Complainant

Respondent

Parties

Stephen  Dunne

Sky Handling Partner Limited

Complainant

Respondent

Anonymised Parties

Stephen Dunne

Sky Handling Partner Ltd.

Representatives

Represented by Kiwana Ennis BL, instructed byIrish Human Rights and Equality Commission

Represented byPeninsula Group

Act

Complaint Reference No.

Date of Receipt

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

CA-00022442-001

05/10/2018

The complainant is alleging that he was discriminated against on grounds of his disability in relation to his dismissal from employment. He also alleges that the respondent discriminated against him by its failure to provide him with reasonable accommodation.

The complainant commenced employment as an Aircraft Service Agent with the respondent on 14 March 2018 as per his contract of employment which he signed on 15 March 2018. This was a part-time permanent position. The complainant states that prior to his commencement, he had successfully completed a Ramp Services Induction Course through the Aviation Academy on the last day of which he was invited to a group interview. The complainant submits that he was successful in the interview and he further successfully completed the training for his position of Aircraft Service Agent notwithstanding his difficulty with the driving element. In this respect, he was advised that he could complete this part of his training at a subsequent date. The complainant asserts that from the data access request documentation, there is an incident overview e-mail dated 15 March 2018 from trainer Mr. A in which he reported that during his training and whilst the complainant was driving the belt loader through the Pier 2 tunnel, he hit the blind spot of the belt loader of the tunnel structure and there was a bit of damage. There is also an e-mail from the trainer dated 16 March 2018 in which he confirmed that the complainant and another employee will not be passed off on the driving element and will need another day of training. He requested that their “ID’s be changed to non-driving for now.“

The complainant states that after the training was completed, all the new employees were requested to attend a medical assessment. The complainant states that he duly attended Dr. M on 23 March 2018 during which he did not disclose that he had dyspraxia on the basis that, as per the pre-medical questionnaire provided to him in advance of the assessment, this was not required to be disclosed nor was it relevant. The complainant contends that two or three days after his medical assessment, he was requested to attend a further medical assessment on the stated basis that the doctor wished to see him again. The complainant asserts that from the data access documentation in response to an e-mail dated 23 March 2018 attaching the medical certificate for the complainant, there is an e-mail dated 26 March 2018 from Ms. H, HR Business Partner to Dr. M in which she asked if he noticed that the complainant “walked with a slight limp and if there was any issue with his hand grip.” The complainant submits that there is no response from Dr. M in the data access documentation provided. He does, however, re-examine the complainant.

The complainant submits that on attending the second medical assessment towards the end of March 2018, Dr. M asked him a series of questions and the complainant, at this point, considered it relevant to disclose that he had dyspraxia. The complainant states that he was recommended for employment with “task restrictions”. On the medical certificate, Dr. M noted as follows; “Note history of dyspraxia (not disclosed on original form). This could affect co-ordination when carrying out tasks at speed. He has a driver’s licence + drives normally on the roads. However, unfamiliar vehicles in hazardous environments could present a problem. Good physical strength.” The complainant states that the medical certificate is dated 23 March 2018, the date of the complainant’s initial medical appointment. The complainant outlines that it can be seen from this certificate that the box recommending the complainant for employment “without restriction” has been ticked and then crossed out. The complainant submits that it is reasonable to infer therefore, that on 23 March 2018 after the initial medical assessment, Dr. M certified the complainant as fit for employment without restriction but changed his view only after the e-mail from Ms. H. The complainant submits that during this time, the complainant had also received his uniform, Garda vetting, car park approval and an official parking badge. He also received an employee e-mail address and log-in.

The complainant asserts that after the second medical assessment, Ms. H did not contact him. The complainant states that after making several attempts to speak to her, eventually on 11 April 2018, he successfully contacted her. The complainant states that she then told him that he could not work with the respondent because the work required working in hazardous conditions and that he would be a hazard. In response to this, the complainant asked if there was anything they could do to which Ms. H replied “No”. The complainant maintains that from the data access documentation, it can be seen that on 12 April 2018 (i.e. the day after the complainant had been informed that he could not work for the respondent because he was a hazard) Mr. B, Health & Safety Officer wrote a report headed “Stephen Dunne Report”. The report states:

“Based on all relevant information received on this person and the report completed by the medical examiner who completed the pre-employment medical and subsequent assessment, I have the following views:

1.       Dublin Airport can be a hazardous environment due to the large amount of aircraft traffic every day. This type of environment consists of many different hazards such as high noise levels, good/poor lighting, high vehicular traffic, high pedestrian traffic and weird sounds. This environment is suitable for most employees but some may struggle with the surroundings. As Stephen is suffering from Dyspraxia, this may place him more at risk by working in an already hazardous environment. Spatial awareness is a vital key within this role and everybody within the airport always needs to be aware of what is happening around them.

