FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : OCCIPITAL LIMITED (REPRESENTED BY TIERNAN LOWEY B.L., INSTRUCTED BY DWF, SOLICITORS) - AND - JOSEPH HAYES (REPRESENTED BY LARS ASMUSSEN B.L., INSTRUCTED BY SEAN ORMONDE & CO, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No: Dec-E2017-049.
BACKGROUND:
2. The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on 3 July 2017. Two Labour Court hearings took place on 22 November and 14 December 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Joseph Hayes against the decision of an Adjudication Officer in a claim that his former employer Occipital Limited had failed to provide appropriate measures to accommodate the Complainant's disability and had discriminatorily constructively dismissed him on the ground of disability contrary to the Employment Equality Acts 1998 to 2015 (“the Acts”). TheAdjudication Officer found that the complaint was not well founded and dismissed the complaints under the Acts. A number of related complaints were not upheld by theAdjudication Officer and were not appealed to this Court.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Joseph Hayes will be referred to as “the Complainant” and Occipital Limited will be referred to as “the Respondent”.
The Complainant referred his claim under the Acts to the Director of the Equality Tribunal on 18th March 2015, a hearing was held on 12th April 2017 and the Equality/Adjudication Officer’s Decision was issued on 15th June 2017.
The Court was informed that in addition to the complaints made pursuant to employment equality legislation, the Complainant also instituted a constructive dismissal claim pursuant to the Unfair Dismissals Acts and a personal injuries claim. The Unfair Dismissals case was withdrawn on the day of the hearing before the Employment Appeals Tribunal and the personal injuries claim, which related to a back injury sustained at work, was settled by the parties in advance of any hearing with no admission of liability.
Background
The Complainant was employed by the Respondent initially as a General Operative at its Ballymun site. In April 2012, the Complainant was promoted to the positions of De-kitting Supervisor at it logistics and outsourcing business, located at its customer base in Donabate. By letter dated 30th December 2014, the Complainant tendered his resignation to take effect from 9th January 2015.
De-kitting involves the loading and unloading of heavy goods vehicles with cages which are on wheels and which are then moved from place to place. The Court was told it was a physically demanding role where a number of cages are nested together before their removal from the vehicle. Each cage weighs approximately 42 kilos. The Complainant had a supervisory role which involved much of his time pushing and pulling cages and being on his feet for extended periods.
The Complainant suffered an injury at work on 2nd July 2012, which necessitated a number of extended periods of absence over the following years, In or around October 2012, the Complainant was also diagnosed with early onset Multiple Sclerosis.
On 21st September 2013, the Complainant reported a second workplace injury that was alleged to have occurred on that date when he injured his back while pulling cages off a trailer.
The Complainant was absent from work for the following periods:-
- 10th February 2013 to 15th April 2013;
4th June 2013 to 11th June 2013;
13th July 2013 to 27th August 2013;
20th October 2013 to 11th November 2014.
- "I am inquiring about my medical with the company doctor. I have been given the all clear to return and am only waiting on a date. I would be grateful if you would give this your immediate attention as 1 am looking forward to getting back to normal life as soon as possible. "
In response, Mr Boylan stated:'I have requested a medical appointment with the company doctor last Friday and again this morning I am awaiting for them to give a suitable appointment time for you. '
By email dated 23rd October 2014, the Complainant stated:
- "Sorry to bother you again, but could you get on to your doctor again about an appointment as I am anxious to get back to work. As from tomorrow I am being taken off illness payments as I have been deemed fit for work. "
On29th October 2014, the Complainant attended Dr Deirdre Gleeson, Occupational Health Specialist of the Medwise Occupational Health Clinic,for the purposes of an occupational assessment. By medical report dated 3rd November 2014, Dr Gleeson noted that the Complainant had made a:"remarkable recovery",and that:"his symptoms of back pain, hip pain and neck pain have completely resolved".Dr Gleeson noted that the Complainant's GP and physiotherapist had declared him fit for work before making the following recommendation:
- "Joe has recovered from back pain. It appears his symptoms were
multifactorial in aetiology. There is some degeneration in the spine and joints, which is age-related and any soft tissue injuries have healed over time and with the intervention of rehabilitation physiotherapy. There is no evidence of serious underlying ongoing musculoskeletal or spinal disease today. I find Joe to be in excellent physical and mental health.
In my opinion Joe is fit to return to full normal duties without restriction. He is fit to perform any manual work, providing he adheres to safe work practices, including good manual handling and ergonomic standards.
I have not arranged to review Joe again but would be happy todosoat your request. I do not anticipate any further health problems. "
Position of the Parties
Summary of the Complainant’s Case
Mr Lars Asmussen, B.L., instructed by Séan Ormonde & Co, Solicitors on behalf of the Complainant claimed that the Complainant was constructively dismissed by the Respondent on the grounds of his disability and that the Respondent had failed to provide appropriate measuresto accommodate him contrary to the Acts.
Mr Asmussen stated that following his accident the Complainant had a number of absences from work due to difficulties arising from his injury. He said that these absences arose due to a failure on the part of the Respondent to provide reasonable accommodation to the Complainant in failing to facilitate his return to work and / or his return to work on lighter duties.
In August 2012, the Complainant raised a grievance with Mr David O’Flaherty, Service Delivery Manager, regarding the workplace injury and his wish to be accommodated through a transfer. At a meeting with Mr O’Flaherty in September 2012 the Complainant stated that due to the injury that he had suffered and the ongoing damage that performing de-kitting duties was causing to his back, he wished to step down from his position as De-kitting Supervisor and be returned to his post as Hygiene Supervisor at the Ballymun site. In response, Mr O’Flaherty refused his request to transfer back to Ballymun as a Hygiene Supervisor and told him that if he stepped down from his role as De-kitting Supervisor his salary would be reduced to minimum wage; and that if he was not up to the job, he could leave the Respondent’s employment.
On 6th December 2012, the Complainant attended an occupational health review with Dr Jacqueline Furlong McCarthy, Occupational Health Physician of the Meridian Clinic. By letter dated 6th December 2012, Dr Furlong McCarthy wrote to Mr O’Flaherty outlining her opinion on the fitness of the Complainant to return to work, it read as follows: -
- “Following my consultation today I have formed the opinion that Mr Hayes is currently fit to return to work. However, given the nature of his symptoms it is possible that Mr Hayes may have one of the relapsing illnesses such as MS. This will need to be further evaluated. While he is currently fit to work, I cannot state without further evaluation of his intended investigations that he will be fit to attend for all duties on a regular long term basis.”
Mr Asmussen said that the Complainant returned to work as a De-kitting Supervisor shortly thereafter without any alterations or accommodations being made to his role. However, from 10th February 2013 to 15th April 2013 the Complainant was absent again due to difficulties arising from his injury. By email dated 8th April 2013, Mr O’Flaherty wrote to the Meridian Clinic arranging an appointment for an occupational assessment for the Complainant. Mr O’Flaherty attached a form describing the roles allegedly available within the Respondent and the manner in which all were allegedly physically demanding roles requiring performance of some tasks that were physical in various manner. Mr Asmussen submitted that the Respondent had failed to consider whether any such problematic tasks could be redistributed from the Complainant’s portfolio; whether shift or break lengths could be altered; or whether the workplace environment could be altered or further equipment provided in order to accommodate the Complainant’s disability. Further, he contended that the Respondent failed to inform or consult with the Complainant regarding this alleged assessment. The Complainant had his assessment the following day. By letter dated 11th April 2013, Dr Furlong McCarthy wrote to Mr O’Flaherty outlined that in her opinion the Complainant was fit to return to work, however, until a definitive diagnosis was made she said that a prognosis for relapse could not be given. The Complainant returned to work on 15th April 2013.
