EMPLOYMENT EQUALITY ACTS
Decision - DEC–E2017-032
PARTIES
Stanislavs Grabovskis
(represented by Richard Grogan & Associates)
and
Sam Dennigan & Co. Ltd.
(represented by Donal T. McAuliffe & Co. Solicitors)
File Reference: et-159148-ee-15
Date of Issue: 17 May, 2017
1. Dispute
1.1 This case concerns a complaint by the complainant that he was discriminated against by the respondent on the grounds of race and disability contrary to Section 6 of the Employment Equality Acts in relation to his dismissal from the respondent company.
2. Background
2.1 The complainant referred the present complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 4 September, 2015. In accordance with her powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 7 December, 2016 to me, Valerie Murtagh, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. Submissions were received from both parties and as required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 17 January, 2017.
2.2 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. Summary of the Complainant's case
3.1 The complainant, who is a Latvian national, was employed with the respondent as a warehouse operative. The complainant states that he had an accident at work and has been on sick leave since 14 July 2011. The complainant submits that he was dismissed on 3 August 2015 in a discriminatory manner because of the fact he was ill.
4. Summary of the Respondent’s case
4.1 The respondent submits that the complainant went on sick leave on 14 July 2011. He was certified as suffering from lower back pain/sciatica with possible cause attributed to a disc lesion. The respondent states that the complainant’s medical certificates stated that he was unable to carry out his duties on account of his back condition from 14 July 2011 up to the date of his dismissal on 3 August 2015. The respondent submits that the complainant was referred to the Company Doctor – Corporate Health Check in October 2011 for assessment. The Company Doctor, in his report dated 24 October 2011, confirmed that the complainant was suffering from a back injury which would render him unfit for work for 6-8 weeks. The respondent states that the complainant was then referred to a company Medical Assist Programme until 31 May 2013 when he indicated that he did not wish to pursue any further treatment of his condition. The respondent submits that the complainant continued to submit doctor’s certificates until 24 January 2015. The respondent states that it wrote to the complainant on 9 February 2015 seeking a welfare meeting and no response was received to this letter and a further letter was issued to him on 16 April 2015. A meeting was subsequently arranged for 22 June 2015 where the complainant was asked when he might be in a position to return to work, to which he responded that his doctor advised him he would never be able to return to work. The respondent states that on foot of this meeting, the decision was taken to dismiss the complainant on account of the fact that he was, in his own view, no longer capable of performing the duties for which he was employed and notice of dismissal was furnished to the complainant by letter dated 22 June 2015.
4.2 The respondent submits that the complainant had for approximately 4 years been supplying medical certification in respect of his inability to return to work. The complainant was certified by his doctor up to 24 January 2015, thereafter no further certification was issued. The respondent states that a welfare meeting was scheduled on 22 June 2015 and a termination letter issued to the complainant on the same date. The respondent submits that on the day of the welfare meeting, the complainant was still uncertified when the decision to dismiss him was taken. The respondent submits that according to section 85 of the Acts, it is for the complainant to prove he was suffering from a disability when a decision was taken to dismiss him and the only evidence acceptable in this regard is medical evidence. The respondent states that the complainant subsequently furnished a retrospective certificate covering the dates between 22 June 2015 up to 22 August 2015 in early July (the certificate is undated). The respondent submits that at the time of the dismissal, the complainant was uncertified and adduced no proof of his disability. The respondent states that it is not open for the complainant to retrospectively seek to notify the employer of a disability post dismissal. The respondent submits that the complainant has adduced no evidence that he was suffering from a disability at the time of his dismissal. In addition the respondent submits that the complainant when submitting a retrospective certificate did not seek to appeal the decision to dismiss.
