DEC-E2016-095

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-095

PARTIES

A Former Employee

(Represented by Kancelaria Rostra Solicitors)

-AND-

A Goods Distribution Company

(Represented by IBEC)

File References: EE/2014/135 & et-151517-ee-14

Date of Issue: 30th June 2016

1. DISPUTE

1.1 Solicitors on behalf of the Complainant submitted two related complaints under the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), to the Director of the Equality Tribunal, received on 14th March 2014 and 28th November 2014 respectively, for investigation together as follows:

(1) A complaint that as a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts – File Reference Number EE/2014/135 lodged on 14th March 2014;

(2) A complaint of discriminatory dismissal on the ground of disability contrary to Section 6(2)(g) and Section 8 of the Acts – File Reference Number et-151517-ee-14 lodged on 28th November 2014.

Both forms also refer to interrelated complaints of discrimination on the grounds of disability in relation to conditions of employment and training contrary to Section 6(2)(g) and Section 8 of the Acts. It appears that the Respondent was unaware of the Complainant’s first complaint when dismissing him on the grounds of incapacity on 22nd March 2014 and hence no claim for victimisatory dismissal arises.

1.2 On 24th June 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated these complaints to me, Aideen Collard, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I heard these complaints over the course of two days on 3rd July 2015 and 4th September 2015. Both Parties were represented and a number of witnesses gave evidence and presented video evidence on behalf of the Respondent. All written, oral and video evidence and submissions presented to the Tribunal including additional submissions and documentation received before and during the hearings have been taken into consideration when coming to this decision. I also indicated that I would be relying upon relevant statutory provisions and case law relating to disability discrimination. Given the sensitivities of these complaints, I also indicated that I would be exercising my discretion to anonymise this decision.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. PRELIMINARY ISSUE

2.1 As a preliminary issue, the Respondent’s Representative submitted that the Complainant’s secondary complaint of discriminatory dismissal was out of time and there was no reasonable cause for extending same. The Complainant had lodged his initial claim relating to a failure to provide reasonable accommodation and discrimination on the grounds of disability in relation to his conditions of employment and training on 14th March 2014, he was dismissed on 22nd March 2014, his appeal was rejected on 18th September 2014 and his claim of discriminatory dismissal was lodged with the Equality Tribunal (now WRC) on 28th November 2014. There is no issue between the Parties as to the fact of the Complainant’s dismissal on 22nd March 2014 or the timeline of events as set out as follows.

· The final Company Doctor’s Report dated 22nd November 2013 was obtained

· Second meeting of Complainant and his Representative with HR Manager on 1st February 2014

· First Complaint File Reference Number EE/2014/135 relating to a failure to provide reasonable accommodation and discrimination on the grounds of disability lodged on 14th March 2014

· Third Meeting of Complainant and his Representative with HR Manager on 21st March 2014

· Complainant dismissed by letter from HR dated 22nd March 2014 & P45 issued for that date

· Appeal to HR from Complainant’s Solicitor on his behalf dated 2nd April 2014 submitted

· HR letter requiring Complainant to submit grounds of appeal personally sent on 4th April 2014

· HR reminder for Complainant to submit grounds of appeal personally sent on 28th July 2014

· Personal Appeal from Complainant sent to HR on 18th August 2014 and found to be acceptable

· Appeal Hearing held on 4th September 2014

· Appeal outcome letter upholding the Complainant’s dismissal issued on 18th September 2014

· Second Complaint File Reference Number ee-151517-ee-14 in relation to discriminatory dismissal and discrimination on the grounds of disability lodged on 28th November 2014

