Complainant

Respondent

Anonymised Parties

Meat Factory Operative

Meat Factory

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00004336-002

10/05/2016

The claimant was employed as a Meat Factory Operative with the respondent from the 5th.April 2005 – he submitted that his employment was terminated on the 5th.Feb. 2016, that he was discriminated against by reason of his disability and that he was the subject of discriminatory dismissal on the grounds of disability. In his complaint form, the claimant submitted as follows:

“The complainant commenced work with his former in April 2005. He was employed as a meat factory operative who was responsible for deboning pork meat on a factory line. Unfortunately, the Complainant was involved in a workplace accident in November 2014 rendering him incapacitated and unable to work. Subsequent to this, the Complainant engaged in every way with his former employer by producing medical certificates when required and attending welfare meetings when scheduled. The Claimant underwent surgery for his injured shoulder in Hungary in January and on his return Mr TD HR manager arranged a welfare meeting which took place on the 5th February 2016. The Claimant advised his employer at said meeting that on the advice of his doctor, that he would be in a position to resume his employment three months post surgery. Despite this, he was informed by Mr TD that he no longer had a job the factory and that he was dismissed.”

It was submitted that the respondent company was a large meat processing company with an annual turnover of €300ml.

It was submitted that the claimant sustained an injury at work on the 5th.Nov. 2014 and submitted medical certs to the respondent – it was contended that he suffered a serious injury to his right shoulder and medical reports from his GP and surgeon in Hungary were submitted into evidence. It was advanced that the claimant was called to a meeting on the 27.11.15 and was urged to drop his PIAB complaint by a representative of the respondent and was further advised that the respondent would give him full pay whilst on sick leave if he consented to doing this. The claimant refused the offer and indicated he was travelling to Hungary for surgery in Jan. 2016 – he asked that the respondent keep in touch. The claimant was called to a meeting by way of letter dated the 1st.Feb. 2016 and on the 5th.Feb. 2016 the claimant was dismissed owing to alleged incapacity “notwithstanding that the claimant indicated that he expected to be reviewed in 3 months time by his expert who would assess his recovery and assess his return to work”. It was contended that the respondent failed to provide an official interpreter for the meeting while knowing that the claimant had poor English. It was contended that the claimant was given no proper notice that his employment was to be terminated on the 5th.Feb. and was denied any opportunity to address the issues raised by the employer. It was submitted that the claimant was not medically assessed by the respondent and was not consulted in relation to reasonable accommodation or afforded an opportunity to “have input into the decision to terminate his employment”.

It was submitted that it was clear that the claimant was suffering from a disability as defined under the Act. It was argued that in order to justify dismissal on the grounds of incapacity, an employer is obliged to conform with the procedural requirements set out in the case law established under Section 16. It was submitted that the Labour Court had found in EED037 that the nature and extent of the enquiries undertaken by an employer prior to dismissal on disability grounds must be explored - this decision had been upheld by Judge Dunne in the Circuit Court. It had been determined by the Court that a 2 stage process should be adopted by a respondent – a factual examination of the employee’s capability including the degree of impairment arising from the disability and its duration and secondly, consideration by the employer of any special treatment or facilities which would allow the employee become fully capable. It was submitted that in Mr.O v An Employer [2005]ELR 113, this reason was extended beyond dismissal by the Labour Court – the court was particularly critical of the employer’s failure to adequately and appropriately consider the findings of their appointed doctor. It was advanced that the obligation to provide reasonable accommodation can only be properly satisfied where an employer has done some sort of an assessment, “medical, ergonomic or occupational” in order to see if reasonable accommodation can be made. It was submitted that the case law requires the employer to be proactive in considering reasonable accommodation, that the needs of the disabled person are fully assessed and that there is consultation between the respondent and the employee.

It was contended that the respondent had failed to obtain a medical opinion in advance of termination of the claimant’s employment and had failed to obtain a report from the claimant’s surgeon in Hungary. The respondent it was submitted had carried out no enquiries regarding the claimant’s future capacity and had failed to conduct an occupational assessment.

