DEC-E2016-004

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2016-004

PARTIES

A Worker

(represented by Bowman McCabe Solicitors)

and

A Company

(represented by Management Support Services (Ireland) Limited)

File References: et-150080-ee-14

Date of Issue: 8th January, 2016

1. Dispute

1.1 This case concerns a complaint by the complainant that he was discriminated against by the respondent on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts, 1998 to 2011 in terms of discriminatory dismissal.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2011 to the Director of the Equality Tribunal on 15th October, 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 30th October, 2015 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 1st May, 2015 and from the respondent on 23rd June, 2015. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 27th November, 2015.

2.2 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.

3. Summary of the Complainant's case

3.1 The complainant submitted that he was employed by the respondent as a Production Development Manager from 9th October, 2011 to 1st August, 2014 when he was dismissed purportedly by reason of redundancy. The complainant had also previously worked for the respondent from June, 1998 to September, 2009 (with the exception of a period of five to six weeks in the year 2000) when he resigned his position to take care of his late wife. The complainant submitted that everything was running smoothly with his employment up until the end of 2013 when he encountered difficulties with a lower back problem. The complainant was diagnosed by his Consultant with a disc problem and was forced to take extended sick leave from his employment from January, 2014 as a result of this condition. During the period of his absence the complainant maintained regular contact with the company and submitted monthly sick certificates which were provided by his General Practitioner.

3.2 The complainant submitted that he received a letter from the respondent dated 11th June, 2014 seeking an update on his condition and clarification as to whether he expected to be certified fit to return to work in the near future. On receipt of this letter the complainant contacted the respondent’s Operations Director, Mr. A, by telephone on 16th June, 2014 to confirm that his condition had improved considerably and that he was hoping to be certified fit to return to work on 30th June, 2014. The complainant submitted that, to his utter shock, he subsequently received a letter from the respondent dated 23rd June, 2014 stating that he was being made redundant due to the fact that his duties were being absorbed into a number of other positions with the company. The complainant received a further letter from the respondent on 30th June, 2014 which outlined his statutory redundancy entitlements and requested him to sign the letter accepting the redundancy lump sum calculation.

3.3 The complainant submitted that he wrote to the respondent’s Managing Director, Mr. B, on 10th July, 2014 wherein he outlined his various issues with the purported redundancy including his contention that the respondent had used his medical issues to contrive a redundancy situation. The complainant also furnished a medical certificate from his GP with this letter confirming that he was fit to resume work and indicating that he would make himself available to be medically examined by an independent medical practitioner for the purpose of the respondent receiving confirmation of his fitness to resume work. The respondent replied to the complainant’s letter on 15th July, 2014 and outlined the reasons for the purported redundancy and the fact that it was necessary to make changes within the workplace to facilitate the viable running of the business.

3.4 The complainant submitted that a meeting took place with the respondent on 11th August, 2014 at which the respondent sought to explain the circumstances in more detail which led to him being made redundant. The respondent subsequently wrote to the complainant on 13th August, 2014 and simply reiterated what had been discussed at the earlier meeting and furnishing the complainant with his P45. The complainant submitted that it is completely implausible to suggest that if the respondent was considering redundancies that it did not inform him well in advance of the letter dated 23rd June, 2014 confirming his redundancy. He submitted that it seems a little too convenient from the point of view of the respondent that his role was made redundant after he had indicated to the respondent that he would be fit to resume work on 30th June, 2014. The complainant contends that a genuine redundancy situation did not exist and that he was discriminatorily dismissed by virtue of him having a disability, namely a serious lower back problem. The complainant submitted that the respondent did not engage in any consultation process with him regarding the proposed redundancy prior to his dismissal. Finally, the complainant submitted that it is also noteworthy that the respondent wrote to him on 27th February, 2015 making him a conditional offer of employment for a fixed six-month period as Factory Manager. The complainant submitted that he could not accept this offer as the employment relationship had been broken irretrievably as a result of his dismissal and he claimed that this offer of employment was made as a means of trying to persuade him to dispose of the present case.

3.5 In summary, the complainant contends that the respondent has used the mechanism of a purported redundancy to disguise the fact that he was dismissed on the grounds of his disability.

