ADJ-00004213

Complainant

Respondent

Anonymised Parties

A Job Applicant

A Manufacturing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00006082-001

21/07/2016

2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Workplace Relations Commission on the 21st of July, 2016.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 11th of April, 2017.

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

3. The complainant submits that

he was Interviewed by the respondent for a position as a product design engineer on 20th June and 27th June 2016,

he was offered the position on 6th July 2016, and a salary was agreed for the position , but subject to a medical and references,

he attended a medical with the respondent’s company doctor Dr. G on 11th July 2016,

Dr. G verbally confirmed that the complainant was medically fit for the job following his medical examination,

on 13th July , the respondent HR Manager phoned the complainant to inform him that she was withdrawing the job offer due to the fact that Dr. G had advised the company that that the complainant had back surgery and was not fit for the job, and

as there is a requirement to lift 25kg and heavier panels in the job, it would be unsafe for the complainant,

the complainant was disappointed and shocked as he had already resigned his current position,

he asked the respondent to reconsider which she agreed to do, the HR Manager phoned the complainant again on 15th July confirming the withdrawal of the job offer,

this amounts to a failure to provide reasonable accommodation and discrimination on grounds of disability.

it refutes any allegation of discrimination on grounds of disability,

the complainant was interviewed for a position as a product design engineer on 20th June and 27th June 2016,

the complainant was offered the role with the respondent company subject to a medical, the complainant was fully aware that this was a conditional offer,

the complainant attended a medical with company doctor Dr. G on 11th July 2016, which revealed that he had undergone back surgery and had a neck fixture,

the complainant deliberately misled the company about having undergone back surgery by failing to disclose the injury of his own volition, when he completed a medical questionnaire and specifically omitted any reference to the back injury or neck fixture,

the post of Product Design Engineer involves heavy lifting and so the respondent formed the view, after receiving a medical opinion, that the complainant would not be able for the position given his back surgery,

more importantly, the complainant had intentionally misled the company about his medical history which was a serious breach of trust at the outset of the proposed employment relationship,

in light of these issues the respondent made a decision not to hire the complainant.

5. Disability Ground and Notification of Disability

5.1. It is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.

Disability” is defined in Section 2 of the Acts as meaning –

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

5.2 The complainant advised the hearing that he had back surgery in July 2015. He stated that he had undergone a lumbar discectomy which involved the removal of a part of a disc which was squeezing on a nerve in his back. The complainant at the hearing provided a letter from his doctor confirming that he had undergone lumbar disc surgery in July 2015.

5.3 The respondent advised the hearing that the complainant in his job application was required to fill in a medical questionnaire which he did on the 11th of July 2016. The respondent stated that this questionnaire specifically asks whether a candidate has undergone any operations or tests and that the complainant in replying to this failed to mention that he had back surgery a year previously or that he had a neck fixture. The complainant in this form only mentioned that he had broken his leg when he was young.

5.4 The respondent went on to state that it was only upon medical examination by the company doctor that it was discovered that the complainant had undergone back surgery when the doctor questioned him about scarring on his back. The respondent advised the hearing that Dr. G notified them of this by phone following the examination.

5.5 I am satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015 and that the respondent became aware of the complainant’s disability following his examination by the company doctor on 11th of July 2016.

6. Findings and Conclusions of the Adjudicator/Equality Officer

6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of his disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to getting a job and in relation to a failure to provide him with reasonable accommodation for his disability. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.

6.4 Reasonable accommodation

6.4.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[1].

6.4.2 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.

6.4.3 The complainant advised the hearing that he had been interviewed for the post of Design Engineer by the respondent on 20th of June and again on the 27th of June 2016. The complainant advised the hearing that he had after two very detailed interviews been offered the position on the 6th of July, 2016 and a salary agreed, subject to a medical and references.

6.4.4 The complainant advised the hearing that he was referred for a medical by the company doctor Dr. G on 11th of July 2016 at the end of which Dr. G told him that he was fit for the job. The complainant advised the hearing that he was then shocked to receive a phone call from Ms. D, HR Manager for the respondent on the 13th of July 2016 withdrawing the job offer due to the fact that the job entailed a requirement to lift panels weighing 25 kg and heavier which the respondent stated would be unsafe for the complainant as he had undergone back surgery.

6.4.5 The complainant told the hearing that he had at this point told Ms. D that he would have no problem lifting such panels and that his back was fully recovered. He stated that he asked her to reconsider the withdrawal which she agreed to do. The complainant advised the hearing that Ms. D phoned him again on the 15th of July 2016 confirming the withdrawal of the job offer.

6.4.6 The complainant advised the hearing that the respondent had not explicitly told him at the interview that the job would entail heavy lifting. The respondent stated that it has no desk jobs for Engineers and that the job the complainant had applied for was that of a Design Engineer in a heavy manufacturing company and that the role was one which would involve him working as one of three on a team of Engineers. The respondent advised the hearing that it was a given that the role would involve heavy lifting .