In his direct evidence the claimant described how he had incurred a very deep pain in his shoulder while working on the line on the 5th.Nov. 2014- when he returned 2 weeks later, he asserted that he was assigned to deboning; he suffered further pain in his shoulder and when he went back to his GP he was advised to discontinue that work. The claimant denied he was offered alternative duties – he stated that he was offered reassignment for one day only. He asserted that he was told if he did not like his assignment he could go home. He stated that he was assigned to trimming for one day only and was not offered sweeping duties. He later stated that he did not remember if he was offered modified duties. He explained that around this time, his own GP Dr. BM became the respondent’s company doctor. He asserted that after working on trimming for one day only, Mr. OC reassigned him to his original position and this was very difficult for him. When he returned after the accident he was asked by the respondent to complete an injury report form – he asserted that he was told that he could not complete an illness form until he completed the injury report form. He clarified that he was moved from large boning to trimming – he stated that he was only trimming for one day and was then advised to return to his original position to debone – which he submitted was much more difficult work than trimming. He advised that he did not object to being returned to his original position – though he was not happy to return to deboning and was still in pain. When he recommenced deboning the pain in his shoulder returned – he went back to the GP who advised him to stop doing that work. The claimant was seeing his GP weekly but was never asked for medical reports by the respondent. The claimant did not initially recall a meeting with the respondent on the 22nd.Dec. 2014. He recalled getting upset at a meeting with the respondent because the respondent was putting the blame on him for the accident. He stated that the welfare meetings were very short – only a matter of minutes in a corridor.

The claimant gave evidence of a further accident in 2015, when he fell and sustained a head injury – following which he was in a coma for 5 days. He asserted that he recovered after 3 weeks. The claimant said that at this point he was still awaiting surgery for his shoulder. He stated if his GP had said that he was fit to return to work he would have returned.

The claimant was adamant that he had reported his injury in Nov.2015 to his Supervisor who was unable to locate the Health & Safety Officer and told the claimant to go home. He further alleged that he was advised that he would be paid sick pay if he withdrew his PIAB complaint. He asserted that he was advised to withdraw his PIAB complaint, that nobody would believe him and the company would be believed. He insisted that he was never offered modified duties in advance of his dismissal, that he shook hands at the end of the meeting and was not offered an appeal. The claimant stated he saw no point in going back to DR.BM after his dismissal as he had been told to drop his claim. He insisted that he was offered light duties for one day only. The claimant disputed receiving the letter inviting him to the meeting on the 5th.Feb. 2016   where the employer made specific reference to the claimant confirming“ that an alternative role would not be a possibility in the foreseeable future”. The claimant stated that the respondent never sought to contact his doctors in Hungary.

The claimant stated that at the meeting on the 5th.February 2016 he was not offered an interpreter – he advised that he was told his position could not be held open and therefore the company was terminating his employment. He stated that he mentioned he remained sick but no appeal was mentioned. He stated that he was never asked to provide medical reports from his Hungarian doctors.

Under cross examination, the claimant asserted that he told Mr.DM that he was in pain when he was reassigned to deboning. The claimant said that he was requested to withdraw his PIAB complaint by Mr.TD – he did not recall the involvement of the union Shop Steward. He stated that when the matter of light duties was raised at a welfare meeting, he replied that he wanted to consult his specialist as his GP had told him he needed to rest. The claimant could not recall the welfare meeting with Mr.TD, himself and his partner. He stated his partner had advised his colleagues of his fall in June 2015. He thought the meeting with the company of August 2015 was the meeting where he indicated that he was going to Hungary to see a specialist – at this time he was on steroids. He stated that Mr.TD did not offer him light duties at this time. He had no recall of being advised by Mr TD that his employment could be terminated after being unavailable for 12 months.

The claimant accepted he received the respondent’s letter of termination of employment dated the 15th.Feb. 2016 but disputed receiving the invitation (dated Feb.1st.2016) to attend the final meeting on the 5th.Feb. 2016. He could not recall the content of the letter of termination. He confirmed he did not reply to the letter of seek the assistance of his union - he pointed out that the union had requested him to withdraw his PIAB complaint.

The claimant described how his original injury was sustained – he felt shoulder pain on movement, told the Team Leader he needed a rest and would like to go home as he could not lift the knife – he was deboning a shoulder blade at the time. He confirmed that he never submitted a medical cert to say he was fit to return to work. He stated that at the meeting in February, he could not say when he would be fit to return as he was awaiting a medical report which would take 3 months to obtain. He confirmed to the respondent at the meeting (5th.Feb. 2016) that he remained unfit to work and he was in receipt of invalidity benefit from Oct. 2016. The claimant denied working for another employer or working for himself in response to enquiries about the findings of a private investigator who had been contracted by the respondent. The respondent’s representative asserted that the claimant was offering inconsistent evidence and contended that this exposed the claimant’s credibility.

In her direct evidence the claimant’s partner recalled the meeting of the 26th.Augst 2015 – she stated the claimant was asked about his return to work and that he replied that he would be going to Hungary to see a specialist and depending on what the doctor said they would update the company on their return from Hungary. She stated that she did not recall TD offering the claimant light duties; she confirmed that she had said she would revert to the company after Hungary and that she did so. She did not recall TD saying that termination of employment may ensue following an absence of over 12 months.

