EDA1412

This is an appeal by Pat McDonnell Paint Sales Limited (hereinafter "the respondent") against a decision of the Equality Officer number DEC-E2013-078 issued on the 23^rdJuly 2013. The Equality Officer decided that the Complaint made by Mr Denis O'Flynn (hereinafter "the Complainant") that
(1) he was dismissed on account of his disability contrary to section 8 of the Acts;
(2) the respondent failed to comply with its obligation to take appropriate measures needed in this case to enable the Complainant who had a disability to participate in employment, contrary to section 16 of the Acts were well founded. A number of related complaints made by the Complainant were not upheld by the Equality Officer and were not appealed to this Court.

The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 18 May 2010. The Equality Officer issued his decision on the 23^rdJuly 2013. The Respondent lodged its appeal with the Labour Court on 29^thAugust 2013. The case came on for hearing before the Court on 21 January 2014. Both parties attended the hearing. Both parties made extensive written submissions to the Court prior to the hearing.

Background

The Complainant worked for the respondent company from September 1997, initially as a Driver and later as a sales assistant. In 2004 his hours were reduced to 4 days per week to facilitate his duties as a public representative. In 2006 his hours were reduced further to 3 days per week. The Respondent states that this concession was made at the Complainant’s request. The Complainant denies this.

The job of sales assistant requires the Complainant to stand for prolonged periods of time. The Complainant suffered from varicose veins and was certified unfit for work in September 2008. The Complainant underwent three medical procedures in an effort to correct the problem. However due to complications with his condition he did not make a full recovery. His medical advisor was reluctant to operate again. In a medical certificate dated 20 April 2009 the Complainant's GP stated that his condition "would be exacerbated by prolonged periods of standing and that, at present, he was unfit to return to work."

The respondent wrote to the Complainant on 26 May 2009 acknowledging receipt of the Doctor's certificate of 20 April 2009 and a subsequent certificate of 4 May 2009. In the letter dated 26 May 2009, the respondent's HR manager:-

1. Expressed concern that the Complainant has not been able to nominate a date upon which he would return to work; noted that his continued absence was causing difficulties for the conduct of its business and in particular stated that it had not been possible for it to plan temporary cover; commented that the Complainant’s absence had a negative impact on the running of the business and on the service to customers and expressed concern about the burden being placed on other staff.
2. Stated that the respondent company was anxious to facilitate the Complainant's return to work at the earliest opportunity. It requested an indication of a return to work date.
3. Informed the Complainant that it was arranging for him to undergo a medical examination with an Occupational Health Specialist.
4. Advised the Complainant that unless he was in a position to indicate a date upon which he would be in a position to return to work in the near future it would have to give consideration to the possibility of terminating his employment as the business could not afford for him to be absent from work indefinitely.

The Complainant responded on 2 June 2009 stating his willingness to attend medical examination and pointing out that:
1. (Referring to the respondent's reference that the business not being able to afford his absence indefinitely) he was not being paid by the respondent while on certified sick leave.
2. He was anxious to return to work at the earliest opportunity but that he must have regard to the medical advice of his doctor regarding his welfare.

The Complainant's surgeon examined him on 3 June 2009 and reported to his GP that there was nothing he would recommend doing in terms of further surgery. The surgeon felt that the job he was doing which requires prolonged standing was unsuitable. He recommended that the Complainant not continue with any work which requires prolonged standing. The Complainant stated that he forwarded his surgeon's letter to the HR manager. (This is denied by the respondent).

On 15 June 2009 the Occupational Health Specialist nominated by the respondent examined the Complainant. The specialist diagnosed that the Complainant suffered from a non- work related condition that is exacerbated by prolonged standing. He recommended that the Complainant was unfit for duty that involves standing for prolonged periods of time. He stated that the Complainant was unfit to stand for a prolonged period. He opined that this condition would continue indefinitely. He observed that the Complainant’s condition may be covered by the Employment Equality Act 1998 and advised the respondent to take separate legal advice on this point. He stated that the Complainant would be fit to carry out duties in a seated position.