Mr Asmussen said that the Complainant was absent again from 4th June 2013 to 11th June 2013, on his return he attended a Return to Work Meeting and was asked if he was fully fit to work and to perform all of his duties. The Complainant responded by stating that he was: “not fit to do normal de-kitting duty”. Mr Asmussen stated that despite providing a report from his treating GP the Complainant was asked at if he understood that “future occasions of absence may lead to investigation up to dismissal”.
The Complainant had a further absence from 13th July 2013 to 27th August 2013. On 23rd July 2013, he attended an occupational assessment as to his fitness to return to work with Dr Deirdre Gleeson, Occupational Health Specialist of Medwise Occupational Health Clinic. On 26th July 2013, Dr Gleeson submitted a Medical Report in which she noted and concurred with the Complainant’s treating doctor’s view that the Complainant required an MRI scan to determine an appropriate diagnosis and treatment programme. Regarding the Complainant’s fitness to work, Dr Gleeson recommended as follows:-
- “Joseph reports intolerance of normal work activity and is likely to complain of increased symptoms if he returns to the role of dekitting supervisor. It is reasonable to accept his claim that he is unfit for this role until the results of the MRI scans are available.
In my opinion Joseph is currently fit for work of a light physical demand and for sedentary work. He is fit for work that allows him to sit, stand and mobilise. He is fit to safely mobilise around the work place. He is fit to lift product weighing 4.5kg on a frequent basis and 9.1kg on an occasional basis. He is fit for administrative and managerial tasks. I understand that modified duties are not available; therefore Joseph should remain on sick leave.
I would like to review Joseph with the results of the MRI scan to give further advice regarding his fitness to work. Please arrange for a follow up appointment in due course.”
Mr Asmussen stated that despite the contents of this Medical Report and Dr Gleeson’s opinion, no alterations or accommodations were made to the Complainant’s working conditions. The Respondent failed to furnish this Medical Report to the Complainant. The Respondent failed to carry out any assessment as to whether Dr Gleeson’s opinions could be implemented. The Respondent failed to organise a meeting with the Complainant to discuss Dr Gleeson’s opinions or to allow the Complainant to make an input into any considerations being made.
Mr Asmussen said that, the Complainant asked Mr David Boylan, who replaced Mr O’Flaherty as Service Delivery Manager, if he could do lighter work as a supervisor. He said that Mr Boylan refused this request out of hand without any consideration. The Complainant returned to work on 27th August 2013.
By letter dated 18th September 2013, the Complainant wrote to Mr David Boylan and Mr David O’Sullivan stating as follows :-
- “I wish to inform you that I intend to step down as dekit supervisor on medical advice from my Hospital Consultant Dr Paul O’Connell. It will cause irreparable damage to my spinal cord if I continue to dekit at the rate I have been. I request that I be transferred to hygiene duties in Ballymun or Donabate as I want to remain in the company. I have invested nearly three years to Occipital and want to continue to grow with them but maybe in a different role.”
Mr Asmussen said that the Respondent refused to consider this request and did not facilitate the Complainant in the change of his role. Despite the contents of this letter and the Complainant’s request that he be transferred, no alterations or accommodations were made to the Complainant’s working conditions. The Respondent failed to carry out any assessment as to whether this request could be implemented. The Respondent failed to organise a meeting with the Complainant to discuss the Complainant’s stepping-down or request for a transfer or to allow the Complainant to make representations as to his accommodation regarding same.
On 21st September 2013, while at work, the Complainant suffered a further injury to his back while pulling cages off a trailer.
By letter dated 11th October 2013, the Complainant wrote to Mr Boylan, stating: -
- ‘I am writing to you to allow me to return to work either in Ballymun or Donabate with reasonable accommodation to my disability I incurred while working on dekitting in July 2012.’
Mr Asmussen said that the Respondent failed to reply to this letter or consider any accommodations. The Complainant was then absent from work from 20th October 2013 to 11th November 2014 on the grounds that he was under medical advice that he could not fulfil the role of De-kitting supervisor and it was alleged that there was no suitable alternative employment available to him.
By letter dated 28th April 2014, Dr Gleeson wrote to the Respondent stating: -
- “My opinion remains that joseph is fit to return to work of a light physical demand and may be fit to increase his work demand further as part of a rehabilitation program.”
By letter dated 16th October 2014, Ms Caroline Treanor, Clinical Specialist Physiotherapist of Beaumont Hospital, wrote to the Respondent, stating: -
- “In recent weeks he has significantly increased his level of physical activity and is now in a position to return to work to full duties.”
On 29th October 2014, the Complainant attended Dr Gleeson for the purposes of an occupational assessment. By medical report dated 3rd November 2014, Dr Gleeson noted that the Complainant had made a“remarkable recovery”, and that:“his symptoms of back pain, hip pain and neck pain have completely resolved”.Dr Gleeson stated the Complainant was fit to return to full duties without restriction. He returned to work on 11th November 2014.
Mr Asmussen described the events of 15th to 18th December 2014. He said that on the 15th December 2014 the Complainant had a problem with his car and was required to leave it with his mechanic for two days. The Complainant contacted his floor supervisor, Mr Trevor Deegan, and informed him that he had agreed to swap shifts with a co-worker. Mr Deegan was satisfied with the arrangement and requested to be informed when he was back in work. When the Complainant’ car was not ready on 16th December 2014 he telephoned Mr Deegan who said that this was not a problem and that he would let Mr Boylan know.
On 17th December 2014, the Complainant informed Mr Deegan that he would be in later than his rostered shift time of 2.00pm, due to his car difficulties and was given permission to do so. When the Complainant rang Mr Deegan at 3.30 pm to inform him he was on his way to work. Mr Deegan asked him to report to his office for a return to work meeting. The Complainant queried the purpose of this as such meetings were usually for employees returning to work from sick leave, however, Mr Deegan refused to answer. He was requested to complete a return to work form and asked what his GP had said. The Complainant told him that he did not attend a doctor, he said that he was out with a car problem and showed Mr Deegan a receipt from the garage. Mr Deegan stated that the Complainant was to be sent home and that he was required to see the company doctor before he would be allowed to return to work. The Complainant inquired as to why he needed to see the company doctor when his absence had not been caused by sickness. Mr Deegan said that when the Complainant was on phone to him the Complainant had said that he was going to see a doctor about a back problem. Mr Asmussen said that the Complainant maintained in the strongest terms that he never said anything to Mr Deegan or Mr Boylan about attending a doctor. Mr Boylan then attended the meeting and said that Mr Deegan had told him that the Complainant was seeing the doctor with back problems and that this was why the Complainant had been out of work. The Complainant stated that that was untrue and showed him the receipt from the garage. Mr Boylan stated that his decision was final and that he would talk to the company doctor to arrange for an assessment. The Complainant was sent home for rest of day.
Mr Asmussen described the events of the following day. Mr Boylan contacted the Complainant and stated that if he got a doctor’s note from his own GP as to his fitness to return to work, it would be accepted and the Complainant would be allowed to return to work. The Complainant contacted his GP and asked for such a note for work, however as the GP had not given him a sick certificate in the first place he could not provide him with a return to work note. He said that if the Respondent rang him, he would explain the situation to them. Later, Mr Boylan contacted the Complainant and stated that the Complainant could return to work if he signed a return to work form. The Complainant stated that he would not sign a return to work form if it stated anything about a back injury or doctor’s appointments. The Complainant remained out of work for 4 days until Mr Boylan finally accepted that the Complainant was not ill and he was allowed to return to work. Mr Asmussen said that at the time the Complainant was not paid for the days he was unilaterally and unfairly kept out of work. Such payment was made at a later stage. The Complainant returned to work and signed a note saying he was happy to return to his position as De-kitting supervisor.