In summing up the claimant’s representative stated that the claimant suffered from a disability, that he was offered modified duties for one day only, that the claimant was unaware of the provisions of the Works Agreement or indeed the practise of paying sick pay on withdrawal of a PIAB claim and that he had been bullied and harassed about his PIAB claim. It was advanced that the claimant should have been medically assessed in advance of the decision to dismiss and that the respondent should have awaited an assessment on foot of his surgery in Hungary. It was submitted that the claimant was fired on the grounds of disability -arising from an accident at work.

The respondent submitted as follows:

The respondent company has a large meat operation. Since its establishment creating a safe and healthy work environment is not only a statutory requirement for the company but of paramount importance for safety excellence proactively designing, aligning, and improving operational processes. The company has a vital interest in maintaining a safe, healthy and efficient workplace for the benefit of its employees, customers and visitors, and this is set out in the Company’s safety policy statement. This policy sets out the Company’s top level commitments for safety health and welfare and to support them the Company has established a safety strategy to reduce the risk of incidents which is reviewed on a regular basis.

The principal goal of the Company is to improve health and safety within its operations and continue the momentum towards minimising work related injuries and illness.

As an extension to this policy the Company has an agreed grievance policy with regard any issues of concern they may have. The purpose of this grievance procedure is to provide a mechanism whereby problems/concerns are to be dealt with fairly and speedily and at an appropriate level within the Company before they develop into major problems.

The respondent/company denies the claim it discriminated against the complainant on grounds of disability as alleged or at all.

Short history: Summary

1.The claimant commenced employment with the respondent on the 27th of April 2004 as a skilled butcher/boner. In or around the 5th of November 2014, the claimant alleged he sustained an injury which is the subject of P.I.A.B. and now High Court proceedings. The alleged incident was not reported under the company’s incident reporting procedure. The first time the company became aware of this alleged accident was in or around the 10/11/14. The claimant was about to be subject to the company’s disciplinary procedures regarding failure to report the alleged incident, however it was agreed with the union (of which he was a member) not to conclude the disciplinary procedure until the claimant was available to actually attend.

1. The claimant's absence record was sporadic and below expectations prior to this. To illustrate this he missed 19 days in 2013, he was called to a disciplinary meeting on 30th September 2013, and 9 days in 2014.         - outline of his absence over the years; before his alleged incident on the 05/11/2014.

1. On 20th June 2013 the Company met with the claimant regarding his level of absence and to establish a possible cause for his level of absence. During that meeting the claimant confirmed he was currently administering injections for a lower back injury. This commenced on Wednesday the 12th of June 2013. The respondent advised the claimant to seek advice from his GP as the matter was unusual and concerning that he was self-administering back injections. - note hand written at the time by Mr. TD, HR Manager.

1. Since the claimant’s first day of absence on the 5th of November 2014, the Company had a number of welfare meetings on the 22/12/14 and 23/12/14. attached notes of Mr.TD. The claimant was represented by his shop steward, Mr. CE and had a translator, Mr TK at both of these meetings. The Health & Safety Manager also attended these meetings on behalf of the Company as he was concerned that details of the alleged incident presented at those meetings were not notified to the Supervisor Mr.DM. On the 18/12/14 the company completed an assessment form ref attached with the claimant on the 18/12/2014

1. The Company met again with the claimant on 3rd April 2015 to establish his progress with regard to his continued absence and a possible return to work date. On the 26/08/15 the Company again met with the claimant and his partner to discuss his continued progress to date See hand written note. During that meeting it was discussed that the company would not be in a position to keep his position open indefinitely. During that meeting it was confirmed by the claimant and his partner that he was significantly injured resulting in a coma and hospitalisation some time earlier. The claimant’s partner confirmed that the claimant was currently under the care of his G.P. Dr BM (his and company’s same doctor) for the head and muscle injury sustained during this incident. The Company received a medical report through the Personal Injuries Assessment Board dated the 1st April 2015. The incident outlined in the injuries board report is denied and subject to a separate dispute referred to above already. In that report it was noted that the claimant was under the care of Mr JL orthopaedic surgeon. He was advised to take as required analgesia and to refrain from work. Dr BMs prognosis at time was guarded and was awaiting an orthopaedic opinion.

