EDA1914

This is an appeal by Mr. Clarke, ‘the Complainant’ of a decision by an Adjudication Officer, (AO), of the Workplace Relations Commission, (WRC), that Jaclann Holdings Ltd., ‘the Respondent’, had not discriminated against him contrary to the Employment Equality Acts 1977-2015.

The Complainant had been employed by the Respondent since 1994, initially as a haulage driver and for over 14 years he had combined that role with planning deliveries for other drivers.

Following a review of the business, the Complainant was advised in January 2016 that a full-time post of a transport planner was being created and advertised. The Complainant did not apply.

From March 2016 the Complainant returned solely to driving duties, on his existing salary, and he was required to return the company telephone.

There is disagreement between the parties as to whether, at that point, the Complainant was told that he was too old for the job.

In August 2016 the Complainant developed heart problems, which required stents to be fitted. He was also diagnosed with sleep apnoea.

On 1 November 2016, two medical consultants certified the Complainant as fit to return to work. The Respondent states that he was unable to get insurance cover for the Complainant due to his sleep apnoea. It is contended by the Complainant that this was used by the Respondent as an excuse not to return him to work.

On 19 January 2017, the Complainant’s Solicitors wrote to the Respondent stating that they had refused to allow him to return to work and had failed to make a reasonable accommodation toward his disability and that they had failed to challenge their insurers of a breach by them under the Equal Status Act.

Subsequent correspondence between the parties failed to secure a resolution.

Upon renewal of the insurance at the beginning of June 2017, the insurers indicated a willingness to cover the Complainant if his medical conditions, including sleep apnoea, were accepted by the Irish licencing authority and the conditions were endorsed on his licence. This was conveyed to the Complainant on 15 June 2017.

The Complainant did not respond. It is his case that the actions of his employer were so discriminatory that he lost faith in the Respondent and that he could not return to work. He claims a constructive discriminatory dismissal under the Employment Equality Acts 1977-2015.

The claims that the Respondent had failed to provide a reasonable accommodation and that a constructive discriminatory dismissal had occurred were rejected by the Respondent and the AO’s decision found in favour of their position.

Reference was made in the Complainant’s appeal submission to the Court of a claim under the Organisation of Working Time Act and the Complainant confirmed that this had been withdrawn.

Similarly, a claim of discrimination on age grounds was withdrawn and, in the course of the Court hearing, the Complainant withdrew a claim of victimisation.

This appeal deals solely with the issue of reasonable accommodation and alleged discriminatory dismissal.

Complainant’s arguments

It is not disputed that the Complainant had a disability. If there was a difficulty with the Complainant’s licence, the Respondent could have provided a reasonable accommodation for him as a temporary measure by allowing him to return to his previous transport manager duties.

The Complainant was fit and able to return to work but the Respondent failed to make a reasonable accommodation that would have allowed this, while they dealt with the insurers’ breach of the Equal Status Act. Approval or acquiescence with a breach of this Act by an employer is a cause of action under the Employment Equality Acts.

The European Court of Justice found inFirma Feryn N.V. Case C-54/07that the Respondent in that case had discriminated unlawfully because of their customers’ requirements. In the instant case, the Respondent is using the requirements of their insurers as an excuse.

If the insurers had discriminated against the Complainant because he was a member of the Travelling Community, the duty of the Employer would have been to ensure that such an unlawful discrimination did not stand.

Another employee with Vertigo was permitted to return to work and no issue of insurance arose, showing in the instant case the attitude of the Respondent to the Complainant.

It was entirely unreasonable to leave the Complainant without an income for eight months. Instead of addressing his grievance in not being allowed to return to work, the Respondent dealt with the Complainant in a legalistic and unfriendly manner.

The medical evidence is that the Complainant could return to work. He was not allowed to return and no reasonable accommodation was made to facilitate his return. This establishes a ‘prima facie’ case of discrimination and shifts the burden of proof to the Respondent.

The Complainant was the subject of a discriminatory dismissal. He cannot return to work for an employer that treated him so badly and he seeks the remedy of dissuasive compensation, as per the Court of Justice judgement inVon Colson and Kamann v. Land Nordrhein-Westfalen, (Case-14/83).