The respondent wrote to the Complainant enclosing a copy of the report of the Occupational Health Specialist for his attention. The letter (dated 27 July 2009) from the HR manager stated:
1. Having considered the reports of the Occupational Health Specialist and the Complainant's own GP the respondent company would like to arrange a meeting to discuss his employment with the company.
2. She was available if he wished to discuss any aspect of the medical reports with her.
3. He should feel free if he wished to bring a colleague with him to the meeting.

The Complainant claims that the HR manager told him by phone to bring a friend "as you may not like what you will hear." The respondent denies making such a comment.

After a number of failed efforts a meeting took place on 2 October 2009. It was attended by the Complainant, his union representative, a director of the respondent company and the HR manager. What transpired at that meeting is a matter of dispute.

The union representative states that he outlined the Complainant's ongoing medical difficulties and indicated that a definite return to work date could not be given; that the union requested the company to make some "accommodations" notwithstanding the difficulties in the workplace, and as required by the Acts; the company undertook to consider the matter and to revert to the union; that despite that commitment the company did not revert to the union; instead it made a decision to terminate the Complainant’s employment.

The HR manager states that the Union opened the meeting stating that it accepted that the Complainant was not fit to return to work and was willing to discuss a severance package to depart the company. It states that management indicated that it had explored the possibility of reasonably accommodating the Complainant by redesigning the job or redeploying him to suitable alternative employment. It states that the Complainant acknowledged that the job for which he was employed could not be carried out from a seated position. He also acknowledged that there were no vacant positions available to which he could transfer. It states that the company stated that it had not considered a severance payment as it did not consider it an option and the job was not redundant. Nevertheless it undertook to examine the matter and revert to the Complainant. It raised the issue with the board and decided to terminate the Complainant’s employment and paid him an ex gratia payment that was the equivalent of the statutory entitlements he would have received under working time and minimum notice legislation had he been in work.

The Respondent notified the Complainant by letter of 16 October 2009 that his employment would terminate on the expiry of his notice period on 3 December 2009. The Complainant was paid six week’s pay in lieu of notice.

In the letter dated 16 October 2009, the respondent set out the grounds for dismissal as follows:

a. The Complainant confirmed at the meeting that his GP was unable to provide him with an indication as to when he might be in a position to return to work.
b. The options to facilitate his return were discussed at the meeting. It was clear the only circumstances in which he could currently return to work in accordance with the stated medical advice was if he was given a suitable seated position. Unfortunately, the company did not have such a position available and this was accepted by both the Complainant and his union representative.
c. The respondent could not accept his absence indefinitely and decided to terminate his employment. He was entitled to 6 weeks' notice.

The union then wrote to the respondent on 27 October 2009 expressing disappointment at the respondent’s dismissive behaviour when it failed to revert to it as promised. It stated that its actions had caused disappointment to the Complainant who had 12 years' loyal service to the respondent. The union repeated its contention that the respondent made no effort to make an accommodation within the workplace so as to enable the Complainant continue at work.

The respondent replied that the Complainant could not carry out his role as a sales assistant from a seated position. It further stated that there was no suitable alternative work available in the company.

The Complainant initially commenced proceedings against the respondent under the Unfair Dismissals Act. These were subsequently withdrawn and substituted with proceedings under this Act in which he sought compensation for the effects of discrimination and victimisation.

Complainant’s Case

The Complainant states that he suffered from a disability that prevented him from discharging his duties as a salesman without a measure of accommodation from the company. He argues that the accommodation he sought was reasonable. He states that the respondent did not engage with him regarding the possibility of such an accommodation. He submits that there were other positions within the company that he could have undertaken. He argues that the respondent failed to explore such options with him. He acknowledges that he did not make a submission to the respondent at the only meeting he attended with the Company regarding his disability which took place on^NDOctober 2009. He states that he left that meeting on the understanding that the respondent would consider and revert to him regarding the possibility of resolving the matters at issue by way of a severance payment. He states that the meeting adjourned at that point and no other issues were addressed in any meaningful way. He submits that the next contact he had with the Company was through a letter of dismissal dated 16 October 2009. He submits that he responded to that letter on 27 October seeking further engagement but that this was effectively rejected in the company’s response dated 3 November 2009. He argues that the respondent at no point engaged with him regarding the possibility of reasonable accommodation or alternative employment.

