EDA1927

The Complainant submitted a Doctor’s note as part of his appeal to say that he suffered from Depression. This note dated 27 June 2017 was received by the Respondent on 5 July 2017, after the internal appeal meeting and prior to the decision to uphold the appeal.

The Complainant referred a case to the WRC under the Employment Equality Acts that the Respondent had failed to provide him with reasonable accommodation and had dismissed him for discriminatory reasons. This claim was not upheld by the AO.

The Complainant appealed to the Court. In view of the nature of the disability claimed, the Court agreed to anonymise the names of the parties to these proceedings, in accordance with the Court powers under s. 44(7) of the Workplace Relations Act 2015.

A preliminary issue as to whether the appeal was received in time was dealt with in Determination No. EDA 1913, in which the Court accepted that the appeal should be heard.

Complainant’s Arguments

The Complainant raised health and safety issues relating to risks to him by e-mail on 5 March 2017. On 21 April 2017, he notified the Respondent regarding chest pains brought on by stress and on 22 April 2017, he informed the Respondent that he was unable to ‘switch off’ from work related concerns. Three days later he was invited to a disciplinary hearing.

The disciplinary hearing was concerned with alleged under-performance. As probation was completed after 6 months, on 7 February 2017, the Complainant was entitled to the application of the Respondent’s disciplinary procedure which provides that ‘Unsatisfactory standards or output of work’ can result in punishments of ‘ Formal Verbal Warning’ or ‘Written Warning’. Under the definition of ‘Gross Misconduct’ in the procedure, which can result in dismissal, under-performance is not listed.

At the disciplinary hearing on 12 June 2017 that led to dismissal, the Complainant revealed that he suffered from Depression. The Complainant offered to meet any doctor of the Respondent’s choosing. The fact of this condition was supported by a print-out from the Respondent’s own Employee Assistance Programme service. In addition, two letters were submitted, one from the Complainant’s GP stating that he was suffering from work-related stress and had been ‘referred to a psychologist’ and the other from a hospital showing that he had presented to A and E with chest pains, for which no definitive cause was found.

Prior to that meeting, the Respondent had failed to adhere to their own Stress Management policy or general health and safety requirements.

There was a legal onus on the Respondent to act on the fact of the Complainant’s disclosure of a recognised disability. They did not do so but, rather, terminated the Complainant’s employment.

While the Complainant was still able to carry out his duties, the Respondent had an obligation to assist him by providing him with facilities to enable him to do so.

Documentary evidence of a disability was provided at the appeal stage but the Respondent failed to act on that information.

The treatment of the Complainant was less favourable than that given to a comparator, AD, who did not have a disability and who works for an associated employer. AD’s sales figures in the period in question were less than those of the Complainant. AD was not subjected to any process for alleged under performance.

Whereas the Complainant had previously received a written warning in accordance with the company handbook, this handbook was not applied in respect of his dismissal.

Respondent’s Arguments

In March 2017, the Complainant received a letter of concern from the Respondent regarding his performance, in which he was advised that if he did not show a significant improvement then he could be liable for further action.

On 21 April 2017, the Respondent became aware that the Complainant had failed to attend two meetings arranged with potential clients. When this breach in procedure was discussed with him, the Complainant contacted his manager, Mr. K, to advise that he had ‘pains in his chest’. Neither then nor in subsequent, related, correspondence did the Complainant refer directly to any medical condition nor was any medical documentation submitted. In fact, following a disciplinary meeting arising from this breach, the Complainant stated ‘I enjoy my job’. The Complainant received a verbal warning, which he did not appeal.

On 1 June 2017, the Complainant in an e-mail to Mr K, gave several reasons for his sales performance, none of which referred to any medical issues or any need for possible accommodations. In fact, the Complainant stated that he could sell the service ‘no problem’.

On 9 June 2017 the Complainant was invited to a disciplinary hearing because of his sales performance, having signed deals that represented 43% of his target. At that meeting no reference was made to any medical condition. At the end of the meeting the Complainant read out a document titled ‘Stress/Anxiety/Depression’, which outlined various stresses and pressures on the Complainant but did not set out any accommodations required. Indeed, the Complainant accepted that he was not where he should be ‘figure wise’ but asserted that this was not down to his ‘capability to do the job’.

