DEC-E2018-016

EMPLOYMENT EQUALITY ACTS 

DECISION NO. DEC-E2018-016

PARTIES

Boguslaw Madajczyk

Complainant

AND

Multiroofing Systems Ltd

(Represented by

Construction Industry Federation)

Respondent

File reference: EE/2014/148

Date of issue:  7th September, 2018

Introduction

1.1       On the 16th March 2014, the complainant referred complaints pursuant to the Employment Equality Act. The complaints refer to the grounds of age and disability. The complainant asserts that the respondent discriminated against him when he did not get a job, was not promoted or was not given training. He further asserts that he was not given reasonable accommodation for his disability. He states that he was dismissed for discriminatory reasons and for opposing discrimination. He asserts that he was harassed and victimised by the respondent.

1.2       On the 13th January 2016 and in accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made submissions in advance of the hearing and attended the hearing on the 5th February 2016.

1.3       This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Submissions and evidence of the complainant:

2.1       The complainant commenced work for the respondent on the 12th January 2005. He signed a contract of employment on the 26th August 2006 and this was updated on the 17th November 2010. His role was that of roof cladder, which involved roofing and installing insulation panels. In 2010, the complainant

began to feel pain in his arms, neck and back. He went on sick leave on the 22nd October 2010 as he was no longer able to work. He had an MRI scan and his GP then diagnosed the complainant as having sustained a spinal cord injury. The complainant immediately reported the issue to the respondent. He stayed in Ireland for the first two months of sick leave but returned to his native Poland where the MRI scans were much cheaper.

2.2       The complainant outlined that the respondent referred him to a doctor in June 2011. The medical report of the 15th June 2011 did not indicate whether the complainant could work. There was no discussion with the respondent about its contents. The complainant continued to receive treatment and physiotherapy. On the 13th December 2011, he received certification of his disability which stated that he was “moderately disabled” and that he could “work in protected conditions”, i.e. with reasonable accommodation. The complainant suggested that for a roofer, reasonable accommodation could include working part-time or the re-arranging of tasks, for example no heavy lifting or working in uncomfortable conditions.

2.3       The complainant said that while the report of the 9th November 2010 said that he could not lift, he could have worked on flashings, zinc roof work and insulation panels. The respondent did not again refer him to a doctor. The complainant said that he initially received Disability Benefit for the first six months and then transferred to Illness Benefit. He was awarded Disablement Benefit on the 25th January 2013.

2.4       The complainant outlined that the victimisation claim related to his dismissal. As safety representative, he had made safety complaints. He took personal injury proceedings against the respondent and they were heard in 2014. The complainant commented on his email of the 27th November 2011 and the respondent’s reply of the 28th November 2011, which referred to his returning to work as a roofer. The respondent had not offered him part-time work or to trial other roles. The complainant said that other employees had come back from sick leave and allowed to do certain roles. One employee was placed in an office while recovering from a broken leg. Another had a knee injury and given lighter tasks for a period of time. This colleague was offered supervisory work in the UK. The complainant accepted that these disabilities were temporary in nature.

2.5       The complainant outlined that the respondent set out its position on the 6th February 2011, while he hoped that the respondent would come up with ideas and offer him a trial. He commented that the letter of dismissal of the 23rd September 2013 followed the letter of the 16th August 2013, where he stated that he could not have an operation. The complainant referred to the chain of correspondence between him and the respondent between August and October 2013. The respondent had stated that the complainant could not work, but this was not a medical decision. He wanted to know the basis of the company’s decision. He referred to the obligation set out in Nano Nagle School v Daly [2015] IEHC 785 for the employer to consider different tasks and less hours or even reduced pay.

2.6       In reply to the respondent, the complainant commented that the respondent’s email referred to him being able to do the whole role. The complainant said that the respondent had not made any effort to implement reasonable accommodation. There was no further correspondence from the respondent offering accommodation. At the meeting of the 20th February 2013, the complainant supplied medical documentation and the union raised his redundancy or the making of an ex gratia payment. The complainant was asked about returning to work. There was no real discussion about accommodation and it was not a meaningful enough meeting to make suggestions. No one mentioned a part-time role. The complainant commented that he sought to meet the respondent again in August 2013.