1. The claimant did not provide any further details thereafter until the October 2015 and November 2015 in where he tendered a medical certificate for a “significant medical issue”. This was confirmed later by the claimant as result of an incident outside of work in June 2015. The claimant would not provide any further details of his injuries under the advice from his legal representatives. It was explained through Mr K, translator and shop steward Mr. CE that the Company’s position would be that the alleged injury sustained in work was now of lesser significance than the injury in June 2015 and any hope of the claimant returning to work was complicated by his personal injury. Medical certs were tendered every month however it was not until November of 2015 that the claimant's other medical matter was noted, when medical certificates previously surrendered noted shoulder injury. After consideration the claimant’s incapacity and the event referred to in June 2015 which occurred while the claimant was absent from work made the outcome of his recovery uncertain and the likelihood that the claimant would be unable to fulfil his obligations into the future.

1. After a number of further welfare meetings the Company wrote to the claimant on the 01/02/2016 - inviting him to a meeting on the 05/02/16 and in it his potential dismissal was flagged in advance.

7.   This meeting was attended by Mr CB translator. The claimant did not wish to have union representation at this meeting. The meeting was cordial as the meeting commenced with a handshake and a chat about things in general. Mr TD asked the claimant was he in a position to return to work in the foreseeable future and he said he was not. Mr.TD asked might it be possible that he may return in the next six months and he said no. Mr.TD suggested that he would send the claimant to the Company doctor Dr B M, the same doctor for both, and the claimant advised there was no point as he knew he was not in a position to come back to work and he or his GP could not confirm a date of return to work. The last medical cert tendered by the claimant dated the 12 January to the 12th of February 2016 confirmed the claimant was unfit to attend work. In addition the claimant also confirmed that an alternative role would not be a possible due to the injuries he sustained. The claimant would not comment on the injuries sustained in June 2015 which was the more recent and significant injury sustained. Mr. TD thanked the claimant for his service and cooperation during his time with the Company. Mr. TD also advised if a position arose when he was in a position to return to work the Company would consider same. Further to this Mr. D advised the claimant that he had an opportunity to appeal the Company’s decision through his union representatives however he declined as he felt he would not be in a position to return and was satisfied he was finishing up for good.

1. The High Court personal injury summons - served on the Company in or around the 17th of July 2016 confirms the claimant’s current status and he remains under the supervision of his doctors and his prognosis remains guarded As neither the claimant nor his medical practitioner could confirm a return to work date for full (or lighter duties in the packing, labelling or slaughter line, offal packing,) in the then foreseeable future, the company had no alternative but to terminate the claimant’s employment due to his incapacity/absence which was accepted by the claimant on the 5th of February 2016 and had nothing to do simply with his disability. The personal injuries pleadings he makes prove the point that he is unable to do the job for which he was employed up to that day and maybe further in to the future.

For all these reasons his dismissal was fair and not discriminatory.

Legal arguments:-

Discrimination

Section 6(1) of the Employment Equality Acts 1998 to 2008 states:

Section 6 (2) provides that as between any two persons, the discriminatory grounds are: (g) that one is a person with a disability and the other either is not or is a person

with a different disability (in this Act referred to as “the disability ground”

Reasonable Accommodation

Section 16 (1) (b) of the Act states that there is no obligation to retain an individual in a position if the individual is not fully competent and available to undertake, and fully capable of undertaking, the duties attached to the position of the complainant having regard to the conditions under which those duties are, or may be required to be, performed.

It was not and is not disputed by the complainant that he cannot fully perform the role for which he was employed.

There is no obligation on the employer to provide the employee with a new post if he is unable to perform his existing role due to an alleged disability. The purpose of section 16(3) of the Act is to provide a person with a disability with ‘appropriate measures’ or ‘reasonable accommodation’ in order to render the person fully capable to undertake the full range of duties associated with their post.

Without prejudice to this argument the respondent did make adequate enquiries on the complainant’s medical situation. It obtained the views of a medical specialist (both company doctor and complainants Dr B M) and sought to engage with the complainant himself in relation to this evaluation over a number of meetings. It also addressed the possibility of lighter duties in the packing, labelling or slaughter line, offal packing as part of the “reasonable accommodation” inquiry but the complainant could see no options there.

The complainant has not identified a suitable comparator with whom he has been treated less favourably.

Nor has he identified how a person with a different disability or no disability would have been treated in similar circumstances.   In the case Toker Developments Limited and Edgars Grods (Determination No EDA105) on the issue of hypothetical comparator the Labour Court stated

“It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced and it would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation”

No evidence exists to support a complaint of discrimination vis-à-vis a hypothetical comparator or named comparator.

Therefore, the complainant has failed to establish any discrimination as defined and required by the Act.

Burden of Proof

The burden of proof is on the complainant to demonstrate that his alleged disability influenced the requirement to manage his absence and working hours.