Respondent’s arguments

There was no discrimination against the Complainant. The only reason he could not return to work was the fact that the Respondent could not secure insurance cover for him.

Even the transport managers are required to have HGV licences and insurance as they may be needed to do relief driving. Apart from two employees who maintain accounts and payroll, these are required of all employees.

In the case ofHegarty Metals Processors (International) Ltd v Kieran Byrne (EDA 1437)the Labour Court stated that '…the statutory obligation is to provide reasonable accommodation to undertake the work for which the Complainant was employed.’ The Complainant was employed as a driver and to do that job, insurance was required.

With regard to the alleged discriminatory dismissal, the Complainant was not dismissed by the Respondent and to establish a case of constructive dismissal there must either be a breach of contract or the employer’s behaviour must be so unreasonable that it would be reasonable of the employee to resign. Neither criterion has been met and the first time that the Respondent learned that the Complainant considered himself dismissed was when they received the WRC Complaint Form. The Complainant never raised an internal grievance under the Respondent’s grievance procedure.

There is a number of cases on this subject, including the observation inConway v. Ulster Bank (UD 474/1981that ‘..the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaint’.

In the instant case, the Respondent sought solutions to acquire insurance cover for the Complainant.

On the burden of proof, it is not enough that the Complainant has a disability to establish a claim of discrimination and, as the Court set out inMargetts v. Graham Anthony and Co Ltd., (EDA 038), ‘The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred’. It is only when this burden has been discharged that the burden shifts to the Respondent. This is not the situation in the instant case.

The ‘Feryn’ case quoted has absolutely no similarities with this case as the Respondent was required to insure the Complainant before he could drive and it was up to the Complainant to meet the requirements of the licencing authority.

InNano Nagle School v. Marie Daly (2018) IECA 11President Sean Ryan of the Court of Appeal noted that the proposition that there is a free-standing obligation on an employer to carry out an evaluation ‘without regard to the fundamental question as to whether the employee is actually capable of doing the job’ is incorrect. In line with this judgement, the Labour Court inExcellence Ltd v Adam Herzyk EDA 1815observed that ‘..the Respondent was not under any obligation to provide the Complainant with an alternative job in another department..’

Witness evidence

Mr. David Clarke, ‘the Complainant’, gave evidence that he had worked for the Respondent since 1994. He described his role as a transport planner, which he carried out for many years, in addition to his duties as a driver.

He stated that he had been close to the owner of the Respondent, Mr. Jack Lannon, but that they had exchanged words before the consultant was engaged and he said that Mr. Lannon had told him that he was going to take the phone from him. He said that he was called in a few weeks later and reprimanded for talking about the management. He stated that his relationship with Mr. Lannon had cooled after that.

He recounted how a colleague with Vertigo had been allowed back to work without difficulties, in contrast to the treatment of him. He believed that his employer just did not want him to return to work and if he had been told that he needed an endorsement on his licence, he would have arranged it. He was now driving for two companies without any problem.

The fact that the Respondent did not write to him about the endorsement until a few weeks after the insurance renewal confirmed his view that he was no longer wanted.

Under cross examination, Mr. Clarke denied that he had only spent about 15% of his time on planning duties, stating that it was, in fact, about 50%. He denied that the Respondent had tried to get him to come in from the road on a few occasions, saying that this was only mentioned to him once, way back in 1997.

He accepted that he had never asked to be brought back on a part-time basis and said that he had no direct contact with the Respondent after January 2017 as he left that to his Solicitor.

He stated that while he was out on sick leave, two or three people had been taken to work in the office of the Respondent but no effort was made to accommodate him. His Solicitor had asked for him to be accommodated in his letter of 19 January 2017.

Mr. Jack Lannon

Mr. Lannon is the owner of the Respondent company.

He gave evidence that he regarded the Complainant as a friend and could not speak highly enough of him. The Complainant had on one occasion really helped him out when he had to be abroad for seven weeks.

He accepted that words had passed between them but that had not changed his opinion of the Complainant.

