FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : FINANCIAL SERVICES UNION (REPRESENTED BY MR. MATTHEW JOLLEY B.L. INSTRUCTED BY BOWLER GERAGHTY & CO) - AND - GERRY HANNA (REPRESENTED BY MR. DESMOND RYAN B.L. INSTRUCTED BY REDDY CHARLTON) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No(S). ADJ-00017540 CA-00022685-001.
BACKGROUND:
2. The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on 21 August 2019. A Labour Court hearing took place on 19 December 2019. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Gerry Hanna against the Decision of an Adjudication Officer ADJ-00017540 CA-00022685-001 under the Employment Equality Acts 1998 – 2015 (the Acts) against his employer, Financial Services Union.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Gerry Hanna will be referred to as “the Complainant” and Financial Services Union will be referred to as “the Respondent”.
The Complainant claimed to have been discriminated against by the Respondent on the disability ground contrary to section 6(2)(g) of the Acts.
He referred his claim to the Workplace Relations Commission on 17th October 2018.
By Decision dated 11th July 2019, the Adjudication Officer found in favour of the Complainant and awarded €12,500 in compensation.
Position of the Parties
As agreed with the parties, the facts of this case are not in dispute. It is also common case between the parties that a contravention of the Acts has occurred. The parties are further agreed that the findings of the Adjudication Officer are accepted by both parties and that the only matter in contention between them is the quantum of the award made by the Adjudication Officer. The Court proceeded to hear the case on that basis.
Background
The Respondent is a trade union representing staff in the Republic of Ireland, Northern Ireland, and those employed by Irish institutions in Great Britain and overseas. The Complainant has been employed with the Union since 23rdJune 2005 as a Senior Industrial Relations Officer.
The Complainant suffers from a rare form of nocturnal epilepsy, and was absent on certified sick leave, from 23rd May 2015 until 8th October 2018. In November 2017, the Complainant wrote to then General Secretary, inquiring in relation to the Respondent’s return to work policy. By email dated 7th November 2017, the Respondent stated that he‘did not think that the time was right’for the Complainant to return to work. He then stated that if the situation changed dramatically, then the Complainant would be independently assessed prior to a return to work. The Complainant responded immediately seeking assistance in moving forward with the return to work process.
On 12th February 2018, the Complainant wrote to the General Secretary expressing his frustration with the lack of engagement by the Respondent and requested to meet and make arrangements for his return. On 20th February 2018, the General Secretary declined to meet with him and requested that he direct all issues in relation to his employment with the Respondent’s legal representative. By email dated 12th March 2018, the Complainant sent the General Secretary a copy of his medical certificate from his GP, confirming his fitness to return to work from 19th March 2018 on a phased basis. On 29th March 2018, the Respondent’s solicitor wrote to the Complainant’s solicitors, informing them that the new General Secretary would not be meeting with the Complainant. He also noted that he expected a comprehensive medical report relating to the Complainant’s condition be supplied. On 3rd April 2018, the Complainant wrote to the account’s manager in the Respondent organisation, advising him that he had completed the documentation and again requested a meeting with the General Secretary in advance of submitting the form.
On 24th April 2018, the Respondent’s Solicitor wrote to the Complainant’s Solicitors, again requesting the information, it did not address the Complainant’s request for a meeting. On 3rd May 2018, the Complainant’s solicitors wrote to the Respondent’s solicitors notifying them that the Complainant did not currently have any employment issues with his employer that required legal intervention and that he was not agreeable to having his employment relationship conducted through a third party, with whom he has no contractual relationship.
In this letter, it stated that the Respondent’s refusal to engage directly with the Complainant exacerbated his stress levels which could result in triggering an epileptic seizure. Furthermore, it stated that the Respondent’s refusal to assist the Complainant in the completion of his medical questionnaire was risking future income continuance payments from the provider.
On 9th May 2018, the Respondent’s solicitors stated that the Respondent could not meaningfully engage with the Complainant’s ‘rehabilitation/return to work’ unless it had access to the Complainant’s medical records/reports. On 19th June 2018, the Complainant wrote directly to his employer again seeking a meeting to discuss the steps needed to allow his return to work. He also highlighted that the Respondent had no right to access his medical records and that; in any event, he had already provided these to the Respondent’s Doctor. On 13th July 2018, the Complainant’s solicitors wrote to the General Secretary informing him of the Complainant’s intention to return to work on a phased basis.