Mr Asmussen outlined the events which lead to the Complainant’s claimed constructive dismissal. He said that in the days that followed the Complainant was ignored by both Mr Deegan and Mr Boylan. They did not salute him, talk to him or respond to his requests for a copy of the minutes of the meeting. As the days passed, Mr Deegan kept asking the Complainant at the end of shift as to his health and his back condition. The Complainant felt as if he was being watched and being pushed out of his job. The Complainant maintained that no other employee was forced to attend meetings of this kind, to complete return to work forms or to attend medical practitioners for occupational assessment before being allowed to return to work, when their absences were not linked to their health, disability or condition.
By letter dated 30 December 2014, the Complainant wrote to the Respondent, advising them that he was left with no choice but to resign his position because of the manner in which he had been discriminated against by the Respondent because of his health.
- The Definition of Disability
Mr Asmussen stated that the Complainant suffered from a disability within the meaning of section 2 of the Acts. At the relevant time covered by the cognisable period while the Complainant may have been certified as having made a remarkable recovery, and his symptoms of back pain, hip pain and neck pain had completely resolved, however, his claim of discrimination was grounded on the basis of his previous or imputed disability.
In support of his case, Mr Asmussen cited a number of authorities for the complaint of discrimination by the Respondent. He said that it has been established that the treatment of a Complainant following his return or attempted return from sick leave may carry weight in the determination of whether a Complainant was directly discriminated against on the ground of disability and relied upon the case ofAn Employee (Mr O v. An Employer (No. 2)[2005] ELR 132 where the Labour Court found that the employer had failed to treat the employee in a sympathetic manner upon his return to work from a psychiatric illness and was instead intent on making his working life difficult. On this basis, the Labour Court upheld the complainant’s claim for constructive dismissal, despite the complainant never having raised the Respondent’s grievance procedure.
- Reasonable Accommodation
In this regard, Mr Asmussen held that the Respondent had failed in its obligations and had failed to retain any records of its decisions regarding reasonable accommodation. He referred to the cases of the High Court, Labour Court and the Equality Officers who dealt with this issue;Humphries v. Westwood Fitness Club[2004] E.L.R. 296;Kennedy v. Stresslite Tanks LimitedDec-E2009-078;Mr O v. Industrial Waste Management Company[2014] 25 ELR 106;Nano Nagle School v. Daly[2015] IEHC 785);An Employee v. A Telecommunications CompanyDEC-E-2009-073.
Mr Asmussen contended that despite various medical practitioners, on a number of occasions stating that the Complainant was not fit for his role as De-kitting supervisor and was only fit for lighter duties, the only document the Respondent produced which makes any record of any enquiry vis-�-vis reasonable accommodation, was Mr O’Flaherty’s attachment document to an email sent to Meridan Clinic on 8th April 2013. This is the only document produced by the Respondent that give evidence of any discussion vis-�-vis reasonable accommodation.
- Constructive Discriminatory Dismissal
Mr Asmussen said that the tests for constructive dismissal in the context of claims for discrimination based on disability are the traditional contract and reasonableness tests. He citedAn Employer v. A Worker (Mr O)(No. 2)[EED0410], where it was held that a complainant had been constructively dismissed due to the treatment he experienced from the respondent when he returned to work following a period of sick leave due to a disability. In particular, the Labour Court found that the respondent had failed to treat the complainant in a sympathetic manner and was instead intent on making his working life difficult. Mr Asmussen said that in the decision it was crucial that the misconduct had been perpetrated by a person of high rank within the organisation who knew or ought to have known that their behaviour would have a negative effect on the health of the Complainant and the misconduct was perpetrated in a manner likely to destroy the relationship of mutual trust and confidence having regard to the complainant’s emotional and psychological vulnerability. He said that in that case, it was interesting that the complainant was not penalised for failing to invoke the Respondent’s grievance procedure.
He also citedFergal Reilly v. United Parcels Service CSTC Ireland LimitedDECE2013077, where the Equality Tribunal endorsed theMr Odecision in holding that a complainant had been discriminatorily constructively dismissed on the basis of disability discrimination, a failure to provide reasonable accommodation and a satisfaction of the reasonableness test.
Finally, Mr Asmussen submitted that applying either the reasonableness test or the contract test, the Complainant in the within case, was discriminatorily constructively dismissed due to the manner in which he was discriminated against by the Respondent and the manner in which the Respondent failed to provide him with reasonable accommodation.
Summary of The Respondent’s Position
Mr Tiernan Lowey, B.L., instructed by DWF Solicitors, on behalf of the Respondent submitted that the relevant period for consideration runs from 19th September 2014 to 18th March 2015, the date on which the Complainant's complaint was lodged with what was then the Equality Tribunal. Therefore, it submitted that any claims which pre-date 19th September 2014 are out of time.
At the material time of the Complainant's resignation, the medical advice provided to the Respondent on behalf of the Complainant stated that he had made a complete recoveryand was fully fit for work. Therefore, on the date the contract of employment ended the Complainant was not suffering from a disability for the purposes of the Acts. Consequently, the claim in respect of reasonable accommodation must of necessity relate to another time.
Without prejudice to the above preliminary objection, Mr Lowey said that the Respondent strongly denied the Complainant's claims and submitted that they were unmeritorious, misconceived and wholly without foundation. He maintained that the Complainant's contract of employment terminated as a result of a voluntary decision to resign from his employment for his own reasons. He told the Court that it is established company policy that after a period of certified absence, employees are required not only to attend a return to work interview but also to provide medical certification to confirm their fitness to work.
Mr Lowey said that at all material times, the Respondent had always sought to fully accommodate the Complainant's return to full duties. ln addition to a review of alternative roles, on each occasion the Respondent considered whether the Complainant's job as De-kitting Supervisor could be modified in any way that would meet the medical advice, it concluded that modification of the type necessary to meet with the medical advice was not possible. He said that the Complainant regularly expressed his view to the Respondent that his job was more suitable “for a younger man”.
Following a period of absence, in December 2012, a medical report confirmed that the Complainant was fit to return to work following an assessment of his medical condition. While there were no conditions attaching to such a return, the doctor could not state without further evaluation that the Complainant was fit to attend for all duties on a regular long term basis. Following a period of further absence, on or around April 2013, the Complainant sought to return to work. The Respondent made enquiries into the nature of roles that were available at the time. It was confirmed that all the roles required significant amounts of physical strain. This assessment was communicated to the Meridian Clinic to assist in the context of a medical assessment concerning the Complainant to take place on 9th April 2013. On 11th April 2013, the Respondent obtained a medical report which confirmed that the Complainant was fit to return to work duties. The report also stated that, until a definitive diagnosis was made, a prognosis for relapse could not be given. On 15th April 2013, the Complainant returned to work. As per company policy, he attended a return to work interview and confirmed that he was fully fit to work and to do all his contractual duties.
On or around this time, the Complainant asked to be provided with assistance in relation to weekend work. This represented the only occasion during the Complainant's entire employment that any request for such assistance was made by the Complainant. Without hesitation, the Respondent agreed to the Complainant's request and arranged for another member of staff to provide him weekend assistance to enable him to ease
back to his normal work duties.
Following a period of absence, on 11thJune 2013, the Respondent received a medical certificate from the Complainant's GP stating that the Complainant was fully fit to work. The Complainant confirmed that he had furnished the Respondent with a medical certificate to this effect but, notwithstanding same, suggested that he was not, in fact, fit to do normal dekitting duties. Then in July 2013 Medwise reported that the Complainant was fit only for work of a light physical demand and for sedentary work. The report concluded that in circumstances where such work was not available the Complainant should remain on sick leave pending the results of an MRI scan.