He said that when the Complainant returned to work, given his medical condition, he had no choice but to bring the case to the attention of the insurance broker, Mr. Shane Wilson, and that the underwriters had refused cover for Mr. Clarke. He had tried regularly to get the matter sorted until the insurers eventually agreed to cover the Complainant, subject to conditions.

Then, much to his surprise, he received a letter from the Complainant’s Solicitor, when he felt that the matter could be sorted, in time.

Under cross examination, the witness stated that he felt he had no choice but to notify his broker of the nature of the Complainant’s medical condition as he was required to do in other cases regularly. In his view, this arose in about 5% of sick leave cases.

He stated that one of his colleagues kept the Complainant up-dated regularly on the attempts to resolve the insurance issue.

When it was put to him that leaving the Complainant without an income for a considerable number of months after he was deemed fit to return to work, was not consistent with how he said he viewed the Complainant, he stated that he did not have a non driving role that he could give the Complainant, even though he was a friend.

Mr. Shane Wilson

Mr. Wilson gave evidence that he was Jaclann Holdings’ insurance broker.

He outlined how the insurance underwriters had refused to cover the Complainant when he was certified fit to return to work. He denied categorically that the insurance issue was a ruse to avoid re-employing the Complainant, stating that he would not risk damaging his hard earned reputation. He stated that his relationship with Mr. Lannon was purely professional.

He stated that when the company’s insurance underwriters had refused cover for the Complainant, he had tried repeatedly to get them to change their minds and had used the letter from the Complainant’s Solicitor, which referred to the Equal Status Act, but to no avail. Furthermore, he stated that Mr. Lannon had directed him to seek single vehicle cover for the Complainant, if possible, but he had been unable to do so. He stated that Mr. Lannon had told him to make it a condition of renewal that the Complainant be covered and it was this approach that worked, when the renewal was negotiated.

Under cross examination, the witness was unable to remember the details of the employee with Vertigo, so he could not comment.

The witness stated that in insurance most inter-actions involving cover being obtained are done by telephone, so there is no trail of correspondence with the insurers.

He accepted responsibility for the delay in notifying the Complainant after renewal that he could be covered if he got the necessary licence endorsement.

He stated that issues around medical conditions were raised with the insurers about 4 or 5 times a year.

The Law

Nature and extent of employer’s obligations in certain cases.

16

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

( a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

( b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

( a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

( b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

( c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(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.

Discrimination for the purposes of this Act.

6

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 in subsection (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 of paragraph (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 to subsection (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 Traveller community and the other is not (in this Act referred to as “ the Traveller community ground ”).

(2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

(3) ( a ) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

( b ) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

F18 [ (c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if —

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary.

( d ) Subsection (1)(b) of section 2 (exclusions) of the Unfair Dismissals Act 1977 is amended by deleting ‘ or who on that date was a person to whom by reason of his age the Redundancy Payments Acts 1967 to 1973, did not apply ’ and inserting ‘ or who on that date had not attained the age of 16 years ’ . ]

s. 2(1) of the Act

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the

conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

Deliberation

This is an appeal by the Complainant that the Respondent failed to make a reasonable accommodation for his disability, contrary to s. 16 (3) of the Employment Equality Acts, and that this prevented him from working for a period of months, as a consequence of which he was constructively dismissed in contravention of s.6 of the Acts, as clarified under s.2(1) of the Acts.

There are two issues for the Court to determine. Firstly, did the Respondent fail to meet the requirements of s.16(3) by not providing reasonable accommodation? Secondly, did the Respondent’s actions give grounds for constructive dismissal?

The question of reasonable accommodation is the subject of much case law. It has legal rather than moral meaning. Therefore, it is not for the Court to make judgement as to any perception of the Respondent’s moral responsibilities to an employee whom the owner described as a friend. The function of the Court is to determine the Respondent’s legal responsibilities and to test the evidence to determine the extent to which these were discharged.

As noted in the Respondent’s submission, the existence of a disability, in itself, is not enough to establish a claim of discrimination. As this Court noted inMargetts v. Graham Anthony and Company Ltd. EDA 038‘The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred’. In the instant case, it is accepted by both parties that the Complainant was deemed medically fit to return to work but that he was not facilitated in doing so because the Respondent was unable to secure insurance cover for him to drive the vehicles.