4. Summary of the Respondent’s case

4.1 The respondent company has been in business for over thirty years as a manufacturer and distributor of rotation moulded products and currently employs approximately thirty staff which is divided between manufacturing, sales, distribution and administration. The respondent submitted that the complainant was initially employed as Factory Manager from 1998 until 2000 when he left to take up another position but was subsequently re-employed later that year after he sought to re-join the company. The complainant worked with the company until November, 2009 until he resigned his position to take care of his wife who was ill at that time. The respondent submitted that in 2011 the company became involved in a project regarding stainless steel moulds and the complainant was re-employed in the capacity of Process Development Manager with effect from 17th October, 2011. The complainant remained in this position until his redundancy.

4.2 The respondent submitted that during 2013 the complainant missed a number of days at work due to lower back problems and these difficulties with his back escalated in early January, 2014. The complainant advised Mr. A, Operations Director, on 16th January, 2014 that he would have to take extended sick leave due to these back problems and that he would be unable to attend work without firstly attending his neurosurgeon and then seeing how his back recovered. The complainant kept the company informed of his absence due to ill health by means of medical certificates over the following months.

4.3 The respondent submitted that the company was experiencing serious financial difficulties at this time and had accrued trading losses in the region of €1.8 million during the period from 2009 to 2013. As a result the company had to take measures to save costs wherever possible as these unsustainable losses were placing the company at risk of being unable to submit tenders for certain types of work if the company did not return to profitability. The respondent submitted that the Managing Director, Mr. B, issued a memo to all managers at work on 8th January, 2014 detailing the seriousness of the financial situation and identifying the need to make savings throughout the business.

4.4 The respondent submitted that by June, 2014 the complainant had been absent from work for nearly six months and that the duties previously covered by him were successfully reassigned to other staff members during his absence and it was becoming clear at that juncture that there was no longer the need for the role of Process Development Manager. In this regard, there were discussions between Mr. A, Operations Manager, and Mr. B, Managing Director in late May, 2014 regarding the need for this role going forward given that the company did not replace the complainant during his absence due to economic reasons and he requirement to reduce costs. Subsequent to this the Operations Manager, Mr. A, wrote to the complainant on 11th June, 2014 to get an update on his prognosis at that juncture. The complainant contacted Mr. A by telephone in response to this letter and indicated that his back condition had significantly improved and that he was hoping to return to work on 30th June, 2014.

4.5 The respondent submitted that with this knowledge in mind Mr. A reverted to Mr. B regarding the question as to whether there was the need to retain the role of Process Development Manager bearing in mind the changes that had taken place over the previous six months and the economic climate. Arising from these considerations the respondent took the decision to make the complainant’s position redundant and he was notified in writing of this decision on 23rd June, 2014. The respondent submitted that the complainant subsequently wrote to the Managing Director, Mr. B, on 10th July, 2014 indicating that he was “extremely shocked” with the decision and he went on to say that he believed the respondent had used his medical condition to contrive a redundancy situation. The respondent submitted that a meeting took place with the complainant on 11th August, 2014 during the course of which Mr. B explained to him that the redundancy was necessary to reduce costs and due to the fact that the duties associated to the position had been reassigned to other employees during his absence on sick leave. The respondent submitted that the complainant indicated subsequent to this meeting that he would not be accepting the redundancy.

4.6 The respondent submitted that in February, 2015 the company was involved in a tender process for a project in the UK and had it been successful in this tender this would have necessitated recruiting additional management skills to cope with the pressure of this new project. The respondent wrote to the complainant on 27th February, 2015 to inform him of the potential new contract and to offer him a six month contract as Factory Manager in the event that the company was successful in securing the contract. However, the complainant chose not to avail of this offer and the company had to make alternative arrangements after the contract was successfully secured.

4.7 In summary, the respondent denies that the complainant’s dismissal was in any way connected to the fact of his disability. The respondent contends that the complainant’s position had disappeared during the course of 2014 and there was a genuine redundancy situation which had come about as a consequence of a significant downturn in business and the need for the company to restructure and take the necessary steps to ensure the ongoing survival of the business.

