DEC-E2017-081

Employment Equality Acts

Adjudication Officer/Equality Officer’s

Decision No: DEC-E/2017/081

Sandor Kako

(Represented by Robert Crowley BL, instructed by

McGuigan Solicitors)

-v-

Rosderra Irish Meats Group

(Represented by IBEC)

File No: et-157574--ee-15

Date of issue: 21 November, 2017

Keywords

Employment Equality Acts - discriminatory treatment - disability - reasonable accommodation - prima facie case - dismissal

1. Dispute and delegation

1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment in his working conditions by the respondent on the grounds of disability in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. In this regard, he alleges that the respondent failed to provide him with reasonable accommodation in his employment. The complainant also alleges that he was discriminatorily dismissed on grounds of his disability while out on sick leave.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal/Workplace Relations Commission on 8 July 2015 under the Employment Equality Acts. On 7 March, 2017 in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 18 April 2017.

1.3 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.

2. Summary of the Complainant’s case

2.1 The complainant is a Hungarian national and commenced employment with the respondent in September 2007. The complainant worked as a boner and butcher in the respondent’s abattoir. The respondent is a meat processing company. The complainant submits that on 18 March 2015, the complainant while moving a box from one conveyor belt to another slipped which resulted in significant injuries to his lower back, neck and shoulder. The complainant sought treatment from his GP and was referred to the emergency department of Tullamore hospital. Over the following weeks, he asserts that he suffered from debilitating pain in his
neck, shoulder and back. The complainant states that he was prescribed with analgesics and continued to attend his GP on a regular basis. The complainant submits that he was unable to return to his work as a boner in the respondent factory in the months following the accident as the pain to his shoulder, neck and back prevented him carrying out his normal duties. He was certified as being unfit for work by his GP.

2.2 The complainant states that he was sent by the respondent for a medical assessment to Dr. G on 27 April 2015. While attending Dr. G, the complainant informed her that he had attended two GP’s and had been advised to avail of further treatment and to receive an MRI scan. The complainant states that he explained to Dr. G that he continued to suffer from considerable pain in his neck, shoulder and back and was unable to return to work as a result. The complainant submits that Dr. G provided the respondent with a medical report on the complainant’s fitness for work on 1 May 2015. In her report, Dr. G stated that in her opinion the complainant would benefit from returning to work as it would be therapeutic and would assist his recovery. Dr. G recommended that the complainant was fit to return to sedentary work duties if also given the opportunity to move around the factory floor and vary his posture. The complainant states that Dr. G recommended providing these modified duties as part of an occupational rehabilitation programme with the aim of the complainant returning to full normal duties over a four to six week period.

2.3 The complainant states that he continued to attend his GP during this time. He states that he continued to suffer from pain in his neck, shoulder and his back and did not feel capable of returning to work because of the debilitating pain. The complainant submits that he was referred by his doctor to the Physiotherapy Clinic for further treatment. From March to May 2015, the complainant was certified as being unfit for work by his GP and the complainant asserts that he provided the respondent with medical certificates to this effect on a regular basis right up to the date of his dismissal. The complainant submits that he was called to a meeting with his employer on 11 May 2015. At that meeting, Mr. N (HR Manager), the complainant and his union representative were present together with a company translator. The complainant contends that at this meeting, Mr. N requested the complainant to return to work the following day to the trimming area of the factory. The complainant states that he was aware of the duties in the “trimming” area but given his debilitating pain and the rigorous work involved lifting heavy trays and separating fat from the bone, he felt this work was too onerous and rigorous and would cause further injury to him and strain to his shoulder. The complainant states that the independent doctor had indicated sedentary duties and the work in this area could not be viewed as such. He mentioned that duties in the quality control area or administrative duties may have been an option the company could have examined but refused to do so. The complainant states he explained to the company that he did wish to return to work in the future but was still suffering from considerable pain in his back, neck and shoulder. The complainant asserts that he explained that he was incapable of carrying out the duties in the “trim and derind” area and was still receiving medical treatment. The complainant submits that Mr. N did not accept this and referenced the medical report of Dr. G which stated that he should be capable of resuming his regular duties within a 6-8 week timeframe.