2.       Stephen would be working in different areas of the airport and with different types of equipment several times a day which may seem unfamiliar. The ramp environment is a place where there is very little margin for error and a person with difficulties in co-ordination and/or unfamiliar environments may have difficulty adapting to the workplace.

3.       All tasks as part of an ASA/BHASA role are tasks where good time keeping, adapting to pressurised situations, concentration and awareness play a vital role in order to ensure a safe and sound operation.

4.       Sky Handling Partner have a duty of care for the protection of their employees within the workplace. The safety of employees is always of paramount importance and in the event that we feel someone may not be suitable for the role due to a condition, everything is taken into account with all decisions made having a large focus on the safety of employees.  

Based on all facts given and received, I do not feel that Stephen Dunne is suitable for a position within the ramp department in Dublin Airport. The hazard identification and associated risk factor have increased due to his condition and the nature of the environment and my opinion is factored on ensuring the safety of Stephen and our employees.”

The complainant submits that the following issues arise on foot of this report:

a.       The purported “relevant information received” by Mr. B on which he has compiled his report has not been identified. The only relevant information in the data access documentation is the medical certificate, the 15 March incident overview e-mail, the 16 March 2018 driver training e-mail and the 26 March e-mail 2018 from Ms. referred to above. It is unclear if Mr. B had any other information before him. If not, his views are not based on the information before him and instead represent assumptions and generalisations about persons with dyspraxia. These views are not grounded in actual facts about the complainant. This is evidenced by his repeated use of the word “may” in the above quotation. In the alternative, if he had other information, this information has not been furnished to the complainant in response to his data access request and is in breach of the respondent’s statutory obligations.

b.       The conclusion reached by Mr. B is that he does “not feel” that the complainant “is suitable” for his role albeit that this conclusion is clearly couched in terms meant to imply that the complainant would in fact be a hazard to his fellow employees without adducing any actual evidence that this would be the case. Crucially, however, Mr. B does not in fact conclude  that the complainant would be unable to perform the core duties attaching to his role. 

c.       What is clear is that the report was compiled without any input from the complainant or any request to him to participate in the process by which it was concluded he was not “suitable”. The complainant was employed by the respondent at this time and the respondent ought not to have made a unilateral decision about his ability to perform the role without any input from him.

d.       The contents of the report are inconsistent with the medical certificate which recommended the complainant for employment with “task restrictions”.  This is not addressed at all by Mr. B.

e.       No expert report was obtained in order to assess the potential reasonable accommodation that could have been provided. It is submitted that this is a fundamental omission by the respondent.

f.        The timing of the report is also a concern. It is dated 12 April 2018, the day after Ms. H told the complainant he could not work with the respondent because he would be a hazard. It is clear therefore that the respondent cannot rely on the report to argue that based on its contents, the decision was made to terminate the complainant’s employment. It seems reasonable therefore to infer that in fact Mr. B was not requested to conduct a bona fide assessment of the complainant’s ability to do the role, but instead was directed to justify ex post facto the decision already made to terminate the complainant’s employment.

The complainant submits that based on the foregoing, the respondent cannot claim that this report was written in good faith or on a fully informed basis. The complainant contends that he subsequently received his P45 which confirmed his termination date as 20 April 2018. The complainant states that he had received one week of pay on 23 March 2018. He submits that no formal notice of termination was ever issued to the complainant and the formal reasons for his termination were never provided to him in writing. The complainant asserts that he was entirely excluded from the respondent’s decision-making process in respect of the termination of his employment which is profoundly unfair and in breach of his rights to fair procedures. The complainant states that clause 18 of his contract of employment provides as follows; “It is a condition of your employment  to disclose to the company any events or incidents in respect of your health, or any criminal conviction(s) or any other matter that occurred in the past or may occur in the future that would have any bearing on the terms of your employment with Sky Handling Partner Ltd. or your work performance.” The complainant maintains that at no stage did the respondent seek to rely on this clause. It is submitted that in order to be in a position to properly rely on this provision, the respondent would have had to invoke it at the relevant time and not retrospectively and further would have been required to adhere to fair procedures and natural justice in reaching any conclusion in respect of his health that would have any bearing on the terms of his employment or his work performance.