Subsequent to this meeting, the Respondent received a medical certificate for the Complainant, which stated that he was suffering from ‘work related stress’ but went on to state that he was ‘currently fit to work on full duties’.

The Respondent notified the Complainant on 16 June 2017 of the decision to dismiss him and of his right to appeal. This appeal was conducted by Mr. F, who upheld the dismissal decision.

The Complainant was dismissed for under performance, (significant statistical information, that the Respondent argued to substantiate this point was provided to the Court).

The Complainant has not established a ‘prima facie’ case of discrimination nor a causal link between a disability and dismissal. It is not enough to assert that the Complainant has a disability and that the Complainant was dismissed , so therefore the Complainant was dismissed because they have a disability. That amounts to a mere assertion unsupported by facts which inMelbury Developments Ltd v Valpeters (EDA0917)was held to be an insufficient basis to establish a breach of the Acts.

Therefore, having failed to establish a presumption of discrimination, the claim should fall.

Disability could not have played a part in the Respondent’s decision to dismiss. On the date of dismissal, 16 June 2017, the Complainant had not submitted any medical evidence of a disability. The document provided on that day was self-penned and the document from the Respondent’s EAP service was based on a self-completed questionnaire. The Complainant was asked at the meeting on that date to provide medical evidence. Neither of the two documents provided subsequently outlined that the Complainant suffered from a disability. Furthermore, the medical certificate submitted on 14 June 2017 stated that the Complainant was fit for full duties.

Assertions by the Complainant that Mr. K had pre-determined the decision to dismiss need to be seen in light of the fact that stress/anxiety/Depression were mentioned first at the end of the disciplinary hearing.

Claims of work related stress are contradicted by constant affirmations by the Complainant, when in the relevant job, that he was enjoying his work.

References to chest pains cannot be inferred to suggest that the Complainant had made the Respondent aware that he was suffering from a disability.

Other BDMs have been dismissed for failing to reach sales targets, which was the sole reason for the Complainant’s dismissal.

The comparator cited, AD, was not subject to disciplinary action despite his sales figures as he had a lengthy and good service record with consistent effective sales performance and he was, at the relevant time, dealing with grief following the recent death of his father.

There was no requirement for a reasonable accommodation to be provided to the Complainant as his competence issues were unconnected to any disability. In any event, if an employee requires reasonable accommodation they are required to disclose a disability to their employer.

The Respondent has a history of providing reasonable accommodation, where appropriate and necessary.

Witness Evidence

The Complainant.

The witness put his submission into evidence.

Under cross examination and questioning from the Court, the witness acknowledged that he was the BDM with the highest basic salary and that he was the first BDM in Ireland to have a company car.

The witness did not accept that he was aware of the consequences of not meeting targets as the company handbook does not specify that this would lead to dismissal and he felt that some allowance would be made for his short service.

With regard to comments about enjoying his work, the witness said that he was not comfortable about saying anything else.

In response to questioning, the witness said that he did not want to reveal his disability in advance of the disciplinary hearing as it was ‘personal’ but he had done so at the end of the relevant meeting. He did not have time to submit a medical certificate prior to the meeting as he got notice on a Friday of a meeting to take place on the next Monday. When Mr. F asked at the appeal hearing, he arranged for a certificate to be sent following the appeal meeting.

When it was put to the witness that no medical evidence of a disability was produced to the Respondent prior to the decision to dismiss, he referred to the fact that he had offered to visit any medical expert chosen by the Respondent.

When asked why, if he was suffering from Depression, when he submitted to the Respondent in April 2017 that he had incurred chest pains, he did not refer to Depression, the witness said that he was not comfortable about doing so at the time.

When put to the witness that the comparator, AD, had made a disclosure to the Respondent which was taken into account in assessing his performance, whereas the Complainant had not done so, the witness replied that he was not aware if the comparator had done so.

The witness denied that the first the Respondent knew of his Depression was the medical certificate received on the day after his appeal and he reiterated that he had made the Respondent aware on the date of the disciplinary hearing that led to the decision to dismiss.

The witness said that he felt he could have been accommodated with reduced sales targets.

Mr K

Mr. K gave evidence that he had been Head of Sales for the Respondent at the relevant time and had been the Complainant’s manager and mentor.