2.4 The complainant states that he was provided with a letter from Mr. N dated 12 May 2015 referring to the meeting held on the previous day; the letter stated “the company is becoming increasingly frustrated at your lack of co-operation and requests you to attend a meeting on Thursday 14 May 2015 at 9 am to discuss your non-attendance at work”. The complainant states that he was issued with a second letter from Mr. N also dated 12 May 2015 which required the complainant to return to work on 19 May 2015 and that failure to do so “would leave the company with no alternative but to review your employment as in line with your works agreement and terms and conditions of employment”. The complainant states that he was unable to attend the scheduled meeting on 19 May 2015 due to a medical appointment. The complainant states that the meeting proceeded in his absence between Mr. N and the complainant's union representative Mr. C. The complainant was subsequently provided with a letter dated 20 May 2015 giving details of the meeting that occurred on 19 May, 2015. The letter reiterated the company’s position regarding the report of Dr. G and requested the complainant to report for duty on the trimming line on the following Monday. The letter again stated that a failure to do so would result in the respondent considering termination of employment.

2.5 The complainant states that he attended a meeting with Mr. N on 20 May 2015; Mr. N requested the complainant to commence work the next morning. The complainant states that he informed Mr. N that he was suffering debilitating pain in the back, neck and shoulder and would not be able to carry out the duties on the trimming line. He explained that he had been advised by his GP not to return to work and had been given a medical certificate in this regard. The complainant states that he informed Mr. N he would not put his health at risk but again repeated that it was his intention to return to work as soon as he felt capable. The complainant submits that on 21 May 2015, he provided his employer with a medical certificate certifying him unfit for work. The certificate stated that the complainant was unfit for work from 21 May to 28 May 2015 due to “myalgia” and explained that he was showing symptoms of neck strain injury on examination and also stated that the complainant was awaiting an MRI appointment.

2.6 The complainant submits that on the advice of his doctor, he did not attend work on 25 May 2015. Despite having provided the medical certificate stating he was unfit for work, the respondent decided to dismiss the complainant. The complainant submits that he received a letter dated 28 May 2015 terminating his employment. The letter stated that the company was not in a position to offer any further extensions on a return to work date. In the letter, the respondent also stated that it had exhausted all potential avenues to enable the complainant to return to work and had now formed the view that the complainant no longer wanted to work with the company. The complainant states that the letter did not refer to or offer any form of internal appeal in relation to the dismissal. The complainant submits that he was deeply shocked and upset by the respondent’s decision to terminate his employment. He felt that unfair and unreasonable demands had been placed upon him in requesting him to return to work in the trimming area of the abattoir. The complainant stated that he felt it very unfair of the respondent to allege that he no longer wanted to work for the company. The complainant submits that he had always stated in his meetings with Mr. N that it was his desire to return to work in the future after he had made progress with his injuries. The complainant states that the respondent was very unreasonable in making its decision without considering the advice of his doctor and doing so before he had an opportunity to undertake the MRI scan that he had been advised to undergo.

2.7 The complainant states that he underwent the MRI scan on 16 June 2015 and it showed that he was suffering from multilevel degenerative narrowing of the nerve root canals which were causing the complainant bilateral neck pain that radiated to his shoulders. The complainant states that he was examined again by his GP in August 2015 with the benefit of the report of the MRI scan. The complainant submits that he was diagnosed as suffering from multilevel degenerative changes of his discs and bones which was asymptomatic before the accident but now had become symptomatic and were the source of his continuing pain. The complainant states that as he was not experiencing any progress from the physiotherapy, he received steroid injections. He contends that the physiotherapy then became beneficial and significantly improved his neck pain. The complainant submits that while the report concluded he was still unfit for work, it was anticipated that his residual symptoms would significantly settle down in the preceding two months with physiotherapy treatment and if necessary further steroid injections.

