EDA1618

This is Mr Tkac’s (“the Complainant”) appeal against the decision of an Equality Officer (DEC-E2016-019) dated 26 January 2016. The notice of appeal was received by the Court on 7 March 2016. The Court heard the appeal in Waterford on 29 June 2016.

The Complaints

The Complainant alleges that he was treated less favourably on grounds of his race and disability; that his former employer, Queally Pig Slaughtering Limited T/A Dawn Pork & Bacon (“the Respondent”) failed to make reasonable accommodation for his disability; and that he was dismissed on grounds of his race and/or his disability, contrary to the provisions of the Employment Equality Act 1998.

Complainant’s Employment History

Very detailed evidence was given to the Court by both the Complainant himself and Mr O’Loughlin for the Respondent in relation to the Complainant’s employment with the Respondent and the events that culminated in the cessation of his employment on 28 July 2014. It is not necessary for the purposes of this determination to recite the entirety of that evidence. The Complainant also submitted a number of medical certificates and reports to the Court in support of his case.

The Complainant commenced employment with the Respondent on 22 November 2004. The Respondent submits that he was a hard-working and enthusiastic employee. It is accepted by both parties that the Complainant suffered from time to time since 2007 with back pain and on those occasions he was facilitated and transferred to alternative tasks that were less physically demanding. It is also accepted that the Complainant was absent from work between 27 August 2012 and 1 February 2013 due to a (different) serious medical condition.

The Complainant returned to his home country of Slovakia during his annual leave in June 2013. His evidence to the Court was that he had an accident while in Slovakia whereby he fell approximately 1.5 meters to the ground from a ladder while attempting to repair the roof of his mother’s house. The Complainant submitted a medical report in Slovakian dated 18 June 2013 along with an uncertified English translation. The report gives details of treatment he was receiving for back pain caused by an injury and advises against the Complainant travelling while in receipt of the specified treatment. The report does not state when or how the Complainant sustained the relevant injury. However, his evidence to the Court was that the accident occurred on 17 June 2013 and that it left him unable to go up or down stairs, and unable to drive or to sit for long periods. It appears the Complainant did return to Ireland on 24 June 2013 and visited his GP here on that date and the GP issued a medical certificate and administered 2 or 3 further injections between then and the end of July 2013.

The Complainant was due to return to work on 24 June 2013 on the expiry of his agreed period of annual leave. He submits that he was unable to do so because of his back injury and because he was receiving continuing treatment and medication. He provided medical certificates to cover his absence from work up until 1 August 2014. Generally, he came to the reception at the Respondent’s premises requested to speak to Declan O’Loughlin (Operations Manager) or Tom Gough (Department Manager) and handed the certificate to whichever of them was available to come to meet him at reception. On other occasions, the Complainant’s brother who was also employed by the Respondent handed in medical certificates on his behalf.

There is a conflict between the evidence of the parties in relation to what transpired when, on 8 July 2014, the Complainant came to reception to hand in a certificate for a further month to Mr O’Loughlin. The Complainant’s evidence is that Mr O’Loughlin invited the Complainant to his office on that date to discuss his health situation and the likelihood of his return to work. Mr O’Loughlin and Mr Gough shared the same office. Mr Gough was also present, according to the Complainant, when the Complainant was brought to the office. The Complainant told the Court that Mr O’Loughlin said that he (the Complainant) would have to decide what he wanted to do as the position couldn’t be held for him indefinitely. The Complainant says he replied by undertaking to visit his GP to ask how long more the GP thought he would be out from work and that Mr O’Loughlin gave him one month from that date to come back with an answer. On this version of the events of 8 July 2014, the Complainant’s representative submits that he was treated unfairly: he wasn’t forewarned about the meeting; he was brought into an office before two managers without being afforded the right of representation and he was not given a translator.

On the other hand, Mr O’Loughlin’s evidence was that the conversation that took place with the Complainant on 8 July 2014 happened in the reception are; was between him and the Complainant only; Mr Gough was not present. Mr O’Loughlin agrees he told the Complainant that the company wanted him to return to work and that his position couldn’t be kept open indefinitely. Mr O’Loughlin also stated that he had known and interacted with the Complainant for some 10 years and the Complainant did not require an interpreter on any occasion in the past. He says also that he regularly asked the Complainant in the past for an update on his health situation when the Complainant attended to hand in his medical certificates. On occasion, such discussions had taken place in the office he shared with Mr Gough.

The Complainant attended his GP on 24 July 2013. The GP furnished him with a letter in which she requested that he be provided with “light duties”. The letter states: “[The Complainant] has suffered low backache since 2007 causing pain and he is keen to work but unable to do heavy duties. The back care [programme] in WRH also agree with this. He has been on their programme twice.”