4.3 The respondent submits that in accordance with the Labour Court case of Humphries v Westwood Fitness [2004] ELR 296, the company has complied with stage 1 of the test, namely assessment of the employee’s factual position. The respondent submits that the complainant was assessed by the Company Doctors and was referred to a Medical Assistance Programme which he engaged with for approximately one and a half years. Under the Programme, the complainant was afforded medical care and rehabilitation, however, the complainant disengaged from this Programme and refused the offer of further treatment. The complainant continued to submit sick certificates up to 24 January 2015 and at a welfare meeting on 22 June 2015 stated that his Doctor’s advice to him was that he will never be able to return to work. The respondent submits that in respect of Stage 2 in relation to reasonable accommodation, the employer has fully engaged with the complainant seeking that he give an indication as to his ability to return to work. The respondent states that the complainant has at all times stated plainly that he is unable to work and at his welfare meeting indicated that a return to work was not possible under medical advice. The respondent submits that the ability of an employer to accommodate the needs of an employee suffering from a disability is dictated by the medical advice available and the employee’s input. The respondent states that the medical advice proffered by the complainant together with the complainant’s input gave the employer no means to formulate an accommodation. In this regard, the respondent states that the facts of this case fall squarely with Equality Tribunal decision in A Complainant v Tesco Ireland Ltd. DEC-E2013-198 and that based on the complainant’s own medical advice, the complainant was unable to ever return to work and in such circumstances, the dismissal cannot be construed as having been a discriminatory dismissal.
5. Conclusions of the Equality Officer/Adjudication Officer
5.1 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 in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters[1] where it held that Section 85A:
"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”
5.2 Section 6(1) of the Employment Equality Acts 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 sub Section (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 either is not or is a person with a different disability" and Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”. The issue for consideration by me is whether or not the respondent discriminated against the complainant on the grounds of race and/or disability in relation to his dismissal from the respondent company. In reaching my decision, I have taken into account all of the evidence, written and oral, submitted by the parties.
5.3 The complainant has alleged that he was discriminated against on the grounds of his disability by the respondent. 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”.
Section 16 of the Acts provides:
“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,
(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 herself or herself;”
5.4 The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court in the case of Humphrey’s v Westwood Fitness Club EED037. The Labour Court stated:
“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…………….. 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.”
5.5 Having carefully examined all the evidence in the instant case, I find that the complainant has provided no evidence to establish a prima facie case on grounds of race in relation to his dismissal from the respondent company. I will now deal with the complainant’s claim of discrimimatory dismissal on grounds of disability. In this regard, I note that the complainant went on sick leave on 14 July 2011. He was certified as suffering from lower back pain/sciatica which comes within the definition of disability as outlined at 5.3 above. I am satisfied that the respondent did carry out a thorough assessment in relation to the needs of the complainant in accordance with Stage 1 of the test as outlined in the Humphrey’s v Westwood Fitness Club case. I note that the complainant was placed on the Medical Assist Programme but he disengaged on his own behalf from this Programmeand stated that he did not wish to pursue any further treatment of his condition. Having carefully considered all the evidence, I find that the respondent had no other option but to terminate the complainant’s employment as at this stage as he was absent on sick leave for over four years with no prospect of returning to work. I note that within that time the respondent did carry out a thorough assessment and had ongoing engagement with the complainant. I note from the minutes of the meeting dated 22 June 2015 that the complainant when asked of a likely return to work date, confirmed that his doctor advised him he would not be able to return to work. In the circumstances, the issue of reasonable accommodation was not an option. Having carefully examined all the evidence, I find that the complainant’s employment was terminated on the basis of his prolonged absence from work (over 4 years at that point) with no prospect of a return date and the respondent is entitled to rely on section 16(1) of the Acts asserting that the complainant was unable to undertake his duties of employment. In the circumstances, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on the grounds of race or disability and therefore the complainant’s case fails.
6. Decision of the Equality Officer
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts.
6.2 I find that the respondent did not discriminate against the complainant on the disability ground or the race ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to his dismissal from the respondent company.
____________
Valerie Murtagh
Equality Officer/Adjudication Officer
17 May, 2017
Footnotes
[1] EDA0917