EQUALITY OFFICER'S DECISION NO: DEC-E/2015/015
PARTIES
A Complainant
(Represented by Conor J. Glendon & Co. Solicitors)
Vs
A Restaurant Limited and Mr. A t/a A Restaurant
(Represented by Cahir & Co Solicitors)
FILE NO: EE/2012/161
DATE OF ISSUE: 26th of March 2015
1. Dispute
This dispute involves a claim by the complainant that she was discriminated against by the respondent on the grounds of her disability in terms of section 6 (2)(g) and contrary to section 8 of the Employment Equality Acts, 1998 to 2011 in relation to her dismissal and in relation to the failure to provide her with reasonable accommodation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2011 to the Equality Tribunal on 15th of March, 2012.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on 16th of October, 2014 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 28th of October, 2014.
3. Summary of complainant’s case
3.1 It is submitted that the complainant was employed by the respondent since 20th of October, 2009.
3.2 The complainant submits that she was employed by the respondent as a waitress in their restaurant.
3.3 It is submitted that the complainant had been diagnosed with depression when she was a teenager and had through the years suffered episodes of depression but had not informed her employer of this fact.
3.4 The complainant submits that she suffered a serious bout of depression on 19th of November, 2011 and as a result missed work on 19th, 20th, 24th and 25th of November, 2011.
3.5 It is submitted that the complainant texted her employer on 18th and 23rd of November advising that she would be unable to attend work due to illness. She did not cite depression as the reason for her non attendance.
3.6 The complainant submits that on 24th of November, 2011 a member of the respondent’s staff Ms. N came to see the complainant at her home and became aware of her condition. The complainant had at this point been self harming and told Ms. N about this and about her history of depression.
3.7 It is submitted that on 25th of November the complainant’s friend Ms. S called to the complainant’s place of work and informed her employer Ms. G about her condition and that she was seeking medical treatment for same.
3.8 The complainant submits that on 15th of December 2011 the complainant herself met with her manager Ms. G, at the respondent’s premises and disclosed details of her condition.
3.9 It is submitted that on 22nd of December, 2011 and again in January 2012 the complainant delivered sick certs to the respondent stating that her absence was due to depression.
3.10 The complainant submits that on 20th of January 2012 she met with the respondent and was told that she had finished working there. On 23rd of January 2012 she received her p45 in the post which had been drawn up on 19th of January, 2012. It stated that her employment had ended on 20th of November, 2011 i.e. the second day of her sick absence.
4. Summary of respondent’s case
4.1 The respondent, agrees that the complainant was employed with them from October 2009 as a Waitress.
4.2 It is submitted that the respondent was not advised that the complainant had a disability or that she suffered from depression.
4.3 For the week of 14th to 20th of November, 2011 the complainant was scheduled to work the following dates:
14th, 15th, 19th and 20th of November, 2011.
The complainant was in attendance at work on 14th and 15th November. On 16th the complainant texted the respondent and said she would be out for the remainder of the week due to a gastro illness. No medical certificate was submitted for this time.
4.4 For the week of the 21st to 27th of November the complainant was scheduled to work the following dates:
24th, 25th, 26th and 27th of November, 2011.
It is submitted that the respondent attempted to contact the complainant by phone unsuccessfully. On 23rd of November 2011, the respondent texted the complainant to enquire whether she would be in work on the 24th. The complainant confirmed that she would be in. However the complainant sent a text later that night stating that she would not be coming in on the 24th of November, 2011.
4.5 On 24th of November, another staff member Ms. N, with the agreement of the respondent went to see the complainant at her home to ascertain the reason for her absence.
4.6 It is submitted that Ms. N informed the respondent after the visit that the complainant was suffering from the effects of having taken intoxicating substances and had asked for cigarettes and alcohol to be purchased for her.
4.7 The respondent submits that the complainant phoned the respondent on the night of 24th of November, 2011 and asked for her wages and asked that alcohol be purchased for her and delivered to her at home. It is further submitted that the complainant also stated during this phone call that she would not be returning to work and resigned her employment.