Mr Lowey said that the Respondent had undertaken to identify whether or not there existed any jobs that met the report's recommendation but was unable to identify anything suitable. This was communicated to the Complainant who continued on paid sick leave at this time.
By 27th August 2013, the Complainant confirmed as per his GP's certification that he was fit to return to work.It was agreed at this meeting that the Complainant would undergo necessary health and safety retraining. Yet within a couple of weeks, the
Complainant advised the Respondent that he intended to step down as de-kit supervisor on the advice of his consultant, Dr Paul O'Connell. However, no report from Dr O'Connell was furnished to the Respondent.
The Respondent considered the feasibility of the Complainant's request and conducted health risk assessments taking into account the relevant medical advice. Ultimately, the Respondent concluded that there was no suitable role available at that time and that the role specifically identified by the Complainant (Hygiene Supervisor) had in fact physical demands commensurate with his existing role. On 21st September 2013, the Complainant reported a second workplace injury.
By email dated 2nd October 2013, Mr Boylan, wrote to Medwise expressing his view that he did not think that there was light work available at the time and expressing his concerns that by permitting him to return to work the Respondent could be complicit in aggravating any existing injury of the Complainant. Mr Boylan requested a full assessment of the Complainant in relation to the duties that were available at the time. In this regard, Mr Boylan attached a document referring to the duties available at the time.
On or around 5th October 2013, Mr I.Y. Sharif, consultant orthopaedic surgeon carried out an assessment of the Complainant which found that he was not able to do the heavy work he had doing before and he recommended an MRI scan.
Mr Lowey referred to a letter dated 11th October 2013 from the Complainant where he again sought to be returned to work in either Ballymun or Donabate. The Respondent again considered the feasibility of his request and concluded that there was no suitable role available at that time.
Following another period of absence, in April 2014, the Respondent received a further medical report which providedthat the Complainant was only fit for work on light duties. Once again, following a review of the roles available, the Respondent concluded that there was nothing suitable at that time.
By letter dated 16th October 2014, Ms Caroline Treanor, Clinical Specialist
Physiotherapist in Beaumont Hospital, confirmed that the Complainant had"made excellent progress with rehabilitation and reports a complete resolution of his symptoms". The Complainant sought to be returned to work with immediate effect. The Respondent sought confirmation from Dr Gleeson on his fitness to return to work and given his absence, to arrange for retraining. By a report dated 3rd November 2014, Dr Gleeson confirmed that the Complainant was "fit to return to full normal duties without restriction”. The Complainant attended a series of retraining classes and duly returned to work as De-kitting Supervisor.
Mr Lowey stated that on 18th December 2014, following an absence of a few days, at a return to work meeting the Complainant stated that he had lied about his back being the cause of his absence and now said that it was due to car problems and advised Mr Deegan that he was not going to jeopardise his health. ln a further meeting on that same day the Complainant confirmed that he was suffering from pins and needles in his arms and legs and that he was not physically able for the job in the long term. The Complainant made reference to the job being more suitable for a younger man. It was agreed that Mr Boylan would speak with Dr Gleeson as soon as possible. Subsequently, at another return to work meeting on 23rd December 2014, the Complainant stated that he was fully fit to return to complete his daily duties and that he was 100 per cent happy to act as de-kitting supervisor. The Complainant duly returned to work in his role.
Mr Lowey disputed the Complainant’s contention that he was over-monitored on his return to work in November 2014. He said that any enquiries made regarding the Complainant’s health were in the nature of care and to facilitate his return to work, taking into account his long period of absence. However, by letter dated 30th December 2012, the Complainant tendered his resignation identifying his proposed departure date as the 9th January 2015. The Complainant made reference to the Respondent's alleged breach of contract to support his decision to resign. The Complainant referred to
"undue and harsh treatment" on the 18th December 2014 when the Respondent had refused to allow him to return to start work without medical certification concerning his fitness.
On 8th January 2015, at a final meeting with the Complainant, the Respondent confirmed its regret that he had decided to resign. The Complainant expressed regret that it had come to this and reiterated his view that his role was more suitable for a younger man and he was not prepared to put his health in jeopardy.
Mr Lowey said that as the Complainant had made a claim concerning an alleged injury to his back, it would have been wholly irresponsible for the Respondent if it had not raised a doubt about his fitness to work and thereby requested him to obtain medical certification to prove his fitness for work.
Mr Lowey said that at no stage did the Complainant seek to invoke the Respondent's grievance procedure. His decision to resign from his employment was made without first seeking to have the matter dealt with in accordance with the Respondent's grievance procedures.
The Complainant’s Evidence
The Complainant stated that on the commencement of this employment he had not received a contract of employment of a copy of the Company Handbook, which included a Grievance Procedure. He said that it was November 2014 before he was presented with a contract of employment to sign, however, as it referred to his job title as “General operative” he refused to sign it and was not presented with a revised one.
He said that he raised a grievance with Mr David O’Sullivan, his line manager, about the difficulties in carrying out his role due to his disability and he sought to be transferred to the role of Hygiene duties in Ballymun.
He said that on his return to work following his accident in July 2012, he also raised the issue with Mr David O’Flaherty, Service Delivery Manager between 2012 and 2013, who told him that nothing could be done about it as there was no Hygiene job vacancy in Ballymun and no vacancy that did not entail physical work. He said that there was no discussion or meeting with management about possible tasks/roles that he might be able to undertake due to his disability following his injury. He said that at a return to work meeting on 11thJune 2013 he informed management that he was not fit to do normal De-kitting duties, as recorded in its “Return to Work” form.
The Complainant was questioned about a Medwise Occupational Health assessment which was carried out on him on 23rd July 2013. The assessment report stated that he was currently fit for work of a light physical demand and for sedentary work. The physician, Dr Deirdre Gleeson, said that it was her understanding that modified duties were not available for him, therefore he should remain on sick leave. Furthermore, Dr Gleeson stated that she wished to review him when the results of an MRI scan were available to give further advice regarding his fitness for work. The Complainant told the Court that he was not on notice of any accommodation being considered for him, that the report was never discussed with him. He said that to the best of his recollection, after he got the report, he sought a meeting with Mr David Boylan.
The Complainant told the Court that he wrote a letter to both Mr Boylan and Mr O’Sullivan on 13th September 2013 (copy supplied to the Court), asking to be transferred to Hygiene duties in Ballymun as he had received advice from his Consultant that to continue in his current role could do irreparable damage to his spinal cord. He said that he got no response to the letter. He said that shortly afterwards he had a second accident at work.
He wrote again to Mr Boylan on 11th October 2013 2013 (copy supplied to the Court), seeking to return to work as he was no longer certified ill and was no longer on Social Welfare disability benefits.
The Complainant was questioned about a letter from Dr Gleeson to Mr Boylan dated
28thApril 2014 which stated that he was fit to return to light physical duties and recommended that he be referred for an occupational health review. Dr Gleeson asks Mr Boylan to confirm the options for returning to work to modified duties on a long and short term basis. The Complainant said that he had not seen this letter and was not aware of its existence until the hearing before the Adjudication Officer. He said that no assessment was carried out as recommended in the letter.
The Complainant said that following intensive physiotherapy and rehabilitation at Beaumont Hospital, he was deemed fit to return to his full duties by both his physiotherapist based in Beaumont Hospital on 16th October 2014 and by Medwise (Dr Gleeson) on 29th October 2014, who stated that he was fit to perform any manual work, providing he adhered to safe work practices, including good manual handling and ergonomic standards. He said that when he returned to work on 11th November 2014 he was treated differently by management and his colleagues. He said that management did not speak to him.