2.2 The Respondent’s Representative submitted that this claim of discriminatory dismissal is a distinct and standalone cause of action which crystalised on 22nd March 2014 notwithstanding the appeal upholding the dismissal. Accordingly, time began to run for the purposes of the applicable six month time limit from 22nd March 2014 and not from the date on which the dismissal was upheld, being 18th September 2014. As the time limit expired on 21st September 2014, the complaint of discriminatory dismissal is over two months out of time, having been filed on 28th November 2014. In this respect, reliance was placed on a number of authorities including the Labour Court decisions in W. Cummins Plasterers Limited -v- Nowakowski EDA 086, finding that unlike a dismissal under the Unfair Dismissals Acts, the operative date for a claim of discriminatory dismissal is the actual date of dismissal and Calor Teoranta -v- McCarthy EDA 089, finding that the operative date for a discriminatory act was the date of notice of an intended age-related compulsory retirement. The Respondent’s Representative also relied upon a number of EAT decisions including O’Neill -v- Bank of Ireland UD 425/91, which held that a dismissal could take place prior to the hearing of an internal appeal and Gabor -v- NYD UD 2436/11, where it was held that the operative date of a dismissal was not the date of an unsuccessful appeal but the date when the claimant’s statutory notice expired under the Unfair Dismissal Acts. He also submitted that there was no reasonable cause for extending time particularly as the delay in processing the appeal was owing to the Complainant’s failure to submit grounds of appeal personally until the receipt of two reminders. He rejects the Complainant’s contention that the delay “was also of the Respondent’s making to some degree” and submits that having made the complaint of 14th March 2014, the Complainant would have been well aware of the applicable time limits for bringing his discriminatory dismissal claim.

2.3 In response, the Solicitor for the Complainant submitted that as the date of a discriminatory dismissal is not defined in the Employment Equality Acts unlike the position under the Unfair Dismissals Acts, the applicable time limits fall to be determined under Section 77(5)(a) of the Acts which provides that a claim for redress should be made within six months from the date of the most recent occurrence of discrimination. The definition of discrimination also encompasses a dismissal if it arises from conduct prohibited under the Acts. As the discrimination complained of arises from a number of incidents constituting a continuum with the last act of discrimination being the rejection of the Complainant’s appeal on 18th September 2014, time runs from that date and therefore the complaint of discriminatory dismissal is within time. In the alternative and should the Equality Tribunal (now ‘WRC’) accept 22nd March 2014 as the operative date, he submitted that there was reasonable cause to extend time and relied upon Elephant Haulage Ltd -v- Mindaugas Juska EET 087. He accepted that there was a significant time lapse between submission of an appeal by Solicitors on behalf of the Complainant on 2nd April 2014 and submission of the Complainant’s personal appeal on 18th August 2014 and also that the Complainant had not responded to the reminder letter from the Respondent dated 4th April 2014. However, he contended that the Respondent had not acted reasonably by refusing to accept an appeal made on his behalf by his Solicitor and then accepting as sufficient, an identically worded appeal when made by the Complainant personally. It did not make sense to submit this complaint before the appeal was disposed of and if the Respondent’s position was accepted, the Complainant would have been left with just four days to submit a complaint after the rejection of his appeal thereby causing hardship and injustice.

2.4 In relation to the applicable time limits, Section 77(5)(a) of the Employment Equality Acts provides:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”, extendable to twelve months for reasonable cause under Section 77(5)(b). Section 77(6A) deals with the different forms of continuing discrimination or victimisation under the Acts. Essentially, this means that where a complaint of discrimination or victimisation refers to a series of separate acts or omissions sufficiently connected so as to constitute a continuum as asserted in the instant case, there must be such acts or omissions that fall within the requisite time limit in order for any acts or omissions outside the time limit to be taken into account. (County Cork VEC -v- Hurley EDA 1124)

2.5 Having considered the arguments made on behalf of both Parties and case law cited in light of the facts in this particular case, I deem it appropriate to deal with this complaint on the basis set out in County Cork VEC -v- Hurley EDA 1124. In particular, I am of the view that the authorities relied upon by the Respondent are not on point with the particular set of facts pertaining to the instant case. I am also cognisant that a discriminatory dismissal under the Employment Equality Acts is defined quite differently to a dismissal under the Unfair Dismissals Acts. In the two complaints lodged, the Complainant has alleged a series of related acts of discrimination on the grounds of disability against the Respondent in relation to his treatment in the workplace including a complaint of discriminatory dismissal, which if upheld, could conceivably constitute a continuum of discrimination. In this context it would not be appropriate to sever the alleged discriminatory dismissal from the other alleged acts of discrimination occurring on dates before and after the dismissal and which were indisputably made within time. I will therefore deal with the claim of discriminatory dismissal on this basis. As an aside and having considered the Company Handbook, I do not fully understand the Respondent’s insistence that the Complainant submit his appeal personally when Solicitors were on record for him at that stage.