4.8 It is submitted that the complainant’s p60 records the 20th of November as her cessation date as that was the last day she had worked.
4.9 The respondent submits that on 25th of November 2011, a friend of the complainant’s Ms. S came to the respondent’s premises and advised them that the complainant was going to avail of treatment for an addiction of some sort which the respondent assumed to be alcoholism.
4.10 The respondent submits that nothing further was heard from the complainant until 22nd or 23rd of December 2011 when the complainant came to the respondent premises and submitted medical certificates to cover the period from 21st of December 2011.
4.11 The respondent denies that the meeting took place on 15th of December as submitted by the complainant and states that it took place on 22nd or 23rd of December 2011.
4.12 It is submitted that the complainant at this meeting apologised to the respondent for her behaviour over past few weeks and explained the history of her illness and how it had resulted in her self harming. The complainant went on to state that she had ‘lost’ about 8 or 9 days during the period of her depression and apologised for letting down the respondent. It was during this conversation that the respondent mentioned that the complainant had in fact texted them on the night of the 23rd of November to state that she was unable to attend work on the following day. The complainant stated that she had no recollection of this text but referred back to the fact that she had ‘lost’ 8or 9 days during this period.
4.13 The respondent submits that the complainant had resigned via a phone call on 24th of November, 2011.
5.1 Preliminary Issue-Correct Respondent
5.1.1 The first matter I must determine is whether the claim is correctly taken against both respondents. The complainant has named two respondents to her claim. The first named respondent accepts that it was the complainant’s employer for the relevant period and there is no dispute in respect of the inclusion of the first named respondent as respondent to the claim.
5.1.2 The complainant has submitted that the second named respondent is also a respondent to her claim as this was the name under which she was initially employed. The complainant submits that the second named respondent was the name on her initial contract of employment (submitted). The first named respondent at the hearing stated that the contract issued was from a template which had been created while the second named respondent was trading under a business name and before incorporated into a limited company.
5.1.3 It is submitted by the first named respondent that the second named respondent is incorrectly named as respondent to this claim. The second named respondent submits that he and his wife are directors of the first named respondent company and it is submitted that he had registered the second named respondent as a business name prior to the incorporation of the company which then became incorporated as the first named respondent. The first named respondent became incorporated under this name in June 2007. A CRO printout of the first named respondent company details indicate that it was incorporated in June 2007.
5.1.4 It is submitted that the first named respondent is the complainant’s employer and is the only respondent to this claim.
5.1.5 It is clear from the evidence adduced that the first named respondent is the name which appears on the complainant’s payslips (copies submitted). It is also submitted that the first named respondent is the name of the employer on the complainants yearly p60’s (copies of the complainant’s p60’s for 2008, 2009 and 2010 were submitted). It is also the first named respondent’s company name and registered company number which appears on the complainant’s p45. The second named respondent submits that the original business name became incorporated under the first named respondent in June 2007 and states that the first named respondent was the complainant’s employer at all material times. I am satisfied from the totality of the evidence adduced that the complainant was at all material times an employee of the first named respondent and that the first named respondent was responsible for the payment of her salary at least since 2010
5.1.6 I am satisfied from the totality of the evidence adduced that the second named respondent is not the complainant’s employer and is not correctly named as a respondent to this claim. Thus, having evaluated all of the evidence adduced by the parties I find, on balance, that the first named respondent was the complainant's ‘employer’, in terms of Section 2 of the Acts, for the period encompassed by her complaint and is the correct respondent to her claim.
5.2Preliminary Issue-Disability Ground
5.2.1 It is submitted that the complainant suffers from depression and that she was diagnosed with this in her late teens around 1994 or ‘95.
5.2.2 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
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”.
5.2.3 It is submitted that the complainant suffers from depression. The complainant advised the hearing that she had been receiving treatment since early 2000 and had been put on antidepressants at that time. The complainant at the hearing submitted medical certificates from her GP and reports from her Psychiatrist which indicate that she suffers from depression and that she had more recently been attending Mental Health Services since August 2011 following referral by her psychiatrist in July 2011. These reports also provided details of treatment received by the complainant over the years and medication prescribed. The complainant at the hearing also gave direct evidence in relation to her condition and gave detailed examples of the way in which it had manifested itself over the previous years. The complainant also advised the hearing that she had on occasions self harmed as a result of her condition.
