Complainant

Respondent

Anonymised Parties

A Team Leader

Car Servicer

Representatives

Vivian Cullen SIPTU-Trade Union

Janet Keane Kate McMahon & Associates Solicitors

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-00007934-001

02/11/2016

The Complainant, commenced employment with the Respondent in 1999.   Initially he was employed as a vehicle inspector but was promoted to Team Leader in 2003. His employment was terminated on 14^th July 2016. His gross fortnightly pay was €1,617.00 at the date of termination. A Complaint Form was received by the WRC on 2^nd November 2016.

The Complainant provided a detailed written submission.

The Complainant submitted that he was discriminatorily dismissed on grounds of his disability and that his former employer's failure to give adequate consideration to providing reasonable accommodation, constituted discrimination on the grounds of discrimination/disability.

The Complainant's representative submitted a detailed Timeline of events from 2012 to 2016. The Timeline indicates that the Complainant was sick from June 2012 and that the Complainant was subject to a medical operation in January 2013.   Thereafter there the Timeline shows a number letters from physicians indicating the restrictions on the type of work the Complainant could undertake. Letters also passed between the Respondent and the Complainant regarding working in various administrative roles. In August 2015 the Complainant returned to his role as a Team Leader. However, in October 2015 the Company doctor recommended that the Complainant work a three-day week, the Complainant's own surgeon agreed with this recommendation. In January 2016 the complaint was absent due to illness.   In April 2016 the employer agreed to put the Complainant on a three-day week.

In the period March to June 2016 four vacancies arose which the Complainant believes he was suitable for, both from the work and the medical perspective.   However, the Complainant was not offered any of these positions and did not apply for those roles because he thought he would be left on the Team Leader role on a 3-day a week basis, with a view to eventually returning to working fulltime in that role.  

In June 2016 the Respondent wrote to the Complainant terminating his employment with effect from July 2016 due to illness.

It is the Complainant's contention that the job options put to him by his employer were not feasible or tenable because of the medical restrictions placed upon him by medical professionals.

The Complainant submits that he put forward proposals which were rejected by his employer. It is his belief that in putting forward such proposals he was being proactive and making substantial efforts to resolve the situation.

The Complainant also submits that he was willing to work in a number of roles both administrative and as Team Leader within the medical restrictions placed upon him with the possibility of eventually getting back to work on a full-time basis as a Team Leader.

The Complainant also submits that he did not (as put forward by the Respondent) reject seven roles, only three and that was because of medical restrictions of which the Respondent was aware.

The Complainant contends that it is clear from a letter sent to the Complainant on 2^nd June 2016 that his dismissal arose wholly or mainly from the Respondent's belief that he could not fulfil his contract of employment due to "illness".

In oral evidence the Complainant stated that he would not work in the call centre as the rate of pay was low and he also had difficulty with his hearing.

In conclusion the Complainant's representative submitted that the employer has acted contrary to the requirements of section 8 and section 16 of the Acts. The Respondent has offended the Equality Legislation by dismissing him and by not affording him 'reasonable accommodation' at his place of work.   The Complaint seeks a decision requiring the Respondent to remedy the discriminatory treatment afforded to Complainant and to award him compensation of two years' pay as available under the Acts.

When asked for a comparator the Complainant's representative stated that he did not have one.

In essence the Complainant believes that although he was willing to work in administrative roles on a five-day a week basis and as Team Leader on a three-day a week basis his employer did not explore all possible options before taking the decision to dismiss him.

The Respondent presented a detailed written submission. The Respondent did not put forward any arguments to counter the claim of disability.

The Respondent submitted that the Complainant was issued with the terms and conditions of employment and a Company Handbook when he commenced employment with the Respondent in 1999. He also signed various Performance Agreements from time to time.   The terms and conditions included provision for a company provided Sickness Scheme and Procedure.

The Respondent submitted that the Complainant was absent from work from 6^th June 2012 until 25^th May 2014. The Complainant returned to work on 26^th May 2014 on a restricted basis as his GP advised he was "fit to take up the post of administrator on a temporary basis awaiting results from planned tests from hospital".  

In August 2014 the Respondent received a letter from the Complainant's doctor stating that the Complainant was unable to travel and was not fit to carry out on-call duties.

Despite attempts by the Respondent to get a definitive date for a return to work none was forthcoming.   A report from the Complainant's consultant dated 20^th November 2014 stated, "It will therefore not be possible for him to return to his previous duties."

The Respondent submitted that a number of different roles, seven in total, were offered to the Complainant (these various roles were outlined in the submission), however the Complainant wanted only to work in the Team Lead role on a three-day week basis.

Following a review of the situation and taking into account the Complainant's doctor's advice, the role of Team Leader and the other positions that had been offered to the Complainant, the Respondent decided to terminate the Complainant's employment due to his inability to fulfil his contract of employment by way of illness.

