EMPLOYMENT EQUALITY ACTS 1998-2015
DEC-E2017-018
Parties
A General Operative
(represented by Caoimhe Heery, RDJ Glynn Solicitors)
v
A Manufacturer of Medical Devices
(represented by Alastair Purdy, Purdy Fitzgerald Solicitors)
File reference: et-156328-ee-15
Date of issue: 7th March 2017
Keywords: Employment Equality Acts, disability, absenteeism, sick-leave, anxiety, failure to provide reasonable accommodation
Dispute
1.1 The case concerns a claim by a general operative against a manufacturer of catheters. Her claim is that she was discriminatorily dismissed on the ground of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’]. She also claims her former employer failed to provide reasonable accommodation. It was the policy of the Equality Tribunal (now Workplace Relations Commission) to anonymise decisions when taken on the ground of disability.
1.2 Through her legal representative, the complainant referred a complaint under the Acts to the Equality Tribunal on 12th May 2015. On 21st March 2016 in accordance with his powers under in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Orlaith Mannion, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced and a joint hearing was held on 21st April 2016 in Galway as required by Section 79(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission 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.
Summary of the complainant’s case
2.1 The complainant commenced employment with the respondent of 8th December 2008 and was employed as a general operative. The respondent is a medical device company in Galway. The complainant’s responsibilities involved compiling documentation, maintaining the cleanroom conducting various tests and reporting results to the engineering department. At the date of the termination of the complainant’s employment her salary was €22,714 per annum.
2.2 The complainant points out that paragraph 2.6 of the respondent’s employee handbook is that it ‘endorses a working environment free from discrimination, harassment and sexual harassment’. The complainant submits that the termination of her employment was a discriminatory dismissal on the grounds of disability.
2.3 The complainant commenced a period of sick leave on 24th April 2014 due to stress and anxiety caused by factors outside of her employment – a family member was diagnosed with cancer. Medical certificates were provided from 24th April 2014 to September 2014 and from then on to the Department of Social Protection. These certificates cited stress as the reason for her absence. The complainant was medically assessed by doctors appointed by the company twice prior to the termination of her employment. The first of these was on12th May 2014 where the complainant was reported as ‘very stressed and worried at present – close family member very unwell. Non-occupational illness. In my opinion will not be fit to work for approximately one month. Depending on prognosis and care required she may need further time after this. Awaiting to hear prognosis from consultant [in relation to the family member].’
2.4 The complainant was found to be fit to return to work by Irish Life (the respondent’s permanent health insurance provider. Irish Life was prepared to pay the complainant from 25th July 2014 (when sick leave paid by the respondent ran out) to 22nd November 2014. The complainant contacted the respondent in mid-October 2014 to say that she was looking forward to returning to work in her contractual position. In spite of this she was bizarrely informed by the HR Manager of the respondent that they could not the position open for her indefinitely.
2.5 The complainant went to the company doctor again on 31st October 2014 at the request of the respondent. The complainant was found by the doctor that she would be unfit to work for the next 30 days. The complainant points out that there was a deviation from this note at initial meeting to an undated letter subsequently that said the complainant would be unfit for the next three months. The complainant maintains that she advised the doctor at this appointment that she was feeling better and was looking forward to returning to work.
2.6 On 5th November 2014, the HR Manager contacted the complainant. It is submitted that it is clear from this conversation that the respondent was not prepared to countenance a return to work for the complainant. In the HR Manager’s notes (which the complainant obtained from a data access request) she said that the respondent could not sustain her absence in the long-term. In this conversation, the complainant pointed out to the HR Manager that she was the main breadwinner. It appears that the HR Manager spoke to the Occupational Health physician but there are no contemporaneous notes of this call.
2.7 The complainant submits that is no evidence of any reasonable accommodation being considered for the complainant e.g. return to work on a part-time basis. The complainant submits that the trajectory to her termination of employment is the antithesis of what is expected by an employer under the Employment Equality Acts.
2.8. A meeting was held with the complainant on 14th November 2014 to inform the complainant that her employment was being terminated. The complainant submits that she was shocked as she was ready to back to work and this was corroborated by her General Practitioner.
2.9 The complainant appealed the decision on 20th November. The appeal meeting took place on 3rd December. The HR Manager was present at this meeting which the complainant submits was not in line with best practice. The complainant requested part-time work but was refused. She submits that the appeal was a mere rubber-stamping exercise.