Section 85A(1) of the Act states :

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Company to prove the contrary”.

In the case Southern Health Board v Mitchell (2001 ELR 201) the Labour Court set down a three-part test to establish proof of discrimination under the legislation. Firstly, the complainant must prove on the balance of probabilities the primary facts upon which she seeks to rely in raising a presumption of unlawful discrimination. Secondly, those facts, if proved must appear to the Court to be of sufficient significance to raise the presumption contended for. Thirdly, if the burden shifts to the employer it must prove on the balance of probabilities that the impugned decision was in no sense whatsoever influenced by one of the grounds proscribed under the Act.

The complainant has provided no evidence that his alleged disability unfairly influenced the decision to dismiss him from work.

In the case Melbury Developments Ltd v Valpeters (EDA09/17) the Labour Court stated:

“Section 85A of the Act provided for the allocation of the probative burden of cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to case and there is no closed category of facts which can be relied upon all that is required is that they be of sufficient significance to raise a presumption of discrimination.   However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be draw. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The complainant has not established facts from which discrimination can be inferred. This employer sought medical advice and had received input from the many discussions/meetings with the complainant himself. The allegation that this was for any other reason is merely an assertion by the complainant. No evidence exists to suggest that anything other than the complainant’s availability to work influenced the decision to dismiss.

Burden of Proof

Prima Facie Case of Discrimination & the Burden of Proof

It is the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favorably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, already referred to earlier.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Direct discrimination consists of two elements. The first is the less favourable treatment of the complainant and the second is the existence of disability grounds for such treatment. Both elements must be satisfied for a claim of discrimination on the ground of disability to succeed. It is respectfully submitted by the respondent that the complainant has provided no evidence of less favourable treatment. The complainant’s allegations are grounded on incorrect facts and are unfounded. The complainant has not identified any other employee able-bodied or with a different disability with who he was or has been treated less favourably than. Thus, the complainant has provided no evidence of discrimination.

The respondent submits that it is only when the complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The respondent submits that the Complainant in his complaint contained in the very minimalist claim form (i.e. very little details or facts), has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

It is the respondent’s position that the Complainant has singly failed to establish a prima facie case of discrimination and as such the burden does not shift to the respondent in this instance.

Conclusion

The respondent has no case to answer.

The burden of proof rests with the Complainant to show that he was discriminated against on the ground of disability within the meaning of the Employment Equality Acts 1998-2011 as alleged and it is the respondent’s position that absolutely no evidence has been adduced to support such a claim. As the Complainant has failed to establish a prima facie case of discrimination, the respondent respectfully submits that the Equality Officer reject this complaint and the claim must fail.

The respondent reserves the right to submit further argument or data at any stage during the course of the investigation of this complaint.

Mr. DM the claimant’s supervisor, gave evidence on behalf of the respondent – he asserted that on the 5th.Nov. 2014, the claimant came to him complaining of feeling unwell- he stated he offered the claimant First Aid and an opportunity to see the Health & Safety rep – he stated that the claimant had to wait for 10-15minutes before a replacement could be found and he then went home. He contended that when the claimant returned to work some weeks later, he started on the shoulder line for a few days but complained he was unable to do the work. Mr. DM stated that he then put the claimant sweeping the floor but he was unable to sweep and the claimant told him that he was going to the doctor. This witness denied suggesting that the claimant withdraw his personal injury claim. Mr. DM indicated that the claimant never reported the injury just of feeling unwell. He stated that if the claimant had mentioned a shoulder injury he would have been required to complete an incident report and would have been referred to the Health & Safety officer.

The HR Manager Mr.TD gave evidence on behalf of the respondent – he stated that the claimant had an above average record of absences, that he would have been spoken to about his attendance and that the claimant was a member of SIPTU. He stated that he had concerns about the incident/injury about the detail provided by the claimant and about the fact that he had not sought First Aid or referral to Health & Safety. He stated that if the injury was genuine, the company would pay an employee while absent, pay medical bills and facilitate the workers return to work. He stated that where employees are pursuing personal injury claims, they are excluded from the Sick Pay Scheme as a matter of custom and practise in the company. The claimant had incurred back injuries previously and had been referred to Dr. M for assessment. He referred to the meeting with the claimant on the 3rd.April 2015 where the claimant stated he may be seeing a specialist in Hungary to review his shoulder – he submitted that the claimant was asked at the meeting if he wished to return to lighter duties but he declined as he wished to talk to his specialist. He set out a chronology of the ensuing meetings with the claimant and referenced his notes of the meetings and his indication that the company had difficulty in keeping the job open for the claimant and this was accepted by the claimant.

