ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025639

Parties:

	Complainant	Respondent
Anonymised Parties	A Manager	A Transport and Logistics Company

Representatives

Don Mc Gann Alastair Purdy & Co. Solicitors

Mairead Crosby IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00032482-001	26/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00035455-001	26/03/2020

Date of Adjudication Hearing:

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant alleged he was discriminated as a result of his disability in that the Respondent did not provide reasonable accommodation for his disability (CA-00035455-001) and that he was dismissed as a result of his medical condition(CA-00032482-001). Both Representatives made substantial, but balanced, legal arguments and quoted case precedents to support their case and these have been considered by the Adjudicator but not included in the summary for the sake of brevity. The Complainant commenced employment in October 1986 and was dismissed on August 31st 2019 and he submitted his claim regarding “reasonable accommodation” for his disability to the WRC on November 26th 2019 and submitted his claim regarding his dismissal as a result of his disability on March 26th 2020. The Complainant therefore had approximately 33 years’ service with the Respondent. It was accepted by both parties that a disability existed in this case.. Given the sensitive nature of some of the evidence submitted the parties are anonymised.

Summary of Complainant’s Case:

The Complainant contended that he was discriminatorily unfairly dismissed by the Respondent on the 31st August 2019. Further, the Complainant contended that the Respondent failed to reasonably accommodate him upon being notified of his disability on the 11th January 2016.

The appeal of the Complainant’s dismissal proceeded on the 9th October 2019, and the decision arising out of same was communicated to the Complainant on the 11th December 2019.

In or around October 1986, the Complainant commenced employment with the Respondent. The Complainant was subject to a number of promotions during his employment, the last being in or around 2006, when he was promoted to the role of Program Manager (Grade 16) and subsequently laterally deployed to Solutions Engagement Manager in 2015. As part of these roles, the Complainant was required to engage in a significant level of travel, both around Ireland, and abroad. This in turn created a substantive workload. The Complainant submitted to the Hearing that an average working week would entail 50 to 60 hours of work, which would entail dealing with 150 to 300 emails on a daily basis in addition to fulfilling his functional duties.

The Complainant advised that he was a Carer for his mother for approximately 8 years prior to her death in January 2012. On several occasions throughout this period, the Complainant requested the Respondent to change his role to reduce the unsustainable time constraints he had faced. The following year, the Complainants father passed away. As a result of this occurrence and the ongoing time and travel demands of his role, the Complainant submitted a request to the Respondent for a leave of absence for 6 to 12 months in late 2013. However, following dialogue with his manager and having met with Human Resources, this requested was declined. Notwithstanding such, throughout 2013, the Complainant was attending Grief & Anger Management counselling.

In or around January 2015, the Complainant attended a standard medical, which had been arranged by the Respondent. It was identified in the subsequent medical report that the Complainant had been suffering from number of high stressors, which were affecting his wellbeing in a negative way. In light of his numerous requests to change his role, the Respondent in September 2015, offered the Complainant an alternative role as Solutions Engagement Manager. Despite the concerns relating to the position, particularly regarding the level of travel commitments, and personal sustainability associated with the proposed alternative, the Complainant, due to his vulnerable wellbeing, accepted the role in the aspiration that same provided some relief from the ongoing demands of his current position. Despite the new role, the Complainant still had a significant level of international travel, which, due to scheduling issues, occurred out of Dublin City Airport. The Complainant lived a substantial distance from the airport involving approximately a 3 hour drive. It was alleged that this merely compounded his previous stressors due to increasing demand of greater working hours.

In or around November 2015, the Complainant began to suffer from panic attacks. These would occur during work related flights, and when he attended customer related meetings. This was the first time since 1995, the Complainant suffered from panic attacks. A specific event occurred on the 8th January 2016, where the Complainant was travelling back from a customer meeting in Paris, during which the Complainant suffered a panic attack. On the 9th January 2016, the Complainant again suffered a very severe panic attack. As a consequence of same, on the 10th January 2016, the Complainant felt extremely down. Arising out this, the Complainant notified the Respondent on the 11th January 2016, that he was taking sick leave, and would therefore be unable to take his scheduled flight to the UK later that day. On the 12th January 2016, the Complainant attended his GP. His GP advised him he had symptoms consistent with depression, and work-related stress, and prescribed anti-depressants, and referred him to psychotherapy, which he commenced. Equally, the Complainant was advised to separate himself entirely from all work related stressors with immediate effect.

