Complainant

Respondent

Anonymised Parties

A Production Operator

A Manufacturing Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00009839-001

22/02/2017

The complainant claims that he was subjected to   discriminatory dismissal by the respondent on the grounds of his disability   contrary to Section 6(2)(g) and Section 77 of the Employment Equality Acts.   He also claims that the respondent failed to provide him with reasonable   accommodation to take account of his disability in accordance with Section 16   of the Acts.

The respondent denies that the complainant was discriminatorily   dismissed but rather it claims that he was involved in an unprovoked attack   on a fellow employee and its decision to dismiss the complainant was   reasonable and justified.

The complainant worked for the respondent for 24 years up   to his dismissal on 25 January 2017. He   commenced his employment on 3 May 1993 as a general operative and had no   difficulties until an incident in October 2003 when he walked off the   manufacturing floor during working hours without permission. He was suspended   with pay and referred to see the Occupational Health Manager and the   company’s doctor, Dr. A. The complainant claims that Dr. A declared him fit   to return to work after this incident and said that he was “no threat to himself or anyone else”.   Dr. A, did however refer the complainant to a Consultant Psychiatrist, Dr. B   for assessment. Subsequently, the complainant was diagnosed with a delusional   disorder by the Consultant Psychiatrist and he was prescribed medication to   address that disorder. He said he was carefully monitored by Occupational   Health and Dr. A for the next 12 months or so, particularly when he displayed   delusional tendencies about offensive smells in the workplace in November   2004. Again, he was referred to Dr. A and the prognosis was that he was “no danger to himself or others” and   fit to continue working with the respondent.  

The complainant claims that he continued to work without   any incident for seven years until September 2011 where the respondent   reported him “acting odd” and he   had a meeting with the Occupational Health nurse, a HR representative and his   manager, Mr. C., about his behaviour at work. He was referred for clinical   assessment to his Consultant Psychiatrist on 18 October 2011 and again on 20   October 2011 following an incident at work with Mr. C. The complainant said   that this was as a result of him being challenged over taking an extended   rest break when he was not feeling well. He was assessed by Dr. A and   declared medically unfit to work. He did not return to work until February   2012. On his return to work he underwent a disciplinary investigation on foot   of the events from 20 October 2011, which resulted in a two-week suspension without   pay due for his behaviour during that incident. The complainant returned to   work on 26 March 2012 and continued to work without incident until September   2015. In September 2015, the complainant’s manager was concerned as he found   him “shouting at work”. A meeting was   held with Dr. A, who suggested that things seemed to settle without the need for   any further intervention.

The complainant met with Occupational Health on 13 January   2016 when concerns were expressed again about him shouting outside of work and   his lack of personal hygiene. There was an exchange of emails, between the   respondent and Dr. A, expressing concern for his behaviour and although Dr. A   said he was not overly concerned about the complainant at the time he did   write to the complainant’s Consultant Psychiatrist, Dr. B, to arrange a   further review.

On the overnight shift of 21/22 January 2016 there was   another incident where the complainant ran at and swung for his manager Mr. C.   There was shouting and a heated exchange and the complainant was sent home.   The respondent wrote to the complainant on 25 January 2016 advising him of an   appointment with the company doctor Dr. A and he declared that the   complainant’s illness had decompensated, that he was referring him for further   treatment and that he was unfit for work. The complainant claims that his   mental health continued to deteriorate through February and March where he   was hospitalised for three weeks. The complainant claims that following his   release from hospital he attended Occupational Health a number of times the   following March and April.

On 13 June 2016, Dr. A wrote to the respondent and   declared that having assessed the complainant he had made great progress and   that the respondent should now look at how to rehabilitate his return to   work. The respondent wrote to the complainant and invited him in for a   meeting about the incident in January 2016 with his manager Mr. C. Following   this it was decided that the complainant be suspended with pay while the   investigation of the incident was ongoing. The complainant was interviewed as   part of the process and admitted to having “pushed [Mr. C] back a bit” and “pushed chest” and there was “excited   talking” between them.

Dr. A wrote to the respondent on 21 September 2016 stating that after a review of the complainant he deemed that he was "no threat to himself or anyone else”,   that there was a new system in place to monitor the complainant and ensure he   took his medication to prevent further episodes. The complainant said that he   attended Occupational Health twice in October and in early November 2016 and   Dr. A, wrote to the respondent to state that the complainant was “now fit to begin his rehabilitation back   to work” and asked what flexibilities were available in that regard. The   complainant also points to where Dr. A said that it would be in the   complainant’s “… best interest to   return him to work if feasible”.