2.8 The complainant submits that the respondent failed in its duty to the complainant as provided for in section 16 of the Acts where it states that an employer is obligated to positively engage in the process of finding effective and practical measures to allow an employee suffering from a disability to return to work and for the employer to appraise themselves thoroughly of their employee’s medical condition. The complainant asserts that the respondent ignored or refused to consider the complainant’s medical evidence provided by his GP. The respondent failed to wait for the complainant to obtain an MRI scan so that he could be given a full and informed diagnosis before undertaking the decision to dismiss. The complainant submits that the respondent refused to accept the complainant’s assertion that it was his desire to return to work when his pain had subsided and he was certified fit to do so. The complainant states that he was not afforded an opportunity to present relevant medical evidence and submissions and to have these considered by the respondent. The complainant submits that the respondent failed in its duty to the complainant by demanding that he return to work on 25 May 2015 and dismissing him when he failed to do so, in circumstances where the respondent had been already provided with a medical certificate from the complainant’s doctor that he was unfit for work on that date. The complainant states that the respondent failed to provide the complainant with reasonable accommodation in accordance with section 16 of the Acts. The complainant asserts that the respondent failed to consider the alternatives to dismissal to facilitate the complainant, for example, allowing the complainant to remain on the books for a period so that he could receive his MRI scan and be properly diagnosed. The complainant submits that the respondent could without any undue difficulty or hardship have monitored the complainant’s progress over the preceding months and considered a phased return to work. The complainant asserts that the decision to dismiss was a breach of the respondent’s obligations under section 16. The complainant further submits that the failure to provide him with any form of internal appeal or review of the decision to dismiss was a breach of fair procedures. The complainant cites the case of Clavin v Marks & Spenser DEC-E2015-055 in support of his case.

3. Summary of the Respondent’s case

3.1 The respondent states that it is a meat processing company based in Edenderry, Co. Offaly employing 350 employees. The respondent states that the complainant commenced employment with the company on 27 September 2007 and worked a 39 hour week and was a member of SIPTU throughout this time. The respondent states that the complainant’s allegations are denied and refuted on the following grounds;

• “reasonable accommodation” (which was provided by the employer but the complainant refused to co-operate with) would not have resulted in the complainant being fully capable of performing his role according to his own evidence then and now.
• the respondent did attempt to reasonably accommodate the return to work of the complainant on “suitable light duties” which he declined/refused despite written medical evidence that said he was fit to do so.
• the complainant has not identified a comparator with whom he was treated less favourably
• the company was at all times acting in the best interests of the complainant
• the complainant has failed to establish a prima facie case, he has failed to establish there was any kind of link between his alleged disability and the company’s management of his absence. He was dismissed for perfectly valid reasons.

3.2 The respondent states that the complainant has not established facts from which discrimination can be inferred. The reason for the complainant’s hours/duties at work being altered was to accommodate him after the respondent became aware of his medical condition. This was in conjunction with medical advice from the company doctor, Dr. G. The respondent states that the allegation that this was for any other reason is merely an assertion by the complainant. The respondent submits that no evidence exists to suggest that anything other than the complainant’s availability to work influenced the decision to accommodate him with altered duties to encourage his return to light duty work. The respondent submits that section 16 of the Act states that there is no obligation to retain an individual in a position if the individual is not fully competent and available to undertake, and fully capable of undertaking the duties attached to the position of the complainant having regard to the conditions under which those duties are, or may be required to be, performed. The respondent states that it is not disputed by the complainant that he cannot fully perform the role for which he was employed. However, the respondent states that he was offered and refused suitable work.

3.3 The respondent states that there is no obligation on the employer to provide the employee with a new post if he is unable to perform his existing role due to an alleged disability although this was something the company did offer to “reasonably accommodate” his return. The respondent submits the purpose of section 16(3) of the Act is to provide a person with a disability with “appropriate measures” or “reasonable accommodation” in order to render the person fully capable to undertake the full range of duties associated with their post over a reasonable period of time if needs be. The respondent states that without prejudice to this argument, the respondent did make adequate enquiries on the complainant’s medical situation. It obtained the views of a medical specialist in occupational medicine, who was also the company doctor and sought to engage with the complainant in relation to this evaluation. The respondent submits that it also made it clear to the complainant at meetings that they would accommodate him with time off work for physiotherapy.

3.4 The respondent submits that the complainant was dismissed due to the fact that the respondent offered him light work and the complainant refused to return to any form of work despite there being medical evidence that he was fit to do so. The respondent asserts that the complainant received warnings of the consequences of this refusal. The respondent maintains that the complainant had a history of poor attendance over the years. The respondent states that the complainant had an alleged accident at work on 18 March 2015 but prior to that accident, a disciplinary meeting was called with the complainant on 16 March 2015 (at the company’s request) with the union shop steward, a supervisor and the company translator to discuss the complainant’s poor attendance over the previous weeks, including unauthorised leave of one week i.e. 23-27 February. The respondent contends that the complainant’s absence record for 2015 triggered this meeting as is evident from the records retained by the company. The respondent states that this meeting was a disciplinary meeting and his defence was that he had authorised leave/permission from his supervisor which the company denies. The respondent states that the complainant’s supervisor authorised the first two weeks holidays in February, one week of which was unpaid leave (16-20 February) but the complainant failed to return to work on 23 February as expected and finally returned on 2 March. The complainant’s supervisor was out on annual leave himself on 16 March and therefore the company was unable to confirm if the time was authorised or not.

