DEC-E2016-143

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-143

PARTIES

A Sales Advisor

(Represented by Mandate Trade Union)

Complainant

AND

A Department Store

(Represented by Peninsula Business Services)

Respondent

File reference: EE/2013/315

Date of issue: 1st November 2016

1. Introduction:

1.1 On the 21st June 2013, the complainant referred a complaint to the Director of the Equality Tribunal on the grounds that she was subject to a discriminatory dismissal on the grounds of disability.

1.2 On the 12th August 2015 and in accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made submissions in advance of the hearing and attended the hearing on the 26th August 2015. The complainant attended the hearing and was represented by Amanda Kane, Mandate trade union. Brian Dolan, Peninsula Business Services represented the respondent and two witnesses attended on its behalf.

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

2. Submissions and evidence of the complainant

2.1 The complaint relates to the complainant’s dismissal from the employment of the respondent on the 30th April 2013. The complainant asserts that the dismissal was discriminatory on grounds of her disability and also asserts that the respondent failed to provide her with reasonable accommodation. The complainant’s employment commenced on the 15th October 2008 and she worked as a sales advisor in a respondent store. She worked 15 hours per week and received €145 per week gross. The complainant was diagnosed with a back problem and underwent surgery to remedy this. In total, she had had four operations to seek to address this issue. She informed the respondent store manager of this issue and went on sick leave in April 2011. Between April 2011 and April 2013, the complainant submitted monthly certificates to confirm her absence due to illness. Apart from sick pay for the first six weeks of this period, she received no further remuneration from the respondent.

2.2 In 2012 and 2013, the complainant received correspondence from the respondent, requesting her to provide a date for her return to work. She attended occupational health assessors appointed by the respondent. She was later furnished with their medical report; this states that the complainant was not fit to return work and would not be in a position to do so for the foreseeable future. The complainant was critical of the approach taken by the occupational health provider in not requesting information from her GP and in using too broad a term in referring to the “foreseeable future” in assessing a possible return to work for her.

2.3 The respondent then carried out an investigation under the auspices of its disciplinary policy. The complainant said that it was inappropriate for the respondent to use its disciplinary policy to assess her situation and the respondent had no other dismissals policy. The incapability to work policy makes no reference to disability. On the 26th April 2013, the complainant met with the respondent HR manager as part of the investigation, where she informed the respondent of a forthcoming appointment with her consultant, scheduled for the 9th May 2013. She later received a letter from the respondent of the 30th April 2013 that states that she is dismissed on the grounds of capability. The complainant appealed the dismissal and met with a senior manager of the respondent on the 20th May 2013. After the appeal hearing, the respondent confirmed the complainant’s dismissal, stating that it was fair and reasonable.

2.4 The complainant said that the respondent had not shown her empathy in how it treated her. It had also failed to consider reasonable accommodation and that such accommodation could include time off. The complainant said that the respondent had acted with undue haste, referring to the short time between its letter of the 6th April 2013 and her dismissal on the 30th April 2013. She met her consultant on the 9th May 2013 and was able to inform the appeal hearing on the 20th May 2013 that she was scheduled for an operation in December 2013. This would be followed by two months of convalescence. She stated that the December 2013 was the most serious of the four operations, but also the one most likely to lead to a resolution of the medical issue. It was submitted that the respondent should have held over any decision to dismiss the complainant to a later date. The complainant also indicated that she objected to the reference in correspondence of the 30th April to there being no likelihood of the operation succeeding.

2.5 In respect of her role, the complainant outlined that she had worked on the shop floor in the shoe department. This involved standing for long periods and putting out stock. She could not stand for such long periods of time and nor could she do the required lifting. She commented that after her return from an earlier period of maternity leave, she had been assigned to work in the cosmetics department, a role which involved less lifting. She could have performed a different role for the respondent, but it had never engaged in discussion on alternatives. Addressing her current situation, the complainant said that she was working for a named cleaning company in a part-time capacity. She worked 6.45 hours per week in this role.