5.2.4 I am satisfied based on the totality of the evidence adduced that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2011.
5.2.5 I must now consider whether the respondent was aware of the complainant’s disability.
5.3 Notification of Disability
5.3.1 The complainant at the hearing stated that she had advised the respondent of her condition in a meeting with Ms. G which took place on the 15th of December, 2011 following a period of sick absence from work. The complainant stated that the respondent was however already aware of her condition prior to this date. The complainant stated that a work colleague Ms. N had come to visit her at her home on the 24th of November, 2011 and that Ms. N had at this point become aware that the complainant was self harming due to her depression. The complainant advised the hearing that a friend of hers Ms. S, who was a Nurse, had also called to the respondent on 25th of November 2011 to advise the respondent of her condition and to tell them that the complainant was seeking medical treatment for same.
5.3.2 Witness for the respondent Ms. G advised the hearing that the complainant had told her about her depression in December, 2011. Ms. G stated that the complainant had come to the premises and had met with her and told her about her depression. Ms. G advised the hearing that this meeting took place on 22nd or 23rd of December, 2011 and not on 15th of December as stated by the complainant. Ms. G advised the hearing that this was the first time she had been aware that the complainant suffered from depression. Ms G advised the hearing that a staff member Ms. N had gone to visit the complainant on 24th of November 2011 and that Ms. N had reported back that the complainant had requested alcohol and cigarettes and had seemed to be suffering from the effects of alcohol. When questioned at the hearing as to whether Ms. N had disclosed details of the complainants self harming at this point the respondent replied that, yes she had become aware following Ms. N’s visit to the complainant that the complainant had been self harming. The respondent went on to state that this did not lead her to conclude that the complainant was suffering from depression but rather that she may have had a drink problem. The respondent at the hearing stated that the complainant’s friend Ms. S, who is a nurse, had come to speak to the respondent on behalf of the complainant on 25th of November 2011 and had advised that the complainant was seeking medical treatment for a condition which Ms. G stated she had assumed to be an addiction of some sort. She stated that she had thought the treatment may have been for alcoholism. Ms. G submits that she was not aware of the complainant’s depression until 22nd or 23rd of December, 2011 despite reports from Ms. N, following her visit of 24th of November, 2011 that the complainant was self-harming and despite the conversation with Ms. S on 25th of November, 2011 where the respondent stated that Ms. S advised her that the complainant was seeking treatment for a medical condition addiction of some sort.
5.3.3 I am thus satisfied, from the totality of the evidence adduced on this matter, that the respondent was aware of the complainant’s depression at least after the December meeting and was aware from 25th of November, 2011 that the complainant was suffering from a condition for which she was seeking treatment which she stated she assumed to be an addiction of some sort. The respondent had also become aware following Ms. N’s visit to the complainant on 24th of November that the complainant had been self-harming.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2011, in relation to the termination of her employment. In addition, I must consider whether the respondent failed to provide the complainant with reasonable accommodation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.
6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2011 provides that discrimination shall be taken to occur where “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)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.
6.4 Discriminatory Dismissal
6.4.1 The complainant advised the hearing that she had on 15th of December, 2011 met with the respondent and advised Ms. G that she had been suffering from depression. The complainant advised the hearing that she had at this meeting apologised to the respondent for her behaviour over the previous few weeks and explained the history of her illness and how it had resulted in her self harming. The complainant went on to state that she had ‘lost’ about 8 or 9 days during the period of her depression and apologised for letting down the respondent. It was during this conversation that the respondent mentioned that the complainant had in fact texted them on the night of the 23rd of November 2011 to state that she was unable to attend work on the following day. The complainant advised the hearing that she had at the time told Ms. G she had no recollection of this text but referred back to the fact that she had ‘lost’ 8or 9 days when in the depths of depression. The complainant stated that she had told Ms. G at this meeting that she was receiving treatment for her depression but that she was currently unable to work. The complainant advised the hearing that the respondent had at this point advised her not to worry about work, that they had plenty of cover for the Christmas period and told her that she should look after herself and they would talk in the New Year. The complainant stated that she had following this conversation handed in a medical cert covering the period from 21st of December, 2011. The complainant went on to state that she had with this cert written a note to the respondent wishing them a Happy Christmas and stating that she would see them in the new year. This note was submitted to the hearing with the medical cert.