The complainant submits that the respondent acted in breach of the principle of equal treatment, in this regard, reliance is placed on the respondent’s decision to have the complainant re-examined after he had been recommended for employment without restriction and on the report from Mr. B. The complainant contends that Dr. M appeared to have changed his view only after the e-mail from Ms. H raising issues about the complainant. The complainant submits that Mr. B’s report is based entirely on speculation not grounded on facts about persons with dyspraxia and in particular on any actual facts about the complainant. The complainant asserts that it is clear that Mr. B did not have the necessary information or expertise to make such a report. His conclusion is merely that he feels that the complainant is not suitable. The complainant submits that Mr. B does not conclude that he is unable to perform the core duties of his role. The complainant states that it is also inconsistent with the medical certificate. In addition, it was dated the day after the complainant was told that he could not be employed as he would be a hazard and as a result appears to be a retrospective attempt to provide a justification for terminating the complainant’s employment.

The complainant submits that the decision to dismiss him was a discriminatory dismissal and made purely on the basis of his disability and a non-fact based perception that he would not be “suitable” for the role. The complainant states that the complete and total failure by the respondent to even consider the issue of reasonable accommodation renders the respondent in breach of its duty in this regard. Moreover, the complainant argues that this failure prohibits the respondent from relying on a claim that no reasonable accommodation could have been made to facilitate him.

The complainant submits that based on the foregoing, he has made out a prima facie case of discriminatory dismissal and a prima facie case of a failure by the respondent to provide reasonable accommodation. The complainant further submits that based on the conduct of the respondent, including its exclusion of the complainant from the decision-making process, its failure to ground its decision on facts and its failure to even consider the issue of providing reasonable accommodation, the respondent would not be able to show that there was not a breach of the principle of equal treatment and therefore would not be in a position to rebut the presumption of discrimination that arises in this case.  

The respondent states that the complainant completed a Ramp Services Induction Course through the Aviation Academy, a business associate for recruitment of Sky Handling Partner. The complainant commenced training with the respondent on 5 March 2017. By letter dated 7 March 2018, the complainant was offered a part-time permanent position of Aircraft Service Agent Trainee, subject to an 8 month probationary position. The respondent submits that paragraph 15 of the letter states:

15. Health and Safety

You are required to comply with the Company’s Health and Safety Training, Policies & Procedures and Safety Statement including relevant Risk Assessments during your employment, which may be amended from time to time, and in line with health and safety legislation.

And at paragraph 18, it states:

18. Disclosure

It is a condition of your employment to disclose to the company any events or incidents in respect of your health, of any criminal conviction(s) or of any other matter that occurred in the past or may occur in the future that would have any bearing on the terms of your employment with Sky Handling Partner Ltd. or your work performance.

The respondent maintains that it was a requirement of Sky Handling Partner, Dublin Airport Authority, Health and safety and Aviation Regulations that the complainant complete the relevant training for the position. The respondent submits that the complainant completed a “Sky Handling Employee Personal Detail Form”. In response to the question ”any Allergies/Medical Condition likely to cause harm to the health and safety of yourself and others “ the complainant wrote “No”. The respondent asserts that on 23 March 2017, the complainant attended a pre-employment medical assessment with the company Doctor, Dr. M. The respondent contends that at the appointment, the complainant was asked to complete a “pre-employment evaluation form” the form contains a detailed and lengthy list of questions regarding the complainant’s health but he failed to disclose any condition.

The respondent outlines that on foot of the information provided in the “pre-employment medical evaluation form”, the complainant was assessed by Dr. M and was assessed as being fit to perform the role. The respondent submits that the complainant commenced his training on 1 March 2018. During the course of his training, the complainant was required to prove competency in driving a variety of vehicles including vehicles with lengthy dollies (trailers) attached. The respondent states that on 15 March 2018, the complainant was driving a belt loader through the pier 2 tunnel and on 2 occasions in close succession, he allowed the belt loader to collide with the tunnel structure causing damage to the belt loader. The respondent asserts that by e-mail of 16 March 2018, Mr. A, Ramp Trainer advised that the complainant would not pass the driving aspect of the training. Based on this, Mr. A referred the complainant back to the respondent’s HR department who referred him to the Health and Safety Department for risk assessment who recommended the complainant be reassessed by the company doctor. This was completed on 29 March 2018. The respondent submits that the report recommended the complainant for employment with task restrictions. The respondent asserts that Dr. M notes that the complainant had a history of dyspraxia which was not disclosed on the original form and states: “this could affect co-ordination when carrying out tasks at speed. He has a driver’s licence + drives normally on the roads. However unfamiliar vehicles in hazardous environments could present a problem. Good physical strength.”