2.6 In reply to the respondent, the complainant outlined that it was inappropriate to take her demeanour into account in assessing her future in the company. She said that she had not expected the meeting of the 23rd April 2013 to be about her dismissal and thought that it related to her return to work. She had not been able to provide this date as she was then on a waiting list for an operation. She described these events as stressful. The complainant stated that she had addressed her return to work as part of her appeal but she did not have a letter from her consultant which gave a prognosis. It was submitted that the process was flawed as the person who carried out the investigation also made the decision to dismiss the complainant. At the appeal hearing, she had explained that she could not bring forward the date of her operation. She had never thought of getting a medical letter to give a prognosis of her situation after the operation and the employer never asked for such a letter. It was submitted that the respondent was aware of the likelihood of her return to work after the operation. There had only ever been one meeting regarding her future and she had not expected this to be about the ending of her employment with the respondent. It was also submitted that more time should have been afforded prior to the decision being made to dismiss her. The period of six weeks was too short. It was submitted that her continued absence until the date of the operation did not impose any cost on the respondent.

3. Submissions and evidence of the respondent

3.1 The respondent denies the claim. It outlines that the complainant went on sick leave on the 4th April 2011. On the 17th September 2012, the store manager wrote to the complainant asking when she would be able to return to work. There followed correspondence and telephone calls between the parties regarding the complainant being on a HSE waiting list and a possible return to work in early 2013. The respondent outlines that it requested the complainant to attend their occupational health specialist. There had been no challenge to the veracity of the report or the failure of the assessor to obtain the complainant’s existing medical records. It was not usual for the occupational health provider to consult with an employee’s GP regarding an assessment or any accommodation. It was submitted that the occupational health report is accurate and covers the points required in making the assessment.

3.2 On the basis of the medical report, the respondent invited the complainant to attend an investigation following the circulation of the medical report. After the investigation meeting, the respondent informed the complainant by letter of her dismissal. This was unsuccessfully appealed and the complainant’s employment ended on the 31st May 2013. The respondent outlined that the disciplinary policy was used in order to guarantee fair procedures and this had been agreed at the time of the hearing. The complainant had not complained of its use at the time.

3.3 In legal submissions, the respondent outlines that the Unfair Dismissals Act expressly allows for dismissal on the grounds of capability, relying on the definition of ‘capability’ outlined in Reardon v St Vincent’s Hospital (UD74/1979). It also submits that section 16(1) of the Employment Equality Act states that nothing in this Act requires an employer to retain an employee who is “not… available, and fully capable of undertaking, the duties attached to the position”. The respondent submits that it made all reasonable enquiries and observed fair procedures in dealing with the complainant. It allowed for a reasonable period of 19 months before commencing any formal procedures; it allowed a further 8.5 months to carry out these formal procedures. The complainant was given fair notice of the possibility of dismissal and the medical report was clear and unambiguous about whether she was fit to return to work. The complainant was invited to contradict the medical report but did not do so. The respondent outlines that it was concerned that the complainant intended to attend the investigation meeting without union representation and contacted her union to ensure that it was aware of the gravity of what was at stake. The respondent states that it was reasonable to conclude that there was not a likelihood of the complainant returning to work based on the medical report, the duration of her absence and the fact that her previous surgeries had been unsuccessful. It submits that the appeal was a re-hearing of the matter and an opportunity to raise any progress made; the respondent states that it was clear from that meeting that the complainant’s condition had deteriorated and she also had no date to return to work.

3.4 In respect of the claim for reasonable accommodation, the respondent outlines that the complainant never requested reasonable accommodation and none is mentioned in the complaint. The complainant had never suggested alternative roles that she could do and in any event, all such roles required lifting and standing. The respondent referred to Kennedy v Stresslite Tanks Ltd & Stresslite Floors Ltd (EE/2013/393) where it was held that time off could be a form of reasonable accommodation where the employer had been notified of the disability. In this case, the employer had objected to the phased return. In the instant case, the respondent had written to the complainant in September 2012 asking for her return to work. Her role had been filled on a temporary basis and other people had to work over their contracted hours to cover the complainant’s hours. It was submitted that section 16(3) of the Employment Equality Acts would be nullified if an absence could continue indefinitely. In this instant case, the manager had assessed the complainant’s service and her absences in considering her future in the company. The complainant had been out longer than she had been in work at the time of her dismissal and the respondent commented that her service from 2007 to 2013 was short by its standards.

