EDA145

The complainant states that he was employed by the respondent from August 2003 until he was dismissed on 1 October 2009. The complainant states that he suffered from a series of brain haemorrhages which necessitated medical interventions by way of brain surgery. The complainant submits that he began to suffer from depression. He developed an alcohol problem and was in due course medically diagnosed as an alcoholic.

He states that for a long time he did not acknowledge that he had a problem with alcohol and was in denial. He states that he did not disclose his alcoholism to his employer. He states that his employer was aware the he suffered with depression.

He acknowledges that he had an unsatisfactory attendance record and as a result was processed through a disciplinary process by the Respondent. This resulted in him being issued with a series of incremental warnings up to and including a final written warning, stage 4 of the company disciplinary procedures, on 25 May 2009. Under the procedure the warning remains on the personnel record for 12 months.

He states that in June 2009, he accepted that he was an alcoholic and took steps to deal with his problem. He arranged to attend a full-time treatment programme for a period of three months. He states that he notified the Respondent that he was being admitted to the programme before he commenced treatment. He states he did this by providing the Respondent with a medical certificate on the one hand and by way of a telephone conversation between a member of his family and the HR Manager.

He states that, following successful completion of the course of treatment, he applied to return to work. He met with the company on 1 October 2009 and outlined the steps he had taken to deal with his disability. He states that he was informed that the respondent would take time to consider the matter and would revert to him.

He states that on 6 October he was issued with a notice of dismissal. The stated reason for the dismissal was that his attendance record for the period 19 May 2009 to 22 June 2009 did not meet the standards required by the Company.

He argues that the Respondent was aware that he had a disability and made no effort to make reasonable accommodation to enable him to return to work following treatment. He argues that this amounts to discrimination on the grounds of disability. Furthermore, he argues that the respondent's failure to send him for a medical examination to establish his capacity to carry out the duties of his post amounted to a failure to reasonably accommodate him. He notes that the respondent has in the past assisted at least two other employees with their alcohol problems and gave those employees an opportunity to prove that their treatment had been effective and successful.

Remedy

The complainant seeks reinstatement, re-engagement and/or compensation and to be afforded the reasonable accommodation to discharge his duties.

Respondents Position

The respondent states that it dismissed the complainant from employment on 2 October 2009 at the end of a long disciplinary process that commenced in January 2009. It states that the decision to dismiss was based on the complainant’s unacceptable attendance record.

It states that in January 2009 the first phase of the attendance management procedure commenced when the Complainant was counselled regarding his poor attendance record in 2008. He was advised that his attendance record was unacceptable and without improvement he would be subject to further sanctions leading ultimately to dismissal. He was also told that the company would provide whatever assistance was necessary to support him and to assist him address his poor attendance record.

It stated that the complainant was subsequently absent from work from 2 February until 9 February 2009. On 13 February he left work without permission. He did not make contact with it until 23 February when he cancelled a scheduled attendance review meeting. He was thereafter absent from work and did not attend the meeting when it was rescheduled for 11 March 2009.

It stated that he was instructed to attend work on 23 March. He agreed to do so but failed to return to work. He finally returned to work on 26 March 2009.

The Respondent decided to process his poor attendance record through the disciplinary process. Management formed the view that he was unfit to resume work on that day and he was subsequently certified as unfit for work until 5 May 2009.

It stated that on 13 May an attendance review meeting was held with the complainant. He was represented by his trade union representative at the meeting. His poor attendance record was discussed with him particular attention being directed at the protracted period of absence without leave (20 days). He did not provide a satisfactory explanation for his absence or disclose any extenuating circumstances that might excuse them. As a consequence he was issued with a final (stage 4) written warning.

It submits that the final warning makes it clear that he was being afforded a final opportunity to correct his attendance pattern or face dismissal.

He was again offered support to deal with any matters impacting upon his capacity to attend at work. He declined the offer. The sanction and conditions were accepted in full by the complainant and his union representatives.

It submits that between January 2008 and June 2009, it had arranged for the complainant to have 7 reviews with its Doctor, an occupational health specialist, regarding his capacity to attend at work and perform his duties. He did not raise the issue of an alcohol addiction at any of those reviews.

The complainant failed to attend at work as required and on 22 June 2009 it conducted a disciplinary investigation meeting with the complainant. He was accompanied at the meeting by his trade union representative. He was advised that his employment was now at risk. He did not disclose an alcohol addiction at that meeting either.

The complainant was informed that the company would consider the situation and revert in a couple of days. It states that on reflection it decided to dismiss the Complainant.

A meeting was scheduled for 29 June 2009 to convey the company's decision to the complainant. He did not attend for work that day and did not attend the meeting. It states that it subsequently became aware that the complainant was going into treatment for alcoholism. Following this and based on medical advice and an appeal from the complainant's family a decision was made to defer the final meeting and not to issue him with notice of termination until after he completed his treatment.

