FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : EXCELLENCE LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES) - AND - ADAM HERZYK (REPRESENTED BY MR DIARMUID MURPHY BL INSTRUCTED BY ROSTRA SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No: DEC-E2016-020.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 27 October 2017. The following is the determination of the Court:
DETERMINATION:
Background to the Appeal
This is Mr Herzyk’s (‘the Complainant’) appeal from a decision of an Equality Officer/Adjudication Officer (DEC-E2016-020) dated 5 February 2016. The notice of appeal was received by the Court on 11 February 2016.
The Complainant’s case is that his former employer, Excellent Limited, (‘the Respondent’), discriminated against him on the disability ground by its failure to make appropriate reasonable accommodation for his disability and that it dismissed him in a discriminatory manner contrary to the provisions of the Employment Equality Act 1998 (‘the Act’). The Equality Officer/Adjudication Officer found that neither of the complaints was well-founded and that the Respondent had made reasonable accommodation for the Complainant in so far as this was within its means having regard to the Complainant’s reticence to disclose his medical records.
The Court heard the appeal in Dublin on 27 October 2017. The Court heard evidence from the Complainant and from Mr Paul Ivory and Mr Neil Curley, both directors of the Respondent company.
History of Employment Relationship
The Complainant was employed by the Respondent as a warehouse operative from April 2006 until his employment terminated on 20 February 2014. His work involved picking orders from racks in the warehouse and placing them on pallets. This often required him to lift items weighing up to 20kg. He suffered from the effects of a back injury which he says occurred in or around April 2011 and submitted that he was unable - as a consequence of that injury - to do heavy manual work and was advised to avoid lifting heavy items. He submitted medical certificates to this effect in 2011 and 2013. He was absent from work on certified leave from 7 December 2012 until the termination of his employment.
The Complainant submits that the Respondent did not engage with him in relation to the possibility of making reasonable accommodation for his disability. In his view the Respondent did not enquire about his skills and/or his educational attainments nor did it propose an alternative role for him within the business. He himself, he submitted, had proposed that he would be able to work in the Respondent’s hardware department as he had experience of working in that department previously and believed the work there to be lighter in nature than that in the warehouse. He did so, for example, by email dated 10 November 2013 and addressed to Mr Ivory in which he wrote:
- “During my last appointment with my GP I was informed that I am able to go back to work from the 15thof November 2013, but I am not able to fulfil all of my previous responsibilities. It means heavy lifting is not allowed, light duties only.
I would like to suggest, that the most suitable position for me would be the one at the hardware department, where I have worked before and I could do most of the jobs needed.
I you have any other options, positions, jobs I will be more than glad to take them.
I am open to new experiences and learning.”
In the midst of this exchange between the parties, the Complainant again contacted Mr Ivory by email on 13 November 2013 to advise that his illness benefit had been discontinued by the Department of Social Protection with effect from 28 October 2013 and requesting that the Respondent place him on lay-off so that he could apply to the Department for “some money”. He attached a copy of Form RP9. The Respondent replied by letter dated 18 November 2013 and advised him, inter alia, that a lay-off situation did not exist as there was work available.
The Complainant produced another medical certificate from his GP dated 2 December 2013 advising that he would be unable to attend work between 3 and 16 December 2013 due to back injury. The Respondent wrote on 11 December 2013 inviting the Complainant to “a medical capability meeting” to be held at its offices on 19 December 2013 to discuss:
•[His] absence from work due to ill health•The enclosed copy of a medical report from the Occupational Health Practitioner
•The likelihood of [his] returning to [his] job/work in the near future
•Whether there are any reasonable adjustments that can be made to [his] job or in the workplace that would facilitate a return to work
•Whether there is any alternative employment available that would be suitable for [him].
It appears that the Complainant had been examined, at the Respondent’s request, by Mr Frank McManus, a consultant orthopaedic surgeon.
The Complainant advised he was unable to attend the meeting proposed by the Respondent for 19 December 2013. The meeting was, therefore, rescheduled for 7 January 2014. In his letter of 13 December 2013 inviting the Complainant to the rescheduled “medical capability meeting”, Mr Ivory stated:
- “No decision will be taken at the meeting. You will be informed as soon as all the information has been considered and a decision taken. I feel it only fair to advise you that although we wish to support you as far as possible, if no return date can be established and no adjustments or alternatives agreed, then your employment may terminated on grounds of ill health.”
- “The company had continually met with you and had continually tried to gain further clarity on your condition; unfortunately you will not grant the company any access for us to obtain the information that is required on your medical condition. In the absence of this information and your continued refusal to all the company access, there was no other alternative but to bring the matter to a conclusion based on the information that we had available to hand. The decision to terminate your employment on the grounds of ill health is founded (sic) and your appeal is denied.”
The Law
Section 16 of the Act, in relevant part, provides as follows in relation to an employer’s obligation to make reasonable accommodation for an employee/prospective employee with a disability:
- “16.—(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.
- (a) the provision by an employment agency of services or guidance to an individual
in relation to employment in a position,
(b) the offer to an individual of a course of vocational training or any related
facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a
profession, vocation or occupation controlled by a regulatory body,
subsection (1)shall apply, with any necessary modification, as it applies to the
recruitment of an individual to a position.
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.
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.
‘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 ofparagraph (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…..”
- (a) will not undertake (or, as the case may be, continue to undertake) the duties
- “54. It follows from these citations that section 16 does not require any special construction because interpretation of its meaning is available in the ordinary meaning of its words. The section does envisage some distribution of tasks, just as it also specifies time adjustments, asHK Denmarkfound was the case with the Directive. It is correct to infer that the requirement to be able to perform all the tasks of the position means the tasks after adjustment or distribution. Adjustment to access and workplace and hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16 (1) must be respected. The section does not in its terms make the process of enquiry a ground of default, neither does a failure to consult constitute breach of the duty imposed.”
The unavoidable conclusion to be drawn from the Complainant’s own submissions to the Court is that he was, and remained as of the date of his dismissal, unfit to perform the core duties of the job for which he was employed. In the circumstances, and having regard to the clear interpretation placed on section 16 of the Act by the Court of Appeal inNano Nagle School v Marie Daly[2018] IECA 11, the Respondent was not under any obligation to provide the Complainant with an alternative job in another department or to remove the core duties of the job for which he had been employed such as to substantially alter the character of that job.
The correspondence opened to the Court amply demonstrates the Respondent’s bone fide efforts to engage with the Complainant in relation to facilitating his return to work and to make, where possible, reasonable accommodation for his disability, as required under the Act. However, the Complainant has failed to demonstrate a corresponding willingness on his part to engage with his former employer in relation to these matters. In the circumstances, the Court finds that the Respondent has discharged its obligations to the Complainant under section 16 of the Act and the appeal fails in all respects.
The decision of the Equality Officer is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
23 February 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.