2.7       The complainant said that the respondent had often contacted him about returning to work, but there was never any reference to accommodation. He should have been checked by a company doctor as this was an occupational injury. Even though he could not have the surgery, this did not mean that he could not go back to work. He was qualified to use the teleporter and would have been happy with occasional work. He had acquired the specialist skill of installing zinc roofs. He could have worked in a harness when installing flashings. The cutting of PVC boards was light work.

2.8       The complainant said that he had expected more flexibility and empathy from the respondent. He asked why the respondent had not given him a chance. He said that no doctor would certify that a person with a moderate disability could do the full role. He asked the respondent to provide the risk assessment paperwork regarding his return to work. He asked whether a medical consultation should have assessed his return to work. The respondent’s lack of flexibility prevented him from being certified for a modified role.

2.9       In written submissions, the complainant outlined that he was told by a line manager that he would not be trained as he was too old. He states that his disability contributed to his dismissal. The respondent did not provide him with reasonable accommodation and any appropriate measures would not have been a disproportionate burden on the employer. He submitted that the respondent did not investigate his capabilities or identify a suitable role for him. The complainant submitted a document dated the 11th June 2012 relating to handling vinyl chlorides and associated health hazards. The document states that the date of injury/near miss occurred between 2005 – 2010/summer-autumn 2008. By letter of the 11th October 2013, the respondent denies that the complainant ever reported an accident or illness.

3. Submissions and evidence of the respondent:

3.1       The Health & Safety Officer gave evidence. She outlined that she started in October 2005 and did weekly site audits. She checked systems, prepared statements and spoke to employees. She investigated incidents and she emphasised that everything had to be reported. She spoke to employees about near-misses and drafted accident reports. Her role was to ensure that everyone was trained and this included re-training and refresher training.

3.2       The Health & Safety Officer said that she had a good working relationship with the complainant. He helped by acting as translator at “toolbox talks”. In October 2010, the complainant was assigned to work at a named site for six months. The complainant submitted a sick certificate and said that he needed to have an MRI. The respondent then received the complainant’s medical reports, the MRI scans and his weekly certificates. He was paid his entitlement of 50 days’ sick pay. She commented that there were a great many emails regarding his absence and there was uncertainty around the complainant’s health.

3.3       The Health & Safety Officer outlined that she wrote to the Department of Social Protection to say that there had not been an accident. She also reported his absence to the respondent insurers and kept them appraised of the complainant’s ongoing illness. She commented that the purpose of the June 2011 report was to establish whether the complainant’s injuries were related to the workplace.

3.4       The Health & Safety Officer said that she asked the complainant for his return to work date, but he replied that this was hard to predict. By 2010, the respondent had reduced its workforce to 24 and she was familiar with all the roles. The respondent had a compact management team. The complainant never indicated when he would be fit to work on a construction site. The Health & Safety Officer said that the complainant needed to be medical certified to return to work.

3.5       The Health & Safety Officer said that she looked at forms of accommodation for the complainant. The role involved moving and installing 60 to 80 kg panels. The flashing work was done after a roof was installed. This work would take place on rough terrain and required using your hands over your head. It was not suitable for someone with sore shoulders. It also required being strapped into a harness. It required jumping onto mobile platforms and climbing up ladders, while carrying tools. She described the role as hard work. The installation of the large insulation boards would be followed by installing PVC membranes. The worker had to carry the fixtures and use a hand-saw. In respect of the option of working part-time, the Health & Safety Officer said that the complainant was never medically fit for any role and every role was hard labour. She said that there were not many contracts involving zinc roofs, with one in 2010 and one in 2016. The complainant was very good at zinc, but it involved carrying tools and materials and lifting them into place.

3.6       In respect of the comparators referred to by the complainant, the Health & Safety Officer said that one had chipped a bone in his ankle and worked for a short time in the office. He later stayed at home as his injury was more significant than expected. She commented that another comparator returned to work on a certificate. While he may have been on the ground at the start, he later went up on the roof. She said that the respondent did not have a practice of sending employees to its doctor and the practice was for staff to go to their own doctor.