In April 2016, the Complainant attended a company arranged medical assessment. The Medical Report stated that the Complainant was not fit to return to work. However, it also stated that he may be able to in or around 3 months’ after the examination, provided his treatments are successful. The Report also noted that the Complainant may have significant anxiety around the idea of returning to his high pressurised job, from which he is not coping with. The examining Doctor recommended that the Respondent engage with the Complainant so as to explore a potential phrased return to work schedule, so that he can be reassured. On that basis, the Doctor suggested “given the length and nature of his absence, starts on approximately 50% hours for the first two weeks. It would be sensible if he was precluded from travelling, apart from to local offices. He would be able to work from home…it would also be sensible to give him structured and less complicated/less sensitive work to do in that two-week period… that (the Respondent) ensures there were no concerns on his output and the quality of his work”.

On the 13th June 2016, the Complainant attended a face to face meeting with the Respondents Human Resource department. At this meeting the Complainant was assured that his position was safe, and that his health insurance would continue to be paid during his recovery.

On the 12th July 2016, the Complainant participated in a telephone-based conversation with the Respondent’s insurance company.

On the 26th August 2016, the Complainant attended a face to face meeting with a psychiatrist nominated by the Respondent.

In the proceeding months and throughout the rest of 2016 and 2017, the Complainant continued to attend his GP, and counsellor regularly. During this period, the Complainant’s condition became more unstable due to his inability to work. This was further compounded by the deterioration of his family home life. Ultimately, by April 2018, this led to the Complainant engaging in self harm, and suicidal ideation. By May 2018, following family intervention, the Complainant was admitted to a Mental Health Services Hospital for a period of 10 weeks. The Complainant was later discharged in Mid-August 2018.

In September 2018, the Complainant attended a “Welfare Meeting” with the Respondent. At this meeting, the Complainant notified the Respondent of his aspiration to return to work in or around November of that year, provided his ongoing outpatient care is successful and in line with agreed phase return. The Complainant also reminded the Respondent that he required a healthy work life balance and a reduced travel schedule so as to maintain consistent proximity to his local support network [i.e. medical, family, friends and mental health support groups] as he continued to experience sporadic panic attacks.

In December 2018, the Complainant was declared fit to return to work under the foregoing conditions and that it was agreed with the Respondent that he would ease back into the workplace through supporting package deliveries in the 3 week run up to Christmas following which a more permanent role would need to be determined. On the 16th December 2018, the Complainant was requested to meet with the Integration Team Manager to discuss a possible role. It was proposed that this role would be based in Dublin or other locations throughout Ireland from Monday to Friday with additional weekend requirements on occasion. Although the Complainant expressed that this was not ideal he advised that he would be interested in pursuing this position as it allowed for geographical access to his support network. The Complainant was subsequently advised that this role would not be pursued further as the Integration Team Manager had concerns regarding the Complaint’s grade level versus the other employees within the Integration Team.

Following 3 weeks of delivering packages, the Complainant was requested to leave the workplace and remain at home. The Complainant was informed that he would be paid in full. However, same would be in lieu of his annual leave. The Complainant was initially informed that this was necessary to allow the Respondent time to explore alternative positions for the Complainant. As such he agreed to this request. On 24th January 2019, having received no further updates as to a possible role, the Complainant contacted the Respondent advising that he should not be required to take further additional annual leave days as he was available for work and offered to assist with local operations whilst an alternative role was determined. The Respondent agreed with the Complainant regarding not taking further annual leave days and advised the Complainant that there was no requirement for him to do so to support the local operations. The Respondent continued to pay the Complainant during this period.

