EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-129
PARTIES
Mr. Jonathan McGuire
(Represented by Ms Noeleen Geraghty, Solicitor)
-v-
Longford Tyre Services Ltd
File reference: EE/2013/198
Date of issue: November 2015
HEADNOTES: Employment Equality Acts – disability – Conditions of Employment – constructive dismissal
1 DISPUTE
1.1 This dispute concerns a claim by the Complainant that he was treated in a discriminatory manner by Longford Tyres Ltd. on the grounds of disability contrary to Section 8 of the Employment Equality Acts.
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on the 22 April 2013 under the Employment Equality Acts. On the 12th of August 2015, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Shay Henry, an Equality Officer, for investigation, hearing, and decision, and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 Submissions and attendance at Hearing
2.1 The Equality Tribunal Secretariat wrote initially to both the Complainant’s representative and the Respondent, Ms Yvonne Mulligan of Longford Tyre Services Ltd on 1st May 2013 advising of the complaint and offering access to the Mediation Service of the Tribunal.
2.2 A reply was received on behalf of the Respondent on 2nd May indicating that all future correspondence to the Respondent should be directed to John J Quinn, Solicitors.
2.3 A letter was sent from the Secretariat to both the Complainant’s and Respondent’s representatives on 12th June 2013 stating that the case was proceeding to investigation.
2.4 On receipt of the submission from the Complainant a copy of the statement was sent to the Respondent’s representative on 4th October 2013. On 25 November 2013 the Respondent’s representative requested an extension of time in order to submit their client’s statement which was granted, by letter dated 27th November 2013, until 8th January 2014. A further letter was received from the Respondent’s representative on 26th June 2014 stating that they were still awaiting instructions from their client.
2.5 Both parties were advised on 11th July 2015 of the date for the Hearing to be held on 9th September 2015.
2.6 The Respondent’s representative contacted the Equality Tribunal Secretariat on 14th July 2015 to confirm that they had been unable to take instructions from their client on the matter and that it was their understanding that the business had been sold, and that they would endeavour to contact their client to take updated instructions.
2.7 On 18th August the Secretariat wrote to the Respondent’s representative confirming the date of the Hearing and enclosing correspondence from the Complainant’s representative.
2.8 On 21st August the Respondent’s representative wrote stating that as they could not take instructions from their client they had come off record in this matter and would not be attending the Hearing. Furthermore, it was their understanding that the business was no longer trading and had been struck off. The Companies Registration Office confirmed that the status of the company was Strike Off Listed with an effective date of 26 July 2015.
2.9 On 24th August the Secretariat notified Ms Yvonne Mulligan, the Respondent, at the company address, of the correspondence received from John J Quinn Solicitors, and advised that the date for the Hearing remained the 9th September 2015, at the Prince of Wales Hotel, Church Street, Athlone, Co. Westmeath.
2.10 No further communication was received from or on behalf of the Respondent in advance of the Hearing, and the Respondent did not appear on the day.
2.11 A submission was received from the Complainant and in accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a Hearing on the 9th September 2015.
3 COMPLAINANTS' SUBMISSION
3.1 The Complainant commenced employment as a Tyre Fitter with the Respondent in October 2008. At all times he had an exemplary record. In October 2011 he was placed on a period of short time – three days per week – without proper consultation. In August 2012 the Claimant suffered neck and shoulder injuries following a car accident and was certified unfit to work from 11th August until 5th November. During the period of sick leave a new employee was recruited to the same position as the Claimant but on a five day week.
3.2 Prior to his injury in August the Respondent undertook that he would be placed back on full time employment. Furthermore, he was promised the position of breakdown driver. The position of breakdown driver was given to the newly recruited employee whom the Claimant contends was less suited to the post than he. Furthermore, on his return the Claimant’s hours were cut further to approximately one and half days per week.
3.3 The Claimant contends that this is evidence of discrimination by reason of the refusal of the Respondent to allow the Complainant take on the break down driver position when he returned and the refusal to allow the Complainant return to a full time position and more favourable treatment of the replacement employee recruited during the Complainant’s absence on sick leave. In fact, rather than being put back on full hours the Complainant’s hours were reduced further.
3.4 The Complainant contends that the neck and shoulder injuries suffered by him constitutes disability within the meaning of Section 2 of the Acts and reliance is placed on the decision of the Tribunal in Customer Perception v Leydon where it was held that reduced movement in the shoulder, back, and neck were found to constitute a disability amounting to ‘a malfunction…of a part of a person’s body’ within the meaning of Section 2 of the Acts. Further reliance is placed on the decision of the Labour Court in An Ghrianan Hotel v Langford where pain and limited lateral rotation, extensions and flexion suffered by the claimant by reason of a car accident was found to constitute a disability within the meaning of the Acts.
3.5 The Complainant contends that at no stage did the Respondent make any effort to seek to put in place any forms of accommodations to assist him in his employment and that this is in breach of Section 16(3) of the Acts and in particular, the proactive duty of the Respondent. No assessment as to his ability was undertaken. It is submitted by the Complainant that this is indicative of the attitude of the Respondent who viewed the Complainant as being unable to undertake his duties of employment or potentially being unreliable due to his disability which is consistent with the less favourable treatment afforded to him.
