ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000508

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 06/07/2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The Complainant made the following submissions during the Hearing:

It was stated that, despite the fact that the Respondent was fully aware that the Complainant had been on long-term, certified absence from work, they (the Respondent) never had her medically reviewed/evaluated. The Complainant also stated that the Respondent never established, in any meaningful way, that the Complainant was incapable of doing her contracted job on medical grounds.

The Complainant stated that, despite the fact that the Respondent indicated, at the various meetings between the parties, that they were desirous of enabling her return to work, if and when possible and/or in light of her medical issues, this did not appear to be the case.

The Complainant contends that it was clearly unfair and incorrect of the Respondent to seek to rely on absence from employment on certified medical grounds as representing grounds for dismissal.

The Complainant contends that it became clear over the course of the various meetings, she had with the Respondent that they were seeking to have a return to work on a four-day per week basis. It was submitted by the Complainant that this was not the basis on which she was contractually employed prior to going on certified sick leave. It was further contended that , at all times in seeking and obtaining medical certification, the Complainant's medical practitioners were clearly indicating that she was not capable of returning to full-time employment or employment based on four days per week.

While the Complainant acknowledges that her contracted hours increased to 4 days per week during her employment, her contract and/or Terms and Conditions of Employment were never altered to reflect this change. In addition, the Complainant stated that there was no consultation and/or discussion, of any material nature, as her hours increased from the initial 2/2.25 to 4 days per week.

Against this background, the Complainant contends that the Respondent never entertained the notion of her returning to employment on the basis upon which she was actually employed, namely on a part-time basis or for three working days per week.

The Complainant further contended that the Respondent never had her medically evaluated to establish whether or not she would be capable of undertaking the work that she was actually contracted to carry out.

In summary, the Complainant contends that, despite being aware that she suffered a recognised medical condition, the Respondent made no attempt to accommodate a return to work in light of her medical condition and recognised disability. Consequently, the Complainant alleges that the Respondent discriminated against her on the basis of her disability.

Respondent’s Submission and Presentation:

In response to the complaint, the Respondent stated they did not accept that there was any form of discrimination in relation to the Complainant.

The Respondent stated that the complainant was involved in a road traffic accident, which was not her fault, on 13 September 2012. As a result of this accident, the Complainant was out of work on certified sick leave until 8 October 2012.

It was further contended by the Respondent that in April 2013, the Complainant was out of work on sick leave from 23 May to 31 December. The Respondent stated that, during this absence, a meeting took place on 4 December 2013 between the Complainant and the General Manager of the Respondent regarding her health and her return to work. It was agreed that meeting, that she would return to work on 2 January 2014. The Respondent provided documentary evidence, in relation to this incident of sick leave, which shows the Respondent confirming the date of return to work and acknowledging the understanding and patience of the Respondent.

The Respondent stated that, the Complainant went on sick leave on 22 October 2014 and did not return to work at any time thereafter, before the termination of her employment on 3 July 2015. It was submitted by the Respondent that, during that absence a number of meetings took place between the Complainant and the Respondent General Manager, regarding her health, her ability to return to work and the temporary cover in place during her absence. It was contended by the Respondent that their inability to continue such temporary cover on an indefinite basis was discussed with the Complainant during these meetings.

The Respondent submitted documentary evidence pertaining to correspondence and contact between the parties during the time period set out above. This evidence shows that three meetings took place between the Complainant and the Respondent's General Manager in 2015, namely on 27 February, 1 April and 3 July respectively.

In conclusion, the Respondent contends that they did their utmost, at all times, to facilitate the Complainant's return to work. The Respondent contends that it was unsustainable to continue to fill the Complainant's role on a temporary basis, as it was significantly interfering with their business. The Respondent further submitted that the Complainant was at all times aware that unless she could confirm a return to work, that employment would be terminated. The Respondent stated that the Complainant was specifically aware at the review meeting on 3 July 2015, that this meeting related to the termination of her employment.

The Respondent contends that they facilitated the complainant in every way to undergo the appropriate treatment and medication, as advised by her doctors, to facilitate a return to work. The Respondent stated that there was no question of any type of discrimination against the Complainant by reason of her medical condition and that the Respondent did their utmost to assist in her returning to work.

Consequently, the Respondent contends that no discrimination existed on their part.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The matter for decision is whether a discriminatory dismissal place on the grounds of disability.

Legislation involved and requirements of legislation:

The legislation referred to in this case is the Employment Equality Act 1998 - 2011

Decision:

Having carefully considered all the evidence adduced in this case, I set out below my decisions in relation to the Complaint as presented.

Preliminary point:

In submitting her original complaint, the Complainant made separate applications under (1) Section 8 of the Unfair Dismissals Act, 1977 and (2) Section 77 of the Employment Equality Act, 1998 by reason of discrimination on the grounds of disability.

As it is not procedurally possible to proceed simultaneously under both pieces of legislation as set out above, I met separately with both parties to advise them of this situation. Following these preliminary discussions with the Complainant and her legal representatives, she elected to proceed with her claim under the Employment Equality Act, 1998 and, as a consequence, the Complainant withdrew her claim under the Unfair Dismissal Act, 1977.

On that basis I proceeded to hear evidence in relation to the Complainant's claim.

Substantive Complaint:

The facts at the core of this Complaint are relatively straightforward and not a matter of dispute between the Parties. It is accepted that the Complainant suffers from Rheumatoid Arthritis and Fibromyalgia. As a result of these conditions, the Complainant commenced sick leave on 22 October 2014. After a period of nine months on sick leave the Respondent terminated the Complainant's employment, effective 2 August 2015.