3. SUMMARY OF THE COMPLAINANT’S EVIDENCE AND POSITION

3.1 The Complainant commenced employment with the Respondent on 3rd December 2007 as a Warehouse Operative. In the course of his employment, he had undertaken a number of different roles within that position including battery changing which entails removing batteries used to power the machines and charging them. Since 2010, he had worked as a ‘picker’ which entailed elements of hard manual work.

3.2 The Complainant acknowledges that he had prior back problems but these had fully resolved after spinal surgery in 2005. Therefore he did not consider it important to reveal this history at the time of taking up employment with the Respondent in 2007. He accepts that he had some back pain related absences during 2010 and 2012. In 2013, he suffered from a back injury resulting in him being on sick-leave for several months. Afterwards, he was asked by the Respondent to provide medical certification confirming that he was able to perform the duties of his position. Arising from two separate medical opinions dated 9th September 2013 and 11th September 2013, he was found to be permanently unfit for heavy manual work and had to avoid lifting. There is no dispute between the Parties that as a result of this prognosis he could not continue in his existing role as a picker as it might worsen his health. It is also accepted by the Respondent that the Complainant had a disability within the meaning of the Acts.

3.3 The Complainant asked to be transferred to a different, lighter job which would not affect his back. Although the Respondent was fully aware of his back condition, no offer of an alternative role was ever forthcoming. The Complainant had enquired about several positions that might be appropriate to his condition but he was refused all of them. In particular, he asked to be redeployed into a battery changing role as it was much lighter than his previous position. During a meeting with the HR Manager the day before his dismissal, he also said he would be able to do a job involving driving. However the Respondent did not agree and terminated his employment due to ill-health on 22nd March 2014.

3.4 The Complainant objected to various references in correspondence from the Respondent to the effect that it was unreasonable to expect that he could be transferred to a different position without firstly applying through the job application process. Objection was also taken to the HR Manager’s reference during their final meeting to a change of company policy, such that employees with back issues can no longer be accommodated in their roles for health and safety reasons. The Complainant had not been considering changing his position before his injury and therefore the fact that he had not made an effort to apply for an alternative position before his back injury arose is utterly irrelevant. At the hearing, the main concern was with the standard battery changing role as a suitable alternative. In response to a request at the appeal stage, the Respondent performed an assessment of this role which includes two systems of work: standard and manual. The standard mode is used on a daily basis and does not include lifting or pushing. The manual mode which does require some physical effort is used only in exceptional circumstances when the standard system is out of order and/or offline for service and/or repair. As the Respondent employs over 100 employees per shift and the manual system is rarely used, it was possible to arrange work for the Complainant in such a way as would exclude him from heavy duties.

3.5 The Respondent also refused to transfer the Complainant to the Administration Department, explaining that long-term absentees are covered by agency workers. The Complainant accepts that the HR Manager suggested that he use his sick-leave to improve his qualifications and upskill and offered to support him in sourcing vocational opportunities. However the Respondent did not provide him with any actual training or practical advice regarding relevant training or offer him any redeployed position. The support provided was therefore delusive and aimed at switching the burden of responsibility to the employee. The Complainant also confirmed that he had no qualifications or administrative skills at the material time of his dismissal and appeal but had since embarked on a SOLAS course with a view to upskilling.

3.6 In summary, it was submitted on behalf of the Complainant that having regard to its extensive and far-reaching obligations under Section 16(3) of the Acts, an employer is legally obliged to assess job positions in light of an employee’s medical condition and take all possible actions to adapt the workplace to the disabled employee and to his physical condition to ensure his continued employment without putting his health at risk. As a large employer with a complex structure, significant resources and a large variety of alternative roles, the Respondent could have found a work position that would not have affected the Complainant’s back and/or where the role could be distributed such that any manual duties were borne by his fellow employees. The Respondent should have performed a proper assessment of his capabilities to find such a suitable role. The Complainant had informed the Respondent of his health condition and information on the types of duties he was allowed to perform (driving, office work, etc.) but the Respondent had not acted on same. Instead it placed the burden of adapting the workplace on the Complainant by expecting him to find a suitable alternative position and prove his ability and qualifications. The support offered in relation to training and upskilling was only virtual and he was never provided with a list of positions that might be available to him or suitable training identified. The Complainant did not have any knowledge of any available lighter positions that he should be upskilling for whilst the Respondent held all the data and information required to identify and/or adapt a new role for him. The Respondent failed to provide the Complainant with reasonable accommodation and instead terminated his employment on the grounds of incapacity upholding this decision on appeal.