The respondent submits that Mr. B, Health and Safety Officer completed a report dated 12 April 2018 regarding the complainant. The report identified Dublin Airport as being a hazardous environment “due to the large amount of aircraft traffic every day. This type of environment consists of many different hazards such as high noise levels, good/poor lighting, high vehicular traffic, high pedestrian traffic and weird sounds.” Paragraph 2 of Mr. B’s report outlines that the complainant would be required to work in different areas within the airport and with unfamiliar equipment. Mr. B concluded that “I do not feel that Stephen Dunne is suitable for a position within the ramp department in Dublin Airport.” The respondent submits that it is important to note that approximately 70% of the job of an Aircraft Service Agent involves driving a variety of vehicles on the ramp near the airplane and hazards include airplanes in taxi mode, passengers, other vehicles, long trailers and moving passenger steps.

The respondent states that the complainant had a telephone conversation with Ms. H of HR on 12 April 2018 when they discussed the complainant’s position and any accommodation that the respondent could make for the complainant. The respondent submits that the complainant was offered the role of Passenger Service Agent, which would not require the complainant to work on the ramp. The respondent asserts that this role would require the complainant to work at the check-in, boarding and arrival gates. The respondent states that the complainant advised that he could not work in this pressurised environment. The respondent states that it could not think of any other role that the complainant would be suitable for. The respondent maintains that the complainant was advised that he was not deemed suitable for working on the ramp and working on the ramp is where all of the work for the position of Aircraft Service Agent takes place. The respondent states that on that basis, the complainant was advised that he had not completed the training for the position of Aircraft Service Agent Trainee and accordingly, his employment could not continue.

The respondent cites the recent Court of Appeal decision in Nano Nagle School v Daly [2018] IECA 11. The respondent submits that a key point which arose in that case was whether Ms. Daly had to be capable of only some of the tasks required of a SNA or all of the tasks required. The Court of Appeal stated: ”Adjustment to access and workplace 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 is section 16(1) must be respected.”             

The respondent reiterates that driving on the ramp is an essential duty of the role of Aircraft Service Agent which the complainant is not able to do safely. The respondent submits that when the Nano Nagle decision is applied to the case at hand, it can be seen that the respondent is not required to strip away this essential duty and therefore is entitled to deem the complainant as not being suitable for the role of Aircraft Service Agent. The respondent also states that in the Nano Nagle case, the Court of Appeal gave consideration to the fact that allowing the complainant to work in the position of Special Needs Assistant could pose a danger to the children that she worked with.

In conclusion, the respondent states that its position is that the complainant did not complete the required training for the position and therefore could not conduct the role for which he was employed.

I have considered all the evidence both written and oral presented to me.  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 in relation to him.  If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.  In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  In a previous Determination, the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –

                "Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are 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 drawn. 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.”

Disability is defined in Section 2 of the Acts:

‘‘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;

I am satisfied that the complainant’s disability which is dyspraxia comes within the definition outlined above. Unlike other grounds such as race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee.   In this regard, Section 16 (1) of the Acts states:

Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or 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 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.

However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

(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.

Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose a disproportionate burden:

(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.

The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court in the case of “A Health Club and A Worker”. It is worthwhile to quote the relevant paragraphs:

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that theemployer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed.However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case.At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's conditionand that theemployee is given fair noticethat the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.

Without doubt, this assessment is an onerous process for employers. It is worth bearing in mind why this burden is placed on them. Recital 16 of the relevant EU Directive states ‘the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination’.