Mr.TD set out his recollection of the meeting of the 5th.Feb.2016 – he stated that the claimant declined representation, that a translator was present and that the claimant could not give a date when he thought he might be fit to return. The manager said that he thanked the claimant for his service and advised him of his right of appeal. He stated that the claimant was a very good skilled worker who would have been accommodated if he had recovered.

Under cross examination, Mr.TD said the claimant was below expectations on attendance and had engaged with the claimant on attendance on the 20.06.13. The manager asserted that the claimant had been on light duties for a week following his return from the accident – it was put to the HR manager that he had failed to comply with the provisions of the Works Agreement – the provisions regarding a full medical examination were referenced in this regard. The HR manager stated in response that the company was already in receipt of medical certs from the claimant’s GP , that they had received medical records from PIAB and had an assessment on file from Dr.BM dated the 1st.April 2015.It was put to him that the company were in flagrant breach of the Works Agreement by failing to undertake a medical assessment of the claimant.Mr.TD said that he already had up to 20 welfare meetings with the claimant as well as a report from Dr.BM – the case had been complicated by the other later injury suffered by the claimant.

At the final hearing the respondent made the following submissions in relation to the relevance of the Court of Appeal finding on Nano Nagle School v Daly.

The President, Sean Ryan’s judgement, in Nano Nagle School v Daly, the Court of Appeal, italicised, at paragraphs 54 onwards, stated:

54. It follows from these citations that section 16 does not require any special construction because interpretation of its meaning is available in the ordinary meaning of its words. The section does envisage some distribution of tasks, just as it also specifies time adjustments, as HK Denmark found was the case with the Directive. It is correct to infer that the requirement to be able to perform all the tasks of the position means the tasks after adjustment or distribution. Adjustment to access and workplace and hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16 (1) must be respected. The section does not in its terms make the process of enquiry a ground of default, neither does a failure to consult constitute breach of the duty imposed.

So, when the complainant argues that the respondent did not properly consult the complainant further (the process of enquiry), that does not constitute a breach of the duty where, by his own evidence, he was not fit to do the job he was employed to do at the time of dismissal (5th February 2016), thereafter and still isn’t to date. He received the state’s illness benefit from November 2014 till October 2016 and then invalidity pension thereafter to date which is continuing. He had been off work as unfit for over 14 months at the time of his dismissal. The medical criteria for “invalidity pension” are set out below by the D.E.& S.P.

“Medical criteria

Invalidity Pension is a payment for insured people who are permanently incapable of work because of an illness or incapacity.

To qualify you must:

• Have been incapable of work for at least 12 months and be likely to be incapable of work for at least another 12 months (you may have been getting Illness Benefit or Disability Allowance during that time)

Or

• Be permanently incapable of work (in certain cases of very serious illness or disability, you can transfer directly from another social welfare payment or from your job to Invalidity Pension).”

Nor does the fact that company relied on the complainant’s own medical evidence of Dr BM, who as it happens is also used by the company as their doctor from time to time, and as he, the complainant has submitted to the PIAB and his own evidence to them that he was unfit and his medical certs to that effect. The company were prepared to rely on Dr. B M in the circumstances as he was known to them and that was perfectly reasonable. So, when the complainant argues that there was a “procedural defect in the reasonable accommodation provided” i.e. the company did not get its own medical report that does not assist his case, the process of inquiry itself cannot be a ground of default as referred to above. In any event the complainant saw no point in consulting his doctor Dr.BM when Mr. TD suggested it to him, see below.

There were no further reasonable adjustments to be made or that could be made as it turns out. He never presented as “fit to work”, he never submitted anything more than minimal medical certificates which said he was “unfit” or suggested any “reasonable accommodations” himself to the company that it could pursue.

So even if the evaluation of the review process was flawed, (which is denied), as the complainant argues, that does not assist the complainant or his case in any event. In the end, it was a matter of practical compliance for the employer. All they had in return was his statement and medical certificates to say he was unfit for any kind of work. In effect, he was saying there were no reasonable accommodations that could be made to help him return to his old job in the short or longer term.

From our earlier submission ref. at para 8, the dismissal meeting 5/2/2016.

“The meeting was cordial as the meeting commenced with a handshake and a chat about things in general. Mr TD asked the claimant was he in a position to return to work in the foreseeable future and he said he was not. TD asked might it be possible that he may return in the next six months and he said no. Mr. Delaney suggested that he would send the claimant to the Company doctor Dr BM, the same doctor for both, and the claimant advised there was no point as he knew he was not in a position to come back to work and he or his GP could not confirm a date of return to work.”