4. SUMMARY OF THE RESPONDENT’S EVIDENCE AND POSITION

4.1 The Respondent operates a warehouse which is a distribution point for products supplied to a large retail chain. The products are bulk supplied from articulated trucks continuously on a 24 hour basis, stored and then ‘picked’ for redistribution to its various branches. Placing the product in its location requires a regulated continuous process of movement by the warehouse operatives of products into various locations using a combination of mechanical handling equipment and manual handling. The Complainant was employed as a ‘picker’ which entailed selecting products from a location and stooping, lifting and placing products in a roll cage. Albeit separate from this work process, warehouse operatives are also employed in battery changing roles, also requiring manual handling. Any alternative light-work roles such as goods-out are office based and administrative in nature requiring IT and numeracy skills.

4.2 The Respondent accepts that the Complainant has a disability within the meaning of Section 2 of the Acts but disputes all of his complaints. The Respondent contends that his back issues were pre-existing when he was recruited as a Warehouse Operative from an agency pool on 3rd December 2007 and that he was less than forthright in revealing his medical history. At the commencement of his employment, he was required to partake in induction training which incorporated a manual handling training course. Each participant was required to sign a declaration in relation to their medical history and specifically in relation to any back problems stating as follows: “I have no injuries or any recent or recurring back problems and can participate in the manual handling training course.” The Complainant signed this declaration on 23rd May 2007 (furnished) and again on 30th July 2010. HR have been unable to locate the Complainant’s medical screening which would have been completed at the time of his recruitment.

4.3 The Respondent’s position that the Complainant was absent from work for increasingly longer periods owing to ongoing back issues was undisputed. In January 2009, he was certified as absent from work with low back pain. The next back-related absence was in June 2010 when he rang in to say that he had a back injury, subsequently supported with medical certification from his GP. On 23rd August 2010, he was absent from work again with back pain until he was certified fit for work on 22nd September 2010. On 23rd October 2010, the Shift Operations Manager had a meeting with the Complainant to discuss his absence levels. The Complainant furnished him with a Report in respect of a recent MRI, confirming that he had significant lumbar spine pathology and a history of lumbar spine surgery having had two discectomies (removal of herniated disc material) performed on his back in Poland in 2005. In November 2010, the Complainant consented to the Company Doctor corresponding with his GP directly.

4.4 In March 2012, the Complainant was absent from work again, stating that he had hurt his back at home. He returned to work on 6th April 2012 upon being certified as fit for work. During an absence meeting on 20th April 2012, he stated that he had hurt his back due to the type of his work. He signed off on his return to work meeting as per the usual process and none of the facts outlined were disputed.

4.5 On 4th June 2013, the Complainant was again absent from work on an uncertified basis and HR contacted him on 14th June 2013 in writing requesting certification. On 18th June 2013, he phoned HR to say that he was ‘probably’ flying home to Poland to undergo surgery. On 20th June 2013, the HR team wrote to him to inform him of his obligations in relation to absence reporting. The Complainant underwent a second operation on his back in Poland on 24th June 2013. On 28th June 2013, he was informed that he was required to attend the Company Doctor, an Occupational Health Specialist in Naas on 2nd July 2013. He did not attend this appointment but did attend a further appointment on 15th July 2013.

