ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003893
Parties:
| Complainant | Respondent |
Anonymised Parties | A Production operator | A Manufacturing company |
Complaint(s):
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-00005683-001 | 04/07/2016 |
Date of Adjudication Hearing: 13/04/2018
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is a general operative and commenced working with the Respondent on the 17th of September 2007. The employment was uneventful until 2014. In a meeting on the 20th of June 2014 the Complainant notified the Respondent that he had some personal difficulties and his GP had prescribed him with additional psychiatric medication to control his symptoms and help him sleep. On hearing this, the Respondent removed him from driving as part of his employment duties pending an assessment by the company doctor.
On the 24th of June 2014, the Respondent HR manager spoke to the Complainant’s GP who advised her that the medication the Complainant was taking would make him drowsy and that he should not operate heavy duty machinery. She also advised that there was a possibility that he may have to permanently stay on this medication.
The first medical report from the Respondent’s GP was dated the 27th of June 2014. It referred to the medical fitness to drive guidelines (April 2014) for the Complainant’s situation (Group 2 licence). This advised that “driving must cease pending the outcome of a medical assessment. It is a requirement that the person be assessed by a consultant psychiatrist.” The GP’s recommendation was that the Complainant should cease driving for the company until he has had a formal psychiatric assessment.
Following this medical report, the Complainant missed five days from work on the 4th of July 2014, five days from work the 11th of July 2014, three days from work 18th of July 2014, one day from work 15th of August 2014, five days 22nd of August 2014, one-day 19th of September 2014, one day and one-hour 17th of October 2014, three days 24th of October 2014.
On the 24th of September 2014, the Respondent received a further report from the company GP stating that the Complainant had been reviewed by a consultant psychiatrist on the 15th of September 2014. This consultant psychiatrist was of the opinion that “there was sufficient concern clinically about his mood disorder to prevent him returning driving Group 2 vehicles at this point”.
The Complainant’s poor absenteeism continued for the remainder of 2014 and continued in 2015. In 2015 the Respondent started a disciplinary process which involved seven disciplinary meetings in total. Its position was that these were carried out in a fair and reasonable manner. The Complainant was notified in advance of all meetings and the terms of reference to be discussed. The Complainant had a shop steward during all disciplinary meetings.
Throughout 2015 the Complainant received the following disciplinary sanctions:
The suspension without pay was implemented as an alternative to dismissal.
The Complainant was absent again from the 10th to the 16th of November 2015. On his return to work the complainant submitted a medical note from his own GP stating that he was now fully fit to attend work. This was dated the 16th of November 2015.
The Respondent met with the Complainant on the 16th of November 2015. The company advised that he use the employee assistance service. The company confirmed that they had reviewed his situation and were reluctant to make any rash decisions. It was decided that no further warning would issue at that time.
The Complainant was again absent from work from the 30th of November 2015. The Respondent met with him on his return to work on the 1st of December 2015. The Complainant was again absent on the 7th of December 2015.
A disciplinary meeting was called for the 8th December 2015. He attended at the meeting with his shop steward. The outcome of the meeting was that the Respondent terminated his employment.
The Complainant appealed the decision on the basis that he was medically unfit for work. He did not submit any medical records to substantiate this.
The manufacturing manager heard the appeal. All doctors’ reports were reviewed including the one from his own GP 16th of November 2015 stating that he was fully fit to attend work. The appeal failed and the Complainant was notified of the outcome on the 8th of January 2016. |
Summary of Complainant’s Case:
The Complainant submitted that his depression was a disability within the meaning of a disability set out in Section 2 of the Employment Equality Act 1998 as amended.
His case was that he suffered from depression from the age of fourteen and had been treated for the illness for a considerable period of time.
He further submitted that the Respondent was aware of the disability and had in its possession several medical and was fully aware of his health issues.
His case was that he was dismissed for discriminatory reasons and the Respondent failed to give reasonable accommodation for his disability. The Complainant’s positon was that under Section 16 there was a positive obligation on the Respondent in relation to dealing with disabled employees. The reassigning of the Complainant from driving duties to production operator on the factory floor was for health and safety reasons and was not reasonable accommodation.
As regards redress, the Complainant’s preferred redress was that of reinstatement or reengagement. |
Summary of Respondent’s Case:
Since June 2014 the Complainant was redeployed from the job of driver to the job of production operator. This recommendation was in keeping with medical advice received by the Respondent.
Further the Respondent submitted that the Complainant did not meet the burden of proof to show he was discriminated against on the ground of disability. There was absolutely no evidence to support such a claim.