5. Conclusions of the Equality Officer

5.1 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 in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

5.2 In the case of Melbury Developments v Arturs Valpetters[1] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn ……the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

5.3 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 either is not or is a person with a different disability".

5.4 Section 2 of the Employment Equality Acts, 1998-2011 defines disability as follows: –

“(a) the total or partial absence of a person’s bodily or mental functions...

(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.....

(e) a condition, illness or disease which affects a person’s thought processes.....

and shall be taken to include a disability which exists at present or, which previously existed and no longer exists, or which may exist in the future or which is imputed to a person.”

It is clear therefore that the Acts provide protection against unlawful treatment for disabilities which exist at present or which previously existed. In the present case, it was not in dispute that the complainant had been unable to attend work during the period immediately prior to his dismissal as a result of a serious medical condition affecting his lower back. Consequently, I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Acts.

5.5 The fact of the complainant’s dismissal was not in dispute between the parties. However, there is a complete conflict in the evidence of the parties regarding the precise reasons surrounding the termination of the complainant's employment with the respondent. The complainant, on the one hand, claims that he was dismissed from his employment on the grounds of his disability. The respondent, on the other hand, contends that a genuine redundancy situation existed at the material time as a consequence of restructuring within the company and that the termination of the complainant’s employment arose solely because of the redundancy. Accordingly, the issue for decision in this case is whether or not the respondent discriminatorily dismissed the complainant on the grounds of his disability contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

5.6 The complainant recommenced employment with the respondent in October, 2011 as a Process Development Manager after having previously been employed by the company during two separate periods dating back to 1998. It was common case that the complainant went on certified sick absence from work in January, 2014 due to a lower back problem and that he did not return to work prior to the date upon which he was notified of his dismissal on 11th June, 2014. The respondent gave evidence that the company had been experiencing severe financial difficulties for a number of years prior to the date upon which the complainant commenced his period of sick absence. In this regard, I note the respondent’s evidence that the company sustained cumulative losses of approx. €1.8 million during the period from 2009 to 2013 period (including a loss of €900,000 in 2013) and was in danger of being precluded from competing for public tenders if the business did not return to profitability. The respondent adduced evidence at the hearing, from Mr. A, Operations Manager and Mr. B, Managing Director, regarding the extent of the financial difficulties experienced by it during this period. I have found the evidence of both witnesses on this issue to be very credible and I am satisfied that their oral evidence was corroborated by supporting documentation provided by the respondent in relation to these financial difficulties.

5.7 The respondent gave evidence that it was against this backdrop that it was necessary to introduce a number of measures to try and reduce costs and achieve savings in order to stabilize the business and return to profitability. The respondent gave evidence that one such measure which was considered by senior management was the question of whether or not there was any requirement to retain the complainant’s position of Process Development Manager going forward given that the duties associated to this position had been effectively redistributed during the complainant’s absence. I accept the respondent’s evidence that due to the financial constraints under which the company was operating at that juncture the complainant was not replaced during the period of his absence on sick leave and in an effort to try and achieve payroll savings the decision was taken that there was no longer a requirement to retain this position into the future. In the circumstances, I am satisfied from the evidence adduced that the sole reason why the complainant was dismissed was because of the fact that the respondent decided to restructure the company with the result that there was no longer the requirement to retain his position of Process Development Manager. I have not been presented with any evidence from which I could reasonably conclude that this decision was in any way attributable to the fact of the complainant’s disability.

5.8 In coming to this conclusion, I have also considered the complainant’s evidence that the respondent sought to recruit a Factory Manager in April, 2015 and his claims that this was further evidence to support the contention that the respondent had manufactured a “sham” redundancy situation. In this regard, I note that the respondent did not dispute the fact that it had sought to recruit a person to this position at that juncture and it conceded that the duties attached to the role were very similar to those which the complainant had performed during the period of his employment as a Production Development Manager. It was common case that the respondent contacted the complainant in February, 2015 to see if he would be interested in taking up the position on a six month contract in the event that the company was successful in the tender process. Notwithstanding the foregoing, I accept the respondent’s evidence that the requirement to recruit for this new position only arose because of the fact that the company had been successful in tendering for a new contract in the United Kingdom in early 2015 and that this necessitated recruiting additional management skills to cope with the pressure of this new project. I am satisfied that this new contract was only secured approx. eight months after the decision was taken to make the complainant’s position redundant and was a necessary action in response to the acquisition of a new workload which was not available to the respondent at the time the decision was taken to make the complainant’s position redundant.