3.5 The respondent denied that its actions in April 2013 had been in haste. It had contacted the complainant’s union to invite them to attend the hearing, but they indicated that they would attend any appeal. It proceeded with the decision to dismiss the complainant because there was no prognosis of a return to work date and no prospect that the forthcoming operation would be successful. At the hearing, the complainant did not offer any indication of when she could return to work and she made no attempt to convince the respondent that this was likely. It described her demeanour as poor and that this was not someone trying to save her job. The respondent said that this was a low key meeting. Moreover, the respondent stated that it based the decision to dismiss on the medical report and because the complainant had not conveyed that she would be fit enough to return to work. No date had been given by the complainant at the appeal hearing and there had also been no suggestion on the complainant doing other roles. The respondent provided anonymised details of eight colleagues who had been accommodated on medical grounds in the workplace. The respondent also provided its policy on incapability. This lays out principles to assess a staff member on long term illness. It refers to once there is the prospect of the employee returning to working on a date in the reasonable future, the staff member’s employment is not at risk. The question of a date in the reasonable future is assessed according to a number of factors, including the length of the absence, the effect of the absence on the business, any record of previous absence, the service of the employee and any prognosis for a return to work. If no return to work date can be provided and the employee has been out for a lengthy period, the policy states that it may consider dismissal in accordance with the disciplinary policy. The policy further refers to the respondent never moving to dismiss an employee without first establishing a return to work date with medical practitioners. The policy concludes by stating that where an employee cannot fulfil their normal duties, there is no obligation to provide light work or alternative duties.

3.6 In reply to the complainant, the respondent outlined that its letter of the 4th April 2013 makes reference to the possibility of ending her employment. The earlier letter of the 13th March 2013 also states that her employment is at risk. It had taken the step of requesting the union to attend the meeting because of the issues at stake. It submitted that the investigation had been the occupational health assessment and the decision to dismiss made by a named member of the respondent; there was, therefore, separation between investigation and decision. It was submitted that this was a collaborative process and there was an onus on the employee to submit documents that would support her case. This included an onus to provide documentation as part of the occupational health assessment process. The complainant’s demeanour was relevant as it suggested that in her own mind she did not believe that she would ever be able to return to work.

3.7 The respondent outlined that at the time of the appeal, there was still no date for the operation or of when she might be able to return to work. There was no improvement in the situation even though the appeals process had provided a further period of two weeks. The respondent had retained the complainant as an employee until the end of the appeal. It was submitted that employees could not be out on sick leave eternally and by this stage the complainant had been out for two years. It had been necessary for the respondent to act quickly on receiving the occupational health assessment it commissioned.

4. Findings and reasoning:

4.1 The complainant’s employment as a part-time sales advisor came to an end by letter of the 30th May 2013. This followed her unsuccessful appeal against a decision to dismiss her on grounds of incapability. The complainant suffered from hernias that prevented her from standing and lifting in the workplace. The complainant asserts that the decision was discriminatory on grounds of her disability and says that the respondent failed to consider reasonable accommodation of her disability. The respondent refutes this, stating that it could not keep the complainant as an employee eternally and it was entitled to dismiss her as she could not provide a date of her return to work. It states that the complainant never requested reasonable accommodation and no such steps were available to it.

4.2 It is not contested that the complainant suffers from a disability. She underwent a progressive series of operations, the last of which took place in late 2013. She has since returned to part-time employment with a different employer. The respondent referred the complainant to an occupational health assessment on the 2nd April 2013. This concluded that the complainant was unfit to return to work and that the assessor could not anticipate when she would be fit to return to work and that this may continue for the foreseeable future.

4.3 Section 16 of the Employment Equality Act, as amended, provides

“16 (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(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.