The Respondent engaged with and assisted the Complainant throughout this process by offering him support with their employee assistant program. At no point during any of the many meetings that they had with the Complainant, did the Complainant relay to the Respondent that they could accommodate him in a further manner more than what they already had. The Respondent submitted that they had extended themselves in accommodating the Complainant as much as any reasonable employer would have.
The Respondents position was that they had given the Complainant every opportunity to improve his absence issues. In fact, they treated him in a more favourable way than his fellow colleagues by extending the disciplinary process as far as was reasonable.
On the 3rd of November 2015, the Complainant attended a further medical assessment with employment health advisors engaged by the Respondent. The report stated that the Complainant was fit for all normal duties from the 4th of November 2015. It set out that the Complainant had lost touch with follow up medical appointments and recommended that he pursue regular medical reviews.
The Respondent submitted that it had provided reasonable accommodation to the Complainant in respect of his disability by:
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Findings and Conclusions:
Section 85 A provides that the Complainant must set out a prima facia case of discrimination. Then when facts are established from which discrimination may be inferred, it is for the Respondent to prove the contrary.
Section 6 (2) of the Act provides that as between any two persons, the discriminatory grounds are inter alia “that one person is a person with a disability and the other is not or is a person with a different disability”.
Application of Section 16 duty.
The nature and extent of an employer’s obligation to people with disabilities is described by Section 16 of the Act.
On its face subsection 16 (1) (b) allows an employer to treat a person with a disability less favourably than others.
Subsection (1) (b) is however qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment, they would be fully capable and competent to do so.
The provision of special treatment or facilities is not an end in itself. It is a means to an end. That end is achieved when the person with the disability is placed in a position where they can have access to or participate in employment. This is an objective test and must have regard to all the circumstances of the case.
The duty placed on an employer by Section 16 (3) includes a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be of detriment of a disabled employee. It also replaces an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee.
In this case, the Respondent realised that the Complainant could not fulfil the full range of duties attached to his occupation. This took place in June 2014 when they became aware of the new medication prescribed to the Complainant. The Respondent’s response was to relieve the Complainant from the obligation to drive. As far as the Respondent is concerned it was by affording the Complainant this special treatment that the Complainant continued in his employment. The Complainant did not demure from what had taken place nor did he make known to the Respondent any other special treatment which he required for him to continue to comply with the requirements of his employment.
The Respondent had on file the following medical evidence:
The Complainant’s dismissal arose because of his high level of non-attendance at work leading up to the start of December 2015. He was suspended without pay as a disciplinary sanction due to the high level of absenteeism for one week on the 2nd of November 2015. He returned to work on the 9th of November 2015 however he was absent for the remainder of the week 10th to 16th of November 2015. During this period of absence, he failed to advise the Respondent of his non-attendance at work. Since his return to work he was absent on Monday the 30th of November and Monday the 7th of December 2015.
The Respondent had him assessed by an occupational health provider and he was deemed to be fully fit to work. This report is dated the 4th of November 2015. The Complainant’s own GP certified that he was fully fit to return to work on the 16th of November 2015. With this evidence the Respondent dismissed the Complainant on the 8th of December 2015 because of the high level of absentism.
The first mention of the Complainant not being fit to work was his own note of appeal dated the 18th of December 2015. No documentary evidence was furnished by the Complainant to substantiate this position.
At the appeal hearing, the Complainant attended with his shop steward. During the meeting the issue of the non-attendance at work over the previous twelve months was discussed. The appeal outcome letter set out that the Complainant agreed that the decision to dismiss him was fair during the appeal hearing.
The outcome of the appeal was to uphold the decision to terminate his employment on the 8th of December 2015.
The Respondent is required to make full enquiries into the material facts concerning the Complainant’s condition. This did take place and there were a number of medical reports on the Complainant’s file.
There is an onus on the Complainant to put forward what he required to enable him to be fully and competent and capable of undertaking his duties of the position. There was no submission made to the Respondent during the Complainant’s employment with the Respondent as to what further accommodation could be made available, to help him become fully capable of complying with his duties. At the hearing of the case the Complainant’s representative submitted that the Complainant could be given reduced hours. This was never put to the Respondent during the employment of the Complainant. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The medical evidence available to the Respondent was that Complainant was fully competent and capable of undertaking the duties which attached to the position.
In these circumstances the Respondent could not have had any actual or constructive knowledge of special arrangements required to be put in place that would facilitate the Complainant to be available to undertake his duties.
I agree with the Respondent that the mere fact that the Complainant falls under the disability ground does not entitle him to seek redress under the Acts unless he can show discrimination. There was no evidence of less favourable treatment produced before me.
I find that this case is not well founded. |
Dated: 07/08/18
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Discrimination, disability, reasonable accommodation. |