3.5 The respondent submits that the complainant had already missed 26 days in 2014 and had clocked up further absences in 2015. The meeting on 16 March 2015 was then adjourned due to the fact that the supervisor was on holidays and he was returning on 18 March. While the complainant alleged at the meeting that he had been given authorisation for the time he was off, the company contends that he was authorised for part of the leave only. The respondent contends that the meeting was postponed until 18 March at 10.00 am to allow the complainant’s supervisor (who was on annual leave at the time) to attend. The respondent maintains that the complainant “slipped” at 9.45 am on Wednesday 18 prior to the scheduled meeting and therefore the meeting did not proceed as the complainant went on sick leave. The respondent states that after seeking clarification, the position was that the supervisor confirmed that he never gave the complainant permission to take off the last week in February but rather only the week prior to that. The respondent refutes the complainant’s statement in his submission where he states that he was unable to return to work. The respondent submits that this is untrue and the complainant did return to work for two full days i.e. 13 and 14 April 2015. The respondent states that the complainant got a return to work fitness certificate stating that he was fit to return to work by his GP. He did not subsequently return to work. The respondent states that the complainant was sent to an independent doctor, Dr. G on 27 April 2015. The respondent submits that Dr. G stated that the complainant was fit for light/sedentary work duties with lifting restrictions and with a view to getting him back to normal duties in 6-8 weeks time. The respondent states that this was something it was willing to do and subsequently offered him which was allowing for reasonable accommodation to be made. The respondent maintains that the complainant did not co-operate with Dr. G. The respondent states that the complainant only ever submitted short medical certificates and did not hand in a full written medical report on his condition. The respondent states that the complainant would not allow its doctor to talk to his doctor nor allow Dr. G to disclose the complainant’s medical information to the company.

3.6 The respondent states that a meeting was held on 11 May 2015 with the complainant and the company’s medical report was given to him. It states that the work that was available was explained to him, in that, it would involve working in the “trim and derind” area with no lifting involved. The respondent states that in this role, the complainant could easily undertake it as it was not the same as the fast moving pace lines where he had been. In addition, the complainant would not be required to undertake any heavy lifting. The respondent submits that at the meeting on 11 May, the complainant confirmed that he had upcoming doctor and physiotherapy appointments but there was no mention of an MRI scan at that juncture. The respondent states that it advised the complainant that it would facilitate any appointments for him. The respondent maintains that the intention was to return him to normal duties over a 6-8 week period in line with medical advice. The respondent states that the company wanted to help the complainant to try and work in this alternative area i.e. the “trim and derind” section. The respondent denies that it ignored or refused to consider the complainant’s medical position. They did consider it insofar as he would allow it to do so but that the complainant restricted what could be shared between the doctors and only provided minimal medical certificates (unable to work) which referenced “myalgia”(muscle pain).

3.7 The respondent issued a letter to the complainant on 15 May 2015 stating its frustration at the continued absence and his unwillingness to attend/return to work on light duties. The respondent submits that the complainant could have at least attempted to take on the alternative duties but he would not do so. The respondent states that the company and the union take absenteeism very seriously as it causes major disruption to production. The respondent contends that the complainant attended the meeting on 19 May 2015 but also walked out of same in anger. The respondent asserts that his attendance on that day is proved (though the complainant denies it in paragraphs 13-15 in his submissions); he went in and out of the turnstiles on 19 May and remained in the plant for 17 minutes. The respondent submits that at the meeting of 19 May, the complainant was requested to return to light duties but the complainant stated that he had physiotherapy and doctor’s appointments. The respondent asserts that it had no issue in facilitating said appointments. The respondent informed the complainant that it would facilitate him working in the “trim and derind” area of the factory which would allow him to be covered to attend his various appointments. The respondent submits that at this juncture, the complainant became aggressive and walked out of the meeting. The respondent issued a letter to the complainant on 20 May requesting him to return to work on Monday 25 May and this letter was also copied to his union representative. The respondent submits that the complainant never turned up for work or contacted the company thereafter and the final dismissal letter was sent to him on 28 May 2015. The respondent accepts that there was no internal appeal offered in his dismissal letter and such an appeal is contained in the company’s policy and procedure document together with the works agreement with the union. The respondent submits that this was a mistake and an oversight and should not have happened but it was not motivated by any discriminatory grounds.