3.7       The Health & Safety Officer outlined that the complainant had enquired about redundancy in February 2012. There was no glimmer that he would be back at work and there was no indication that he could return to work. She accepted that there was no written policy about dealing with people who were on long-term sick leave and there was no dismissals policy. On the 20th February 2013, the Health & Safety Officer met the complainant, accompanied by CIF and union representatives to discuss his future. This was followed by the Department of Social Protection assessment of July 2013. By this time, the number of site staff had increased to 38 but there was no change in the number of management. There was no indication from the complainant when he would be fit for work and no role was possible for him on a site. There was no office or management role available. The complainant was never certified to come back to work on a trial basis. The respondent set out its decision to dismiss the complainant in its letter of the 1st August 2013 and the complainant replied on the 16th August 2013. The complainant mentioned his need for a shoulder operation but could not have the operation because of an underlying health condition.

3.8       The Health & Safety Officer said that 10 of its staff were Irish, but the majority were Polish. One of the Contracts Manager was also Polish. She said that in its letter of the 23rd January 2012, the respondent had set out its consideration of reasonable accommodation. There was no management alternative available and it was disproportionate to require a new role to be created. It considered the teleporter role, but this was still a physical role based on site. It involved lots of lifting. The Health & Safety Officer placed emphasis that building sites are, by their nature, busy and dangerous places. All roles involved lifting, always using your back and shoulders.

3.9       In submissions, the respondent emphasised that section 16 of the Employment Equality Act did not impose an obligation on an employer to continue to employ an employee who cannot do the role because of a disability. The respondent accepted that its email of the 6th February 2012 had referred to the complainant doing the whole role, but pointed to the fact that his dismissal was carried out 18 months later.

3.10     In reply to the complainant, the respondent outlined that the medical report and all the certificates said that he was unfit. There was no reference to light duties. The complainant’s letter of the 16th August 2013 referred to his not being fit. There was no formal application for accommodation and any accommodation would not have been suitable. The floor was open for suggestions at the meeting of the 20th February 2013 but any role required manual lifting. The Health & Safety Officer said that she could not offer work without a medical cert, even for a trial. The complainant was required to be certified before any occupational assessment. He should have obtained a certificate to take on light duties.

4. Findings and conclusions:

4.1       The complainant referred complaints pursuant to the Employment Equality Act on the grounds of age and disability. He also asserts victimisation. The respondent denies the claims. Both parties made detailed written submissions both before and after the hearing. I have taken account of those submissions and the evidence tendered at the hearing in preparing this report. I note that the complainant initiated personal injury proceedings against the respondent in respect of his employment. He adopted not to prosecute a redundancy claim as he hoped to obtain employment with the respondent for which he was fit (RP165/2014). A claim pursuant to the Organisation of Working Time Act was settled as the respondent paid the complainant what he was due.

4.2       The complainant must meet the burden of proof provided in section 85A of the Employment Equality Acts. He must establish facts of such significance to raise the presumption of discrimination. Addressing the burden of proof in in Melbury Developments Ltd v. Valpeters [2010] E.L.R. 64, at page 68, the Labour Court held as follows:

“Section 85A of the Act 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.”

4.3       The bulk of the evidence and submissions addressed the question of whether respondent discharged its obligation to provide reasonable accommodation to the complainant. For completeness, I address the other complaints raised by the complainant. The first relates to the discrimination on grounds of age. The complainant specified that this arose from a statement made to him in 2010 when the Polish line manager told him that he was too old to be given training. The respondent asserts that this complaint is made outside of the limitation period provided by the Employment Equality Act. Leaving the issue of time aside, I note from the documentation that the complainant and line manager had a poor working relationship. The complainant describes this line manager as surrounding himself with a clique, from which the complainant was excluded. He specifically comments on his good working relationship with Irish colleagues in contrast to this relationship. I also note that the email correspondence in 2009 between the complainant and the Managing Director. The complainant asks why he was passed over for training, but does not raise the issue of his age. I note the Managing Director’s tetchy replies and the fact that the complainant completed training about this time. It is striking that the complainant did not continue this correspondence with the Managing Director after the reference to his age was said to have been made. While the complainant’s E.E.2. form of the 1st February 2010 refers to age discrimination; it focuses on which staff were placed on a four-week layoff in 2009. For these reasons, I find that the complainant has not established a fact of such significance as to raise the presumption of discrimination on the grounds of age. For completeness, I find that there is no fact of significance to support a finding of harassment.