Respondent’s Case

The respondent submits that the Complainant was not capable and had no prospect of being capable of undertaking the duties of the post in which he was employed and was accordingly dismissed. It submits that it considered the possibility of modifying the Complainant’s employment to accommodate his disability. To this end it carried out an extensive examination of the Complainant’s work and determined that it was not possible for him to undertake it from a seated position. It then examined redeployment options within the company and concluded that there was either a skills mismatch between the Complainant and the seated jobs available or there were no vacancies to which he could be transferred. It argues that this was explained to the Complainant at a meeting on 2 October 2009 and that he accepted that position. It submits that it examined the request for a severance payment made by the Complainant and decided that it was not possible to offer him statutory redundancy terms as his job was not redundant. Instead it allowed him holiday and notice payments to which he had no statutory entitlement in an effort to meet his aspirations. It acknowledges that it did not revert to the Complainant after the meeting of the 2^ndOctober 2009. It regrets this discourtesy but argues that it has no material relevance to the complaint before the Court.

Issues

It is common case that the Complainant suffered from a disability within the meaning of the Act. It is also common case that, as a result of his disability, the Complainant was not capable of discharging the full range of duties associated with his employment. The Complainant states that, with reasonable accommodation, he could have undertaken the duties of the post for which he was employed. He argues that such accommodation could have been provided by restructuring minor aspects of the job or by reassigning him to other duties within the company that he was capable of undertaking and that could have been made available to him.

The Respondent relies on Section 16(1)(b) of the Act. It argues that the Complainant was dismissed because he was not fully capable of undertaking the duties attached to the position for which he was employed. It argues that having examined the matter in great detail there were no reasonable accommodation measures available to it such that would put the Complainant into a position to undertake the work associated with his position in the company.

The Law

The Act

Disability has the following meaning within the Act

• “disability” means—
  • 
    (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,

6.—(1)For the purposes of thisAct, discrimination shall be taken to occur where, on any of the grounds insubsection (2)(in thisActreferred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

In the case of disability this means

• • (g)that one is a person with a disability and the other either is not or is a person with a different disability (in thisActreferred to as “the disability ground”),

8.—(1)In relation to—

• • (a)access to employment,

    (b)conditions of employment,

    (c)training or experience for or in relation to employment,

    (d)promotion or re-grading, or

    (e)classification of posts,

  an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

It states

16. -- (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.

It goes on to qualify this in the following manner

(3) (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.
(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 himself or herself.

Case Law

The Labour Court extensively considered this section inHumphries v Westwood Fitness Club¹. The general principles set out in that case requires an employer to make a bona fide and 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 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.

The obligation on employers is set out in the following terms in Bolger M., Bruton C. and Kimber C. Employment Equality Law (Dublin 2012), para 7-112 Irish Employment Equality Law in the following terms:
"In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment)."²

Findings of the Court

The net issue before the Court is whether the respondent can rely on the defence set out in section 16(1) taking into account the provisions of section 16(3) of the Act. It is common case that the Complainant was suffering from a disability and was not, without accommodation, capable of undertaking the duties of the post for which he was employed. The question for the Court to address is whether the respondent was proactive in considering the forms of suitable and reasonable accommodation which could be provided to the Complainant, carried out a full assessment of the needs of the Complainant and consulted with the Complainant throughout the process so as to become aware of his individual needs and the accommodations that might be made to facilitate his participation in the workforce.

Having considered the evidence the Court finds that, taking the respondent’s case at its height, it carried out an analysis of the Complainant’s duties. The analysis was undertaken in isolation of the Complainant by the Production Director and the Human Resources Manager. It did not involve the Complainant at any point in that analysis.

Having received the medical reports the Respondent had one meeting with the Complainant. The parties are not in agreement regarding what happened at that meeting. It is agreed by both sides, however that the respondent did not provide the Complainant with a copy of the job analysis it undertook or invite comments from him on it. Neither did it engage with him on the effect his medical condition would have on his capacity to stand for other than prolonged periods. The medical evidence discloses that the Complainant’s doctors advised him that he could not stand for “prolonged periods”. The respondent’s medical report states that he could perform his duties in a seated position. This apparent conflict was not examined or put to the Complainant by the respondent. Accordingly the Court finds that the Complainant was not adequately consulted in the course of this process regarding his medical condition or regarding the work he could undertake.

