DEC-E2019-006

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2019-006

PARTIES

Przemyslaw Kulczycki

(represented by SIPTU)

Vs

The Tipperary Cheese Company Ltd.

File reference: EE/2014/211

Date of issue: 6 June 2019

1. Dispute

This dispute involves a claim by a complainant that he was discriminated against by the respondent on the grounds of disability, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 when they failed to provide him with reasonable accommodation for his disability.  

2. Background

2.1       The complainant referred a complaint against the above respondent on the 8 April 2014 to the then Equality Tribunal. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated this case on 14 January 2019 to me, Valerie Murtagh, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. A written submission was received from the complainant’s representative.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to hearing. A hearing was scheduled for 25 March 2019, however the respondent requested an adjournment which was acceded to. Subsequently, the hearing was rescheduled for Monday 29 April, 2019.  

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

3. Summary of complainant’s case

3.1       The complainant submits that he commenced employment with the respondent on 27 November 2006 as a general operative. He states that he was happy in his employment and over time, he was successful in his application for the role of supervisor. The complainant states that in June 2013, he started to experience some back pain and he went to his GP and   was certified on sick leave absence from work. His GP then referred him to an Orthopaedic Consultant who made a diagnosis of Scoliosis.

3.2       The complainant submits that in January 2014, his GP and Orthopaedic Consultant deemed him medically fit to return to work. The complainant states that he attended for work but the Director of the respondent company, Mr. H advised that he had no work for him and told him to go back to the GP and get a sick certificate. The complainant submits that the respondent refused to let him back to work despite being medically certified to do so. The complainant’s representative states that SIPTU sent letters to Mr. H seeking the complainant’s return to work in February 2014, however no response was forthcoming. On 8 May 2014, further correspondence was furnished to the respondent including an EE 2 form. On 11 June 2014, the respondent advised that it had not paid the complainant since June 2013 and that it did not have work for him. However, the complainant’s union representative states that the respondent did not issue him with a P45.

3.3 The complainant asserts that the respondent did not organise for any medical assessment to be carried out in relation to his disability nor did the respondent look into the provision of reasonable accommodation/appropriate measures to allow him to remain in employment. In conclusion the complainant states that he has suffered direct discrimination by the respondent who refused to return him to work following a diagnosis of Scoliosis. The complainant submits that he had been a valued member of staff for a number of years. He states that the discriminatory actions of the respondent have had a profound effect on him psychologically and a detrimental effect on him financially.

4. Summary of Respondent’s case

4.1       The respondent submits that the complainant’s main role comprised lifting/carrying and pushing various volumes of cheeses, yogurts etc and that if the company returned him to work, the complainant would have been a danger to himself and to other staff in the job. The respondent states that it was not in a position to provide work to him as it only has general all-purpose positions which the complainant had advised were not suitable for him. The respondent denies that it discriminated against the complainant on grounds of disability.

5. Findings and Conclusions of the Equality Officer

5.1       The issue for decision by me is, whether or not, the respondent discriminated against the complainant, on grounds of his disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to a failure to provide him with reasonable accommodation for his disability. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.  

         5.2       Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

5.3       Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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 in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.

Reasonable accommodation

Section 16(1) of the Actsstates that

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….....

(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and full 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.

5.4       In addition, Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[1].  

5.5       In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.

Disability Ground and Notification of Disability

5.6       It is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.

Disability” is defined in Section 2 of the Acts as meaning –

           “(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”.

5.7       The complainant advised the hearing that his GP referred him to an Orthopaedic Consultant who made a diagnosis of Scoliosis. I am thus satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015 and that the respondent was aware of the complainant’s disability.

5.8       I find that the respondent did not carry out any assessment in relation to the needs of the complainant as is required under the Acts. I note that no expert evidence was obtained in relation to the complainant as to the duties/tasks which he could/could not undertake. I find that the respondent did not make enquiries regarding the impact of the complainant’s condition on his ability to do the job. It was not in possession of all the material facts. I note that the respondent stated at the hearing that he did not have work for the complainant nor was he was in a position to create a “soft job” for the complainant. Having carefully considered the documentation and witness testimony in the instant case, I find that the complainant, based on the above evidence, has established a nexus in relation to his treatment in employment and his disability. Accordingly, I find that he has demonstrated a prima face case of discrimination on grounds of his disability in relation to the respondent’s failure to provide him with reasonable accommodation.

6. DECISION OF THE EQUALITY OFFICER

6.1       I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015, I issue the following decision.

6.2       I find that the respondent discriminated against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in respect of a failure to provide him with reasonable accommodation for his disability within the meaning of section 16 of those Acts. In accordance with my powers under section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €20,000 by way of compensation for breaches of the Acts. This award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI code.

_____________________

Valerie Murtagh

Adjudicator/Equality Officer

6 June 2019

[1]  [2004] 15 ELR 296

[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)