2.10 The reason given in her letter of dismissal was due to her ‘prolonged periods of absence which prohibits [the complainant] from fully discharging duties as outlined in your contract of employment. The clause in the contract of employment reads:
“Termination without notice – Dismissal procedure
Employment may be terminated without prior notice at any time in the following circumstances
…
(e)You are absent or unable through illness or injury to discharge fully your duties hereunder for a consecutive period of 90 days or of an aggregate period of 90 days in any period of 12 consecutive months”
The complainant submits that this clause is in breach of the Employment Equality Acts on the ground of disability.
2.11 The complainant was dismissed for absence as a result of her sick leave so therefore she submits this case clearly falls under the ground of disability. She submits that the respondent made no attempt at reasonable accommodation. She cites Humphreys v Westwood Fitness Club[1], Gannon v Milford Care Centre[2] Ms B v A Newsagents and Deli[3] and Kennedy v Stresslite Tanks Ltd[4] where the Equality Officer found that leaving somebody on the books until they were read to return to work was a reasonable accommodation. Reference is also made to Hk Danmark v Dansk Arbejdisgiverforening where the CJEU states that ‘Article 5 of Directive 2000/78 must be interpreted as meaning a reduction in working hours may constitute one of the accommodation measures referred to in that article’.[5] Regarding redress, the complainant cited Kavanagh v Aviance UK Ltd[6] and Fox v Lee[7].
Summary of the respondent’s case
3.1 The respondent points out that the complainant had a poor absenteeism record – in 2009 she had 6 days, in 2010 6 days, in 2011 34 days, in 2012 27 days, in 2013 4 days and in 2014 157 days until her termination date.
3.2 The respondent readily admits that the HR Manager did have a conversation with the Company’s Occupational Health Physician prior to the decision to dismiss. He could not give an exact date that the complainant would be fit to return to work. Therefore the respondent decided to dismiss her as per the absenteeism clause in her contract of employment [see Paragraph 2.10]
3.3 The complainant was allowed to appeal the decision and be accompanied by a support person. It was conducted by the CEO.
3.4 The respondent did not receive medical certificates from the complainant’s own doctor from September 2014 until her dismissal. They point out that they did not receive these certificates until they received the complainant’s submission. (In response to this, the complainant stated that she was requested by the respondent to send medical certificates directly to the Department of Social Protection.
3.5 While the respondent does not deny that the complainant was dismissed because of her high absenteeism, they argue that she is not covered by the disability ground. They point out that she stated herself that she was nearly ready to go back to work. She was denied payment from the permanent health insurance because she was not permanently disabled. The respondent refer to the Chacon Navas v The Eurest Colectivdades SA case where a temporary illness is not regarded as a disability:
“Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context, the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life. However, by using the concept of 'disability' in Article 1 of that directive, the legislature deliberately chose a term which differs from 'sickness'. The two concepts cannot therefore simply be treated as being the same.” [8] The respondent submits that this has been reiterated by CJEU in Kaltoft v Billund Kommune [9] :“However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78”. The respondent submits that means disability is defined as long-term.
3.6 The respondent submits that it had no obligation to reasonably accommodate the complainant as she did not have a disability.
Conclusions of the Equality Officer
4.1. 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 for me to decide is whether the respondent discriminatorily dismissed the and/or whether her employer is entitled to avail of the Section 16 defence. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 Disability is defined in Section 2 of the Acts:
‘‘disability’’ means—
(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; [my emphasis]
It is worth noting that this definition includes temporary disabilities e.g. if an employee’s employment was terminated because he was absent due to a broken leg (even though that would be expected to heal) he would have an arguable case of discriminatory dismissal. Imputing a disability to a person and treating him less favourably because of this is also unlawful under the Acts. The complainant’s situation was slightly amorphous. The respondent argued in direct evidence that everybody suffers from stress. However, most people are not absent from work for over six months as a result. The complainant’s medical certificates cited stress and other anxiety-related symptoms which would be covered under (e) in the above definition. While both her GP and the respondent’s occupational health physician thought she was unwell enough to be out of the workplace for that length of time, the respondent’s insurer certified her as not permanently disabled. However the definition a permanent health insurer uses for disability to enable an ill-health pension to be paid is much stricter than the definition in Employment Equality Acts. Employers should be wary of dismissing an employee where there is a nexus to sick-leave unless they are satisfied that no reasonable accommodation can be provided. I am satisfied that given the length of the complainant’s absence and the full sequelae of the complainant’s anxiety disorder is a disability within the meaning of the Acts.
4.4 Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee. Regarding this Section 16 (1) of the Acts states:
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.
However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(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.
Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose a disproportionate burden:
(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.