Having carefully examined all the evidence, I find that the respondent failed to identify specific issues with the complainant but the decision to dismiss was specific to a condition the complainant had. The respondent stated on a few occasions at the hearing that a person with dyspraxia cannot do the job - that persons with dyspraxia could not work in an environment such as in the instant case.  In relation to the driver training, I note that it was recommended that the complainant be given one more day of training but this did not happen. In my view, the respondent cannot argue that the complainant would not have been capable of completing the driver training as it did not afford him the opportunity to undergo a further day of driver training.  Accordingly, I conclude that the respondent had not made the enquiries necessary to conclude that the complainant was incapable of doing the role. The complainant at hearing stated he holds a full driver’s licence and that he drives all the time and there is no issue in that regard.

I note that the respondent made a decision to have the complainant re-examined after he had been recommended for employment without restriction. I note that Dr. M at this juncture changed his view and was already in receipt of an e-mail from Ms. H (HR) raising issues about the complainant. I am satisfied that Mr. B’s report on the complainant is grounded on assumptions and generalisations about persons with dyspraxia but is not grounded on actual facts about the complainant’s specific condition.  In my view, Mr. B did not have the necessary and requisite information to make such a report on the complainant. Mr. B’s conclusion is that he feels that the complainant is not suitable for the role. However, he does not conclude that the complainant is unable to perform the core duties of his role. In my opinion, it is quite telling that this report was dated the day after the complainant was told that he could not be employed as the role required working in hazardous conditions and that he would be a hazard.  Upon my questioning of Mr. B (Health & Safety Officer) in relation to his report, he replied that his research involved doing a Google search on dyspraxia on his PC. It is quite astonishing, in my opinion, that Mr. B compiled a report on the complainant without ever having met him or obtaining expert independent advice on the specifics of the complainant’s condition.

In dealing with cases of discrimination based on the ground of disability, the Labour Court has recognised that subconscious bias can occur in this area. In a decision of A Government Department v An Employee EDA 062, the Labour Court stated:

“The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they suffer from a disability per se, but they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denial of discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

I am cognisant from the documentation submitted that no expert evidence was obtained in relation to the complainant as to duties/tasks which he could/could not undertake. I find that the respondent did not make adequate 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 am satisfied that the respondent did not consider reasonable accommodation in respect of the complainant. While the respondent states that it offered the complainant a role of Passenger Service Agent, which would not require the complainant to work on the ramp; this is denied by the complainant.  On this issue, I prefer the evidence of the complainant as I found him to be an honest and credible witness. I note from the documentation submitted that there is nothing in writing or no evidence to corroborate the respondent’s statement that it offered him a position as a Passenger Service Agent. Having carefully considered the evidence, I am satisfied that the complainant has established a prima facie case of discrimination in relation to the respondent’s failure to provide him with reasonable accommodation.

A leading textbook on Irish Employment Equality Law neatly summarised an employer’s duties under the law as follows:

“In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment).”[2]

I find that the respondent did not carry out a thorough assessment in relation to the needs of the complainant as outlined above. The complainant was not allowed a full opportunity to participate at each level as outlined in the Humphrey’s v Westwood Fitness Club case mentioned above. I am satisfied that the complainant was never given a chance to influence the decision of the respondent to dismiss him.

In conclusion, having carefully examined all the documentation and witness testimony in the instant case, I find that the complainant based on the above evidence has demonstrated a nexus in relation to his termination of employment and his disability, therefore I find that he has established a prima face case of discriminatory dismissal on grounds of his disability and the respondent has not rebutted this evidence.

In measuring the appropriate quantum of compensation, I am cognisant of the Labour Court decision in Fox v Lee EED 036/2003 which confirmed that regard must be had to all the effects which flowed from the discrimination that occurred.  This includes “not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings.”

In relation to the position in the instant case, the complainant stated that he felt he was part of the team and was looking forward to working in the position but was very disappointed when the respondent terminated his employment.  The complainant also gave testimony in relation to the difficulties he has encountered in trying to source employment.

I find that the respondent failed to provide the complainant with reasonable accommodation in accordance with section 16 of the Acts.

I find that the respondent discriminatorily dismissed the complainant on the disability ground.

In considering redress, I find that compensation is the most appropriate form of redress in the circumstances of this case. I am mindful of the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015; I hereby order that the respondent pay the complainant €15,000 by way of compensation for breaches of the Act which represents 18 months salary. The award is redress for the infringement of the complainant’s statutory rights and therefore, not subject to the PAYE/PRSI code.

I also deem it necessary to further order that the respondent conducts a review of its procedures in relation to its employment policies and practices to ensure compliance with the Employment Equality Acts.