On the 8th February 2019, the Complainant attended a meeting in Dublin with the Respondent. The Complainant was advised at this meeting that there were no available positions in Ireland at Management level, barring the position he was in prior to going on sick leave, which involved international travel. Despite the Complainants protests that he was medically unfit to partake in that role, the Respondent said there was no other viable alternative. To that end, the Respondent proposed a lower level role, to which the Complainant stated that was not financially viable for him due to his pension salary being based on his “finishing” salary. The Respondent agreed with the Complainant’s point. The meeting concluded with the Complainant agreeing to consider this option.

On the 15th February 2019, the Complainant wrote to the Respondent advising them of his inability to accept the proposed role in current format. Following this on the 1st March 2019, the Complainant was again invited to attend a further meeting to discuss his situation. The Respondent at this meeting outlined that in the event the current offer was not accepted that the “compensation committee” were not prepared to engage in discussions regarding a potential settlement package. Notwithstanding the Complainant’s dismay at the Respondent stance, he merely reiterated that he was unable to accept the role on medical grounds and that discussions regarding a settlement package should be held, if no other alternative was to be considered. The meeting concluded with an agreement that the Complainant attend a further medical assessment.

On the 22nd March 2019, the Complainant attended said medical assessment. The Doctors report was then issued on the 3rd April 2019. In accordance with the Doctors opinion, he recommended the following: “Given the evidence that [the Complainant] is not likely to be fit to return to his role as Solution Manager. However, he is fit for alternative roles which would minimise travel and responsibilities, as is available…this may temporary requirement though a return to Solution Manager is unlikely for the next three months but it remains a possibility that he may not be able to return to this role in the long term… this case is likely to be covered by disability legislation though this is a legal not a medical decision. This advice would be considered reasonable adjustments under legislation. With support and a change in roles it is felt his performance will not be significantly adversely affected and he is fit to continue in his current amended role or similar alternative roles in discussion with [the Complainant]”.

On the 26th April the Complainant was invited to attend a meeting with the Respondent on the 9th May 2019 to review his absence and his capabilities to undertake his previous role. It was confirmed that the Complainant would meet with Human Resources and the Managing Director. The Complainant was notified that in the event that a solution was not found, his employment may be terminated on the grounds of capability. This meeting was later rescheduled to the 29th May 2019. In advance of this meeting the Complainant provided a statement to the Respondent setting out his reasons as why he wished to remain with the Company. Arising out of the meeting, it was communicated to the Complainant that there was no other viable options and as a result of his capability, that the Respondent would be terminating his contract of employment with immediate effect. This decision was confirmed by the Managing Director in his letter to the Complainant on the 1st July 2019. In his correspondence, he noted the following: “A long period elapsed before we met again and we met at a welfare meeting in September 2018 and you expressed a desire to come back in if possible to an alternative role… it was hoped that following that assignment we could find a suitable alternative role. However unfortunately we have not been successful in finding an alternative role at your grade…”

On the 12th July 2019, the Complainant wrote to HR confirming his intention to appeal the foregoing decision. This meeting took place on the 9th October 2019 and conducted by the Country Manager. The decision of the appeal was then communicated to the Complainant on the 11th December 2019 whereby the Country Manager upheld the decision to terminate the Complainants Contract of Employment. As part of his conclusions, the Country Manager stated the following: - “In my view the time period taken to review employment options and reach a conclusion in the process has taken longer than desired which would not have helped your personal situation. All reasonable effort had been made to find a suitable role within Ireland which due consideration to your grade, skills and experience, home location and personal support needs. I then took a fresh look at current options post the date of our meeting and the following points cover my conclusions; it would be possible to reinstate your employment with no break in service if you were able to find a suitable role . There is no current grade 16 roles within (the X and Y) facilities. No new roles were open currently or in the foreseeable future within the integration team that would not require significant travel or time away from home. There are no other suitable grade 16 positions within Ireland that would not require relocation”. or extensive travel and time away from home. In light of my findings I therefore have regrettably concluded that there are no suitable options to provide me with the opportunity to overturn the decision to terminate your contract of employment.”