3.6 Due to the further reduction in hours resulting in an unviable economic position the Claimant was forced to submit his RP9 form seeking redundancy on 12th April 2013. It is submitted that the intolerable working conditions which were experienced by the Claimant due to his disability constitute dismissal within the meaning of the Acts.
3.7 The Claimant is seeking compensation for both discriminatory treatment and discriminatory dismissal. In this regard the Claimant also relies on the decision of the Labour Court in Fox v Lee (DEE6/2003) where the Court confirmed that in measuring the appropriate compensation regard must be had to the effects which flowed from the discrimination which occurred. The Court held ‘that not only the financial loss suffered by the complainant arising from discrimination but also the distress and indignity which he suffered in the consequence thereof, including the effect of bringing these proceedings should also be reflected in the award.’
4 Respondent’s Position.
4.1 The Respondent did not appear at the Hearing and did not make a submission. However, correspondence between the Complainant and Respondent was submitted by the Complainant.In a letter dated 3 December 2012 in response to the Complainant’s representative, the Respondent stated that Mr I.Q. was employed due to lack of staff when Mr F had just retired and the Complainant was on sick leave arising from his accident.In the same letter the Respondent stated that the Complainant’s contract of employment provided that the company had the right to reduce working hours in times of necessity. In addition the Complainant had agreed to the reduced hours before his accident occurred.
4.2 In a further letter dated 11 January 2013 the Respondent stated that the Complainant would not be suitable as a breakdown assistance driver and that no employee had an automatic right to any post as this was a matter for management only. The Respondent reiterated the position regarding reduced hours and said that the Complainant had never made a formal complaint in that regard. The company had been immensely affected by the economic downturn. When the Complainant was placed on short-time it was anticipated he would be put back on full-time when things improved.
5 Conclusions of Equality Officer
5.1 I am satisfied that adequate attempts were made to contact the Respondent to inform the company of the arrangements for the Hearing.
5.2 The Complainant has claimed that he was not promoted on the grounds of disability. While I accept that discussions took place there is no clear evidence that a formal offer of the position of break down driver was made. I note also the Complainant’s evidence that the position was remunerated at the same level as the substantive position he held. I therefore do not accept that he was discriminated against in relation to promotion.
5.3 No evidence was adduced to support the claim that the Complainant was discriminated against in relation to the provision of training and therefore I conclude that he was not discriminated against in this regard.
5.4 In October 2011 the Complainant was placed on a three day week due to the economic position the company found itself in at the time, and in accordance with the provisions of his contract for employment. Other employees were treated similarly. However, on his return from sick leave in 2012, unlike his fellow employees, he was not restored to full hours. Mr I. Q., who had been hired in part due to the absence of the Complainant on sick leave, was on full hours. It follows therefore, that the economic position of the company had recovered to the extent that the Complainant could have been restored to full hours. In fact his hours were reduced further to approximately the equivalent of one and a half days per week. I therefore, conclude that the Claimant was discriminated against in relation to his conditions of employment.
5.5 The Claimant stated in his submission that the Respondent did not make any attempt to seek to put in place any forms of accommodation to assist him in his employment on his return from sick leave. However, in evidence he stated that he did not need any accommodation and was full fit to undertake his duties. At no stage did he request the company to make any accommodation or alert the company to any ongoing problems arising from his accident. I therefore, conclude that he was not discriminated against in this regard.
5.6 During the absence of the Complainant on sick leave the Respondent restored the other employees to full time hours. The employee recruited to replace the Complainant during his absence was also on full hours. The Respondent then implemented a further reduction in the Complainant’s hours to one and a half days per week which made his position unviable. The clause in the contract of employment on which the Respondent relied in correspondence provided for lay off or reduced hours ‘where through circumstances beyond its control it (the company) is unable to maintain you in employment.’ As the company was able to put the employees referred to above on full hours it is clear that there were no circumstances beyond its control which prevented it returning the Complainant to full hours. Accordingly, the Complainant was entitled to consider the contract to have been broken and to have been constructively dismissed. The failure to return the Claimant to full hours occurred during his period of sick leave arising from his temporary disability. It is clear therefore, that the Claimant was dismissed in a discriminatory manner.
6 DECISION OF THE EQUALITY OFFICER
6.1 I have investigated the above complaints and make the following decision in accordance with section 79 of the Employment Equality Acts, and section 41(5)(a)(iii) of the Workplace Relations Act 2015 that:
a) The Complainant was discriminated against in relation to his conditions of employment and
b) The Complainant was dismissed in a discriminatory manner in breach of Section 77(1) (b) of the Act and in breach of Sections 6 /8 of the Act.
In accordance with s.82 of the Act, I order the Respondent to pay the Complainant:
The sum of € 17,000 (the equivalent of 26 weeks’ pay) in compensation for the discriminatory treatment and dismissal.
6.2 The total award is redress of The Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.
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Shay Henry
Adjudication/Equality Officer