The witness described how he noticed ‘a dip’ in the Complainant’s sales figures in March 2017 that led to him issuing a letter of concern, which he described as a ‘flag’ to an individual. The subsequent non-attendance of the Complainant at pre-arranged meetings led to a verbal warning but, he said, at that point he still believed that the Complainant would make a good BDM. He stated that no disclosure about a disability was made to him at that time, no medical certification was submitted to him and there was no request for EAP assistance.

The witness stated that between March and June 2017, the Complainant’s performance ‘dipped’ again. This led to the disciplinary meeting on 12 June 2017. In the course of that meeting the Complainant mentioned that he suffered from Depression and he read out a statement at the end of the meeting. Initially, his recollection was that the Complainant did not want this matter on the record. The Complainant said that there would be a follow-up letter from the HSE. He undertook to take everything into account but the only letters that he received subsequently was the letter from April 2017 regarding chest pains and a letter from the Complainant’s GP to say that that the Complainant was suffering from work related stress. Neither stated that the Complainant had a disability that was affecting his performance. The witness said that it was not for him to second guess doctors or to make assumptions.

The witness stated that that he would have been open to take a disability into account if this had been identified by the doctors. As it was, he made his decision to dismiss solely on the Complainant’s under-performance.

With regard to the comparator, AD, the witness said that he had 5 solid years of good performance behind him, he had a plan and contacts to get back to his targets after he dealt with his personal difficulties, so there was no reason for him to be subject to disciplinary action.

Under cross examination and questioning from the Court, the witness reiterated that the medical evidence was that the Complainant was fit for the full range of duties and this did not require him to make further enquiries. He said that he afforded the Complainant the opportunity to provide medical verification of a disability but he did not receive it.

The witness said that allowance would be made for temporary ‘dips’ in performance due to leave but that he had asked the Complainant for a plan.

When asked if he had deliberately avoided looking into the question of a possible disability in order to avoid having to make an accommodation, the witness said that he acted on what he was told.

The witness said that he had considered imposing a lesser penalty but had chosen not to do so due to the scale of under performance. He said that he would have taken serious consideration of any disability if it had been substantiated with medical evidence but, as it was not, he gave little weight to the matter in his consideration.

Mr. F

Mr. F gave evidence that he was the Group Sales Director of the company and that he had conducted the appeal. He had significant experience of similar appeals and he had overturned dismissal decisions in the past. He said that no evidence of Depression was submitted to him prior to the appeal.

The witness stated that he had concentrated in the appeal on identifying if the Complainant had a plan to turn his circumstances around. He was not satisfied on that point and he felt that the Complainant was inclined to blame others for his situation.

The witness said that the Complainant referred to his Depression at the meeting but that he only received medical evidence subsequently. The witness did not see a connection as the Complainant’s performance was well under target and the Complainant was adamant throughout that he could sell the service. He said that he would expect that the Complainant would generate 4 deals per quarter but his actual figure was 4 deals in 9 months and there was no clear plan on the Complainant’s part to address this despite his assertions about his ability to sell.

In discussing the Complainant’s Depression, his recollection was that the Complainant declined to say if he was on medication as it was ‘personal’.

The witness stated that for a number of reasons he would always prefer not to dismiss an employee. While he considered alternatives, in the circumstances he felt that dismissal was the best option.

Under cross examination and with reference to the relevant minutes, the witness accepted that the Complainant had not declined to answer whether he had been on medication and had answered ‘no’ to the question.

The witness re-stated that although he received medical evidence subsequent to the meeting that confirmed that the Complainant had Depression, he was provided with no evidence of a causal link between Depression and the Complainant’s performance. On the contrary, the Complainant asserted strongly that he could do the job. He said that he took his decision because the Complainant was at the ‘bottom end’ of performance.

The witness confirmed that he had not referred the Complainant to the company’s doctor under the company Illness Scheme.

Note: It should be noted that another case between the parties was dealt with in the same set of proceedings and witness evidence was given by two other witnesses in respect of a claim under the Payment of Wages Act, see Determination No. PWD 1913.

The Law

Employment Equality Acts 1977-2015

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

(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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the F16 Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

The comparators.