The Complainant gave evidence of the events of 15thto 18th December 2014 when he said that due to car trouble he required time off which he cleared with Mr Trevor Deegan, his Supervisor. However, he said that and when he enquired about his roster, he was informed that he needed to attend a return to work meeting and was being sent to the company doctor for an assessment of his fitness to return. He disputed this as he said that he had not been out ill, but had had car trouble. He sought a fitness to return to work certificate from his own doctor who refused to give him one as he had not diagnosed him as ill, the doctor offered to speak with management to explain the situation, it was at that point that management accepted his return to work, which was four days later. He was not permitted to work for the next four days for which he was not paid at the time. He said that the company subsequently paid him for these days the following week after he protested.
The Complainant was questioned about a “Return to Work” form completed by Mr Deegan and signed by him at a Return To Work meeting held with Mr Deegan at 4.30pm on 18th December 2014, which stated the following; -
“Problem with car, not with back, doctor has advised me long term; meantime ok; didn’t make an appointment.”
The form also stated: -
“Joe informs me that he is not going to jeopardise his health”
The Complainant disputed the contents of the form, he stated that the latter point was not on the form when he signed it.
At a meeting with Mr Boylan held at 5.03pm on the same day, 18th December 2014, the minutes of the meeting state as follows: -
- Next step: (David Boylan to speak ASAP with Dr Gleeson)
Mr Boylan had 2 concerns- A.Pins and needles in arm, legs.
B.Longevity of job, physically not able to do the job long term.Mr Hayes[The Complainant]:
“I know it’s a young man’s job, I’m physically not able for the job in the long term”
- A.Pins and needles in arm, legs.
The Complainant told the Court that this was a compete fabrication, that he never made the above comments and that he had never seen the minutes.
With regard to his resignation letter, the Complainant said that he wrote the letter on 30th December 2014, as he felt that he was being isolated in the workplace by management. He said that staff were making comments about his return to work after a long absence. He said that they referred to the person who was covering for him during his absence and were accusing him of forcing him out of his job. He said that they were saying things like that he had forced the man out of his job.
The Complainant said that at the time he was feeling ostracized, he was suffering from his nerves, he was unhappy in work and hated going to work and decided that he could not do it anymore. He said that he did not get to speak to Mr Boylan until the day he was leaving, when Mr Boylan held an exit interview with him. He said that the company had made no efforts following his resignation letter to address any of the concerns he raised in the letter.
Under cross examination the Complainant was asked if he knew where the Company Handbook, containing the grievance procedure, was available for inspection. He said that not until November 2014 was he aware that it was available in the Recoup Area of the Ballymun site. He said that he knew how to raise a grievance and had done so.
In response to questions concerning the efforts he made to raise his grievance with management, the Complainant said that he had raised his grievance with Mr O’Sullivan with HR in Flexscource, with Mr Boylan and with Mr O’Flaherty but to no avail.
The Complainant disputed the Respondent’s contention that when he contacted Mr Deegan in the period 15thto 18th December 2014, that he said the reason for his absence was related to his back and denied that he attributed the back problem with changing a tyre on his car.
The Complainant’s recollected a document outlining job descriptions for the various roles in the company, which the Respondent said was attached to an email to him from Mr O’Flaherty on 29th March 2013, following his request for same. The email stated“As you know all of these roles are of a manual nature and will involve lifting, bending, carrying pushing etc. Hopefully your physician will review and you get the green light to return.”The Complainant said he was not sure when he received it, however, he had requested it as part of a Medwise assessment and had passed it to his consultant in Beaumont Hospital. He said that at no point was there ever a meeting with management to discuss the roles/job descriptions.
The Complainant was asked to explain why on 11th June 2013 in a return to work interview following an absence did he state that he was not fit to do normal De-kitting duties when he had a certificate from his GP declaring him fit to return. He said that he knew the physicality of the job and he wanted it recorded that he was not fit to carry out that job. In doing so he was accused of usurping the views of his doctor as he did not have a report from his consultant on his fitness. He responded by saying that he could not afford the cost of getting such a report as he was on Social Welfare disability benefits at the time. He said that he wanted to get back to work and would have fully engaged with the company if given the opportunity to do so.
He accepted that the company paid for his MRI scan which took place in November 2013. Following the scan he undertook intensive physiotherapy which had very positive results making him eligible to return to work.
The Complainant denied that his absence between 15th and 18th December 2014 was in any way related to his health, but insisted that it was wholly related to his car problem and that he had requested and being given sanction to swap shifts as a result. He accused the Respondent of fabricating the story about it being related to his health. He disputed the Respondent’s assertion that he had chastised Mr Deegan for relaying the hurt back story to Mr Boylan. He said that when he signed the return to work minutes of the meeting held with Mr Deegan at 4.30pm on 18th December 2014 which stated
“Problem with car, not with back,”it had nothing to do with his back, meaning the problem was with the car and not with his back. He said that he had had no discussion with Mr Deegan about his back during the days in question.
When questioned about the Respondent’s letter to him in response to his resignation letter, when it states the respondent’s disappointment in denying it the opportunity to try to resolve any issues that he had with his employment and stating that he had never raised any issues/complaints, despite being in continuous contact and meeting management on numerous occasions in the months leading up to his resignation.
Evidence of Mr David O’Flaherty
Mr David O’Flaherty, On Site Service Delivery Manager, gave evidence on behalf of the Respondent. He was employed by the Respondent as the Complainant immediate manager from 2009 until mid-2013 when he was transferred to other operations within the company. He said that he had been involved in the Complainant’s induction process when he commenced employment and had requested his Supervisor to supply him with a copy of his contract of employment including the company Handbook. He said that the Company Handbook containing details of all company policies, including its Grievance and Disciplinary Procedures was also available for all employees in the Recoup Station, where it was regularly inspected by employees.
He said that following his accident, the Complainant was referred to Meridian who were supplied with details of all jobs within the company and a copy of which was forwarded to the Complainant on 29th March 2013. This document gave a breakdown of the various job descriptions for each job and outlined the tasks involved in each (hereinafter referred to as the PDF Document). These were positions which could have been made available to the Complainant if required.
The witness said that he had had a number of telephone calls with the Complainant following his accident and on a number of occasions he came into the warehouse. Mr O’Flaherty said that he was concerned at how the Complainant’s condition had deteriorated, however, he was anxious to give him details of the job roles and to get him back on the team. However, he said that he did not receive any response back from the Complainant on the PDF document and accepted that he did not seek such a response. He said that he was expecting the Complainant to come back to him to discuss the various roles but he had not done so.
Mr O’Flaherty said that the Complainant’s job as a De-kitting Operative was a very physical job that required a lot of pulling and pushing a number of cages weighing up to 42 kgs bunched together. He said he had spent time examining the various tasks involved in each of the roles to determine their physicality. He said that it was not possible to modify or redistribute some of the tasks involved to others. The various components of the jobs had been devised through ‘Standard Operating Procedures’ by its customer. Any change to working hours could not have altered the basic components of the jobs.
The only position which had a sedentary aspect to it was his own job as Manager of the area. Otherwise all jobs required a significant physical input. He said that it was a fast-paced environment. When questioned about the possibility of transferring the Complainant to another location, eg the Hygiene Operative position in Ballymun as requested by the Complainant, the witness said that it was at least as arduous and similarly demanded substantial physical efforts.
Mr O’Flaherty said that he had a number of discussions with the Complainant about the various roles, however, he accepted that he did not keep a record of such discussions, he said that they were informal, at a human level, the Complainant came into the warehouse and they had a chat.
Evidence of Mr David Boylan
Mr David Boylan, Service Delivery Manager, gave evidence on behalf of the Respondent. He said that he took over the role of managing the warehouse from Mr O’Flaherty around mid-2013. He had started in April 2013 and after a four to six-week lead in period Mr O’Flaherty had transferred to another location. He described the physical nature of the De-kitting role and said that the warehouse operations were determined by the its customer’s Podium Managers and was constantly moving. He said that the Complainant’s role comprised of approximately 5% administrative work, and the remainder was physically demanding.