62. The High Court discounted the school’s complaints about the Labour Court’s analysis of the law, holding that the ultimate conclusion in the determination concerned the process of evaluation and that any such errors as might have been found, which the court did not find it necessary to decide, did not impact on the decision made in the end. For the reasons I have stated above, I do not agree with that conclusion, but I want to say why I also do not consider that the ultimate decision is valid as a matter of law. The proposition that there is a freestanding obligation on an employer to carry out an evaluation, irrespective of the other circumstances of the case and without regard to the fundamental question as to whether the employee is actually capable of doing the job, is starkly stated as a matter of law by the Labour Court. This is ultimately the basis for its conclusion that Ms. Daly was entitled to compensation on the basis that the employer failed in its duty under the Act to make reasonable accommodation for the employee. The Labour Court said:

“If all of the options that may be available are not adequately considered, the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court in Humphreys v. Westwood Fitness Club and in A Worker v. An Employer, 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 inquiry 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.”

63. There is nothing in s. 16 to justify this rule. The argument has its origin in English employment law decisions on their disability legislation, culminating in the case cited by the Labour Court in Mid-Staffordshire General Hospital NHS Trust v. Cambridge [2003] IRLR 566. That case, however, has been disapproved and not followed in cases decided from as early as 2006 until recent judgments. See Tarbuck v. Sainsbury Supermarkets Ltd [2006] IRLR 664. The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting. It is not a matter of review of process but of practical compliance. If reasonable adjustments cannot be made, as objectively evaluated the fact that the process of decision is flawed does not avail the employee.

The complainant was a skilled boner.

He has also launched proceedings in the High Court in July 2016, arising out of an alleged accident at work. That summons is claiming for general and special damages for personal injury and loss of earnings past, present and continuing, on the basis that he has remained off work since the alleged accident and by his own case remains to date as unfit for work.

The claimant then and now is “unfit to work and he remains under the supervision of his doctors and his prognosis remains guarded.” As neither the claimant nor his medical practitioner could confirm a return to work date for full (or lighter duties in the packing, labelling or slaughter line, offal packing,) in the then foreseeable future, the company had no alternative but to terminate the claimant’s employment due to his incapacity/absence which was accepted by the claimant on the 5th of February 2016 and had nothing to do simply with his disability. The personal injuries pleadings he makes prove the point that he is unable to do the job for which he was employed up to that day and further in to the future to date.

He was dismissed for long term absence without sign of a recovery or of any “reasonable accommodation” to enable him to return to his job.

It was a matter of practical compliance - he was not fit according to himself at that time or since.

So even if the evaluation of the review process was flawed, (which is denied), as the complainant argues, that does not assist the complainant or his case in any event. In the end, it was a matter of practical compliance for the employer. All they had in return was his statement and medical certificates to say he was unfit for any kind of work. In effect, he was saying there were no “reasonable accommodations” that could be made to help him return to his old job in the short or longer term.

64. I find myself in agreement with the Equality Officer’s conclusion in this matter. He applied the terms of the Act to the facts of the case. The facts are incontrovertible and the Labour Court paid insufficient attention to them. The central reality is that Ms Daly is unable to perform the essential tasks of a Special Needs Assistant in this particular school. No accommodations can change that, unfortunately. Neither is it suggested otherwise.   .......

The same reality would apply here. The complainant “is unable to perform the essential tasks”, at the time of his dismissal, and continues to this day to be so, three years later, given subsequent events.

Ms Justice Finlay Geoghegan J. in her own judgement was also in agreement with the President’s judgement and further said at paragraph 33 of her judgment:

33. On the facts of this appeal, regrettably from Ms. Daly’s point of view, it was not in dispute that there were seven main duties attached to the position of an SNA in the School, which she had previously occupied and to which she sought to return, which she was no longer competent and capable of undertaking even with appropriate measures. It was never contended that a redistribution of one or more tasks demanded of those seven duties would render Ms. Daly competent or capable of undertaking those duties. For the reasons stated, the section falls short of obliging the School to remove from the existing position of an SNA in the School those main duties, which Ms. Daly is, regrettably no longer capable and competent to undertake and redistribute them to others or in effect create a new position in the School to which Ms. Daly may return. It follows that if the School is not under an obligation to do so it cannot be under an obligation to consider doing so.

Again, the respondent here cannot be said to be under an obligation to give the complainant a new position, (nor it is it argued for) nor is it under an obligation to even consider one that does not involve a return to the core and essential duties of his original post - something he was not then or now, able to do.

