EDA1628

This dispute concerns a claim by Ms. M.Z that she was Discriminated against on the grounds of Disability, Dismissed for Discriminatory Reasons, and refused “Reasonable Accommodation” by the Company contrary to the Employment Equality Acts.

The Complainant referred a complaint to the Director of the Equality Tribunal on the 20th June 2013, under the Employment Equality Acts. On 28 January 2016 the Equality Officer decided as follows: -

• I have investigated the above complaints and make the following decisions in accordance with Section 79 of the Acts that
  • The Complainant has not succeeded in establishing a claim of discrimination on Disability Grounds culminating in a Discriminatory Dismissal and the claim fails.

    The issue of exploring options to provide Reasonable Accommodation was considered to a sufficient degree as to provide a sustainable defence to the Respondent against the claim of Discriminatory Dismissal. This claim also fails.

The Complainant appealed against that Decision on 2 March 2016. The case came on for hearing before the Court on 5 September 2016.

Background

The Respondent operates a meat processing plant. It employed the Complainant in the packing department in May 2006. It subsequently promoted her to the position of Chargehand in the packing department.

In 2009 the Complainant was forced to take leave of absence from her employment due to the development of severe pain in her back. She was not in a position to return to work for in subsequent years. She submitted a number of medical certificates that indicated that she was suffering from a back injury. She underwent some medical interventions and rehabilitation procedures. Her recovery progressed to the point where she was fit to return to work but to avoid “heavy physical loads,” and “ jerky movements”

On 14 December 2011 the Complainant’s solicitor wrote to the Respondent on her behalf indicating her wish to return to work. The Respondent replied on 24 April 2012 seeking detailed medical reports outlining “what duties she is capable of doing and what activities she is not capable of doing”. This information was not provided to the Respondent.

The Respondent referred the Complainant to its medical advisor. He examined the Complainant on 16 November 2012 and prepared a report for the Respondent dated 19 November 2012. In that report he summarised the outcome of his medical examination of the Complainant and finished by stating “I feel she is unfit to return to work in employment which involves manual handling, lifting, bending, pushing and pulling and therefore deem her unfit to return to work at this time”.

The Complainant was provided with a copy of the report and invited to a meeting with the Assistant Plant Manager Ms McG.

Following the exchanges that took place at that meeting, which are disputed between the parties, Ms McG wrote to the Complainant on 4 January 2013 in the following terms.

We note from our records that you are absent from work suffering from back pain as of the 5^thJanuary 2009. During meetings with you on 20^thFebruary 2009 and on 13^thJuly 2009 it was becoming apparent that given your medical condition and the extent of pain that you were suffering, that you were unable to confirm whether or not you would ever be fit to return to work.

The medical report provided by your doctor in August 2011 confirmed that you were “advised not to do physical work”. Your subsequent consultation on the 19^thNovember 2012 with our company doctor has confirmed that you are “unfit to return to work in employment which involves manual handling, lifting, bending, pushing and pulling”. Both medical reports confirm that you cannot return to do the work duties previously completed by you within the company given your medical condition.

• 
  Thank you for attending our meeting on the 14^thDecember 2012, when we discussed all options with regard to the current situation. During this meeting you reconfirmed the extent of pain you were suffering and how you still have difficulties in completing even basic household tasks, noting that some days are worse than others. We also discussed and agreed the following:
  • 
    1.That you cannot return to do the work duties previously completed by you and/ or currently available within the company given your medical condition

    2.That we do not have any suitable work available given the nature of your medical condition

  
  While we sympathise with you on your current medical situation, we cannot continue to hold your job open for you and sadly we must terminate your employment with the company. I wish to confirm to you that I am issuing you with two week’s notice regarding the termination of your employment as per the conditions detailed in your contract of employment.

  Should you wish to discuss with me or appeal this decision you are entitled to do so. In such circumstances please contact me before 18^thJanuary 2013 and I will be happy to facilitate you. I wish to state again that we are sorry that this decision had to be made. I hope you appreciate that we could no longer hold your job for you when it is so clear that you are unlikely ever to be able to carry out the type of work available in the Company. I wish you every success and improved health for the future.

  Yours Faithfully

There are no contemporaneous notes of what transpired at that meeting. However the Plant Manager, Mr P H wrote to the Complainant on 20^thMay 2013.