6.4.7 The respondent went on to state that the complainant had failed to disclose in his medical questionnaire the fact that he had back surgery or that he had suffered a neck fracture. The respondent advised the hearing that this information was only disclosed when Dr. G questioned the complainant about the scarring on his back and neck as a result of operations. The respondent advised the hearing that the complainant had completed and signed a medical questionnaire in which he deliberately failed to mention his back surgery or neck fracture. Witness for the respondent, Ms. D advised the hearing that she had raised this fact with the complainant during a phone conversation on the 13th of July, 2016, during which the complainant admitted that he had deliberately omitted the information as he did not want it to affect him passing his medical. The complainant at the hearing stated that he did not admit to intentionally withholding information but that he had said “would you blame a person for withholding it” referring to the information in relation to his back surgery. I am satisfied from the totality of the evidence adduced that the complainant did deliberately withhold the fact that he had undergone back surgery and had suffered a neck fracture from the respondent in case it affected his chances of getting the job.

6.4.8 The complainant advised the hearing that Dr. G following the medical examination on 11th of July, 2016 had told him that he was fit for the job and so he was shocked to hear that Dr. G had later changed his mind about this. The respondent agreed that Dr. G had initially concluded that the complainant was fit for the job but advised the hearing that the complainant at the medical had told Dr. G that the job he was applying for was a desk job. The respondent stated that Dr. G had phoned them after the medical assessment to check what the job would entail and once he was advised of the heavy lifting aspect of the job, he concluded that he could not pass the complainant as fit for the job. Dr.G’s medical report and letter to the respondent stating that he could not pass the complainant as fit for the post were submitted in evidence. The letter from Dr. G to the respondent dated 14th of July, 2016 specifically refers to the fact that the respondent had clarified that the job involved heavy lifting. The letter from Dr.G also refers to the fact that the complainant’s non-disclosure of his back surgery adds uncertainty to the assessment of his fitness for the job in respect of a difficulty to be sure what the situation with his back has been more recently. The complainant advised the hearing that he had spoken to Dr. G on the phone and that Dr. G had advised him that he was unaware at the medical examination that the job involved heavy lifting but stated that once he became aware of this component of the job he could not pass the complainant as fit for the job.

6.4.9 The respondent advised the hearing that the complainant’s failure to disclose his back surgery and neck fixture raised two serious issues for the respondent. The first relates to the basic requirement of him being able to do the job for which he was recruited and the second is the breach of trust and confidence by the wilful withholding of information relevant to the role for which he was being recruited.

6.4.10 The respondent submits that it was in light of both of these issues that it made the decision not to hire the complainant. The respondent advised the hearing that it could not go behind the medical opinion and hire the complainant for a role which he was not fit for and which might exacerbate his back injury despite the complainant’s own assertions that he would be able for the heavy lifting. The respondent also advised the hearing that the relationship of trust and confidence was seriously undermined by the complainant deliberately withholding information about his back injury and neck fracture.

6.4.11 The complainant advised the hearing that he had on the 7th of July, 2016 handed in his notice to a named company who was his employer at that time, as he was sure he had secured the job with the respondent. The respondent advised the hearing that this named employer was never mentioned on the complainant’s job application or CV. The respondent told the hearing that the details of his most recent employment provided to them by the complainant had stated that he was a sole trader.

6.4.12 The complainant advised the hearing that the respondent notified him that they were withdrawing the job offer on the 13th of July 2016 but stated that he had asked them to re consider their position which they agreed to do. Witness for the respondent Ms. G advised the hearing that she had agreed to speak to Mr. B Head of the division within which the complainant had applied for the position. Ms G advised the hearing that she spoke to Mr. B and that Mr. B felt that the back surgery was a problem with the lifting required but that he also felt that the employment relationship could not proceed in any event given that the complainant had lied about something so fundamental.

6.4.13 Witness for the respondent Mr. B advised the hearing that one of the requirements of the job was that the candidate would be required to sign off on certain things and the respondent could not now be sure that the complainant could be trusted to do so honestly if it meant something might reflect badly on him, given the fact that he had already withheld important information from them.
6.4.14 I am satisfied from the totality of the evidence adduced that the respondent has provided significant credible contradictory evidence to lead me to conclude that it had reasons other than discriminatory reasons for withdrawing the job offer. Accordingly I find that the respondent did not discriminate against the complainant on grounds of disability in respect of this matter. I am also satisfied that the respondent in this case and given the circumstances of the case, having received a medical opinion that the complainant was not fit for the job, due to his previous back surgery, which the complainant had deliberately failed to disclose in his medical questionnaire, was not obliged to proceed with the job offer to the complainant and was not in breach of its obligations under Section 16(3) by revoking the complainant’s job offer, given the circumstances of this case.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find that–

the respondent did not discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to his application for the post of Product Design Engineer, and

the respondent did not discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts   in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.