5.9 Having regard to the totality of the evidence adduced, I am satisfied that that the decision to make the complainant’s position redundant at the material time was wholly attributable to economic factors and was in no way connected to the fact of his disability. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of disability contrary to the Acts.

Reasonable Accommodation

5.10 I am satisfied that the question of the provision of reasonable accommodation to the complainant as a person with a disability, within the meaning of Section 16 of the Act, does not arise in the context of the present case. I accept the respondent’s evidence that due to restructuring within the company the complainant’s position as Process Development Manager no longer existed at the time that he was certified fit to return to work and that there was no other alternative position available in terms of redeployment. In any event, the complainant’s evidence was that he was certified medically fit to resume his position and undertake the full range of duties associated to the role had the job still been available at that juncture. Accordingly, any consideration concerning the issue of the provision of special facilities or measures within the meaning of Section 16 to enable him to carry out the duties of his position does not arise in the circumstances of this case.

Claim under the Unfair Dismissals Acts

5.11 At the oral hearing of the present complaint it came to light that the complainant has also referred a complaint to the Employment Appeals Tribunal under the Unfair Dismissals Acts. The complainant’s representative submitted that in the event of a finding that the complainant does not succeed in the present complaint that I should exercise my discretion and issue a direction under Section 101(2)(b) of the Employment Equality Acts that the complainant shall be entitled to seek redress under the Unfair Dismissals Acts.

5.12 The respondent’s representative accepts that the provisions of Section 101(2)(b) of the Employment Equality Acts empower the Director to issue a direction such as that sought by the complainant but submitted that such a power should only be exercised in exceptional circumstances. The respondent submitted that the purpose of this provision is to allow a person to seek redress under the Unfair Dismissals Acts in an appropriate case in circumstances where a complaint under those Acts has not already been referred by the complainant within the required time limits. The respondent submitted that this is not an appropriate case for the purposes of this provision as the complainant had already referred parallel complaints under the Unfair Dismissals Acts and the Employment Equality Acts prior to the hearing of the present complaint. The respondent submitted that the complainant has elected to proceed with the claim of discriminatory dismissal and it would be prejudicial if the Director were to issue such a direction and allow the complainant to proceed with a parallel complaint relating to the dismissal under the Unfair Dismissals Acts.

5.13 In considering this issue, I would firstly make the point that it is not within my jurisdiction to determine if the dismissal in the present case was unfair or otherwise within the meaning of the Unfair Dismissals Acts. I would also make the point that the complainant has had the benefit of legal advice in relation to the prosecution of the present proceedings, and therefore, would have been fully aware of the prohibition on a person from obtaining redress in relation to dismissal under both the Unfair Dismissals Acts and the Employment Equality Acts. This being the case the complainant has elected to proceed with the complaint under the Employment Equality Acts.

5.14 It is clear that the provisions of Section 101(2)(b) confers the Director (and by extension the Equality Officer/Adjudication Officer with delegated authority) with a discretionary power to direct, in an appropriate case, that a person may seek redress under the unfair dismissals legislation. However, this provision must also be considered in conjunction with the provisions of Section 101(5A) which provides that “Where the Director issues a direction under subsection (2)(b) the resulting entitlement of the employee under that subsection is deemed to have effect from the date of the direction”. This, in my view, means that a direction can only be given in a case where no claim under the Unfair Dismissals Acts has been lodged as clearly the resulting entitlement arises from the date of the decision. In the circumstances, I find that I am not empowered to issue a direction under Section 101(2)(b) of the Employment Equality Acts in the present case given that the complainant has already referred a case to the appropriate body under the Unfair Dismissals Acts.

6. Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground pursuant to section 6(2)(g) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts. Accordingly, I find in favour of the respondent in this case.

______________

Enda Murphy

Equality Officer/Adjudication Officer

8th January, 2016

Footnotes

[1] EDA0917 [2010] 21 E.L.R.