EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-020
PARTIES
An employee
(Kancelaria Rostra Solicitors)
AND
A Food Services Company
(Represented by Peninsula Business Services)
File reference: EE/2014/057
Date of issue: 5th February 2016
HEADNOTES: Employment Equality Acts Sections 6, 8, 16, Disability Discrimination, Dismissal, failure to provide “Reasonable Accommodation”
1: Background
This dispute concerns a claim by Mr. H that he was Discriminated against on the grounds of Disability, Dismissed for Discriminatory Reasons, and refused “Reasonable Accommodation” by Food Services Company XL contrary to the Employment Equality Acts.
The Complainant referred a claim to the Director of the Equality Tribunal on the 14th February 2014, under the Employment Equality Acts. On the 28th September 2015, in accordance with his powers under section 41of the Workplace Relations Act, 2015 and Part V11 of the Employment Equality Acts, the Director delegated the case to me, Michael McEntee, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 9th October 2015.
2: Complainant’s Submission
2:1 The Complainant was a Warehouse Operative since April 2006 in the Respondent’s Warehouse. He was dismissed on the 20th January 2014.
2:2 In 2011 he suffered from a back injury and was diagnosed as suffering from chronic back pain. Medical reports of the 3/11/2011 and 30th January 2013 found him unable to do heavy manual work and he should avoid lifting. It was clear that he could not carry out his previous work.
2.3 The Complainant requested a move to another position, more appropriate to his medical condition, but was effectively refused contrary to Section 16 of the Equality Act.
The Complainant stated that he felt the employer was a business of sufficient size and financial standing as to be able to find a new role or to adapt his former role in such a way as to make it possible for him to return to work.
2:4 At no stage did the Respondent take steps to carry out any assessment, review or audit of the work roles and the burden of finding a new role was left to the Complainant. This was in complete breach of Section 16 of the Act.
3: Respondents Submission.
3:1 The Complainant was a Warehouse Operative. He was on Sick leave from October 2011 to December 2011, was on Sick leave again from 1st August 2012 to the 3rd September 2012 and finally from 7th December 2012 to the date of his termination on 20th January 2014.
3:2 During early 2013 the Respondent made numerous efforts to contact the Complainant. A Welfare Meeting was scheduled for late July but was rescheduled by the Complainant for the 15th August 2013.
An issue arose in relation to the Complainant giving access to his medical records to the Respondent. This later proved to be a significant operational and procedural difficulty for the Respondent. The Respondent required full medical records to enable it to see what accommodations could be made to assist the Complainant in returning to work.
The Complainant attended the Respondents’ Physician on the 31st October who felt that while he was still unwell he would greatly benefit for a 4/5 weeks back programme.
3:3 The Complainant indicated that he was fit to return to work on the 10th November 2013. The Respondent asked for a “Fitness to Return” Certificate. The Complainant indicated that he wished to work “light duties” in the Hardware Dept. as against his former post in the warehouse.
The Respondent replied that the duties in the Hardware Dept. were essentially the same as in the warehouse and the move would not make any material difference to his exposure to manual lifting.
The Respondent requested medical reports to support their review of the case -18th November 2013. This was not replied to by the Complainant. A further Medical Review took place on the 7th January 2014. No medical reports were forthcoming from the Complainant and the Respondent decided to dismiss the Complainant.
3:4 The Complainant was informed in writing on the 20th January 2014 that he was being dismissed. The Respondent undertook to look to reinstate the Complainant if he agreed to provide the requested Medical evidence that would allow the Employer gain a full understanding of the nature of the medical situation and particularly the “Light Duties” request.
An Appeal Hearing against the dismissal was held on the 3rd February 2014. The Appeal was unsuccessful. The lack of permission to obtain medical records was again noted.
Reasonable Accommodation
3.5 Extensive records of correspondence with the Complainant were produced. The basic issue faced by the Respondent was the failure of the Complainant to cooperate in any useful way with the requests from the Respondent for medical evidence or clearance for discussions with Physicians attending the Complainant.
Taking the tests in the Humphry’s v Westwood Fitness Club [2004] ELR 296 case the Respondent was satisfied that all reasonable medical inquiry steps had been attempted and that the Complainant was aware from July 2013 of his employment being in jeopardy,
3.6 In conclusion the Respondent felt that Section 16, Reasonable Accommodation, had been complied with and that there was no sustainable evidence to support any claim of Discrimination.
4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
Discrimination
4:1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the Complainant was discriminatorily dismissed and whether the Respondent failed to provide reasonable accommodation in order to enable him to continue to work with the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the Respondent.
4.3 Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in terminating a person’s employment. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(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.
However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(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.