On 27th July 2018, the Complainant obtained an up to date medical report from his GP. On 31st July 2018, the General Secretary wrote to a colleague in an internal email stating that they needed to discuss the ‘possible return of the Complainant to the staff team’. The Respondent arranged to have the Complainant medically examined by Dr C, Specialist in Occupational Health on 16th August 2018. Dr C certified the Complainant as fit to return to work on a phased basis. The Respondent sought further medical reports and medical records from the Complainant before it could share Doctor C’s medical report with him.
By letters dated 5th September and 9th October 2018, the Complainant’s solicitor wrote to the Respondent stating that there was no lawful basis to refuse the Complainant to return to work. It was pointed out,inter alia, that the income continuance provider had advised the Complainant of its intention to suspend income continuance payments to the Respondent unless the Complainant submitted a Certificate of Continued Disablement. It was pointed out that the Complainant was not in a position to furnish such a certificate as he had been certified as fit to return to work by his own Doctor and by the Occupational Health Specialist engaged by the Respondent.
By email dated 9th October 2018, the Complainant was invited to attend a return to work interview on Tuesday 23rd October 2018 at 9 a.m. The email was from a colleague who had previously been reporting to the Complainant, advising him that he was now the Complainant’s line manager and would now be reporting to him. He also informed the Complainant that a voluntary severance offering was now available to him as it was to all colleagues.
Summary of the Complainant’s Case
The Complainant was represented by Mr Desmond Ryan, B.L., instructed by Reddy Charlton Solicitors. Mr Ryan said that the Complainant had an exemplary record of service with the Respondent, and had extensive experience, at the highest level, in industrial relations.
In his submission to the Court, Mr Ryan maintained that during the course of the Complainant’s attempts to return to work he was excluded from the process of applying for two new roles within the Respondent organisation. He said that given the Complainant’s significant experience he would have been a suitable candidate for both roles. Mr Ryan contended that the Respondent has purposely excluded the Complainant from the process and failed to make any reasonable accommodation in respect of these opportunities.
The Complainant’s Counsel said that the Complainant, who suffers from a disability, had been trying to engage with the Respondent regarding his return to work since November 2017. Rather than facilitating his return to work, the Respondent had obstructed his return to his role as Senior Industrial Officer. He said that an employer need only satisfy itself of an employee’s fitness to return to work, which the Complainant supplied in the form of the letter dated 12th March 2018, indicating his fitness to return to work on 19th March 2018. The Complainant had no objection to being medically assessed; however, no reasons were provided as to why this was not arranged until August 2018. Mr Ryan stated that although the Complainant sent his full medical records to the Respondent’s nominated Occupational Health Specialist, who agreed on the Complainant’s fitness to work, the Respondent insisted that he could not return until it had sight of his medical file. This precondition continued although the Respondent was fully aware it had no entitlement to same.
In support of the argument that the Complainant’s level of compensation should be increased, Mr Ryan advanced legal arguments concerning the principles laid down inVon Colson and Kamann v Land Nordrhein-Wesffalen[1984] ECR 1891 to the effect that awards of compensation must be effective, dissuasive and proportionate.
Summary of the Respondent’s Position
The Respondent was represented by Mr Mathew Jolley, B.L., instructed by Bowler Geraghty & Co. Solicitors. Mr Jolley told the Court that the Respondent recognises the outcome of the Complainant’s complaints to the WRC in respect of his claim under the Acts and the Respondent has not appealed the Adjudication Officer’s Decision. He said that the Respondent acknowledges the conclusions reached and the amount of redress by way of compensation specified. The Respondent accepted that the Adjudication Officer made a reasoned decision and he submitted that the compensation awarded provided an effective remedy for the Complainant in the circumstances given the findings made. He said that the award was certainly dissuasive in effect and was based upon the facts and findings at hand.
Mr Jolley said that in the circumstances where no cross-appeal has been brought, and where the Complainant has expressed his desire to limit the extent of the appeal to the quantum of compensation, the Respondent did not wish to unnecessarily take specific issue with dates and steps identified by the Complainant in the “concise statement of factual background” set out in his submission. While not in agreement with certain assertions the Respondent accepted the timeline of events specified therein. However, Mr Jolley referred to certain specific factual realities upon which the Respondent relies, including the following:-
- a)the significant disability from which the Complainant suffers, and its impact upon him;b)the Complainant’s very prolonged period of absence from his role;c)the availability and payment to the Complainant during his absence and sick pay entitlements under contract;d)the generous income protection insurance scheme from which he benefitted throughout the sustained period;e)the undeniable developments and natural changes over time within the Respondent’s organisation during the Complainant’s significant period of absence;
- f)the Complainant’s subsequent certification of fitness, and upon his return to phased duties, his proximate rendering unfit due to the same condition, and;
g)the parties mutual and binding agreement of a voluntary severance arrangement.