4.6 The resulting Report outlines the Complainant’s history of back pain as relayed to the Company Doctor. He told her that he had developed back pain on 4th June 2013 and “he cannot recall any particular precipitating incident”. The Doctor confirmed his previous spinal surgery including surgery in 2005 for two herniated lumbar discs from which he had made a full recovery. She also reported that the fresh surgery scar from his recent surgery and the old scar were visible. She advised that he could not return to work until he was fully fit for manual duties in the warehouse. She requested a review once his own GP had certified him fit for work. On 9th September 2013, the Complainant submitted a certificate from his GP confirming that he had undergone a microdisectomy on 24th June 2013 and advising: “He had his first microdisectomy 8 years ago and his specialist advised him to avoid heavy lifting and he was advised to do light duties. He will not be able to do heavy physical job.” On receipt, the Complainant was referred back to the Company Doctor on 13th September 2013. During this consultation, she confirmed that despite undergoing physiotherapy and exercise, his recovery had been slower than anticipated and it was likely that it would be another 2-3 months before he was fit for work. She also stated that it was possible that he may never again regain full spinal movement and would be left with a residual disability. She deemed him unfit for manual work and would review him in two months’ time. The Complainant stated to her that he believed modified light duties were available with the Respondent. She advised that this was unlikely as the Respondent required him to be fit for all routine general operative duties. She also advised him to use the period of sick leave for study and training to improve his transferable skills.

4.7 On 21st September 2013, the Complainant met with the HR Manager to discuss the contents of the Company Doctor’s Report with his Union Representative in attendance. The HR Manager addressed the points outlined in the Report and asked why he had not disclosed his back surgery eight years previously. He said he could not remember. She discussed his request for light duties and explained that the Respondent does not have any role deemed free of manual work in the warehouse. She followed up with a letter confirming the Respondent’s position and noting that he would be reviewed in two months’ time.

4.8 The Company Doctor reviewed the Complainant on 22nd November 2013 and issued a Report noting that he had been reviewed by his Orthopaedic Surgeon in Poland and was advised to avoid heavy manual exertion on an ongoing basis. The Complainant confirmed to her that he did not believe he would ever be fit to return to heavy manual work such as required in his current position. She was of the view that he would be fit for sedentary duties in January 2014 and outlined his limitations around manual handling. She stated that he may be suitable for early retirement on medical grounds and should remain on long term sick leave in the absence of a modified role. The Respondent was sympathetic to his position.

4.9 On 1st February 2014, the HR Manager arranged a second meeting with the Complainant with his Union Representative in attendance to discuss his position in light of the last Report. She again discussed the fact that there were no available light duty roles and asked whether he had any other skills such as PC skills. He stated that he did not. She said she would help him to upskill in this regard and if he needed support to look for another job, she could help with his CV. She asked how the Complainant had damaged his back in response to which, he stated that when he woke up whilst at home it was sore. She advised that he should take the Company Doctor’s Report to his GP to obtain a view from her and that he should also digest the Report given that it was highly likely that the only options would be retirement on the grounds of ill-health or the Respondent would have to consider termination of his employment. On the same date, the HR Manager followed up with a letter confirming the Respondent’s position.

4.10 On 21st March 2014, the HR Manager held a final meeting with the Complainant in the presence of his Shop Steward. She asked if he had reflected on the matters discussed at the previous meeting. He confirmed that he had no update and did not dispute that he was not fit for the role of warehouse operative. He had not taken any further action to upskill in terms of her offer at their last meeting. She explained that the Respondent could not continue with the situation indefinitely and with this in mind, would have to terminate his contract of employment. She repeated her offer of assisting him upskill and told him about the Employee Assistance Programme which he could contact for support. On 22nd March 2014, she followed up with a letter confirming the decision to dismiss him on the grounds of incapacity.

4.11 On 2nd April 2014, the HR Manager received an email from the Complainant’s Solicitor advising that he wished to appeal the decision. On 4th April 2014, a HR Officer wrote to the Complainant confirming receipt and requesting that he follow the internal process in terms of submitting a letter of appeal outlining his grounds of appeal, signed by him. As the Complainant had not sent in the requested appeal letter, she sent a reminder to him on 28th July 2014 and the Complainant’s signed letter of appeal was received on 18th August 2014. The basis for the Complainant’s appeal was that his dismissal was discriminatory on the grounds of disability. The appeal was heard on 4th September 2014 by the Site General Manager. The Complainant asked to be accommodated with an alternative light duty role. The Site General Manager asked him what he had done in terms of taking up the Respondent’s offer of upskilling in the interim, in response to which he confirmed he had done nothing. The Complainant stated that he would like to be accommodated in the battery change area or in an office role. In light of this request, the Site General Manager had a risk assessment of both the standard and manual battery changing roles carried out to ensure that he had full clarity on the requirements of this warehouse operative role. The risk assessment was submitted at the hearing and the Inspector who had conducted same gave direct evidence explaining the assessment process at the hearing. He confirmed that both the standard and manual battery changing roles required manual labour actions incompatible with the Complainant’s permissible light duties and were deemed medium and high risk roles respectively. The Complainant’s Solicitor questioned why he had not been consulted in relation to this process.