The Complainant appealed this decision on the basis of the severity of the sanction and mitigating circumstances. However, the decision to dismiss was upheld.

It is submitted that the Respondent valued the Complainant as an employee and worked with him over a period of years, allowing him to perform a range of different roles on a temporary basis, and keeping his pay preserved at Team Leader level, and allowing him an enormous amount of time to recuperate and return to his original role. Even when the Complainant indicated that he could work only certain roles, certain hours per week, certain days per week, and needed considerable amounts of time off, he was still facilitated. The Respondent contends that it was only when he finally presented the employer with his unwavering demand that he work in the Team Leader role (and no other role) and only on the basis of a three-day week that his request could no longer be accommodated, his return to his original role was now impossible and the decision was reluctantly made to terminate his contract of employment.

In concluding the Respondent submits that the Complainant was neither discriminated against nor victimised and that the decision to terminate his contract was due to the frustration of that contract. The Respondent also submits that it acted reasonably and with patience; many decisions were made to try and accommodate the Complainant.

The Respondent notes that the Complainant was expressly invited to return to employment if his medical condition changed but in the event it did not change and he was unable to perform the contract up to and past the date of termination of the contract of employment.  

Lastly the Respondent submits that the final impasse was the Complainant's requirement to work in only one role, that of Team Leader, and only on a three-day week. This was not accommodated on the basis of reasonable operational requirements of the business.

I must now consider the Complainant's claim that the Respondent directly discriminated against him on the disability ground in terms of sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 in contravention of 8(6) in relation to his dismissal. The Complainant also alleges that the Respondent failed to provide him with reasonable accommodation in accordance with Section 16 of the Act. I have taken into account all of the evidence, written and oral, submitted to me by the parties. It is a matter for the Complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the Complainant to establish facts from which it can be inferred that he was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

Section 85A of the Employment Equality Act, 1998, sets out the burden of proof as follows:

"(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."

The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the Complainant must:

".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."

The Labour Court went on to hold that a prima facie case of discrimination is established if the Complainant succeeds in discharging that evidential burden. If the Complainant succeeds, the Respondent must prove that he was not discriminated against on the disability ground. If the Complainant does not discharge the evidential burden, the claim cannot succeed.

I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts, 1998, provides:

"..... discrimination shall be taken to occur - 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')"

Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia: (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"), and Section 8(6)(c) provides (6) without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one- (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short-time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

The definition of disability in Section 2(1) of the Acts is as follows:

''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;

I am satisfied that the Complainant's condition is a disability within the meaning of the Acts. Having heard the evidence I am satisfied that the Complainant was dismissed from the employment for reasons connected with his capacity to perform his job due to his disability. Therefore he has established a prima facie case of discriminatory dismissal. Therefore next matter I have to consider is whether the Respondent failed to provide the Complainant with reasonable accommodation in accordance with Section 16(3) of the Act or if the defence under Section 16(1)(b) applies.

The Complainant disputes that he was provided with reasonable accommodation. Section 16 of the Act 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 himself or herself;"

Section 16(1) provides a defence to a claim of discrimination:

"Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to 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."

The Complainant's case is that the Respondent failed to provide him with reasonable accommodation in that they did not find a suitable alternative role for him and that the roles offered to him were not tenable due to medical restrictions related to his disability. It was submitted that for these reasons the dismissal was discriminatory.

The Respondent denies that the dismissal was discriminatory or that they failed to provide appropriate measures for a person with a disability. The Respondent submitted that the decision to dismiss the Complainant was only taken after exhaustive efforts were made by the company to find suitable alternative employment. The Respondent submitted that they engaged with the Complainant, his medical advisers, and the company doctor throughout the period 2012-2016 to find a role which suited the Complainant. It is the Respondent's contention that numerous roles were offered to the Complainant but although some were tried out more were rejected. The changing nature of the Complainant's medical restrictions made the task of finding a suitable role extremely difficult.

I am satisfied that the Respondent, in the light of the medical reports on the Complainant's condition, examined all the options in relation to what appropriate measures could be put in place to allow the Complainant work.   The Complainant's insistence on working as Team Leader on a three day a week basis was unreasonable in light of the demands of the workplace.

I am satisfied that the dismissal of the Complainant was due to his incapacity because of his disability to perform the work he was employed to do and in the circumstances the dismissal was not a discriminatory dismissal. Having regard to the provisions of Section 16(1)(b), I find that the dismissal was lawful in accordance with that provision.

I find that: (i) the Respondent did not discriminate against the Complainant on the disability grounds pursuant to section 6(2)(g) of the Acts and contrary to section 8(6) of the Acts in relation to his dismissal and that the defence under Section 16(1)(b) applied;

(ii) the Respondent did not discriminate against the Complainant on the disability ground pursuant to section 6(2)(g) of the Act in relation to the provision of reasonable accommodation to the complainant in accordance with section 16(3)(b) of the Act.