To add to our case, we quote from a recent 23rd February 2018 Labour Court decision post the Nano Nagle decision, which speaks for itself, from EDA1815 Excellence Ltd v Adam Herzyk, with underlining added: -

“Discussion and Application

The unavoidable conclusion to be drawn from the Complainant’s own submissions to the Court is that he was, and remained as of the date of his dismissal, unfit to perform the core duties of the job for which he was employed. In the circumstances, and having regard to the clear interpretation placed on section 16 of the Act by the Court of Appeal in Nano Nagle School v Marie Daly[2018] IECA 11, the Respondent was not under any obligation to provide the Complainant with an alternative job in another department or to remove the core duties of the job for which he had been employed such as to substantially alter the character of that job………..”

In summing up, the respondent’s representative emphasised that the claim was one of discriminatory dismissal as opposed to unfair dismissal. The claimant had been given modified duties for at least 1-2 weeks and simply gave up. It was submitted that there nothing illegal in the respondent’s policy of paying sick pay on withdrawal of a PIAB claim. It was submitted that the claimant continued to advise that he was physically unable to return to work after he was afforded reasonable accommodation by the respondent. It was submitted that this was supported by the companies meeting records which had been submitted into evidence. It was submitted that the claimant wanted to go and had no wish to stay. He did not contradict the contents of the respondents letters in Feb.2016 where he had declined alternative work. The claimant never presented evidence to say he was fit to resume work.

I have reviewed the evidence presented at the hearings and the voluminous submissions of the parties.

I note there is considerable conflict of evidence between the parties with respect to the exchanges at the final meeting on the 5th.Feb . 2016 - the claimant denying that he was offered lighter duties and indicating that he was awaiting a medical report from Hungary which would take 3 months   while the respondent is adamant that this was a cordial meeting, that the claimant rejected a proposal to refer him to Dr.BM and insisting the claimant was advised of his right of appeal. I consider it of particular significance that neither the respondent’s record of the meeting nor the termination letter - which were submitted into evidence make mention of a referral to Dr.BM or indeed to advising the claimant of his right of appeal. I also note that the respondent was unable to satisfactorily explain why the provisions of the Works Agreement which provide for a mandatory medical examination in cases of absence for an extended period, was not observed. Throughout the proceedings the respondent relied on a report from Dr B.M which was “up to date until the 31st.March 2015” and predated the claimant’s head injury in mid 2015.

The letter of termination issued to the claimant states

“…Since your absence the Company has had several welfare meetings with you to discuss your continued absence and the possibility of a return to work date for you. However you confirmed that you would not be in a position to return to work to your current role and also confirmed that an alternative role would not be a possibility in the foreseeable future. As previously conveyed to you the Company could not afford to provide you with continuous opportunities and keep your position open indefinitely in the hope that you would return to work. As a consequence you were advised that one of the options the Company may consider is the termination of your employment. Regrettably, as you could not confirm a return to work date in the foreseeable future the Company had no alternative but to make the difficult decision to terminate your employment which was accepted by you .To this end we therefore confirm the termination of your employment from the 5th.Feb.2016”.

Having reviewed the authorities relied upon by the respective parties I consider the most recent Labour Court Determination of EDA 1838 to be most relevant to the instant case. Similar to EDA 1838, there was no dispute between the parties that at the date of his dismissal the claimant was not capable of returning to work at that time. In that determination, the Court found that “the key matter for the Court is the question of the degree to which Section 16 of the Act imposed obligations on the respondent to make an informed decision about the likely capacity or incapacity of the complainant to perform the work for which she was employed in the proximate future or whether, if reasonable accommodation was given to her, she would be capable of undertaking the essential duties of her position. ”While it is acknowledged that the respondent did engage with the claimant throughout his illness, I am satisfied that in failing to enquire into the opinion of the claimant’s Hungarian consultant or indeed in failing to refer the claimant for an up to date independent consultant’s assessment prior to his dismissal, the respondent failed   to objectively evaluate whether reasonable adjustments to the work arrangements of the claimant could be made so as to render him fully capable of carrying out his duties. I have concluded that no steps were taken by the respondent to undertake such an assessment. Accordingly, I must find that the respondent, on the 5th.Feb. 2016, was not in a position to objectively evaluate the degree to which appropriate adjustments could be made to the claimant’s working conditions so as to render him capable of participating in the employment and consequently I conclude that the respondent did not discharge the duties imposed by Section 16 – accordingly I am upholding the complaint. I further find that the claimant should have more proactively pursued the submission of medical evidence from   his medical team in Hungary. I am taking all of these factors into account in awarding €15,000 compensation for discrimination on the grounds of disability contrary to the Act. Payment to be made within 4 weeks of the date of this decision.