The respondent wrote to the complainant on 16 November 2016   inviting him to a meeting to convey the outcome of the investigation   regarding the incident in January 2016. The findings of the investigations   were presented to the complainant, it was found that he was guilty of gross misconduct   and it was a dismissible offence. The complainant’s Trade Union   representative pleaded his case saying that he was suffering from a mental   illness and that he was off his medication at the time of the incident. The   complainant claims that he outlined that he was now being supported by his   family and the health service, and that he was on his medication which was now   administered by a public health nurse every two weeks by injection and there   was no way he could avoid taking it. That there were now safeguards in place and   he was in the best situation he has ever been heretofore and that it was   unlikely that there would be a repeat of what happened in January 2016.

The complainant claims that the respondent agreed to   consider this information in light of the decision it has to make. However, the   respondent wrote to the complainant on 2 February 2017 confirming the   dismissal. The complainant’s representative wrote on behalf of the   complainant to the respondent seeking to appeal the decision. The respondent   wrote back to say there was no internal appeal mechanism.

The respondent is a sizable manufacturing company of   ophthalmic goods and care products. It agrees that the complainant was   employed with it for 24 years but it disagrees that it has discriminatorily dismissed   him. The respondent said that it is fully aware of its duty of care under health   and safety legislation and under common law to ensure the workplace is a safe   environment for all its employees. It claims that this duty of case is taken   very seriously by the respondent.

The respondent claims that in the early hours of 22 January   2016 the complainant made an unprovoked attack on Mr. C - a fellow employee   and his line manager - and was only prevented by other work colleagues from   causing injury. The respondent claims that this was the second of these types   of incidents in just three years. The respondent provided in evidence a copy   of the letter dated 23 March 2012 relating to the previous event that was served   on the complainant, which was signed by him to confirm that that he was   investigated, disciplined and suspended without pay. This letter also stated   that “any use of violence, threatening or abusive conduct towards an employee   is considered gross conduct”.

The respondent claims that the incident that occurred on 22   January 2016 was fully investigated. This investigation commenced in June   2016, the delay was due to the complainant being out on certified sick leave.   The complainant was suspended with pay pending the completion of the   investigation. The respondent claims that after its investigation its   findings and conclusions were that his behaviour on the night in question put   both himself and other employees in danger. It said that that the   complainant’s behaviour was deemed as gross misconduct as outlined in the   company disciplinary procedure. The respondent claims that it invited the   complainant, his shop steward and trade union official to a meeting with   senior members of the HR department to discuss the findings and conclusions   of the investigation. It is the respondent’s evidence that the complainant   agreed in general with the events as outlined in the investigation report.   The respondent outlined that it would take some time to make its decision on   the appropriate disciplinary action.

The respondent claims that it held a meeting with the   complainant, his shop steward and trade union official, on 19 January 2016   and informed him that it had made a decision and it would be terminating the   complainant’s employment. The respondent claims that the complainant was   afforded the opportunity to respond. On 2 February 2017, the HR Director   wrote to the complainant and terminated the complainant’s employment. The   letter said that the company has a duty of care to all employees, that this was   the second of these such incidents in three years and the company could not   risk the safety of all its employees. The   respondent claims that the complainant’s employment history establishes that   there are significant, foreseeable risks and it was “duty bound to act to remove the risk”. It claims that it is fully   aware of its requirements under the equality legislation to make reasonable   accommodation however “the concept of   ‘reasonable accommodation’ does not stretch to the point of putting other   employees at risk”.

The respondent claims that although the complainant was   deemed fit to return to work and assurances were given in the past that this   would not happen again there was a reoccurrence of incidents only three years   apart. The respondent claims that it is not medically qualified to determine or   manage its employee’s medical conditions or needs. The management of an employee’s   medical needs is the responsibility of that individual themselves and this   cannot be passed on to the employer to manage. The respondent claims that the   complainant has referenced a new system in place to ensure that he takes his   medicine and nothing should happen again. However, it claims that reassurances   were given in the past and no one could stand over those reassurances back then.   Therefore, without concreate evidence it is sceptical that there will be any   difference into the future.

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.

In the case of Melbury Developments v Arturs Valpetters   [EDA0917] the Labour Court, whilst examining the circumstances in which the   probative burden of proof operates stated that a 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 …… the burden of establishing the primary facts   lay fairly and squarely on the Complainant and the language of this provision   admits of no exceptions to that evidential rule”.

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 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 either is not or is a person with a different disability".  