Having heard evidence on the matter, the Court does not accept the Complainant’s position that the insurance issue was a ruse to prevent his return to work. All of the evidence points to sustained efforts on the part of the Respondent to ensure that the cover was in place. Indeed, correspondence shared with the Court suggests that the Respondent made it a condition of renewal of the fleet insurance that the Complainant be covered and it appears that it was this condition that led to a change of heart by the insurer. The question for the Court is whether a reasonable accommodation could have been made by the Respondent that got around the difficulty in covering the Complainant with insurance so that he could have been facilitated with a return to work once he had been deemed medically fit to do so. InAn Employer v A Worker EDA 13/2004this Court noted that reasonable accommodation can involve special treatment that would enable the employee to undertake the duties attached to a job. However, it is difficult to see what special treatment could have been used to allow a driver to undertake driving duties if insurance could not be secured for him doing so. That is, in the view of the Court, an objective justification for the inability of the Respondent to facilitate a return to work by the Complainant.

Therefore, the Court is of the view that there is notprima facieevidence of discrimination and that the burden of proof rests with the Complainant.

The case made is that the Respondent had an obligation to facilitate a return to work for an employee that was deemed fit to do so. In reality, this would involve finding work for the Complainant that did not involve driving and reference was made to the Complainant’s experience of carrying out non driving functions. The reasonableness of taking such steps, even if only temporarily pending a resolution of the insurance issue, for an employee of such long standing was argued. However, the Court is of the view that this is a moral rather than a legal argument. In theNano Naglecase quoted by the Respondent, Ryan P. went on to observe that the ’central reality’ of the case was that the Complainant could not perform the central tasks of the job and that ‘..no accommodations can change that..’ Likewise, in theExcellence Ltdcase quoted, this Court noted explicitly that the employer was not required to provide an alternative job. The harsh reality for the Complainant in the instant case is that he was a full- time driver when he went on sick leave, the only obligation on his employer was to facilitate his return to driving duties and the Respondent was not in a position to do so because of the inability to secure insurance, an essential requirement for a driver. As no reasonable accommodation within the legal meaning of the term was available to the Respondent, the Court is of the view that this aspect of the Complainant’s case is not well founded.

On the question of a possible constructive dismissal, the test to be applied is set out in s.2(1) of the Employment Equality Acts. The question for the Court to determine is if it was reasonable for the employee to leave his employment?

Precedent cases, of which there is a substantial list to be found in ‘Redmond on Dismissal Law, p.432, (3rd Edition, Bloomsbury), make it clear that there is a very high standard of proof required to establish constructive dismissal.

It could be argued for the Complainant that the failure of the Respondent to facilitate his return to work for so long amounted to a breach of the Complainant’s contractual entitlement, such that the Complainant had no option but to terminate his employment. However, all the evidence given to the Court points to efforts by the Respondent to facilitate the insurance cover necessary to enable the Complainant to work as a driver. The fact that it took so long to resolve the matter was largely, if not wholly, outside the Respondent’s control.

It follows, therefore, that the Respondent cannot be deemed to have acted unreasonably, which is the other test applied in cases of constructive dismissal, if, as the Court believes, they took reasonable steps to facilitate the Complainant’s return to work as a driver.

In addition, the Complainant did not exhaust the Respondent’s grievance procedure before deciding to leave the employment and when he was advised that the insurance difficulty had been resolved, subject to him securing the necessary licence endorsement, which would have facilitated his return to work, he never responded to the correspondence.

It seems to the Court that the Complainant felt very let down by the Respondent in leaving him out of work for so long, without an income, rather than finding a means of facilitating a return to some form of work, especially given their long history and the contribution, acknowledged verbally by the Respondent, by the Complainant to the Respondent’s business. However, the Court can only deal with claims under the Employment Equality Acts by reference to the law as set out in the Acts and as interpreted by subsequent case law.

The Court cannot uphold the Complainant’s appeal on the alleged discriminatory dismissal for the reasons set out above.

Determination

The decisions of the Adjudication Officer are upheld.

Signed on behalf of the Labour Court



Tom Geraghty
CC______________________
22 May 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.