EDA1635

The material factual background to the case can be summarised as follows:-

The Respondent is an international company involved in the design, manufacture, distribution and marketing of medical devices. Due to the nature of its work and the uncertainty relating to the volume and consistency of work, it uses the services of an employment agency to supply it with staff when and as required. In late 2014, the Respondent contracted Cregg Labour Solutions Limited, an employment agency (hereafter referred to as “the Agency”) within the meaning of the Employment Agency Act 1971, seeking to employ staff. The Complainant applied through the agency for a position with the Respondent and he commenced work at the Galway plant on 29^thOctober 2014 as a Manufacturing Team Member and was paid €10.25 per hour.

In this case the Respondent is impleaded as a provider of agency work. A separate case has been heard by the Court where the Agency was impleaded as the Complainant's employer.

On Friday 17^thJuly 2015 while at home the Complainant suffered a heart attack (described as a myocardial infarction), he was hospitalised and underwent a stenting procedure under the care of a Consultant Cardiologist. He spent four nights in hospital and following his discharge he was required to attend intermittently at the outpatients department and at a Cardiology Clinic for rehabilitation purposes.

The Complainant’s wife contacted the Respondent to inform it of her husband’s condition and his son provided it with a medical certificate. Shortly afterwards the Respondent’s Operations Manager visited the Complainant in hospital.

On 9^thAugust 2015, the Agency contacted the Complainant to set up a meeting with two of its managers for 11^thSeptember 2015. When he attended the meeting he was informed by the Agency that the Respondent was not prepared to await his recovery any further and in consequence, his employment was terminated with immediate effect.


Summary of the Complainant’s Case


Mr Philip Ryan, Solicitor, Mac Sweeney & Company Solicitors, on behalf of the Complainant, submitted that the Complainant was discriminated on the disability ground by the Respondent as it had dismissed him as a direct consequence of his disability. It had failed, inter alia, to afford the Complainant any reasonable accommodation in failing to properly ascertain the nature, extent and /or likely duration of his illness and consequent incapacity; it failed to ascertain or confirm his likely return to work date; to secure medical evidence prior to taking a decision to dismiss him; failed to establish the extent to which he could be eased back into the workplace; failed to consider alternatives, such as placing him on indefinite sick leave pending his rehabilitation and dismissed him with undue haste, within a short period of his suffering a heart attack. Mr Ryan said that all the Complainant required was a little time and understanding to allow him space to recover without the additional worry of losing his job. Mr Ryan stated that at the time of his dismissal the Complainant was certified as unfit for work until 28^thSeptember 2015, at which point it was anticipated that he would have a clearer prognosis. Furthermore, he was due to see a Consultant Cardiologist on 16^thSeptember 2015. He was deemed fit to resume work from January 2016. The Complainant said that when the Respondent’s Operation Manager visited him in hospital he told him that his job was safe.

Mr Ryan stated that the consequences of his dismissal was the loss of security and the psychological/emotional blow to the Complainant however, he also maintained that it had more serious consequences as it was the practice of the Respondent where it is satisfied with the performance of agency staff, to employ them as direct employees of the company after a period of one year.





Summary of the Respondent’s Position


Ms Síobhan McGowan Solicitor, Purdy Fitzgerald Solicitors on behalf of the Respondent accepted that the Respondent, as the provider of agency work, is liable to the Complainant for the purposes of the Acts. However, she submitted that as the Complainant had entered into a contract with the Agency then the Agency was the employer for the purpose of that contract. Ms McGowan did not dispute that the Complainant had a disability for the purposes of the Acts.

Ms McGowan stated that the Complainant was placed with the Respondent by his employer (the Agency) on a week by week basis. She said that taking into account the nature of the Respondent's business it required that the Agency furnish it with a replacement for the Complainant when he was out ill. She submitted that as the Respondent is not the Complainant’s employer but merely the provider of agency work, it was irrelevant in a legal sense as to who carried out the work and it had no need to involve itself in the contract of employment of any of the Agency’s staff. On that basis Ms McGowan contented that to find that the Respondent terminated the Complainant’s employment is not only factually incorrect but it is legally impossible. She contended that at no juncture did the Respondent have any control or input into the Agency terminating the Complainant's contract of employment. Ms McGowan furnished the Court with an email trail between the Respondent’s HR Manager and the Agency’s Service Delivery Manager. This, she says, clearly demonstrates that the Respondent had no difficulty in the Complainant returning to work with the Respondent on his recovery.

Ms McGowan asserted that while the Acts have a general prohibition on discrimination and provide that a provider of agency work shall not discriminate against an agency worker, however, she denied that the Respondent carried out any such act of discrimination.

With reference to an employer’s obligation under Section 16(1) of the Acts to provide reasonable accommodation, the Respondent contended that as it was not the employer of the Complainant it had no legal obligation to do so. In any event Ms McGowan stated that the Respondent was not in a position to reasonably accommodate the Complainant as the Agency had taken it upon themselves to terminate his contract of employment and at no juncture was it asked to review its organisation to ascertain whether or not there was work that the Complainant could have carried out.


The Law

The Complainant is an agency worker within the meaning of Section 2(1) of the Acts and the Respondent is a provider of agency work, in relation to the Complainant, within the meaning of Section 2(5) of the Act. The Respondent accepts that it is an appropriate party to these proceedings.

Section 8 of the Acts has a general prohibition on discrimination and states that a provider of agency work shall not discriminate against an agency worker.

Section 16(1) of the Act provides: -

• (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.

In its decision this Court held as follows: -

• This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant 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 is 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, s.16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

  Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.

• “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull [2001] I.R.L.R. 60).

  The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.”

• “So based on what you highlighted in your last mail about the person you have in Arravasc covering [the Complainant] that unfortunately we need to terminate his current week to week contract with you but once he is in full health again and if there is any further opportunities within Arravasc you would consider him?”

• “Absolutely …. without a doubt. Please pass on our best wishes to [the Complainant]”.