver which, while it has a physical workload, it is much less, provided he was passed fit by the Occupational Physician at the Meridian clinic and that there was a vacancy. The respondent contends that the complainant's solicitor stated that the day driver contract allows those drivers to be put on different work patterns including night driving subject to business requirements and that the company should have displaced a night driver to facilitate the complainant. The respondent states that drivers are employed on different contracts either day driver or night driver and the reference to work pattern change has always been to cover a temporary situation, i.e. absenteeism, annual leave etc. and was never designed to move an individual permanently nor has it ever been done.
3.5 The respondent states that there was a reasonable expectation that once a person was employed as a day or night driver, that would be their role. The respondent also states that some employees working as day drivers would express their concern over the night driving provision as well as driving outside of Ireland. In addition, persons working as night drivers would apply for that choice to suit their domestic arrangements and also because the work was less demanding. The respondent states that if any employee at any time requested to transfer from day to night driving or vice versa, it could only be facilitated if a specific position became available. The respondent submits that following the medical assessment performed by the Meridian Clinic in June 2011, it received a report advising that the Occupational Physician in the Meridian Clinic could not recommend the complainant as fit to return to work, night driving or otherwise due to his back injury. The respondent reiterates that a significant block of its work involves the transportation of hazardous goods and it could not allow any doubt about the fitness for work of a person engaged on these duties. The respondent denies the allegation of discrimination and states that the complainant's employment was terminated for non-performance.
4. Conclusions of Equality Officer
4.1 I have considered all the evidence both written and oral presented to me. 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 Court1 , 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 in relation to not been given reasonable accommodation for his disability and his subsequent dismissal 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 condition is a disability within the meaning of the Acts. 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.
4.3 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;"
4.4 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 LC 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."
Dunne J. in the Circuit appeal stated that 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 relation to the health of a worker. On examination of all the evidence, I note that the complainant's doctor stated "fit for work as a driver, not allowed to carry heavy boxes". The respondent sent the complainant for an independent medical assessment at the Meridian Clinic and their Occupational Physician submitted a report to the respondent advising "I note that you are exploring the possibility of him going onto night shift where he will be driving a HGV from depot to depot which would not mean any movement of goods, you have stated that it would involve attaching and detaching the trailer which is a reasonably physical job. As you also point out, he needs to be able to take appropriate action in the event of an incident which could involve heavy work. Having given due consideration to all of the above, I would be reluctant to recommend him as fit to return to these duties which can involve a degree of heavy lifting and manual handling. Mr. G is already re-employed in another company as a driver". I am satisfied given the complainant's own doctor's report together with the report from the Occupational Physician at the Meridian Clinic that the complainant was not fully capable of undertaking the duties attaching to the post of his contracted position of day driver.
4.5 Under the Employment Equality Acts, there is a requirement on the employer to examine appropriate measures to assist the complainant in the provision of reasonable accommodation that would allow the complainant undertake the duties of his post. The respondent has stated that the only manner in which it could have provided reasonable accommodation would have been to put another employee on the truck to do the loading and unloading of goods. The respondent argues that this would have been a totally disproportionate burden costing and extra €35,000 per annum. The respondent submits that initially it did advise the complainant that it would examine the prospect of a night driver post if a vacancy arose subject to independent medical assessment of the complainant. However, following receipt in June 2011 of the medical assessment carried out by the Occupational Health Physician in the Meridian Clinic where it stated that "I would be reluctant to recommend him as fit to return to these duties which can involve a degree of heavy lifting and manual handling" the respondent was not in a position to provide the complainant with a night driver position on that basis together with the fact that a significant block of its work involves the transportation of hazardous goods and it could not allow any doubt about the fitness for work of a person engaged on these duties. On balance, given all of the evidence and testimony presented in this case, I am satisfied that the complainant has not established a prima facie case of discriminatory treatment on grounds of disability. I am satisfied given the medical evidence presented that the complainant was recommended unfit for the duties of both the day and night driver positions on the basis of his disability. I am also satisfied that the complainant's contract of employment was terminated on the basis that he was not medically fit to carry out such duties as advised by his own GP and the Occupational Physician at the Meridian clinic. I also note that the respondent became aware prior to terminating his contract of employment that the complainant had taken up employment with another company. Overall, on examination of all the evidence in this case, I am satisfied that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of disability.
5. Decision of the Equality Officer
5.1 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 that (i) the complainant has not established a prima facie case of direct discrimination on the disability ground and (ii) the complainant has not established a prima facie case of discriminatory dismissal in terms of section 2 (1) of the Employment Equality Acts.
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Valerie Murtagh
Equality Officer
11 September, 2013
Footnotes:
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.