In that letter he states

• “Clearly you are unable to do the work for which you were employed and I am satisfied that, having examined your medical restrictions and the type of work available within the company, there was no reasonable alternative that you could be offered.

  Consequently, your appeal against the decision to terminate your employment due to your ongoing inability to carry out your duties has not been successful. I wish to thank you for your contribution when you were available for work and I hope your health improves.

  Yours sincerely”

Complainant’s Case

The Complainant submits that at all material times she suffered from a disability within the meaning of the Act and that she was discriminated against on the grounds of her disability, was refused reasonable accommodation within the meaning of the Act and was discriminatorily dismissed because of her disability.

She submits that the Respondent failed to undertake a proper investigation of the work she was capable of performing and further failed to give sufficient consideration to the extent to which she could be accommodated in employment by varying the number and amount of the duties she would be required to undertake or by redesigning her work to accommodate her disability or by considering alternative work within the enterprise to accommodate her disability. She further submits that there was no requirement to terminate her employment in January 2013. She submits that she had been on leave since 2009 and had been making progress in her recovery. By 2014 she was fit for work that did not involve heavy lifting or jerky movements. She submits that she was capable of undertaking work that did not require such lifting or movement. She submits that the Respondent incurred no cost by continuing her in employment while her recovery continued. She submits that this had been the case since 2009 and there was no development in 2013 that required it to dismiss her from employment. She submits that she has established a prima facie case of discrimination on the grounds of her disability and that the Respondent had offered no justification for its decision not to consider offer her suitable employment or for dismissing her. She submits that accordingly she has been discriminated against within the meaning of the Act and was seeking compensation for the infringement of her rights.

Respondent’s Case

The Respondent states that it recognises that the Complainant suffered from a disability. It submits that when she sought to return to work it sought details of her medical condition to enable it to review how it could accommodate her with suitable work. It submits that it was not provided with the detailed medical reports it sought which adversely affected its efforts to accommodate the Complainant. It submits that it nevertheless arranged for the Complainant to be examined by its medical advisor who reported that she was not fit for work. It submits that it then engaged with the Complainant at a meeting on 14 December during which it explored with her how she might return to work in a suitably modified role. It submits that at the end of that meeting both sides agreed that no such role existed or could be created within the operation. It submits that it was then left with no alternative but to terminate the Complainant’s employment as she was unlikely to be ever capable of working in the factory again. It submits that the Complainant was afforded the opportunity to appeal against that decision. It submits that she did so and the Plant Manager considered the matter again and concluded that the correct decision had been made and upheld the decision to dismiss her from her employment as she could not be reasonably accommodated with alternative employment and it was unlikely that she could ever return to work in the future given her medical condition.

It submits that it has discharged its statutory obligations to the Complainant and has acted reasonably in all the circumstances.

The Law

Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore the issue to be decided is whether the Respondent discriminatorily dismissed the Complainant and whether it failed to provide her with reasonable accommodation to enable her to continue in employment.

The Act defines discrimination in section 6 in the following terms

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Section 85A of the Act sets how the burden of proof is to be dealt with by the Court. It states

• 85A.—(1) 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.
  
  (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
  
  (3) Where, in any proceedings arising facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
  (4) In this section ‘discrimination’ includes—
  (a) indirect discrimination,
  (b) victimisation,
  (c) harassment or sexual harassment,
  (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

• Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….

  (b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.

• (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.

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration.

This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.

Findings of the Court

The Court heard evidence from the Complainant, her manager Ms McG and the Plant Manager Mr H.

Based on that evidence and on the submissions of the parties the Court finds as follows

• 
  1.The Complainant suffered from a disability of which the Respondent was aware.

  2.The Complainant submitted certificates from her medical advisors in both Ireland and Lithuania that showed that she was in and around 2009 initially incapable of undertaking any work and subsequently capable of undertaking work that did not involve heavy lifting or jerky movements.

  3.The Respondent had the Complainant examined by its own doctor who found that sheis unfit to return to work in employment which involves manual handling, lifting, bending, pushing and pulling and therefore deem her unfit to return to work at this time.