The Respondent’s decision, to terminate the Complainant's employment, was based on the fact that she had been on sick leave for a period of approximately nine months, was not in a position to return to work and was not in a position to provide her employer with any clear indication as to when/if she might return to work.

The Respondent also contended that, while they held the Complainant's position open for a period nine months with the use of temporary cover, it was neither feasible nor practical for them to continue to do so on an ongoing basis, as it was impacting on the effectiveness/efficiency of the business.

Therefore, the matter before me for decision is whether or not the Respondent's termination of the Complainant's employment with effect from 2 August 2015 represents a discriminatory dismissal on grounds of disability.

Section 16(1)(b) of the Employment Equality Act 1998 – 2015, states as follows:

"Note in the Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, 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 condition under which those duties are or may be required to be performed."

The evidence presented clearly shows that the Complainant was not in a position to carry out her role with the Respondent during the period 22 October 2014 through to 3 July 2015. It is also clear that, at the time of the termination of contract of employment, the Complainant was not in a position to provide the Respondent with an indication as to when she may be in a position to resume her role.

In this regard, it was further evident that, at the time of the Hearing of her complaint, the Complainant's situation was identical to that which pertained, 12 months earlier, when the Respondent made the decision to terminate her employment.

Taking all the above into consideration, I am satisfied from the evidence presented that, from the commencement of her sick leave in October 2014 through to the termination of her employment in August 2015, the Complainant was not capable of undertaking the duties attached to her position with the Respondent.

In such contexts, it then falls for consideration as to what might be regarded as an appropriate or reasonable length of time for an employer to hold open a position pending the return of an employee on extended sick leave.

Section 16 (3) of the Act states:

(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 the 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.

The legislation in this regard stipulates that when determining whether or not a measure would impose a disproportionate burden on the employer, account must be taken, inter alia, of the scale and financial resources of the employer's business.

It is clear from the evidence presented that the Respondent facilitated the Complainant with nine months sick leave during which they (the Respondent) kept in close and frequent contact in relation to her condition and, in particular, the prognosis with regard to a potential return to work date.

Given the size and nature of the Respondent's business I find that a period of nine months was not an unreasonable amount of time for the Respondent to have provided to the Complainant in order to accommodate/facilitate either a return to work or the establishment, with some degree of certainty, as to when that might happen. At the end of the nine-month period, the Complainant was not in a position to return to work and, more importantly, was not in a position to provide a likely date for return.

In a context where the replacement of the Complainant on a temporary basis was proving problematic for the Respondent and where it was impacting on the efficient and effective conducting of their business, I find that the Respondent's action in terminating the Complainant's contract could not be considered as unreasonable.

Legal representation on behalf of the Complainant contended that there was a legal obligation on the Respondent to conduct their own independent medical assessment of the Complainant's situation. In making this submission reliance was placed on a Labour Court decision in the case of Humphries v Westwood Fitness Club (EED037 ED/02/59)

In the determination in this case the Labour Court found that a respondent in such cases would:

"normally be required to make enquiries to establish fully the factual position in relation to the claimant's capacity." The Labour Court went on to suggest that such enquiries "would, as a minimum, involved looking at medical evidence to determine the level of impairment arising from the disability and its duration."

Having carefully considered the representations made on behalf of the Complainant in this case and having reviewed the above-mentioned Labour Court decision, I am of the view that it pertains more to situations where an employee has returned to the workplace rather than, as in this case, where the issue is whether or not they are fit to return at all and, if so, having a potential return to work date established.

In the Westwood case, the employer, in effect, made their own medical diagnosis, in the absence of any professional or expert evaluation. It is clear that in the case under consideration here the Respondent made no medical diagnosis but merely acted upon that been provided by the employee.

It is clear from the evidence presented that the Respondent, in this case, was guided throughout the nine months the Complainant was on sick leave, by information being provided by her in relation to her condition and the opinions/prognoses being supplied by her medical experts.

While I accept that it may be good practice in such situations for an employer to seek their own independent medical assessment, I am also strongly of the view that the circumstances pertaining in this particular situation were such that the Respondent clearly accepted and never once doubted the bona fides of the Complainant in relation to her condition and/or the medical advice/carer she was receiving.

I am also influenced in this regard by the fact that there was no dispute between the parties with regard to the Complainant condition and/or its impingement on her ability to return to work.

Clearly, at the point in time (July 2015) when she was informed by the Respondent that they were proceeding with the termination of her employment, had the Complainant medical evidence to support an imminent, or even potential, return to work, she would, no doubt have presented same to her employer.

In such circumstances, as existed in this case, it is debatable as to the benefit that would have been brought to the situation, had the Respondent conducted their own independent medical assessment. At best it would have confirmed that of the Complainant's own medical advisers. Any outcome that might have been a variance with that of the Complainant's medical advice would, most likely, have been unacceptable to her and could potentially lead to serious disagreement between the parties.

Consequently, taking all the above into consideration, I find that the Respondent extended reasonable accommodation, in the form of nine months sick leave, during which they maintained ongoing consultation with the Complainant. At that point in time when the Respondent made the decision to terminate the contract of employment, the Complainant was not in a position to return to work or to provide any reasonable indication as to when she might be in a position to do so.

I am of the view, based on the evidence presented, that, to have continued indefinitely with the arrangement that had been in place during the previous nine months, would have placed an unreasonable burden on the Respondent's business given its size and nature.

Therefore, I find that the Complainant has failed to establish a prima facie case of discriminatory dismissal on the grounds of her disability and her complaint in this regard is rejected.

Dated:   13^th October 2016