28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(a) in relation to the civil status ground, C and D have different civil status ;

(b) in relation to the family status ground, C has family status and D does not, orvice versa;

(c) in relation to the sexual orientation ground, C and D are of different sexual orientations;

(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, orvice versa;

(e) in relation to the age ground, C and D are of different ages;

(f) in relation to the disability ground, C is a person with a disability and D is not, orvice versa, or C and D are persons with different disabilities;

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

(h) in relation to the F52 Traveller community ground, C is a member of the Traveller community and D is not, orvice versa.

S.16

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

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

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’ s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) Insubsection (3)—

‘appropriate measures’ , in relation to a person with a disability —

(a) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,

(b) without prejudice to the generality ofparagraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

Deliberation

In cases of discrimination under the Employment Equality Acts the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. If that burden is discharged the probative burden of establishing that the principle of equal treatment was not infringed in relation to the Complainant shifts to the Respondent.

It is common case that the first time that the Complainant raised the matter of his Depression explicitly with the Respondent was at the meeting following which the Respondent decided to dismiss him. The Complainant has argued that, prior to this, he had submitted medical evidence that suggested symptoms of Depression and the Respondent, therefore, had an obligation to enquire further into this. The Court can find no legal basis for this assertion. Indeed, this Court inA Worker v. A Government Department (EDA094)described suggestions that would blur the distinction between ordinary human reaction to stressful situations and recognised psychiatric illness as an ‘absurdity’.

The Respondent had been provided with evidence of sickness, which the Court of Justice noted inChacon Navas v. Eurest Coletividades SA (2006) ECR 1-6467differs from disability.

It seems clear to the Court that if an employer is to be expected to offer a reasonable accommodation to an employee, they can only be expected to do so in circumstances where either the disability concerned is self-evident or, alternatively, they are advised of its existence. It would be, in the view of the Court, entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability that required them to take appropriate measures within the meaning of the Employment Equality Acts to assist an employee.

Mr. K was not provided with any medical evidence that the Complainant had a disability. He was provided with mere assertions to that effect by the Complainant. As this Court noted inMelbury Developments Ltd v Valpeters (EDA0917),albeit in a somewhat different context, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. In the application of this observation to the instant case, Mr K could not have been expected to accept the Complainant’s assertions in the absence of medical evidence.

Therefore, the decision by Mr K that the Complainant should be dismissed was not a breach of the Complainant’s rights under the Acts.

However, prior to Mr. F reaching his decision to uphold the dismissal on appeal, he received medical certification that the Complainant had a disability.

The Court has some concern that Mr. F explained his subsequent decision on the basis that he did not see a causal link between the disability and the work performance. Substantially more is required of an employer before making a decision to terminate the employment of a worker with a disability. The level of enquiry expected was set out at length inHumphreys v Westwood Fitness Club (2004) E.L.R. 296 300and inShannon Regional Fisheries Board v A Worker EDA 18/2013.In most circumstances an employer would be expected to follow the processes set out in those cases. The question for the Court concerned the applicability of those cases in the instant case.

The major difference between the instant case and the cases referenced is the timing of the presentation of evidence regarding a disability. In the instant case, the Complainant had been under notice for some months regarding his work performance. It is not clear if he had a disability at the time that his work first came under scrutiny, if it developed at a point between that time and his dismissal or if it was something that developed at the time of his dismissal. In any event, it was not verified with medical evidence until the day after his appeal hearing. That was the first opportunity for the Respondent to take the existence of a disability into account. This raises the question as to whether the Respondent was required at that point to undertake the extensive enquiries set out in the case law referenced?

If the disability concerned had only arisen at or near the time of the appeal, it is irrelevant to the matter of work performance and there is no obligation on the Respondent to take it into account. The Court is of the view that if there was a disability prior to that, on the facts of this case, there was an onus on the Complainant to bring it to the attention of his employer so that it could be acted upon according to the terms of the Acts and so that the enquiries set out in the case law referenced above could be undertaken. An employer cannot be blamed for failure to act if they were not made aware of the facts.

The Court concludes that the Complainant’s rights under the Employment Equality Acts were not breached.

It is noted by the Court that the issue of alleged discrimination on grounds of family status was raised at adjudication. No argument was put to the Court on this point.

DETERMINATION:

The court upholds the decision of the Adjudication Officer

Signed on behalf of the Labour Court




DC______________________
July 2019Tom Geraghty
Deputy Chairman


NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.