Discrimination, Failure to Provide Reasonable Accommodation
The Complainant relies on essentially the same set of facts to ground a claim of discrimination/failure to provide reasonable accommodation under the Employment Equality Acts and a claim of penalisation under the Protected Disclosures Act. These relate to (i) the Respondent’s delay in permitting him to return to work despite being deemed fit to do so on a phased basis by his GP in March 2018; (ii) his assertion that the Respondent declined to meet with him and instead requested that he direct all issues in relation to his employment from his legal representatives to the Respondent’s legal representative, thereby obstructing his return to work; and (iii) his assertion that the Respondent excluded him from the process of applying for two new roles within the Respondent organisation and failed to make any reasonable accommodation in respect of these opportunities, (at the appeal hearing before the Court, the Complainant referred to a further role that he alleged he was excluded from).
The Court notes that the Respondent has not appealed the Adjudication Officer Decision made under both Acts.
The Court notes that the following:-
- i.There was no issue with the Complainant’s absence while he was on long term sick leave prior to March 2018, at which point he was deemed fit to return by his GP. For the duration of his absence he was paid in accordance with his contractual rights under the Sick Pay Scheme and the Income Continuance Policy. The Respondent did not exert any pressure on him for his prolonged absence.It is not uncommon for an employer to require an employee who has been on long term sick leave to undergo an independent medical assessment before returning to work. In some cases, the common law duty of care which an employer owes to an employee may obligate an employer to adopt such a course. In these circumstances the Court cannot find anything in the manner in which this matter was approached by the Respondent to indicatemala fideson the part of the Respondent. However, the Court does accept that there was an inordinate delay in obtaining this assessment before the Complainant returned to work. The Court does not accept that justifiable reasons were presented for that delay.
iii.In circumstances where the Complainant had made allegations of a serious nature against the Respondent which it was not disputed attracted the protections of the Protected Disclosure Act, then it was not unreasonable for the Respondent to request against a background of the Complainant already having obtained legal representation and advice since 2016, that all employment issues should be directed through the Complainant’s legal representatives via the Respondent’s legal representatives“in order to ensure there is no confusion on either side”as stated in the email dated 20thFebruary 2018, referred to.
- iv.The two positions originally referred to by the Complainant were advertised nationally. It would have been preferable if the third vacancy had been brought to the Complainant’s attention while he was absent on sick leave.
Conclusions of the Court - Quantum of Redress
The Court has given careful consideration to the extensive submissions made by both parties. The liability of the Respondent in respect of the breaches held to have occurred are not in issue in this appeal and therefore the only matter for consideration is the appropriateness of the quantum of compensation awarded by the Adjudication Officer.
Counsel for the Complainant submitted that the award was not based on sound reasoning by the Adjudication Officer and that it was not adequate or reasonable in all the circumstances of the case. Whereas Counsel for the Respondent submitted that the award was appropriate in all the circumstances of the case.
The size of any award intended to have dissuasive effect must for its effectiveness have regard to any pecuniary loss suffered by the Complainant and the gravity of the transgression by the Respondent. The Complainant’s losses were agreed at €7,540.00, i.e. taking account of the payments he received under the Respondent’s Income Continuance Policy of 75% of his salary.
In theVon Colsoncase, referred to by Counsel for the Complainant, the CJEU made it clear that where a right which is derived from the law of the Community is infringed the sanction for breaches must be effective, proportionate and dissuasive and must provide a real deterrent against future infractions. However, the Court also pointed out that the redress must be proportionate and appropriate.
Having regard to all the circumstances of the instant case the Court believes that the award made by the Adjudication Officer was proportionate and appropriate to the level of the contravention found to have occurred. Therefore, the Court upholds the award of €12,500.00 as fair and equitable in the circumstances. This award is not in the nature of remuneration.
Determination
It is the Determination of the Court that the Decision of the Adjudication Officer be upheld and orders the Respondent to pay the Complainant the sum of €12,500.00 for breaches of the Acts, to be paid within six weeks of the date of this Determination.
The Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
TH______________________
13 January 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.