Mr Boylan said that in determining the Complainant’s ability to return to work, he worked off the PDF Document devised by Mr O’Flaherty. He said that it was not possible to reduce the physical demands of the job and shorter hours would not have reduced the weight factor involved in the job. He said that the Complainant, and all other operatives, had undergone extensive training on manual handling/pulling/pushing techniques. Mr Boylan said that he was the only person on site who did not have a physical role.
Mr Boylan said the he liaised with Dr Gleeson, the occupational physician regarding the nature of the Complainant’s disability and discussed the physicality of the roles with her. When Dr Gleeson recommended that the Complainant needed to have an MRI he sought approval from HR to pay for it as the Complainant could not afford the costs. He said that the Complainant had had three scans which the Respondent paid for.
Mr Boylan said that after July 2013, when he took over as manager, he was in constant telephone contact with both the Complainant and Dr Gleeson. However, due to the numerous different symptoms the Complainant was suffering from it was difficult to assess his level of fitness. In October 2013, the PDF Document was sent to Meridan again for a further assessment and following the Complainant’s MRI scans Dr Gleeson recommended that the Complainant should attend an Orthopaedic Consultant and should remain on sick leave. At this point Dr Gleeson was suggesting that it would be six to twelve months before the Complainant would be fit to return to work.
Mr Boylan said that the Complainant attended the Orthopaedic Consultant who indicated that there were psycho-physical factors influencing his subjective complaints and concluded that he had developed chronic pain syndrome. In a letter dated 28th April 2014, Dr Gleeson outlined the Consultant’s prognosis and stated that both he and she recommended that the Complainant was fit for light manual duties. Mr Boylan said that when he received this letter he telephoned Dr Gleeson and explained that nothing had changed in the workplace, that the roles had not changes, and there were no roles suitable for the Complainant in his current state. He said that Dr Gleeson had said that as the Complainant was suffering from multifaceted problems it was impossible to determine what he could and could not do and she did not specify any modification to his role. Mr Boylan said that Dr Gleeson had been on site and was familiar with the various roles on site.
Mr Boylan said the Complainant visited the building with reports from his GP and they had had several conversations about alternative roles. He said that the first time the Complainant had identified an alternative role was in September 2013 when he mentioned the Hygiene job in Ballymun or Donabate, when he was deemed fit to return to light manual duties. Mr Boylan said that he considered this request, however, having assessed the Hygiene role, he was of the view that due to its physical demands, it was not suitable. Mr Boylan said that he spoke to Dr Gleeson, as he was concerned because the Complainant’s injuries had occurred at work, he was diagnosed with a number of problems and the Respondent could not seem to get a grip on what he could do.
He said that following his rapid improvement, in October 2014 when the Complainant was deemed fit to return to full duties by his physiotherapist, Mr Boylan said that he referred him to Dr Gleeson for an assessment. On 3 November 2014 Dr Gleeson deemed the Complainant was fit to return to his normal duties providing he adhered to safe work practices. Mr Boylan said that on receipt of this report, he contacted its customer to request further manual training for his return to work. The Complainant returned to his normal duties on 10th November 2014.
With regard to the second meeting held on 18 December 2014, Mr Boylan said the Mr Deegan has informed him that the Complainant has injured his back when he was changing a wheel on his car, that he had had pins and needles in his arm and legs. Mr Boylan said that the Complainant had also referred to the longevity of the job, that it was a young man’s job and that he was physically not able to do the job long term. Mr Boylan said that considering the Complainant’s back injuries, he advised him to attend a doctor. He said that these points were recorded in the minutes of the meeting but the Complainant refused to sign them, however, he was given a copy of them.
Mr Boylan said that the Complainant objected to attend a doctor to obtain a certificate deeming him fit to work, which he felt was necessary considering his medical history. Mr Boylan said that in the end he waived the requirement and he was permitted to return and did so on 23rd December 2014. He said that there were no complaints from the Complainant, he had numerous conversations with him and denied that the Complainant was ignored by the Respondent.
Mr Boylan said that he was most surprised when he received the Complainant’s letter of resignation and organised a meeting with him to seek his feedback. He said that at that meeting the Complainant used the words recorded in the record of the meeting when it reported that he said that the de-kitting aspect of his job was very much a young mans’ job; it was nice to work with the Respondent; give his best to its customer and that he was not going to run off to the Labour Court. Mr Boylan disputed that the Complainant’s contention that these minutes were fabricated.
Mr Boylan told the Court that following receipt of the resignation letter, he took advice from HR. He said that the Complainant had said that he was looking forward to coming back to work and he was surprised when this letter came out of the blue, he could not see the reason for it. Mr Boylan said that he sat down with the Complainant and had a long conversation with him and reminded him that he had only just returned after a long absence. He assured him that his colleagues were not talking about him but the Complainant had said that he was clear that he was resigning.
Evidence of Mr Treavor Deegan
Mr Treavor Deegan, Supervisor, gave evidence on behalf of the Respondent. He took over as the Complainant’s Supervisor on 13 April 2013. He was questioned about the company Handbook and said that it was held in the Recoup Section, everyone referred to it, it was being constantly quoted from.
Mr Deegan recalled the events of 16thDecember 2014, when he said that the Complainant telephoned him to say he was having trouble with the clutch in his car and needed to bring it to a mechanic. The Complainant explained that he would not be in work and had swapped his shift with a colleague. Mr Deegan said that the following day the Complainant telephoned to say that he had picked up the car and while driving into work he encountered a further problem with the car, and while attempting to fix it he had hurt his back, therefore he would be late in. Mr Deegan said that he reported this to Mr Boylan, who suggested a return to work meeting with the Complainant the following day.
At 4.30pm the following day Mr Deegan had the meeting with the Complainant at which he explained that when he hurt his back the previous day that he had pins and needles in his arm and legs. However, Mr Deegan said that the Complainant was perturbed that he had informed Mr Boylan that the Complainant had further back problems. At the meeting the Complainant said that the problem was with this car not his back. He also said that he was not going to jeopardise his health. When questioned about the authenticity of this statement, as the Complainant had refuted it, the witness was adamant that he recorded the minutes accurately.
Mr Deegan said that due to the injury concerns he decided to invite the Complainant to a further meeting with Mr Boylan present, this was held at 5.03pm that same evening. Mr Deegan said that at this second meeting Mr Boylan had two concerns regarding the Complainant. The first concerned the Complainant’s reference to the pins and needles in his arm and legs and the second concerned his reference to his physical ability to do the job long term. Mr Deegan said that in the meeting the Complainant said that he knew it was a young man’s job. Mr Deegan refuted the Complainant’s allegation that he had “doctored” the minutes of the meeting.
Findings of the Court
- Is the claim statute-barred?
On the other hand, Counsel for the Complainant submitted that the alleged discrimination extended over a period of time from the date of the Complainant’s injury in July 2012 until the date of his dismissal in January 2015. He submitted that as the events which predate 19th September 2014 were sufficiently connected to acts of discrimination occurring within the time period specified by the Acts as to be within the jurisdiction of the Court in the within appeal.
Section 77(5)(a) of the Acts provides: -
- (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77(6A) provides: -
- For the purposes of this section —
(a) discrimination or victimisation occurs—
- (i) if the act constituting it extends over a period, at the end of the period,
- (iii)[not relevant]
The application of these provisions was extensively considered by this Court in Determination EDA1124Ann Hurley v Co Cork VEC. It is appropriate to set out the relevant passage in that Determination in full: -
- Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] ILRM 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act (see the decision of the Court of Appeal for England and Wales in Robertson v Bexley Community Centre [2003] IRLR 434, at para 21).
Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. The circumstances in which a corresponding provision of UK law can come into play was considered by the Court of Appeal in Arthur v London Eastern Railway Ltd [2007] IRLR 58. Here the Court was concerned with a claim of victimisation in the form of a series of acts directed against the complainant, some inside the three-month time limit provided at s.48 of the UK Employment Rights Act 1996, and some outside that limit. In considering if the time-limit in respect of all of the acts relied upon stated to run from the last such act Mummery LJ said: -
- The provision in s.48(3) regarding a complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.
- The provision in s.48(3) regarding a complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
- “At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances (County Cork VEC v Hurley EDA1124 (Labour Court, 26th July, 2011)). Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist”.
The Court accepts that the claimed failure of the Respondent to accommodate the Complainant in respect to his disability can constitute a practice within the meaning ascribed to that notion by section 77(6A) of the Act inAnn Hurley v Co Cork VEC.Consequently, the cognisable period for this aspect of the within complaint extends up to the date on which the Complainant’s employment came to an end.
There is no dispute that the alleged constructive dismissal claim is within time and accordingly the Court will proceed to examine that complaint under the Acts. The Court must now consider the allegation that the Respondent failed to comply with its obligation to take appropriate measures to enable the Complainant to participate in employment in the period within the cognisable period, i.e. from 19th September 2014 to 18th March 2015.
Counsel for the Complainant submitted to the Court that the Respondent had failed to provide the Complainant with appropriate measures in respect of his disability after it had received a medical report from Dr Gleeson, Medwise, dated 28th April 2014, which reported that the Complainant was fit for work on light duties. While Counsel accept that this period was not within the cognisable period, he submitted that as the Complainant was out of work at this time and continued to be so until his return on 11th November 2014, the Respondent’s failures were encompassed by this period. The Court accepts this assertion. The Court is satisfied that the Complainant has established sufficient connection between the actions of the Respondent towards its obligations to provide him with appropriate measures and in responding to his requests for reasonable accommodation, to support his contention that events prior to 19th September 2014 should be viewed as alleged acts of continuing discrimination, within the meaning of section 77(6A) of the Acts.
- The Substantive Case
While the Respondent made the point that at the time of his resignation, the Complainant was deemed fit and well, it is not disputed that he suffered from a disability within the meaning of the Act prior to his affirmative diagnosis. The Court must consider the submissions made on the Complainant’s behalf that even if he was not suffering from a disability at the date of his resignation one was imputed to him.
The terms ‘disability’ is defined by section 2 of the Acts includes a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which isimputedto a person".
Suffice it to say that based on the facts of this case the Court has no hesitation in concluding that a disability was imputed to the Complainant by the Respondent at the relevant periods covered by the claims.
- Constructive Dismissal
It is submitted by the Complainant that he was entitled to terminate his employment as the Respondent had repudiated his contract of employment and had acted unreasonably in his dealings with the Complainant.
In his letter of resignation, the Complainant said that he had no choice but to resign in light of the breach of his contract, he felt discriminated against on the grounds of his health and age and alleged that he was subject to undue and harsh treatment. He specifically referred to not being allowed to start work on 18th December 2014 and said that he was sent home on grounds of hearsay, when the Respondent had no proof of his ill health at that time. He proceeded to say that the Respondent was in breach of trust and confidence in causing damage to his reputation and career prospects. [The Complainant made no claim of discrimination on age grounds]
In arriving at its determination in this appeal the Court has taken account of all the evidence adduced including various documents with which it was furnished.
There was a conflict of evidence tendered by the Complainant and that of Mr Boylan and Mr Deegan concerning the events of 18 December 2014, which the Complainant maintained lead to his decision to resign. The main evidence given of note was that the Complainant had hurt his back while working on his car and it was this which lead to the Respondent conducting a return to work interview and in seeking medical advice on his fitness to work. The Complainant had a long history of medical issues. An examination of the medical evidence reveals to the Court that at different times he was diagnosed with back pain, neck pain, thoracic back pain, lumbar back pain, left shoulder and right hip pain, osteoarthritis and possible MS symptoms. In Dr Gleeson’s’ report dated 26th July 2013, she states that the Complainant was adamant that this health problem related to his work demands as a De-kitting supervisor. In evaluating the evidence the Court found Mr Deegan’s evidence credible and consistent when he said that the Complainant had told him that he hurt his back while working on his car and that he had relayed this information to Mr Boylan. Mr Boylan then acted on this information.
In such circumstances, the Court is of the view that it was not unreasonable for the Respondent to seek assurances from the Complainant that he was fit to return to work in December 2014.
No evidence of over-monitoring, isolation or ignoring the Complainant or damage to his reputation by the Respondent was submitted. The Court is of the view that even if the Complainant was of the view that such had occurred, there was nothing to prevent him from raising these issues with the Respondent as he had done so on more than one occasion in the course of his employment.
Section 2(1) of the Acts defines a dismissal as including:
- “[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so….”
This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharp [1978] IRLR 332as follows:
- “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
Having evaluated all the evidence, the Court has come to the conclusion that the Complainant's resignation in December 2014, had more to do with his frustration with being unable to deal with the physical aspects of his job, as he described at the meetings on 18th December 2014 than with any alleged breach of trust and confidence in the Respondent.
The Court cannot find that the conduct of the Respondent amounted to a repudiatory breach of the Complainant’s employment contract nor was it so unreasonable as to justify his resignation. Consequently, the circumstances in which the Complainant’s employment came to an end could not properly be classified as a dismissal within the meaning of Section 2(1) of the Act, therefore the Court finds that the claim of constructive dismissal is not well-founded.
Scope of the Duty on Employer to Provide Reasonable Accommodation
The within claim is grounded on the alleged failure of the Respondent to take appropriate measures to allow the Complainant to participate in employment. The requirement that the law imposes on employers in that regard is generally referred to as the duty to provide reasonable accommodation, and is referred to as such in this Determination. The case, therefore, turns on the correct application of section 16 of the Act. That section 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.
- (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,
(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.
(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)—
“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—
- (a)such a person who is seeking or using any service provided by the employment agency,(b)such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
(c)such a person who is a member of or is seeking membership of the regulatory body.
- (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;
- (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
Article 5 of the Directive provided: -
- In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.
There are a number of recitals contained in the preamble to the Directive which provide assistance in identifying the purpose which it is intended to pursue
Recital 17 provides: -
- This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
- Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
- To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.
These recitals have, however, been taken into account by the drafters of the domestic statute. Recital 17 of the Directive is reflected in s.16(1)(b) of the Act although it should be noted that whereas that provision refers to a person beingfullycapable of undertaking the duties of a position recital 17 refers to a person being capable of performing theessential functionsof the post [emphasis added]. It must also be noted that recital 17 is expressly stated as being without prejudice to the obligation to provide reasonable accommodation for persons with disabilities.
The import of recital 20 is reproduced at paragraph (b) of the definition of ‘appropriate measures’ contained at section 16 (4) of the Acts and provides that the term includes, inter alia, adapting working time and the distribution of tasks.
The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form abona fidebelief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court inHumphries v Westwood Fitness Club[2004] E.L.R 296 and inA Worker v An Employer[2005] E.L.R. 159 a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.
Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. This Court in the two cases mentioned above, adapted the reasoning of Baroness Hale of Richmond who stated the position thus in relation to the corresponding UK provisions in the House of Lord decision inArchibald v Fife Council[2004] I.R.L.R. 651 as follows: -
- “But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment.”
- “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull[2001] I.R.L.R. 60).
The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent[sic]of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.
This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee.”
- “In accordance with the second paragraph of Article 2 of the UN Convention, 'reasonable accommodation' is 'necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms'. It follows that that provision prescribes a broad definition of the concept of 'reasonable accommodation'.”