6.4.2 The complainant advised the hearing that after Christmas she went to the respondent’s premises to speak with the respondent on the 19th of January 2012 but was told that Ms. G was too busy to talk so she called again the next day the 20th of January and spoke with Ms. G. The complainant advised the hearing that it was during the conversation of the 20th of January, 2012 that the respondent advised her that she was finished working there. Ms. G advised the complainant that she had phoned the respondent on the night of 24th of November, 2011 and had resigned her position. The complainant advised the hearing that she could not confirm or deny whether she had done this as she had ‘lost’ or blacked out for a number of days at that time during her depression. The complainant stated that she had at the meeting of December 2011 told Ms. G about this blackout period. The complainant advised the hearing that Ms. G had not mentioned the alleged resignation at the December meeting and that the first time it was raised with the complainant was in the meeting of 20th of January, 2012. The complainant stated that the respondent at this meeting also advised her that she would not be able to work full time anyway given her condition.
6.4.3 The respondent advised the hearing that the complainant had resigned her position via a phone call to Ms. G on the night of 24th of November, 2011. When questioned as to why she had not raised this with the complainant in the December meeting, Ms. G replied that she hadn’t wanted to upset the complainant especially as it was so close to Christmas.
6.4.4 The complainant advised the hearing that she received her P45 from the respondent on 23rd of January, 2012 and that it had been dated 19th of January, 2012. The complainant went onto state that the date of her termination of employment was indicated as 20th of November, 2011. The respondent advised the hearing that the complainant’s employment had terminated following a phone call from her on the night of the 24th of November, 2011. The respondent stated that the date of 20th of November was given as the termination date as this was the last day worked by the complainant despite the fact that she had been rostered for later dates and for which she had not attended work due to illness.
6.4.5 The complainant’s p45 was not drawn up until 19th of January, 2012 despite The fact that she had allegedly resigned on 24th of November, 2011. The respondent when questioned on this matter advised the hearing that she herself had undergone personal medical problems during the time period in question and that she had also been away on holidays during that time period and had been hospitalised following her return from holidays. However it is clear that Ms. G was at work during the period 24th of November until 23rd of December, 2011 and that the reasons given for the delay in issuing the complainant’s p45 justify the period after Christmas but do not justify the delay during the period following 24th of November, 2012 to 23rd of December, 2011 when she had been at work . While it is not a delay in issuing a p45 which is at issue here it is relevant that the respondent submits that the complainant resigned on 24th of November, 2011 but did not issue any documentation relating to her termination of employment until 20th of January, 2012.
6.4.6 The respondent advised the hearing that the complainant in her phone call of 24th of November 2011 had resigned by stating that she was “finished with the (name of the respondent business)”. The respondent at the hearing when questioned stated that she had taken this as the complainant’s resignation. The respondent when questioned as to whether this had been followed up with any letter or documentation confirming the complainant’s termination of employment stated that it had not. The respondent advised the hearing that a letter confirming an employee’s termination of employment would usually issue but not in this case. The respondent when questioned stated that the complainant had in the alleged phone call seemed to be under the influence of alcohol but stated that it had nonetheless accepted that she wished to resign her employment.
6.4.7 I find the complainant’s version of events in relation to the period of November to January 2011 to be honest and consistent. The complainant advised the hearing that she could not confirm or deny whether a phone call was made by her to the respondent on 24th of November 2011 as she states she had blacked out during this period and had ‘lost’ 8 or 9 days. I find it hard to believe though that the respondent who allegedly received a phone call from the complainant on 24th of November, 2011 resigning her employment did not mention this to the complainant in the meeting of December 2011 and instead allowed the complainant to believe that she would be returning to work in the New Year. I also find it hard to believe that the respondent following this alleged phone call accepted it as the complainant’s resignation took no follow up action to clarify the situation. The respondent has also stated that the complainant seemed to be under the influence of alcohol during the alleged phone call but again took no action to clarify that it was the complainant’s intention to resign from her employment.