The complainant claims that he was diagnosed with a   delusional disorder which is a mental illness that is treated by medication and   this is his disability. This fact was not contested by the respondent, nor was   it contested that the complainant has a disability within the meaning of   Section 2 of the Employment Equality Acts. I also accept that a diagnosis of delusional   disorder qualifies as a disability within the meaning of Section 2 of the   Employment Equality Acts. Accordingly, the issues for decision in this case   are (1) whether as a person with a disability within the meaning of Section 2   of the Acts, the respondent has failed to provide the complainant with   reasonable accommodation contrary to Section 16(3) of the Acts and (2)   whether he was discriminated against by the respondent in relation to his   conditions of employment and dismissal on the grounds of his disability. In   reaching my decision, I have taken into account all of the submissions,   written and oral, made by the parties.

Discriminatory   Dismissal

The first element of the complaint which I am required   to consider relates to the claim that the respondent failed to provide the complainant   with reasonable accommodation in terms of taking into consideration that the complainant   suffers from a mental health illness and was going through, what has been   described at the hearing, as a complete mental health breakdown when he was   involved in an incident in January 2016. The reason put forward for this   breakdown was because of his mental health illness and the fact that he was not   taking his medication. His behaviour and actions ultimately were found to constitute   gross misconduct and he was dismissed accordingly. Section 16(1)(b) of the   Employment Equality Acts provides an employer with a complete defence to a   claim of discrimination on the disability ground if it can be shown that the   employer formed a bona fide belief that the complainant is not fully capable,   within the meaning of the Section, of performing the duties for which they   have been employed. However, this defence is tempered by the provisions of   Section 16(3)(b) of the Acts which provides that a person with a disability   must be considered fully competent and capable of performing the duties   attached to a particular post if he could do so with the provision of special   measures or facilities provided the provision of such measures would not   impose a disproportionate burden on the employer.

The complainant’s representative has raised several   important legal authorities for my consideration in relation to this case. In   particular, Finanzam Koln-Alstadt v. Schumacker Case C-279/93 [1995] E.C.R.   1-225 where the ECJ held “30. It is   settled law that discrimination can arise not only through the application of   different rules to comparable situations but by the application of the same   rule to different situations.”

The complainant stated that Mr. C, at the time of the   incident, and the respondent during its review of the incident and when   reaching it decision to dismiss the complainant, have only considered that   the complainant was in “control of his   thought processes, perception of reality, emotion, judgements and behaviour”,   whereas this is obviously not the case. The complainant claims that his   behaviour and actions were totally attributed to his mental health illness,   which was accentuated by him not taking his medication at the time. Therefore, the complainant claims that applying   the same rule in the complainant’s case falls foul of the principle in the abovementioned   test.

The complainant also made reference to Section 16 of the   Acts as interpreted in the case of A Health and Fitness Club v. A Worker   [EED037] which was upheld by the Circuit Court (Humphreys v. Westwood Fitness   Club [2004] E.L.R 296), which requires the employer to undertake a two-stage   enquiry in such a case. Firstly, the employer has to establish the employee’s   capacity to undertake his duties and secondly, if it is apparent that the   employee is not fully capable, Section 16(3) of the Acts requires the   employer to consider what, if any, special treatment or facilities may be   availed of by which the employee can become fully capable. The complainant   maintains that the respondent did not take any of the medical or psychiatric   advice into account in the months leading up to the actual dismissal of the   complainant. The complainant is of the opinion that the respondent at the   very least should have sought the opinion of its own company doctor Dr. A., and   the Consultant Psychiatrist and it is the complainant’s contention that their   respective opinions was that the complainant was unfit to work in January   2016 because he was mentally unwell, but certified fit and well to return to   work in the months before he was dismissed in January 2017. The respondent   said that it has to balance the duty of care that it has for all its   employees. These incidents were recurring and frequent, it claims that all the   medical assurances given in the past were always conditional and were found   to be wrong.

I am satisfied from the evidence adduced that the   complainant started work in 1993 as a cleaner and moved to a utility operator   and worked without any significant difficulty for ten years. It was not until   2003 that he was diagnosed with his mental health illness and that his   employer became aware of his disability and started to engage with him. It is   clear that it watched over him, providing him with the necessary additional   supports to allow him carry out his job. It was seven years before the   complainant had another incident and I note that this was with his line   manager Mr. C. I note that following an investigation of the incident the   complainant accepted a sanction of suspension without pay for his   responsibility for an altercation with his line manager. The complainant’s   evidence is that he was generally doing fine and able to cope while taking   his medication. He said that he felt coming up to Christmas 2015 that he   might not need his medication so much and wanted to “go out for a few drinks” so he made a conscience decision to stop   taking his medication. The respondent in cross examination alludes to fact   that this decision to go off his medication was “his decision” and it led to the unfortunate incident in January   2016.