It states that it met the complainant on 1 October and following that meeting on 2 October 2009 it issued notice of dismissal to him.

The complainant unsuccessfully appealed the decision to dismiss him through the appeals procedure.

Matter for Decision

The issues the Court must decide are

• 
  •Whether or not the respondent discriminatorily dismissed the complainant on grounds of his disability, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
  

  •Whether it offered to provide the complainant with reasonable accommodation to facilitate him to continue in employment.

Disability

The Act defines disability in the following terms

• • “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,

    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;

Section 6 of the Act defines discrimination in the following terms

• (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
  • (a) a person is treated less favourably than another person, is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—
    • (i) exists,

      (ii) existed but no longer exists,

      (iii) may exist in the future, or

      (iv) is imputed to the person concerned,

  (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act ) are—
  • • (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred 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.
    
    (6) Without prejudice to the generality of subsection (1) , an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
    • • (a) the same terms of employment (other than remuneration and pension rights),

        (b) the same working conditions, and

        (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

      
      
      as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
    
    (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.]

      “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;]

It states

• • (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The facts of the case are not in dispute.

The complainant had a poor attendance record. He was processed through the attendance management procedure and issued with a final warning with clear notification that unless his attendance levels improved to an identified level he would be dismissed. He failed to meet the respondent’s requirements and was called to a meeting at which the respondent intended giving him notice of dismissal.

He did not attend that meeting. Instead he was diagnosed with an alcohol dependency and entered a treatment programme. He so notified the company. It decided to hold off issuing him with notice of dismissal.

The matter becomes complicated at this point.

The complainant was invited to a meeting on 1 October 2009 after he had completed his treatment. He was invited to make out a case as to why he should not be dismissed. He did so citing his alcoholism and seeking an accommodation to return to work now that his disability was under control.

The respondent states that it had decided to dismiss the complainant in June and had invited him to attend a meeting on 29 June for the purposes of notifying him of the decision to dismiss him. It submits that it simply carried out that decision on 2 October 2009. It states that at the time it made its decision it had no knowledge of the Complainant’s disability. It submits that it made no further decisions after it received notice of his disability in July 2009. It submits that it held off notifying him by post in order to give the treatment the best chance of succeeding in his case.

The Court does not accept this view. The Respondent made a decision that it intended delivering to the complainant on 29 June 2009. However it did not do so for the reasons set out above. However it then became aware of the complainant’s disability. The complainant underwent treatment and was fit to return to work in October 2009. The respondent invited him to a meeting to set out reasons why he should not be dismissed. He did so advising the respondent that he had a disability for which he was receiving treatment. At that point it was aware of his condition.

The respondent says it made no fresh decision at that time. The Court takes the view that a decision is subject to review until it is communicated to the parties. The Court in this regard is mindful of the decision of McMenamin J in Urrinbridge Ltd -v- An Bord Pleanála [2011] IEHC 400 where he states “It is fundamental to the rule of law that notice of a decision is required before it has legal effect.” In this case the decision had not been notified and therefore did not have legal effect. It was subject to review in light of the information available to it at the time at which it was being communicated to the complainant. In this case it expressly invited the complainant to a meeting on 1 October to allow him make submissions for its consideration. He attended that meeting and made submissions which included a statement that he had a disability and that it was now being managed and he could now attend for work and discharge his duties. It is not sufficient for the respondent to make itself ignorant of that notification and rely on that ignorance to justify its decision to dismiss the complainant. It is clear it was fully aware of the complainant’s condition when it adjourned to consider its position at the end of that meeting and was certainly aware of it when it dismissed him the following day. The respondent effectively made a new decision after the meeting on 1 October 2009, having considered all the information before it, to continue with the decision it made in June 2009, to dismiss the complainant.

The Court finds that the respondent was aware of the complainant’s condition and ignored it.

While his condition was undiagnosed and unmanaged the complainant could not perform the duties of the post. However when it was diagnosed and managed his position changed. It is clear that the respondent had an obligation to consider whether his condition prevented him from so doing and whether he could with reasonable accommodation be put into a position to do so. It failed to do so.

Moreover the complainant established the fact that he suffered from a disability and that this had been brought to the respondent’s attention in July initially and at the meeting of 1 October 2009. He advised that it affected his capacity to attend at work before it was diagnosed and managed and that he was not in a position to do so. The respondent was aware of this. Nevertheless it proceeded to dismiss him.

The Court finds that the complainant has established facts from which an inference of discrimination may be drawn. The respondent has not explained the reason why it decided to ignore the information it received on 1 October from the complainant. Accordingly the burden of proving that his disability was not a factor in the decision has not been discharged by the respondent.

The Court therefore finds that the complaint is well founded.

Determination

The Court determines that the complaint is well founded.

The Court instructs the respondent to re-engage the complainant with effect from the date of this determination.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
11th February, 2014Deputy Chairman



NOTE

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