InMarie Daly v Nano Nagle School[2015] IEHC 785, the High Court affirmed the consistent construction of section 16 of the Act in the determinations of this Court and this Court’s interpretation of the scope of the obligation placed by section 16 of the Act on an employer to consider what reasonable accommodation can be made for an employee with a disability within the meaning of the Act. While that case is under appeal to the Court of Appeal it remains good law unless and until it is changed on appeal.
InNano NagleEDA1430 this Court considered the general principles that can be extracted fromHK Denmark. It held that it must first be:-
- “recognised that the law in relation to discrimination on grounds of disability operates differently to that in relation to other forms of discrimination. Other forms of discrimination occur where people whose circumstances are the same are treated differently. So, as Baroness Hale pointed out in Archibald v Fife Council, difference in gender, race or sexual orientation must always be regarded as irrelevant. But the law recognises that the difference between people who are able bodied and those who are disabled are not irrelevant in the context of employment. The duty to provide reasonable accommodation to people with disabilities is imposed so as to diminish as far as possible the relevance of those differences so as to achieve for the disabled person substantive equality and to assist their integration in the working environment. The law in relation to disability requires a measure of positive discrimination in that an employer may be obligated to treat a disabled worker more favourably that an able-bodied person.
The provision of reasonable accommodation is a means by which people with disabilities can enjoy and exercise their fundamental human right to work and earn a livelihood. The duty which the UN Convention on the Rights of Persons with Disabilities, Article 5 of Directive 2000/78/EC and s.16(3) of the Act imposes on employers is a means to that end. While s.16(4) of the Act and recital 20 of the Directive are illustrative of the type of measures that can be taken they do not provide an exhaustive list.
It is also clear from the authorities that the law does not require an employer to employ a person in a position the essential functions of which they are unable to perform. But that principal is without prejudice to the obligation to provide reasonable accommodation where it is needed. That may involve making adjustments in the allocation of tasks amongst the workforce so as to assign to a person with a disability those tasks that he or she can perform while allocating tasks beyond their capacity to others. But that duty is not unlimited. In that sense the reference to the ‘essential tasks’ of a position can be understood as referring to the essential tasks of a reorganised position. It is true that reorganising the work associated with a particular job may involve a significant change in the contractual position of the parties. But altering working hours also involves a considerable interference with the legal relationship between employer and employee, as was recognised by Advocate General Kokott in HK Denmark, at paragraph 59 of her opinion.
However, the duty on an employer must remain within the boundaries of what is reasonable and proportionate, including the financial implications that may be involved. The question of whether a disabled person has the capacity to perform the essential tasks associated with a position obviously goes to the question of reasonableness and proportionality. Moreover, if the requisite reallocation of tasks involves the employment of additional staff, it goes to the question of cost. The standard to be applied is that of a reasonable employer who understands his or her legal duty and wishes to uphold the right of a disabled employee to work and earn a livelihood.”
A similar question arose before the UK Employment Appeals Tribunal inChief Constable of South Yorkshire Police v Jelic[2010] IRLR 774. The EAT held that a tribunal is not precluded, as a matter of law, from deciding that swapping roles would be a reasonable adjustment, or from holding that it would be a reasonable adjustment to create a new job for a disabled employee, if the particular facts of the case supported such findings.
These cases are not congruent on their facts with the instant case, and the legislative framework within which they were decided was different. They nonetheless illustrate the breath that can be ascribed to the notion of reasonable accommodation.
Application to the Instant Case
The duty on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment must be determined by the application of objective standards of reasonableness in the circumstances of each particular case. In the instant case, the Complainant’s claim is grounded on the alleged failure of the Respondent to take appropriate measures to allow him to participate in employment.
It is common case that, as a result of his disability, the Complainant was not capable of discharging the full range of duties associated with his employment. At no stage did he argue that the Respondent should have restricted aspects of his De-kitting job or reassign certain duties to other colleagues. The Complainant contended that with reasonable accommodation he could have undertaken lighter duties in a different post. The post he sought to be assigned to was the Hygiene post. He submitted that the Respondent did not engage with him to ascertain if he could undertake the duties of that post.
The Court is satisfied that the Respondent did obtain independent professional advice on the Complainant’s capacity, however, it seems to have formed the opinion it could not make the necessary adjustments in work organisation so as to accommodate the Complainant. It is clear from the decision of the CJEU inHK Denmarkthat the duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality.
As inBritish Gasthe Court is of the view that it was incumbent on the Respondent to consider adjusting certain tasks which others doing similar work are expected to perform, the scope of which is determined by what is reasonable.
It appears that the Respondent’s consideration of alternative roles was confined to an assessment of its existing roles which were all deemed to have a physical element to them, and limited examination was given to considering if an adjustment could be made to the roles. The Respondent carried out an analysis of the various role in the company and determined that none were suitable. This analysis was done without any participation by the Complainant.
The Complainant wrote two letters to the Respondent, one on 18thSeptember 2013 and the second on 11th October 2013 in which he informed management that he intended to step down from the role as De-kitting Supervisor on medical advice and sought to be reengaged in a different role. In the second letter he sought to be allowed to return to work with reasonable accommodation in order to earn a living. The Respondent did not respond to these letters.
In an email dated 8thApril 2013, the Respondent submitted an analysis of jobs in the company to the Meridan Clinic. The email included the PDF attachment and stated that“all roles require large amounts of standing, turning, pulling and pushing, general twisting bending, etc.”Medical advice which followed (prior to October 2014 when he was deemed fit to return to fill duties), stated as follows:-
- 11thApril 2013:
currently fit to return to work,
- 26thJuly 2013:
fit for work of a light physical demand and for sedentary work,
fit for work that allows him sit, stand and mobilise,
to lift product weighting 4.4kg on a frequent basis and 9.1kgon anoccassionalbasis,
fit for administrative and managerial work,
- 5thOctober 2013 :
medical report from Mr Sharif, Consultant Orthopaedic Surgeon, opinioned that the Complainantwas not able to do the heavy work that he was doing before.
28thApril 2014 :
“…fit to return to work of a light physical demand and may be fit to increase his work demand further as part of a rehabilitation program. Please inform the options for returning to modified duties on a long and short term basis”.
In accordance with its findings inHumphriesthe Court is of the view that the Respondent might reasonably have sought an input from the Complainant before coming to its conclusion. Instead the Complainant was given no option but to remain on sick leave, at a time when he felt he was fit to return to work in an adjusted capacity, and was medically certified as such. The evidence would suggest that the Respondent did not consider the consequences for the Complainant of not giving adequate consideration to providing the accommodation required. The Court accepts that had adequate consideration been given, the Complainant may not have been capable of carrying out any role within the Company, however, the Court is of the view that the examination carried out was too narrowly focused without an input from the Complainant to come to that conclusion. Therefore, the Court finds that the Respondent failed to discharge the onus it bears to engage with the Complainant when considering his medical condition and when determining whether or not reasonable accommodation to enable him to return to work was being examined.
In the Court’s view, it is significant that the Respondent presented no records of the consideration of alternative roles, adjusted roles or trail arrangements, other than the PDF Document. On that basis the Court must conclude that the Respondent had only given partial consideration to these possibilities and therefore its obligation to provide appropriate measures to enable the Complainant to participate in work was not fully discharged.
Therefore, the Court finds that the Complainant has established aprima faciecase that the Respondent failed to provide reasonable accommodation to facilitate his return to work while not fully fit.
Redress
In the circumstances of this case the Court believes that the appropriate form of redress is an award of compensation. In the circumstances the Court awards the Complainant compensation in the amount of €8,500.00.
Determination
The Decision of the Equality Tribunal is set aside and substituted with the terms of this Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
10 January, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.