The Complainant came in to meet Mr O’Loughlin again on 28 July 2014. He told Mr O’Loughlin that his GP had advised that he could return to work to perform light duties. However, he had forgotten to bring the “certificate” to this effect with him but could go back home to collect it. On the Complainant’s version of events, Mr O’Loughlin told him that he didn’t want to see any certificate; if he wasn’t full fit to do the job he was employed to do, there was no job there for him. The Complainant says he told Mr O’Loughlin that his GP had advised that he might never be 100% fit again. Mr O’Loughlin, he says, then brought him upstairs to the office and handed him a pre-prepared resignation letter in English and Slovakian. Mr O’Loughlin called in a colleague, Martina, to translate. The Complainant re-iterated that he didn’t want to resign but proceeded to sign the form. He added a sentence in Slovakian which translates “I do not voluntarily resign.” After handing over the signed resignation letter to Mr O’Loughlin, the Complainant says he asked Mr O’Loughlin for any holiday monies due to him. Again, on this version of events, the Complainant’s representative submits that the process was unfair as the Complainant was not advised of his right to representation and the Respondent acted without first obtaining an up-to-date medical report on the Complainant’s condition. Most importantly, the Complainant and his representative dispute that he resigned voluntarily or at all as in reality he had no option but to sign the pre-prepared letter handed to him by Mr O’Loughlin. He wanted to return to work but Mr O’Loughlin had made it very clear that there would be no work for him unless he was 100% fit.

Mr O’Loughlin’s evidence in relation to the events of 28 July 2014 differed in a number of respects from that of the Complainant’s. Mr O’Loughlin’s evidence is that the Complainant told him when they met on that date that he was ready to come back to work. Mr O’Loughlin told the Court that when he asked the Complainant if he had a medical certificate confirming that he was fit to return, the Complainant replied that his doctor’s view was that he would never be 100% fit. The Complainant then asked him for an “easy job”. Mr O’Loughlin asked the Complainant to identify what he thought would amount to an “easy job” in the Respondent’s business. The Complainant’s reply was that he didn’t know following which he stated two or three times, according to Mr O’Loughlin, that he wished to “finish up”. At that point, Mr O’Loughlin’s recollection is that he invited the Complainant to come upstairs to his office and requested a colleague, Martina, to come in also to translate for the Complainant to ensure that he understood fully what he was doing. Mr O’Loughlin told the Court that he “went through it all again” at that point with the Complainant with the translator present. Only then did Mr O’Loughlin take out what he says was a template resignation form which the Complainant then proceeded to fill out. Mr O’Loughlin then had to take a call from the factory floor and after he had dealt with this he received the completed form back from the Complainant along with the Complainant’s keys for the premises. He failed to notice that the Complainant had written in additional words in Slovakian on the form. Mr O’Loughlin also told the Court that the Complainant asked him at this point if there would a payment made to him to which Mr O’Loughlin’s reply was that the only payment would be holiday pay.

Under cross-examination, Mr O’Loughlin was asked about what efforts he had made to establish what work the Complainant was capable of undertaking and what reasonable accommodation could be made for his disability. The Complainant’s representative specifically enquired whether the witness had considered offering the Complainant a position making up boxes which she suggested would be less physically demanding than most other jobs in the Respondent’s business. Mr O’Loughlin stated he didn’t agree with this proposition as the job involves lifting 10-15 boxes at a time. He accepted, however, that he had not explored it as a possibility with the Complainant. He further accepted that he had not considered arranging to have the Complainant referred to an occupational health specialist

The Law

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof which a Complainant under the Act must establish:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Reasonable Accommodation

Section 16(3) of the Act provides:

“(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.”

In a previous determination, reported asA Worker v An Employer[2005] ELR 159, this Court expressed the statutory duty on an employer to make reasonable accommodation for a disabled employee as follows:

• “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 (seeBritish 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 inMid 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.”

Discussion and Conclusions

The Court finds that the Complainant has failed to establish a prima facie case that he was treated less favourably on grounds of race or disability in contravention of the Act. Likewise, the Court finds that the Complainant has not established a prima facie case from which an inference of discriminatory dismissal on the race or disability ground can be drawn. The Court finds that the Complainant resigned his employment – albeit in the face of an absolute refusal on the part of his employer to consider making reasonable accommodation for his disability. However, the Complainant’s actions and statements on 24 July 2014 do not appear to the Court to substantiate his express statement that he was intent on returning to work for the Respondent on, or soon after, that date.

The Court finds, in all the circumstances, that the Respondent failed to discharge its obligation under section 16 of the Act to fully consider whether or not reasonable accommodation could be made for the Complainant’s disability. In making this finding, the Court is not making a determination that the Complainant ought to have been accommodated by the Respondent in any particular way. Rather, the Court is of the view that the Respondent simply did not consider the possible options that were available. Had it done so, the Respondent might legitimately have concluded that the Complainant could not be accommodated. It is difficult to see, however, how the Respondent could have arrived at such a conclusion without first having obtained an up-to-date and comprehensive medical report in relation to the Complainant’s condition. However, the Court also notes that the Complainant contributed somewhat to the situation in which he found himself through his failure to put forward any meaningful proposal to the Respondent as to how he might be accommodated.

The Court directs the Respondent to pay compensation of €10,000.00 for the aforementioned breach of section 16 of the Act. The decision of the Equality Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
11th July, 2016.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.