4.4 Both the Complainant and the Respondent have cited the seminal Labour Court case Humphries v Westwood Fitness. [2004] ELR 296. It is worthwhile to quote the relevant paragraphs:
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 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 he 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.
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.
4:5 In the case in question the Respondent went to considerable lengths to try to establish the medical situation. This was supported by considerable documentary evidence of correspondence to the Complainant, presented to the Tribunal and copied to the Complainant.
There was no mitigating evidence presented by the Complainant to explain the lack of cooperation in the medical inquiries. I was satisfied that the Complainant understood that his employment was in jeopardy from mid-2013 but persisted in his approach to the medical issues.
4:6 Where Reasonable Accommodation and Discriminatory Dismissal issues arise the employer/Respondent has the defence of Section 16(1) of the Equality Acts to justify the dismissal of the employee – effectively stating that the employee’s disability was such as to render the continuation of the employment impossible or impractical. However this defence is reliant on a full consideration of the question of Reasonable Accommodation prior to the decision to dismiss.
The Tribunal looked at the position set out by the Labour Court in An Employer and A Worker. [2005] ELR 159. The Court found that the reasonable accommodation test is an objective one:
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.
4:7 The reality of the current case is that the Respondent was unable to carry out any medical inquiries save for those initiated by themselves. The Complainant was offered numerous opportunities to provide medical evidence from his own Physicians or to have medical commentary on Reports compiled by the Respondent’s Physicians.
The Plantconcerned is s a small wholesale food supply operation and considerable job flexibility is a vital requirement of the business.
The Plant Manager gave evidence and described the operation of the Plant. It would be commonly accepted that in this type of small plant a “fragile eggshell employment position”, from a medical point of view, would not be practical or even operationally feasible. However to allow full consideration of the Complainants’ case medical evidence from his Doctors is necessary.
The Labour Court have also stated in An Employee and A Worker cited above and in other relevant cases that 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. Again the Tribunal did not feel that this was operationally feasible in a small plant.
Likewise offering Reduced Hours could not be even considered a viable option in the absence of any medical evidence from the Complainant outlining the nature of his Light Work and or Reduced Hours contentions.
4:8 While cost was not an argument made by either party the small size of the Plant and the fiercely competitive nature of the business would have raised the valid issue of whether or not an accommodation would have placed a disproportionate financial burden on the Respondent.
4:9 Accordingly I find that the question of Reasonable Accommodation was considered to a sufficient degree and with sufficient seriousness, in the unfortunate absence of requested Medical evidence from the Complainant, to afford a sustainable defence, under Section 16(1) of the Acts , to the Respondent in terms of a case of alleged Discriminatory dismissal.
Accordingly the claim for Reasonable Accommodation fails.
Discrimination / Discriminatory Dismissal
4:10 Despite the Complainant being overseas receiving medical treatments for considerable periods contact was maintained with the Respondent. Considerable patience was demonstrated by the Respondent during this entire period.
4:11 A number of meetings were held between the Complainant and the Respondent during this period. Full minutes were maintained and agreed to by the Complainant. These Minutes were supplied to the Tribunal. During these meetings and in all the extensive correspondence presented in evidence the issue of Discrimination on any grounds other than Disability was never raised.
The key issue was the failure of the Complainant to cooperate in medical inquiries that would allow the Respondent to form a clear position on requests for “light duties”.
In oral evidence the Complainant strongly felt that his medical records were personal to him alone and not available to be shared with the Respondent. The Complainant was aware in his oral evidence of the difficulty this had posed for the Respondent.
The Complainants grasp of English was excellent.
4:12 In January 2014 the Complainant had been absent since December 2012. The Complainant was not co-operating in efforts to establish his medical condition. The Respondent was forced to rely on his own medical advice. The decision to dismiss was taken on grounds of physical inability to carry out the duties of the position.
It was noted by the Tribunal that the Respondent had offered to reconsider the Dismissal decision if the requisite Medical records from the employee could be obtained even post the decision to dismiss.
The Tribunal had to find that for the above reasons and the legal precedents quoted the Claim for Discrimination and Discriminatory Dismissal fails.
5: DECISION
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.
I have investigated the above complaints and make the following decisions in accordance
with Section 79 of the Acts that:
Ø The Complainant has not succeeded in establishing a claim of discrimination on Disability Grounds culminating in a Discriminatory Dismissal and the claim fails.
Ø The issue of exploring options to provide Reasonable Accommodation was considered to a sufficient degree by the Respondent as to provide a sustainable defence under Section 16 of the Equality Act to the Respondent. The claim based on Reasonable Accommodation accordingly fails.
________________
Michael McEntee
Equality / Adjudication Officer
5th February 2016