4.12 The Site General Manager’s findings in relation to all the points raised at the appeal hearing were contained in his letter dated 18th September 2014 to the Complainant, rejecting his appeal and upholding the Respondent’s decision to dismiss the Complainant on the grounds of incapacity.

4.13 My investigation was adjourned to enable the Respondent to provide video footage showing the operation of the warehouse floor and the manual labour involved in both the standard and manual battery changing roles. It also sought to demonstrate that the flow of work was such that it would not be feasible for the Complainant’s colleagues to undertake aspects of either role that would entail pushing/pulling movements. The role of forklift driver, also mooted as an alternative, entailed manual labour too.

4.14 Overall, the Respondent submits that the Complainant had been less than forthright regarding his medical history and has not established a prima facie case of a failure to provide reasonable accommodation, discriminatory dismissal or of discrimination on the grounds of disability in relation to his conditions of employment and training contrary to the Acts. Through the various meetings with HR and in light of the comprehensive and decisive Doctor’s Reports obtained and assessment of the various alternative roles, the Respondent fulfilled its requirements as set out in A Health and Fitness Club -v- A Worker EED 037. It is not disputed that the Complainant is unfit for his current role owing to the manual labour involved and in such circumstances, the Respondent is entitled to dismiss him on the grounds of incapacity as confirmed by the Labour Court in A Worker -v- An Employer EDA 0419. It is not feasible or safe to adapt the Complainant’s current role, battery changing or other warehouse operative roles so that they only entailed light duties to facilitate him continuing employment with the Respondent given his prognosis. Notwithstanding that Section 16 of the Acts does not oblige the Respondent to provide a light work alternative, any alternative roles that might have been available to the Complainant have been considered and found to be unsuitable. In this respect reliance was placed on the Labour Court decision in Department of Justice, Equality & Law Reform -v- Kavanagh EDA 1120.

5. FINDINGS AND CONCLUSIONS

5.1 It is accepted by both Parties that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to these complaints and I concur with that view. The issues for decision are (1) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts, (2) whether he was discriminatorily dismissed on the grounds of disability contrary to Section 6(2)(g) and Section 8 of the Acts and (3) whether he was discriminated against by the Respondent in relation to his conditions of employment and training on the grounds of disability.

5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. As well established by the Equality Tribunal and Labour Court, this requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

5.3 Turning to the first complaint of a failure by the Respondent to provide the Complainant with reasonable accommodation in the workplace, the legal position in summary is as follows: Section 16(1)(b) of the Acts provides that an employer is not obliged to retain an employee in a position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is then subject to 16(3)(a) of the Acts which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of ‘appropriate measures’, more commonly referred to as ‘reasonable accommodation’. This is subject to the proviso that such measures would not impose a disproportionate financial burden on the employer. In practical terms, Section 16 of the Acts as interpreted in the seminal Labour Court decision in A Health and Fitness Club -v- A Worker EED 037, requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake their duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision.” The obligation upon the employer to be proactive in relation to this process was confirmed by the Labour Court in A Worker -v- A Hotel EDA 0721.

5.4 Further to periods of sick leave absences from 2009 onwards, the Complainant found himself in a very unfortunate situation when his back problems became acute in 2013 and despite undergoing a second back operation, his medical prognosis was such that he had to accept that he was no longer capable of undertaking his current role as a ‘picker’ in his position as a warehouse operative. He also had to concede that he was no longer able to undertake manual work. Although he clearly had been less than forthcoming in relation to disclosing his prior back problems and surgery, I do not believe that he intended to mislead and that he genuinely believed his back problems had fully resolved at the time of taking up employment with the Respondent. He presented as an honest witness who had cooperated with the process and apart from his sick-leave absences, he had a good work record. He clearly had difficulty coming to terms with his difficult situation and the fact that he could no longer undertake manual work.

