EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-012
PARTIES
An employee
(Represented by Monahan and Co. Solicitors)
AND
A Factory
(Represented by Management Support Services)
File reference: EE/2013/313
Date of issue: 28th January 2016
HEADNOTES: Employment Equality Acts Sections 6, 8, Disability Discrimination, Dismissal, failure to provide “Reasonable Accommodation”.
1: Background
This dispute concerns a claim by Ms. Mz that she was Discriminated against on the grounds of Disability, Dismissed for Discriminatory Reasons, and refused “Reasonable Accommodation” by Factory RL contrary to the Employment Equality Acts.
The Complainant referred a claim to the Director of the Equality Tribunal on the 20th June 2013, under the Employment Equality Acts. On the 28th September 2015, in accordance with his powers under section 75 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 5th October 2015.
2: Complainant’s Submission
2:1 The Complainant was a General Operative or “Charge Hand” employed since 22nd May 2006 in the Respondents’ Frozen Meat processing plant. She was dismissed on the 18th January 2013.
2:2 It was stated that her disability was chronic back pain arising from various diagnosed pathologies including protruding & worn disks and sciatica.
On the 5th January 2009 the Complainant was forced to take a long term leave of absence.
In late 2011 she indicated that she wished to return to work. At this time the Respondent indicated a willingness to engage in some class of accommodation process. This did not work out satisfactorily.
2:3: The Complainant’s case is a straightforward one of Discrimination on Disability Grounds and Dismissal following a failure to secure or explore Reasonable Accommodation. It is based on guidance given in the Labour Court case of Humphries v Westwood Fitness Club [2004] ELR 296.
2:4 A considerable volume of medical documentation and correspondence was included in and attached to the Complainant’s submission.
3: Respondents Submission.
3:1 The Respondent accepted that the complainant had a Disability.
At all times, during the Complainant’s sick absence, the Respondent attempted to maintain contact with the Complainant. A meeting was held with the Complainant in February 2009 and again in July 2009. Numerous medical certificates were received. In July 2009 the Respondent was informed that the Complainant was travelling to Lithuania for specialist medical treatment.
Throughout 2010 sporadic correspondence passed between the Complainant and the Respondent in relation to her medical condition.
During 2011 the Respondent again received further Lithuanian certificates and a letter from her Doctor in Ireland. These certificates did not indicate any likely return to work dates or that she was capable of any duties at all.
This pattern continued during 2012. In November 2012 the Respondent’s own Medical Advisor carried out an assessment on the Complainant. She was found to be
“Unfit to return to working employment which involves manual handling, lifting, bending, pushing and pulling and therefore deem her unfit to return to work at his time”
3:2 A meeting with Respondents Assistant Plant Manager Ms. AMCG was arranged for Friday 14th December 2013. At this meeting all options were considered both medical and in relation to other possible positions in the Plant. No accommodation was deemed to be possible. It was made clear to the Complainant that the termination of her employment was a possibility.
The Respondent wrote to the Complainant on the 4th January 2013 confirming her termination. This was appealed to the Plant Manager and an Appeal Hearing was held on the 25th April 2013. The Appeal was unsuccessful.
3:3: In summary the Respondent maintained that the termination of Employment arose from the long standing absence of the Complainant and the clear indication that she could not carry out her normal duties even with assistance or other appropriate measures. The ending of the Contract was due to the contract being frustrated and not as a consequence 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 her 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 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.
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 is a relatively small Meat Processing plant in a rural Irish Town. At the time in question average employment numbers averaged approximately 60 staff – the majority being Production Operatives.
4:6 The Complainant was absent on Continuous Sick Leave from January 2009 to the date of dismissal in January 2013.
4:7 Despite the Complainant being in Lithuania receiving medical treatments for considerable periods contact was maintained with the Respondent. Considerable patience was demonstrated by the Respondent during this entire period.
4:8 The key meeting was that of the 14th December 2012 between the Complainant and Ms. AMcG, the Assistant Plant Manager. Unfortunately the only record of this meeting is a handwritten note by Ms. AMcG. However she gave direct evidence to the Oral hearing and I found her to be professional and convincing in her evidence. The Complainant also gave evidence in regard to this meeting. She was also a solid witness and a good picture became available of what was discussed.
A wide ranging discussion covering all the background issues, medical and operational/ alternative job availability took place.
In regard to medical issues the Respondent and the Complainant were largely acting on the opinion of the Respondent’s own Medical Adviser, the Complainant’s own Physician and the considerable body of medical reports from Lithuania.
4:9 In the light of the guidance on inquiries that should be undertaken by Respondent employers and due consideration of medical evidence in the Humphries v Westwood Fitness case, relied on by both parties, and cited above the Tribunal was of the view that reasonable medical and operational enquiries were made .
It was the view of the Tribunal that the case for discrimination on the grounds of disability leading to a Discriminatory Dismissal was not supported by the available evidence.
Reasonable Accommodation /Discriminatory Dismissal
4:10 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.
4:11 The reality of the current case is that the Plantis a small meat processing 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 meat plant a “fragile eggshell employment position”, from a medical point of view, would not be practical or even operationally feasible.
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 was not also really a viable option.
It was the view of the Tribunal that the Respondent did explore with the Complainant options thoroughly enough especially at the meeting with Ms.McG on the 14th December 2012, before terminating the Complainant’s employment.
The issues were also revisited during the Appeal Hearing with Mr. H on the 20th May 2013.
4:11 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.
4:12 Accordingly I find that the question of Reasonable Accommodation was considered to a sufficient degree and with sufficient seriousness to afford a sustainable defence, under Section 16(1) of the Acts , to the Respondent in terms of a case of alleged Discriminatory dismissal.
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 as to provide a sustainable defence to the Respondent against the claim of Discriminatory Dismissal. This claim also fails.
__________________
Michael McEntee
Adjudication Officer/Equality Officer
28th January 2016