4.4       The complainant began a period of sick leave in October 2010 and was not able to resume employment with the respondent. He was dismissed by the respondent in October 2013. For the sake of clarity, it is not a matter for this adjudication whether the complainant’s disability was caused by his work for the respondent; this is a matter for another forum. The first question to be answered at this adjudication is whether the respondent complied with its obligation to provide reasonable accommodation to the complainant and the second whether the dismissal was discriminatory. Section 16 of the Employment Equality Act provides:

“(1) 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—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(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.

…

(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.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(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.

(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” 

4.5       It is worth considering the parties’ correspondence in some detail. The respondent referred the complainant to a medical assessment, dated the 15th June 2011. This was a detailed assessment of the complainant’s health, and not, as he pointed out, an occupational health assessment. The complainant also submitted medical certificates from GPs and specialists. They refer to issues with the complainant’s shoulder, back and neck as well as a separate medical issue.

4.6       There was emphasis at the hearing on an email exchange of November and December 2011. The respondent’s email of the 28th November 2011 states:

“Hello [complainant] … How are you?... Your email below is unclear and difficult to understand. Can you write in simple English what it is you are requesting?...

In relation to your recent diagnosed disease by the Dept of Social Protection do you foresee yourself returning to work as a Roofer? As you stated it has been more than a year since you last fulfilled your contractual duties and we haven’t received any indication that you will be returning to work in the near future. Can you please advise what your intentions are?” The complainant replied on the 5th December 2011: “Hello [Health and Safety Officer] … How are you … I will try to write in simple enlish … my question is the following if I will not fully fit for work and to do the same job as you were employed to do when I went on illness, then will be possible able to accommodate you in another role or adapt the job to moderate disability I may have? I have not any intentions, I’m completely dependent from Department of Social Protection and [the respondent]. Disability procedure, long duration of my illness and inactivity is very frustrated. I received documents from the DSP, the disease was classified as (shoulder) RSI.”

4.7       The complainant obtained certification of the 13th December 2011 from a Polish Disability Tribunal. It makes recommendations relating to work, care needs and housing. In the category “appropriate employment”, the report states that the complainant can “work in protected conditions”. The report is not specific about construction sites. The complainant submitted this report to the respondent. In an email of the 23rd January 2012, the respondent states “It appears from your medical certification that returning to work as a roofer isn’t possible for you at this time as it could further jeopardise your health. Unfortunately adapting the position of Roofer to suit your shoulder RSI isn’t possible, as you’re aware all our work is site based and involves varying degrees of physical effort. It is apparent from your email’s that isn’t the type of alternative work you are seeking.” In an email of the 6th February 2012, the respondent states: “We have two options; firstly, we will keep your position available for you until you receive medical certification that you can return to work in your original position as a general operative carrying out roofing & cladding duties. Or secondly, if you decide you won’t be returning to the Company as a GO we can issue your P45.”

4.8       The correspondence resumed in late October 2012, with the respondent seeking an indication of the complainant’s return to work. On the 20th December 2012, the respondent stated “[the respondent] is not in the position to hold your position open indefinitely. As you’ve indicated that you will not be available for the foreseeable future we are being left with no alternative but to terminate your employment based on your continued unavailability to work … We would like to give you an opportunity to respond to this decision, failure to reply within 3 weeks will result in the issue of your minimum notice under the Minimum Notice and Terms of Employment Acts.” On the 1st February 2013, the union representative wrote on the complainant’s behalf, seeking to appeal the decision to terminate his employment. The email states: “The ground for the appeal are as follows: The decision is unreasonable… The current injury is a result of an accident at work … My absence is a result of this accident… The company’s failure in its duty of care to its employee in the circumstance… The lack of procedures in arriving at a decision… The failure to hold meetings and allow representation at such meetings.”

4.9       This correspondence was the context of the meeting of the 13th February 2013. It appears from the evidence that this was a significant meeting, especially as most of the correspondence took place by email as the complainant temporarily resided in Poland. At the meeting, the parties discussed the complainant’s return to work. The respondent’s letter of the 26th February 2013 noted that they agreed to keep the complainant’s job open until at least July 2013. There was later correspondence and on the 16th August 2013, the complainant stated “Unfortunately my situation is rather difficult, as things stand I would like take up job as soon as possible, perhaps with taking into account my disability if it would be obviously possible. I’m disabled and will be far less likely to have a job [with] other company than the [respondent].” The respondent’s letter of dismissal of the 6th September 2013 states “We note from your letter that you are not in a position to give a date of a likely return to work. We appreciate that you are awaiting surgery which has been delayed due to other medical complications. We are sorry to hear that your condition has not improved and that you remain unavailable to return to work. You have been on sick leave since October 2010 and unfortunately we cannot hold your job open any longer. Please accept this letter as notice that your employment with this company will terminate on 04.10.2013”