The respondent submits that the Complainant acknowledged that the work he undertook could not be performed in a seated position. On that basis it states that it did not put the job analysis to him or engage further on the matter. The Complainant disputes this and states that he made no such comments to the respondent.

The Court finds that where there is ambiguity regarding what transpired at a meeting at which a critical engagement between the Complainant and the respondent took place the obligation lies with the person, on whom the statutory responsibility for identifying the potential for reasonable accommodation falls, to fully meet the legal onus the lies with it under the Act. In this case the onus lies with the respondent to establish the Complainant’s medical condition, assess with the Complainant his capacity to undertake the duties of the post based on the medical advice available to the parties, identify the extent to which the work could be reorganised to facilitate the Complainant’s continued employment, assess the potential for alternative employment opportunities, evaluate the cost of instituting the accommodations identified and involve the Complainant at all stages of that process.

In this case the respondent partially discharged that obligation but failed to fully discharge it.

That meeting ended on the basis that the respondent would consider the Complainant’s request to be made redundant on the terms set out in the Redundancy Payments Act 1967. The respondent in evidence told the Court that the Operations Director made a recommendation to the Board of Directors, of which he is a member, that the Complainant was unfit for work, that he had determined that no reasonable accommodation could be offered to him to enable him to continue in employment and that he should be dismissed. The Board was not provided with any documentation regarding the Complainant, his medical condition, his capacity to undertake the duties of the post, the examination upon which the Operations Director determined that no reasonable accommodation could be offered to the Complainant to enable him to continue working. On that basis the Directors decided to dismiss the Complainant.

The Court finds that the respondent failed to discharge the onus it bears to engage with the Complainant when considering his medical condition and when determining that reasonable accommodation to enable him continue at work was being determined. It thereby failed to meet its obligations under the Act to properly consider the circumstances in which the Complainant found himself, the extent to which it limited his capacity to remain engaged in the workforce and the possibility of providing him with reasonable accommodation to so do.

Decision

Having investigated the above complaint the Court determines that
(1) The respondent discriminated against the Complainant on the disability grounds pursuant to section 6(2) of the Acts, in respect of dismissal contrary to section 8(6) of the Acts.
(2) The respondent failed to comply with his obligation under section 16 (3) of the Acts to take appropriate measures to enable the Complainant to carry out fully the duties of the job and therefore cannot avail of the defence under s. 16 of the Acts.

Remedy

In considering the remedy to be applied in this case the Court noted that there was considerable confusion regarding the preferred accommodation sought by the Complainant. In his evidence to the Court he suggested that he attended the meeting on the 19 October for the purpose of discussing his return to work following a prolonged period of illness occasioned by his disability. However, at that meeting, he told the Respondent that he was prepared to terminate his employment in return for a lump sum payment equal to two week’s pay per year of service. On that basis he did not engage with the Respondent regarding the nature or level of accommodation he required in order to facilitate his return to work. He said that he expected the Respondent to revert to him either to offer him a severance arrangement or to engage with him regarding accommodating his return to work. In the event it proceeded to dismiss him without further engagement.

The Respondent told the Court that it proceeded on the basis that a severance payment was the Complainant’s preferred outcome. It put together a package that went part of the way towards meeting the Complainant’s aspiration and terminated his employment on that basis. It did not give further consideration to accommodating his return to work as it understood that he was himself convinced that he would not be in a position to undertake the duties of the post regardless of the level of accommodation provided to him.

The Court finds that while the Respondent discriminated against him it further finds that the Complainant contributed in large measure to the confusion regarding his preferred options. At no stage did he identify the type of accommodation he was seeking and he allowed the Respondent form the view that he did not contemplate a return to work but rather a termination of his employment on mutually agreeable terms.

In those circumstances the Court takes the view that the appropriate award in this case should be calibrated to reflect the Complainant’s contribution to the confusion that arose. Accordingly the Court values the compensation due in this case at €10,000.

Determination

The Court determines that the complaint is well founded and orders the Respondent to pay the Complainant compensation in the sum of €10,000.

The decision of the Equality Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
19th March, 2014Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.