6.4.8 The day after the alleged phone call the respondent was informed that the complainant was seeking treatment and hospitalisation for a medical condition for which the respondent assumed to be an addiction of some sort. Two days after the alleged phone call the respondent was advised by a staff member who had visited the complainant at her home that the complainant had been self- harming and seemed to be suffering the effects of alcohol.
6.4.9 The complainant in this case received no contact from the respondent to the effect that her employment had ended and came to the respondent’s premises some 3 weeks later and had a detailed discussion with the respondent about her illness and the treatment she was receiving. The complainant also submitted medical certificates at this stage citing depression as the reason for her absence from work. The respondent did not at this point contradict the complainant but instead told her to go home and get better and not to worry about work. The respondent at this point continued to treat the complainant as an employee. The complainant submitted medical certs up until the end of January before being advised on 20th of January 2012 that her employment had ceased. This was confirmed when she received her p45 on 23rd of January, 2012.
6.5 Resignation
6.5.1 In considering whether or not a dismissal took place I must look at whether the alleged phone call of 24th of November, 2011, even if it did take place, amounts to a resignation by the complainant. In general, it is established law that a resignation is a unilateral act which, if expressed in unambiguous terms, brings a contract of employment to an end. However, there is an exception to this general rule and the circumstances surrounding when and how such an exception can arise this was examined by the Labour Court in Millett v ShinkwinED/03/33 determination No. EED044. The Labour Court stated
There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. InKwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the following passage appears at paragraph 31:-
“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”
6.5.2 In her book Dismissal Law in Ireland, Dr. Mary Redmond wrote as follows at paragraph [21.24]: -
“When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time. The intellectual make up of the employee may also be relevant.”
6.5.3 In addition, the Labour Court in Determination FTC1230, Christy Reilly v Meath County Council, was required to consider if what appeared to be a resignation did in fact amount to a voluntary leaving of employment. Here the Court held: -
The decision of the Court of Appeal for England and Wales in Sothern v Franks Charlesly & Co[1981] IRLR 278is authority for the proposition that where unambiguous words of resignation are used by an employee and are so understood by the employer, the employee thereby brings his or her employment to an end. There are, however, recognised exceptions to this general rule. The circumstances in which these exceptions can apply was explained by the British EAT in Kwik-Fit (GB) Ltd v Lineham[1992] IRLR 156.
6.5.4 That approach has been followed in many cases both in this jurisdiction and in the UK. The test is whether the words of resignation used by the employee, taken in the context in which they are used, represented his or her true and considered intention or whether they were a heat of the moment response to some occurrence. More recently, in Willoughby v CF Capital Plc[2011] IRLR 985, the Court of Appeal for England and Wales had to consider the application of this principle in deciding whether the Claimant had resigned from her employment or had been dismissed. At par 26 of the report Lord Justice Rimer said: -
Second, employment law is, at least in large part, a branch of contract law. The principles of contract law ordinarily require that a person's intentions are ascertained not by reference to his subjective intentions but objectively, by reference to how a reasonable man would interpret them. His intentions will therefore be ascertained by reference to a consideration of the words used, whether written or oral, in the context in which he used them...”
Rimer LJ then continued, at par 27: -
Third, the 'special circumstances' exception to which I have referred is one that finds its expression and application in several reported authorities. They are cases in which either the employee has given an oral notice of resignation or (less commonly) in which the employer has given an oral notice of dismissal. The words of the notice so given may, on the face of it, be clear and unambiguous and may take effect according to their apparent terms. Indeed, the general rule is that they will do so. The authorities recognise, however, an exception to that general rule: namely, that the circumstances in which the notice is purportedly given are sufficiently special that it will or may not take such effect. For example, the words of notice may be the outcome of an acrimonious exchange between employer and employee and may be uttered in the heat of the moment such that there may be a real question as to whether they were really intended to mean what they appeared to say. In such circumstances it will or may be appropriate for the recipient of such a notice to take time before accepting it in order to ascertain whether the notice was in fact intended to terminate the employment. If he does not do so and, for example, simply (and wrongly) accepts an employee's purported resignation at face value and treats the employment as at an end, he may find himself on the receipt of a claim for unfair or wrongful dismissal. The general rule and the 'special circumstances' exception to it have been recognised in several authorities of both the EAT and this court.