It is the Complainant’s contention that in accordance with Section 77 of the Employment Equality Acts that the Respondent (a) Failed to provide reasonable accommodation and/or appropriate measures so as to discharge the burden pursuant to Section 16 (3) of the Employment Equality Acts, thus rendering the defence to Direct Discrimination under Section 16 (1) null and void; and (b) due to such, the Complainant was therefore directly discriminatorily dismissed on the 31st August 2019 by the Respondent.

The Complainant argued that it must be the case that an employee must not be fully competent and capable of undertaking the duties before an obligation of reasonable accommodation would arise. The Complainant felt that the Respondent, in accordance with their correspondence, felt that this burden was satisfied. However, the Complainant strongly refuted this position and stated that the Respondent failed to demonstrate how the requirement, to maintain the Complainant at management level would have a disproportionate effect to the business. Rather, deference was simply made to the fact, no such position existed within the range of the Complainant’s support remit. Given that the Complainant provisionally accepted a role within Dublin, stating that same was within his remit of said support systems the Complainant failed to see how no management position could of have been accommodated.

Notwithstanding such, the Complainant argued that the Respondent clearly failed and/or neglected to set out the prevailing reasons as to why said accommodation, if allowed, would have had a serious financial burden to the business as per Section 16 (3) of the Employment Equality Acts.

Section 16 (3) (b), of the Act places a positive duty on the employer to take appropriate measures. This was set out in A v Government Department (2008) ELR 354, where the Labour Curt held “it includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”.

The Respondent’s purported assessment, throughout the process their position remained the same, in that several months of appropriate consideration was afforded to the Complainant’s needs. However, although one position was proposed to the Complainant, the Respondent offered this position, knowing that same would have a detrimental effect on the Complainant’s pension and to that end, such could not be deemed a suitable reasonable alternative position, in light of the Complainants near service. Notwithstanding the foregoing, the Respondent failed to demonstrate that the required assessment was carried out in accordance with the latest judicial standard.

The now seminal case in this area, is Nano Nagle v Marie Daly & Irish Human Rights & Equality Commission [2019] IESC 63. Here,the Supreme Court clarified the extent of an employer's duty to reasonably accommodate a disabled employee. A reasonable employer will be required to demonstrate that all "appropriate measures" to facilitate such a disabled individual were taken - limited only by the extent to which such a measure would constitute a "disproportionate burden" on that employer. Significantly, the Supreme Court has confirmed that, when considering reasonable accommodation, there is no distinction to be made between core "duties" and noncore "tasks" attached to a particular role.

The Court of Appeal's decision in Nano Nagle indicated that, in the context of reasonable accommodation, engagement and consultation with the affected employee is not legally required. The Supreme Court has somewhat stepped back from this view and re-endorsed the seminal position set out in Humphries v WestwoodFitness Club [2004] ELR 296. Although the Court did not definitively require employers to engage and consult with employees, the judgment provided that "a wise employer will provide meaningful participation" as part of the consideration of appropriate measures. See A Horticulture Worker v A Fruit Producer ADJ- 00003417.

Had the Complainant been medically fit to travel, the Respondent would not have terminated his employment. Furthermore, the Respondent failed to properly consider the possibility of the Complainant contributing to the business whilst remaining within Ireland, within distance of his local supports. It is clear that the Respondent wished for the Complainant to return to the work (to which the Complainant was more than willing to do), and despite being certified fit to return by numerous medical officers, the Respondent seemingly ignored this fact upon discovering that the Complainant was unable to carry out one part of his former job description. As such, we contend that this represents a clear casual link between the Complainant’s disability and his dismissal, which in itself gives rise to an irrefutable ground of direct discrimination.

In consideration of the above, the Complainant stated that in this instance has satisfied Section 85A of the Employment Equality Acts, and drawn an inference of discrimination on the ground of disability from the Respondent for the purposes of both a discriminatory dismissal and failing to provide reasonable accommodation claim. The Complainant alleged that the burden of proof must shift to that of the Respondent to prove otherwise.