4.5 The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court - A Health Club and A Worker (cited by the complainant). It is worthwhile to quote the relevant paragraphs:
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. [my emphasis][10]
Without doubt, this assessment is an onerous process for employers. It is worth bearing in mind why this burden is placed on them. Recital 16 of the relevant EU Directive states ‘the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination’.[11]
4.6 The respondent went through some of the motions necessary to defend a discriminatory dismissal claim i.e. she was referred to their Occupational Health Department twice and an appeal was allowed following her dismissal. However, it fell far short of best practice in ways:
· The complainant has a very different recollection to the final meeting with the respondent’s occupational health physician than the respondent’s notes show. The complainant stated that she told the company doctor that she was looking forward to getting back to work and thought she would be able to in the short-term. His certificate said that she was still unfit for work for 30 days. However, an undated later subsequently said that she would not be fit for work for ‘approximately the next three months’. Why did the doctor change his mind? Why was neither the complainant nor her GP allowed influence this process? Why did the respondent not accept the complainant’s word that she would be able to return to work in the New Year? Was the respondent imputing a disability on the complainant i.e. making an assumption that there would be further bouts of absenteeism when she returned to work? That the respondent was unable to answer these questions satisfactorily severely weakens their defence.
· Prior to meeting the complainant on 14th November, the decision was made. She was not allowed to influence the decision to terminate her employment No real explorations of reasonable accommodation were made. An appropriate measure in the circumstances of this case would have been to keep her position open to her for another month or two as per the respondent’s occupational health physician’s original certificate or allow her to return to work on a part-time basis.
· The respondent’s own notes state that the HR Manager discussed the complainant’s dismissal with the management team and it was agreed at a meeting on 12th November that her employment would be terminated. Yet both the HR Manager and the CEO heard the appeal. A clearer delineation between the decision to dismiss and the appeal would have strengthened the respondent’s defence. I fully accept the complainant’s evidence that this was merely a tickbox exercise and that they did not consider the reasonable accommodation that she suggested of returning to work on part-time basis temporarily.
4.7 To avail of the Section 16(3) defence an employer must show genuine engagement with the process of finding effective and practical measures to allow an employee to return to work. As per A Health Club and a Worker, the respondent did not make adequate enquiries nor was it in full possession of the material facts regarding the complainant’s disability before it dismissed her. Neither was the complainant allowed to influence this decision – specifically she was not allowed enough time to provide medical evidence from her own GP. I am satisfied that either a longer recuperation period or a return to work on a part-time basis would not be a disproportionate burden on the respondent. Termination of employment is the break-up of the employment relationship and it must be approached with caution and concern for the other other party. Therefore the complainant has established a case of discriminatory dismissal on the grounds of disability and the respondent is not entitled to avail of the statutory defence.
4.9 Because of the effluxion of time since the complainant lodged this complaint, I find that compensation is the appropriate form of redress. In this case, I think a year’s salary to be appropriate as the respondent complied with some aspects of its obligations under the Acts. However, I am also cognisant that the respondent lost a case on the same ground in the Labour Court recently. Therefore, the review of policies and procedures is particularly important. In particular, I order the respondent to review the potentially discriminatory clause in the employment contracts (see Paragraph 2.10) as an employer cannot contract out of its statutory obligations.
Decision
5.1 I have concluded my investigation of the complainant's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has discriminatorily dismissed the complainant on the ground of disability
(ii) the respondent has failed to provide appropriate measures that would allow the complainant to continue to be employed by them
Therefore, I find for the complainant.
5.2 In accordance with Section 82 of the Act, I order the respondent:
(a) pay the complainant €23,000 (the approximate equivalent of a year’s salary) in compensation for breaches of the Employment Equality Acts. The 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 by Section 7 of the Finance Act 2004).
(b) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct a review of its policies and procedures in relation to its employment policies to ensure that they are in compliance with these Acts with particular reference to the disability ground. The relevant managers should also receive training on the Employment Equality Acts and an employer’s responsibility under same.
_______________
Orlaith Mannion
Equality Officer/Adjudication Officer
Footnotes
[1] [2004] ELR 296
[2] D-E2004-048
[3] Equality Tribunal DEC-E2013-149
[4] Equality Tribunal DEC-E2009-048
[5] CJEU C-335/11
[6] Equality Tribunal DEC-E2007-039
[7] Labour court Determination No. EED036
[8][8] CJEU C-13/05
[9] CJEU C-354/13
[10] Determination No. EED037
[11] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation Official Journal L 303, 02/12/2000 P.0016 -0022