4.10     In assessing whether the respondent discharged its obligations in respect of reasonable accommodation, I note the setting of the complainant’s workplace. They were construction sites, where the respondent was a subcontractor. I note that the Safety, Health and Welfare at Work (Construction) Regulations, 2013 (S.I.291/2013) set out 100 or so obligations in relation to construction sites (including facilitating persons with disabilities). I note the extent of the complainant’s issues with his shoulders, back and neck. This is set out in the medical certificates and reports. The clear evidence of the respondent was that construction sites are busy and dangerous places. The work involves carrying out the tasks associated with roofing, most often at height. I note that some of the options put forward by the complainant were incidental (the teleporter) or occasional (the zinc work). The point articulated by the Health & Safety Officer was that any role on site required the complainant to be certified as fit. I agree with this submission, including for a part-time role or a trial. The role was a physical role, and involved physical exertion on a construction site. The work was not performed in an office or a factory; settings where the work environment does not change. Alternatives, such as flashings or the insulation boards, required physical exertion, for which the complainant was not certified as fit. The respondent is correct in its submission that the creation of an office-based role goes beyond reasonable accommodation.

4.11     I appreciate that the complainant was in a difficult position of having the above physical injuries, and his treatment was hindered by an underlying health condition. He could not, however, be certified as fit to work on a construction site. I note the certification provided by the Polish Disability Tribunal and that this was not directed at work in construction. I have set out the extensive correspondence exchanged by the parties and the long period of sick leave. I note the significance of the meeting of February 2013 and the respondent’s decision to leave the complainant’s job open. This amounts to fair consideration of the complainant’s input into the process of assessing reasonable accommodation. I note the evidence relating to other staff who were out sick (including arising from workplace incidents). What differentiates their situations from that of the complainant is the length of time the complainant was, unfortunately, out for and the absence of any return to work date. However expansive an interpretation one might give to the obligations imposed by section 16 of the Employment Equality Act, I find, for the reasons set out above, that the respondent has discharged these obligations. It follows from this finding that the complainant’s dismissal was not discriminatory.

4.12     The last issue to address is the complaint of victimisation. In Department of Defence v Barrett (EDA 1017), the Labour Court held as follows in respect of victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment” 

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant submits that the respondent victimised him for raising issues about health and safety and his disability. The complainant has not pointed to any act by the respondent that caused him adverse treatment and was due to him making a protected act. The health and safety issues are within the ambit of the penalisation provision of the Safety, Health and Welfare at Work Act. The issue of whether the respondent discharged its obligation to provide reasonable accommodation is addressed above. Even if the respondent lost this aspect of the case, this would not be victimisation.

4.13     During the course of the complainant’s sick leave (and against the background of personal injury proceedings), there was considerable correspondence about the complainant’s social welfare entitlements. There was also correspondence addressed to the Department of Social Protection. This was discussed in detail at the hearing, where I commented that the respondent’s letter to the Department of 1st March 2013 was ill-judged. The letter was particularly misconceived when it suggested that the complainant needed the Department’s permission to move to Poland or was remiss in claiming a benefit while residing there. I appreciate how this vexed the complainant. The complainant was entirely upfront with the Department about his temporary residence in Poland and was perfectly entitled under EU social security law to claim a benefit while there. As to whether the letter amounted to victimisation, I note that the complainant suffered no adverse treatment; he did not lose his social welfare entitlement. I also find that the Health & Safety Officer’s intervention was made in good faith, even if incorrect. I conclude that the letter of the 1st March 2013 was not an act of victimisation.

5. Decision:

In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subjected to discrimination or harassment on either the age or disability ground. I hold that the respondent complied with its obligations in section 16 of the Employment Equality Act in respect of the complainant’s disability. I find that the complainant’s dismissal was not discriminatory. I find that the complainant was not subjected to victimisation for making a protected act within the ambit of the Acts.

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

7th September, 2018