  4.The Respondent invited the Complainant to a meeting on 14 December 2013 to discuss her future with the Company. The Court finds that at that point the Respondent was required to “ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.”

  5.The Court finds that the Respondent was not in full knowledge of the Complainant’s medical condition. The Court bases this conclusion on the letter the Respondent issued to the Complainant dated 4^thJanuary 2014. In it Ms McG states “I hope you appreciate that we could no longer hold your job for you when it is so clear that you are unlikely ever to be able to carry out the type of work available in" [the Company].However the Court finds that the medical report of the Company’s own doctor does not contain any such prognosis. It merely states that the complainant is not fit for work “at this time.”

  6.It is clear therefore that the Respondent was not fully informed as to the Complainant’s medical condition when she made her decision to dismiss her from her employment.

  7.The Court further finds that Ms McG did not advise the Complainant that the outcome of that meeting might place her employment at risk. Accordingly the Court finds that Ms McG effectively took the Complainant short and did not give her fair notice of the gravity of the matters to be discussed or of the possible or probable consequences that might flow from that meeting. The Court further notes that the Complainant was not advised to consider being represented at that meeting. With such a level of un preparedness the Court finds that the Complainant was not properly allowed an opportunity to influence the Ms McG decision.

  8.The Court finds that Ms McG therefore failed to properly engage with the Complainant regarding the prospect of maintaining her in employment through the redesign of her work or the restructuring of her duties. Indeed the Court finds that Ms McG went into that meeting not with the intention of formally engaging but of delivering a pre-ordained decision to dismiss her from her employment.

  9.The Court finds that Ms McG did not adequately explain why, having kept the Complainant’s job open since 2009, it was necessary to dismiss her in 2014. The only explanation the Court can find for that decision is that she misinterpreted the medical advice available to her and based on that mistaken interpretation, decided that the Complainant could never return to work.

  10.The Court cannot accept that such a mistaken interpretation of the medical reports could justify such a decision. Indeed it is settled law that the Respondent in case such as this must be fully aware of the medical facts affecting the Complainant before taking a decision to dismiss her from her employment. A facile mistaken interpretation of a report prepared by its own medical advisor could not justify a decision of such moment for the Complainant.

  11.The Court further finds that Ms McG did not give sufficiently serious consideration to the Complainant’s capacity as opposed to her incapacity. In failing to do so she concluded that the Complainant could not perform the duties for which she was employed. However she did not go on to consider what reasonable accommodation could be made to enable her do to so. Indeed the only evidence before the Court is her statement that she did so and could find none. However she outlined no detail of how she went about that task or of what options she considered. She merely stated that she did so and found none.

  12.In those circumstances the Court finds that the Respondent did not properly consider what accommodation if any could be made to enable the Complainant to remain in work.

  13.The Court finds that Ms McG discriminated against the Complainant because of her disability, failed to give consideration to accommodating her to remain at work and discriminatorily dismissed her from her employment because of her disability.

  14.The Court finds that Mr H did not engage in any detailed examination of the evidence upon which Ms McG came to her conclusions. He had all of the documents upon which she relied available to him and he noticed no inconsistencies between the medical reports and her interpretation of them. At the appeal Mr H was presented with Social Welfare certification that suggested that the Complainant was fit for work as of 21^stMarch 2013. The Court further finds that in those circumstances Mr H failed to properly consider and investigate that development and did not avail himself of an up-to-date medical report, the company medical advisor’s report (dated 19^thNovember 2012) being some 5 months old by the time of the appeal on 25^thApril 2013. Such failures suggests that the appeal was more nominal than real and was designed to formally provide a procedure that was for all other purposes redundant.

  15.The Court therefore finds that Mr H upheld the decision to discriminate against the Complainant, failed to investigate the reasonable accommodation options that were examined and endorsed the decision to discriminatorily dismiss the Complainant from her job.

  16.The Court therefore upholds the appeal and sets aside the decision of the Equality Officer.

The Court determines that the complaint is well founded. The Respondent discriminated against the Complainant on the grounds of her disability, failed to provide her with reasonable accommodation to enable her to remain in the workforce and discriminatorily dismissed her from her job.

The Court orders the Respondent to pay the Complainant compensation in the sum of €13,500.

The decision of the Equality Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
8th September, 2016Deputy Chairman



NOTE

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