There is no doubt that the incident in January 2016 did   occur. There are differences of opinion in actual accounts of how events   panned out that night but in essence it was agreed that the complainant   demonstrated threatening behaviour towards Mr. C and without doubt the reason   for this behaviour was firmly adjudged to be the complainant’s fault and I am   satisfied that all parties are in agreement that this was due to the state of   his mental health at the time, which had resurfaced because the complainant   was not taking his medication. The   respondent has rightly cited the duty of care that it has for all its   employees, and that violent and abusive behaviour is not tolerated in the   respondent’s workplace.

I have heard evidence from both parties in relation to   how the investigations of the complainant’s incidences in 2013 and 2016 were   conducted and I am satisfied that the respondent acted very professionally in   how it conducted the process in all circumstances.

As noted above the complainant’s representative noted in   the Finanzam Koln-Alstadt v. Schumacker Case where it classed that “discrimination can arise … by the   application of the same rule to different situations”. It is my   responsibility to consider if this principle when applied to the   circumstances before me holds merit. This is a serious matter. The health and   safety of the respondent’s employees were at risk on 22 January 2016 the   matter cannot just be disregarded, considered unfortunate and brushed under   the carpet. I believe that the respondent was correct and proper to conduct its   investigation into the matter, failure to do so could have had adverse   consequences. The respondent does have a duty of care and responsibility to   all its employees. However, I would suggest the application of the same rules   in these circumstances to the complainant, a person with a known disability,   without having any regard to the consequences to the effect his disability had   on his actions and behaviour would raise some concerns. The respondent claims   that it was fully aware of the complainant’s disability and because of his   past history it establishes that there are significant, foreseeable risks and   it was “duty bound to act to remove the   risk”. It further states that it knew its responsibilities under the   equality legislation to make reasonable accommodation, however that “does not stretch to the point of putting   other employees at risk”.

I am satisfied that an employer has to spend much of its   time assessing the needs of its business and that of all its employees. In   assessing the complainant’s needs, he has referenced the decision in A Health   and Fitness Club v. A Worker which was upheld by the Circuit Court decision   in Humphreys v. Westwood Fitness Club, where it requires the employer to   undertake a two-stage enquiry. Firstly, the employer has to establish the   employee’s capacity to undertake his/her duties and secondly, if it is   apparent that the employee is not fully capable, Section 16(3) of the Acts   requires the employer to consider what, if any, special treatment or   facilities may be availed of by which the employee can become fully capable. Of   course, this is specifically to determine a disabled individual’s   capabilities and needs to carry out work rather than as a measure to look at   their actions and behaviour. However, the tests set out a very basic and   fundamental principle for every employer who needs to be mindful of the   particular circumstances of each of its employees and of course the nature   and extent of the enquiry depends upon the particular circumstances of each   case. That principle is where “…an   employer should ensure that he or she is in full possession of all of the   material facts concerning the employee’s condition…” and “the employee must also be allowed an   opportunity to influence the employer’s decision”. The proactive nature   of this process was confirmed by the Labour Court in A Worker -v- A Hotel   [EDA0721] as: “The duty to provide   special treatment or facilities is proactive in nature. It includes an   obligation to carry out a full assessment of the needs of the person with a   disability and of the measures necessary to accommodate that person’s   disability”. In An Employer -v- A Worker [EDA0413], the Labour Court also   confirmed that an objective test applies and that the extent of the special   treatment and facilities required: “…may   also involve relieving a disabled employee of the requirement to undertake   certain tasks which others doing similar work are expected to perform. The   scope of the duty is determined by what is reasonable, which includes   consideration of the costs involved. This is an objective test which must   have regard to all the circumstances of the particular case”.

I am satisfied that the complainant was treated in the   same manner as an employee during the course of the investigation in 2017,   which I would think is correct, as the complainant was at the time deemed fit   to return to work, he was taking his medication and therefore, there was no   reason to treat him differently. However, as noted above, I do have concerns   as to the consideration that the respondent gave to his condition at the   period in time when the complainant’s actions and behaviour were being   assessed – on the 22 January 2016. It would appear that on face value from   the evidence presented to me, that the complainant was also treated no   differently as an employee without a mental health illness at that point in   time. This is the point in time that he was going through what has been   presented to me equates to a mental breakdown. His decision to come off his   mediation would appear to have accentuated that breakdown if not caused the   breakdown entirely. It is the medical evidence before me that the complainant   was deemed unfit to work immediately after the incident when assessed and   therefore it is reasonable to believe that he was very mentally unwell on the   21/22 January 2016. I note that he was detained under the Mental Health Act   soon after.