6.5.5 The respondent in the present case submits that the complainant resigned via a phone call. The complainant does not deny this but states that she cannot confirm or deny it as she was suffering from a depressive illness at the time and had a black out which lasted for about 8 or 10 days. The complainant did however notify the respondent the day after the phone call that she was seeking treatment for a medical condition. The respondent was also notified the following day that the complainant had been self-harming. Three weeks later the complainant attended the respondent premises and disclosed details of her depression and the fact that she had blacked out for a number of days and had then submitted medical certificates for the forthcoming period which cited depression as the reason for her absence from work. The complainant in this case received no contact from the respondent to the effect that her employment had ended and came to the respondent’s premises some 3 weeks later and had a detailed discussion with the respondent about her illness and the treatment she was receiving. The complainant also submitted medical certificates at this stage citing depression as the reason for her absence from work. The respondent did not at this point contradict the complainant but instead told her to go home and get better and not to worry about work. The respondent at this point continued to treat the complainant as an employee. The complainant submitted medical certs up until the end of January before being advised on 20th of January 2012 that her employment had ceased. This was confirmed when she received her p45 on 23rd of January, 2012.
6.5.6 It is clear from the authorities cited that, the complainant’s alleged resignation of 24th of November, 2011, which was made while she was suffering from depression, falls into the “special circumstances” cited above. In addition, the respondent over the following 2 days was provided with information that the complainant was seeking treatment for a medical condition and that she had been self-harming. The respondent in direct evidence stated that she had thought that the complainant was under the influence of alcohol when she made the phone call stating that she was “finished with the (name of respondent)”, which the respondent submits amounts to a resignation.
6.5.7 Having regard to the aforementioned I consider that a prudent employer before accepting the resignation of an employee in such circumstances would have requested the resignation in writing or would at least have ensured that the employee fully understood what she was saying and doing. I note that there was no written confirmation of the notice of the termination of her employment nor is there any written record of the phone call. In addition, the respondent in the December meeting with the complainant made no reference to the fact that the complainant had resigned and did not mention it to the complainant until a month later in the meeting of 20th of January, 2012. Thus I am satisfied from the totality of the evidence adduced here and given the preceding authorities on these matters, that the alleged resignation of 24th of November, 2011 does not in fact amount to an unconditional and unambiguous resignation and is invalidated by the ‘special circumstances’ of this case.
6.5.8 The termination of the complainant's employment took place after she informed the respondent of her depression. I consider that the respondent in the meeting of 20th of January 2012 and the subsequent issuing of the P45 to her indicated the respondent's intention to terminate her employment at a time when she was medically certified as being unfit to work due to her disability. I am satisfied from the totality of the evidence that her employment was terminated by the respondent for reasons connected with her disability. I am not satisfied that the respondent has rebutted the inference of discrimination raised by the complainant. I find that the respondent dismissed the complainant in circumstances relating to her disability and this amounts to discrimination on the disability ground under the Employment Equality Acts.
6.6 Reasonable accommodation
6.6.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability (my emphasis) – this approach was endorsed in Humphries v Westwood Fitness Club[1].
6.6.2 I am satisfied from the evidence adduced above that the complainant was a person with a disability for the purposes of the Act and that the respondent was aware of that disability. It is a fact that the complainant was notified of the termination of her employment on 20th of January, 2012 after she had notified the respondent of her disability. I have found that the decision to terminate her employment was influenced by her disability.