…

(3) (a) For the purposes of this section, 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) An 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 and advance in employment,

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) In subsection (3)—

…

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but (c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”

4.4 In respect of an employer’s obligations to provide such appropriate measures to an employee with a disability, the Labour Court, in Humphreys v. Westwood Fitness Club [2004] E.L.R. 296 held: “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 is 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. 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 Kennedy v Stresslite Tanks Ltd & Stresslite Floors Ltd, the Equality Tribunal held that the employer had not adequately considered appropriate measures and that this included allowing the employee to continue being an employee while unable to work after the exhaustion of sick pay. The Equality Tribunal concluded that making such an allowance would not place a disproportionate burden on the employer. In An Employee v A Telecommunications Company [2011] E.L.R. 41, the Equality Tribunal held that the provision of special treatment was not an end itself, but a means to an end of ensuring the employee’s participation in employment. It noted that the employer had not provided records of its consideration of adjusted roles or work patterns. The Tribunal concluded that the respondent had discriminated against the complainant in failing to consider alternative roles to allow the employee return to work.

4.6 In respect of this case, the complainant was out of work from April 2011. The events of April 2013 were preceded by correspondence from the respondent where it signalled its concern regarding her ongoing absence. This and the consequent risk to the complainant’s employment were referred to in correspondence to the complainant, for example the letter of the 13th March 2013. This led to the occupational health assessment of the 19th March 2013 and the report dated the 2nd April 2013. Under the sub-title of “fitness for work - work restrictions/modifications”, the assessor states that the complainant is unfit to return to work because of the ongoing nature of her complaints and the assessor anticipates that this may be the case for the foreseeable future. The respondent engaged the disciplinary procedure to assess the complainant’s future as an employee of the respondent. The respondent asserts that this was to assure fair procedures; the complainant says that this was unfair given that no disciplinary issue arose in this case. By way of comment, it appears incongruous that an employee about whom no disciplinary issue had been raised should be subjected to a disciplinary process. At the hearing, the respondent accepted this as a matter of principle but said that the disciplinary policy had been availed of in the absence of an obvious alternative. The Unfair Dismissals Acts, however, provides for a dismissals policy that should go beyond any disciplinary policy.

4.7 It is obvious that on the 19th March 2013 the complainant was unfit to return to her duties on the shop floor and in the shoe department. While the occupational health report is short, it is clear as to its findings. What is absent from the respondent’s consideration is what the prognosis would be following a further operation. Between the decision to dismiss and the appeal, the complainant had been able to establish that she was listed for a further operation. She was, of course, at the mercy of public elective surgery waiting lists and in this case, she undertook the procedure in December 2013. What is unsatisfactory about the respondent’s approach is that it did not refer the complainant back to occupational health to assess her prognosis following the prospect of a forthcoming operation. The complainant states that this operation would lead, and did lead, to a resolution of the issue, and this has not been contradicted by the respondent The last operation was the latest in a series of surgical interventions. Applying the legal test in Humphreys v. Westwood Fitness Club, I find that the respondent did not have before it the full facts in order to assess the complainant’s return to work as of the appeal process. After the complainant’s appeal, it should have referred the matter back to occupational health to consider what the prognosis was following a further operation. The onus in law is on the respondent to take this step. It follows that the complainant’s dismissal was discriminatory on the grounds of her disability.

4.8 In assessing redress, I take account that the complainant had exhausted her entitlement to sick pay and that she was unable to work until the first quarter of 2014. The respondent terminated her employment prematurely and without it having the full facts. The complainant was a part-time employee, earning €145 gross per week. Taking these factors into account, I award the complainant the equivalent of six month’s remuneration, i.e. €3,770.

5. Decision:

5.1 The respondent herein discriminated against the complainant on the disability ground in terms of section 6(2)(g) and contrary to section 8 of the Act. I determine that the appropriate redress is an award of compensation and that the respondent shall pay €3,770 to the complainant in compensation for the effects of discrimination. The entire award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended).

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

1st November 2016