5. Conclusions of Equality Officer

5.1  I have considered all the evidence both written and oral presented to me. 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 her. If she 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 these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts 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 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;

I am satisfied that the complainant’s disability comes with the definition outlined above. Unlike other grounds such as 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.

5.3 The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court in the case of A Health Club and A Worker. 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.[2]

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’.[3]

The complainant submits that he was not provided with reasonable accommodation in his employment and further submits that he was discriminatorily dismissed on grounds of his disability. Therefore, I must consider whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts.

5.4 Having carefully examined all the evidence, I find that the respondent did not carry out a thorough assessment in relation to the needs of the complainant as outlined above. I note that Dr. G had a meeting to assess the complainant on 27 April 2015. In her report dated 1 May 2015, Dr. G stated in her opinion the complainant would be fit to return to work in a period of 4 to 6 weeks and that the complainant should be given sedentary duties. Her report also stated that she would clarify this opinion if she received consent to liaise with the complainant’s GP which the complainant subsequently acceded to. Following Dr. G’s report, the complainant was offered the “trim and derind” area, however given his debilitating pain and on the advice of his doctor he advised the company that he would not be able to undertake these duties given the rigorous nature of same and he felt it would cause further strain and injury to his shoulder. I am of the view that the complainant was not offered reasonable accommodation in the offer of returning to the trim and derind area. Having taken testimony at hearing, I would not consider such duties to be of a sedentary nature. I note that Dr. G had requested the company to examine the area of quality control/administrative/inspection type duties as regards facilitating the complainant’s return to work. However, the respondent did not explore these options. I note that the complainant’s injuries did not subside in the weeks following his assessment by Dr. G and he was referred by his GP for an MRI scan on 16 June. The complainant informed the company accordingly. The respondent terminated the complainant’s employment on 28 May 2015. It states that the complainant was offered and refused suitable work and due to his continued absence and his unwillingness to return to work, his employment was terminated. I note that Dr. G corresponded with the complainant’s GP by letter on 2 June 2015 seeking further details of the complainant’s “diagnosis, treatment and prognosis in order to facilitate assessment of Sandor’s fitness for word.” This letter was sent notwithstanding that the complainant’s employment had already been terminated. I note the complainant was employed with the company since 2007 and had eight years experience with the organisation. Having carefully evaluated all the evidence, I find that the respondent acted hastily by terminating the complainant’s employment in circumstances where GP’s medical certificates were submitted stating the complainant was unfit for work and where GP had referred him on for an upcoming MRI scan. I am satisfied that any reasonable employer would have awaited the outcome of same together with a referral back to the company doctor thereafter in relation to what reasonable accommodations/appropriate measures would be required at that stage. 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 him neither was the complainant allowed to influence the decision. I also note that the respondent accepts that there was no internal appeal offered in the complainant’s dismissal letter and such an appeal is contained in the company’s policy and procedure document together with the works agreement with the union. In the circumstances, I find that the complainant has established a case of discriminatory dismissal on grounds of disability and the respondent is not entitled to avail of the statutory defence.

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

(i) the respondent has discriminatorily dismissed the complainant on the disability ground

(ii) the respondent has failed to provide appropriate measures/ reasonable accommodation that would allow the complainant to be employed by them

Therefore, I find for the complainant.

In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015; I hereby order that the respondent pay the complainant €30,000 by way of compensation for breaches of the Employment Equality Acts which represents a year’s salary. The award is redress for the infringement of the complainant’s statutory rights and therefore, not subject to the PAYE/PRSI code. I order that the respondent reviews 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.

____________

Valerie Murtagh

Equality Officer/Adjudication Officer

21 November, 2017

[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.

[2] Determination No. EED037

[3] 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