6.6.3 It is the respondent’s evidence that the complainant had resigned from her employment via a phone call on 24th of November, 2011. The respondent at the hearing stated that the complainant had during this phone call appeared to be under the influence of alcohol. The respondent took no follow up action to clarify the alleged resignation. The respondent was informed by Ms. N after her visit on 24th of November, 2011 that the complainant seemed to be suffering the effect of alcohol and had been self-harming.
6.6.4 The respondent was advised the following day that the complainant was going to seek treatment for a medical condition which the respondent assumed to be alcoholism. The respondent met with the complainant in December 2011 where it was disclosed by the complainant that she had been suffering from depression. The respondent at this meeting told the complainant not to worry about work for the Christmas period and that they had adequate cover. The complainant then submitted medical certificates citing depression to cover the period from 21st of December, 2011. The complainant attended the respondent’s premises on 20th of January 2012 and spoke to Ms. G. The complainant was at this point advised that she had finished work with the respondent and received her p45 in the post on 23rd of January 2012.
6.6.4 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.
6.6.5 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:
"if it can be shown that the employer formed the bona fide belief that the complainant 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 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 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.
6.6.6 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court where Dunne J.[3] found that an employer that has failed to go through the aforementioned process orientated approach will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is serious enough to render the employee not fully capable of undertaking their duties under section 16(1) of the Acts.
6.6.7 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, it is clear that there was an obligation upon the respondent, in the first instance, to ascertain the level and extent of the complainant’s disability. The respondent in this case when faced with a situation where an employee was absent from work due to her disability, did not make enquiries to ascertain the extent of the employee’s condition and failed to look at any measures which might facilitate the complainant in returning to work.
6.6.8 I am of the view that the respondent, when it became aware that the complainant was absent from work due to her disability, was then obliged to make further inquiries into what if any special measures could be taken to assist the complainant in returning to work.
6.6.9 It was of course open to the respondent, to request documentary evidence from the complainant’s doctor or to refer the complainant for a medical examination in order to assess the extent of her disability and to ascertain what if any accommodation she would require. The respondent was obliged to look at suitable measures and accommodation and, if it concluded that there were no suitable measures or accommodation, which would enable the complainant to return to work, should have advised the complainant that she was now being considered for termination. Consequently, the complainant was not afforded any opportunity to participate in or influence the decision making process that resulted in her dismissal. In doing so, the respondent, when faced with an employee with a disability failed to carry out the process orientated approach, as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case, but instead made a decision to dismiss the complainant without any enquiries or consultation.
6.6.10 Having regard to the foregoing, I am satisfied that the respondent, did not make appropriate enquiries to ascertain the extent of the employees condition and also failed to consult with or advise the complainant before terminating her employment therefore it cannot rely upon the defence available in section 16(1)(b) of the Acts. In the circumstances, I find that the complainant’s disability was a factor which contributed to the respondent’s decision to dismiss her and that the respondent failed to provide her with reasonable accommodation within the meaning of section 16 of those Acts.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find –
(i) that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts and that it failed to provide her with reasonable accommodation within the meaning of section 16 of those Acts.
7.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld. In considering the redress in this case, I am mindful of the fact that the complainant has been subjected to discrimination on grounds of her disability and that the respondent has failed to provide her with reasonable accommodation. In addition, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the fact that the respondent, in this case, when faced with a situation where an employee was absent from work and attributed this absence to her disability, failed to make appropriate enquiries to ascertain the extent of the employees condition and terminated the complainants employment without involving the complainant who was the subject of such a decision. I am also mindful that the complainant in this case did disclose full details of her condition to the respondent in December, 2011 and the respondent instead of following the process orientated approach, instead made a decision to terminate the complainants employment without any enquiries to assess the extent of her disability or whether appropriate measures or accommodation would be required.
7.3 Having taken the foregoing matters into consideration and having regard to the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €18,000 to be just and equitable.
7.4 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that
(i) the respondent pay the complainant €18,000 in compensation for her discriminatory dismissal and the failure to provide her with reasonable accommodation. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and is therefore not subject to tax.
____________________
Orla Jones
Equality Officer
26th of March, 2015
Footnotes
[1] [2004] 15 ELR 296
[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)
[3] Humphreys -v- Westwood Fitness Club (2004) ELR 296