It would appear that the respondent waited for the   complainant to be deemed fit to return to work to investigate the January   2016 events, which I would suggest is correct and proper. However, it would   appear that no consideration was given to the fact that the complainant was   suffering mental health issues at that particular time. Albeit the respondent   knew of the complainants past medical history and it was aware that he was   subsequently certified unfit to work for six months and was hospitalised   because of his mental illness. This does appear to be contrary to the   principles in Finanzam Koln-Alstadt v. Schumacker. Moreover, from the   completion of the investigation into the events of January 2016 and the   delivery of the final decision to dismiss the complainant on grounds of gross   misconduct, I have not been presented with any evidence to suggest that the   respondent enquired into or tried to get a full understanding through medical   opinion or advice of the complainant’s condition at the time of the January   2016 events, or indeed since that. I see that the respondent seems to have   made its mind up on the complainant’s risk based on the fact that it claims   that medical reassurances offered in the past were wrong so it has no faith   on possible future medical reassurances. I am not satisfied that is the   correct approach, and it seems to be contrary to the two-step enquiry required   as provided for in the A Health and Fitness Club v. A Worker.

I also note the Labour Courts decision in Queally Pig   Slaughtering V Robert Tkac EDA 1618, where the Labour Court referred to the   previous case of A Worker V an Employer [2005] ELR 159, in terms of a test to   be applied in cases of access to reasonable accommodation.

“….to make a   proper and adequate assessment of the situation before decisions are taken   which may be to the detriment of a disabled employee ….”. The Court held   that “the respondent did not consider   the possible options that were available” The Court also pointed to the   omission of a medical report.

I note that no medical report was sought here in the   case before me for consideration.

The assessment of the complainant’s actions at the time   should have been referenced to the de facto situation of the time. The   complainant appears to have being going through serious mental health   difficulties. Medical evidence and advices from at least the companies own   doctor should have fed into the respondent’s assessment processes. I do not   believe that it did. Maybe the same conclusion to dismiss the complainant for   gross misconduct would have been taken. However, this does not appear to have   been any consideration.

In reaching my conclusion from the evidence adduced having   taken all the factors into consideration. I am satisfied on the following;

•   That the complainant represents a significant   challenge to the respondent. The respondent had for a number of years   provided him with reasonable accommodation to allow him carry out his duties and   it appears that he was able to manage to reach his work targets accordingly,   and I believe that this positive action by the respondent needs to be recognised.   However, in assessing the risk for all its employees it has used the   disciplinary procedure to possibly remove the complainant from his   employment.
•   That the complainant was responsible for the   incident on 22 January 2016. However, I am satisfied that this was due to the   fact that he was not taking his medication and that lead to his behaviour and   the altercation at work.
•   That the respondent investigated the matter   and found the complainant was responsible and took the highest possible   sanction available to it based on his behaviour and actions and at face value   without adequate attention to his medical condition and without proper   up-to-date medical advice.

Having regard to the foregoing,

I find that the complainant has established a prima   facie case that the termination of employment was due to discrimination on   disability grounds and the respondent has failed to successfully rebut that   claim. Accordingly, I find in favour of the complainant.

I find that the complainant has established a prima   facie case that the respondent has failed to provide reasonable accommodation   within the meaning of Section 16(3) of the Acts to him as a person with a   disability.

Redress

Section 82(1) of the Acts sets out the possible list of redress   options that are open to me in such cases, namely either compensation,   re-engagement, re-instatement, or indeed a combination of compensation with   an order of re-engagement or re-instatement. The complainant has asked that   should I find in his favour that he would be re-instated to his post. I am   satisfied that re-instatement places the complainant back into the same environment   that he had difficulties in and possibly with individualities that he had   difficulties with in the past. Accordingly, I do not believe that is   appropriate. I note the importance the complainant places on a return to work   with the respondent and accordingly, I do not deem compensation as the most appropriate   redress option either. Alternatively, I order that the complainant be re-engaged   with the employer as the most appropriate redress.

The process for re-engagement should include a meeting   with the complainant and his representatives, occupational health and the   company doctor within two months from the date of this decision to determine   a suitable position and to determine a return to work plan.

The re-engagement process should be concluded within   three months from the date of this decision and the complainant should be re-engaged   at the earliest possible date available thereafter on at least an equivalent   salary, terms and conditions as were in place prior to the complainant’s   dismissal in January 2017.  

Employment Equality Acts - mental breakdown – gross   misconduct – contract terminated - re-engagement