5.5 The Complainant contends that as a large employer, the Respondent should have either accommodated him in an alternative warehouse operative role so that he only undertook light work duties or in an office role. I have carefully considered all of the evidence in light of the requisite two-stage enquiry. On balance, I am satisfied that the Respondent has discharged its obligations under Section 16(3) of the Acts and could not have accommodated the Complainant either in his current role, in an alternative warehouse operative role such as battery changing or in an office role based upon the following conclusions:

· It is difficult to see what more the Respondent could have done in terms of satisfying the first stage of the enquiry and assessing the Complainant’s capacity to undertake his current role. In particular, I note that not less than three undisputed Medical Reports were obtained from the Company Doctor and the Complainant was also invited to confer with his own medical advisors and/or submit his own medical evidence. The HR Manager held three meetings with the Complainant to discuss his position in light of his medical prognosis. It was undisputed that the Complainant was medically unfit to undertake his current role as a picker and hence could not be accommodated in that role.

· The second stage of the enquiry was less than perfect in terms of the Respondent considering what, if any, special treatment or facilities including the distribution of tasks may be availed of by which the Complainant could become fully capable. The battery changing role was the only realistic alternative identified. Although the manual handling aspect of this role may have been apparent, Section 16(3) of the Acts imposes an obligation to conduct a proper examination of its suitability in light of the employee’s capacity. In my view, this role was erroneously regarded as comprising a different position notwithstanding that it was undertaken by warehouse operatives and the Complainant had previously undertaken this role. I also note that the Complainant’s contract was generic in nature. Based on this misassumption, this role was initially discounted without any real examination and a contention that it had to be applied for through the application process. However, I am satisfied that the suitability of this role was adequately assessed at the appeal stage and thus this shortcoming was remedied. I am also satisfied that the Complainant was adequately consulted at all material times.

· The only real factual dispute between the Parties arose regarding the level of manual work involved in the standard battery changing role. To resolve this issue I viewed the video footage demonstrating the operation of work on the Respondent’s warehouse floor along with the standard and manual battery changing roles. Firstly, it was apparent from the flow of work involved on the warehouse floor that it would not be feasible to separate out the manual and light work elements of any of the aforementioned warehouse operative roles such that the Complainant’s colleagues could undertake the manual elements leaving him to undertake the light-work elements of any of the roles. Secondly, it was also clear that both the standard and manual battery changing roles required the exertion of physical force including pushing/pulling actions incompatible with his medical prognosis.

· Whilst a reasonable employer should examine any available light work alternatives, I find that it was unrealistic to expect the Respondent to find an administrative role for the Complainant in circumstances where he had had no IT or administrative skills or experience. I further note that at no stage did he ever seek to contact the HR Manager to clarify what training was being offered or to take up the offer. I am also of the view that he could have been more proactive in terms of upskilling whilst on sick leave and in the intervening six month period between his dismissal and appeal.

5.6 For the same reasons and cognisant of the onerous duty imposed upon employers in situations of incapacity on the grounds of ill-health, I do not find the Respondent’s dismissal of the Complainant owing to incapacity discriminatory on the grounds of disability under the Acts. Any defects in the requisite two stage enquiry had been cured by the appeal stage when the dismissal was upheld. Having satisfied Section 16(3), the Respondent is entitled to rely upon the defence under Section 16(1).

5.7 Finally, and again for the reasons set out above, there is no evidence of the Complainant being treated less favourably by the Respondent on the grounds of disability in relation to his conditions of employment and training. In particular, I note that he was offered the opportunity to upskill and avail of training by the Respondent but did not make any effort to pursue and test the genuineness of this offer.

6. DECISION

6.1 I have concluded my investigation of the complaints herein and based on the aforementioned, I make the following findings pursuant to Section 79(6) of the Employment Equality Acts:

(1) The Complainant has not made out a prima facie case that as a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide him with reasonable accommodation contrary to Section 16(3) of the Acts and therefore this complaint is not upheld;

(2) The Complainant has not made out a prima facie case that he was discriminatorily dismissed contrary to Section 6(2)(g) and Section 8 of the Acts;

(3) The Complainant has not made out a prima facie case of discrimination by the Respondent on the grounds of disability in relation to his conditions of employment and training contrary to Section 6(2)(g) and Section 8 of the Acts and therefore this complaint is not upheld.

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Aideen Collard

Adjudication / Equality Officer

30th June 2016