Notwithstanding such, the Complainant contended, in conjunction with the plethora of evidence to establish that the Respondent failed to meet the standard of reasonable accommodation set out in the Nano Nagle Judgment, the defence provided to the Respondent pursuant to Section 16 (1) of the Employment Equality Acts, is inoperative, thus rendering the dismissal directly discriminatory, as the Complainant was terminated on the basis of his disability.

The Act also allows for an order that an employer be directed to take a particular course of action satisfied, or an order for reinstatement or re-engagement, without an order for compensation. The level of compensation is subject to a maximum of 104 week’s pay, or €40,000. (Section 82 of the Act). The practice of the tribunal in determining the level of compensation is to place the Complainant in the position he or she would have been in had the discriminatory treatment not taken place. (see A v. Public Sector Organisation, DEC-E 2006-026).

Summary of Respondent’s Case:

The Respondent strongly refuted the claim in its entirety. The Complainant was dismissed by reason of capability following a period of long-term illness. Prior to his dismissal the Complainant declined offers of reasonable accommodation by way of redeployment.

The Respondent is a large provider of specialised transportation and logistics services. It operates in a substantial number of countries and employs significant staff Worldwide. The Respondent provides third party logistics for number global companies.

The Complainant was employed by the Respondent from 1986 and over the years was internally promoted several times until he reached Manager Grade 16. Prior to his dismissal, on the grounds of capability, he was a Solutions Account Manager. This role involved considerable international travel as essential aspect of the role.

In January of 2016 the Complainant reported that he was suffering from stress and commenced sick leave. In April of 2016 the Complainant was referred to an occupational health review. The report stated that the Complainant had: "developed a range of symptoms indicative of reduced psychological wellbeing." The Complainant was taking anti-depressant/ anxiety medication for this condition. The occupational health doctor confirmed the previous diagnosis that; "[the Complainant] may have some anxiety around returning to a high pressurised job..." The report recommended that when the Complainant returned to work: "It would be sensible if he was precluded from travelling apart from to local offices."

In May 2016 the Complainant attended a welfare meeting with two members of the HR Department. In this meeting the Complainant confirmed the medical diagnosis that his condition was related to the amount of travel essential to his role. The Complainant was asked to consider if on his return to work he would like to return to his previous role or if he would like to consider transferring to another role that did not require international travel. HR advised the Complainant of his sick leave and income continuance entitlements and reiterated the Respondent's commitment to him.

In May 2017 HR wrote out to the Complainant to arrange a welfare meeting. No response was received from the Complainant. For reasons of sensitivity HR did not follow up with the Complainant so as not to exacerbate his stress.

In April 2018 the Complainant attended occupation health. The report advised that; "[the Complainant has continued to have significant symptoms associated with anxiety and depression.' The report went on to state that the Complainant showed no significant improvement, was still receiving treatment and was continuing his medication. No return to work date could be advised though it was stated that any return to work would not be for at least six months.

In September 2018 HR held a welfare meeting with the Complainant. At this meeting the subject of the Complainant returning to work was discussed. The Complainant explained that he was hoping to return in the next few months but to a role that did not involve travel. HR explained that another occupational health appointment would take place in the next few months prior to his return to work. The Complainant explained that he was hoping to return in the next few months but to a role that did not involve travel. HR explained that another occupational health appointment would take place in the next few months prior to his return to work.

The Complainant's sick leave ended in December 2018. The Complainant took temporary alternative work and supported the local operation during peak season with delivery of packages. Following the peak month, he agreed to use up many of the holiday days that had accrued during his time off.

The Respondent examined alternative roles that did not involve international travel. A role was identified for the Complainant on the integration team overseeing a recent acquisition. This was a management level role though it was not the same salary grade as his previous role; the Complainant requested that any alternative role be paid at his previous grade 16 pay level. The Respondent advised that this was not possible, and the salary would be that appropriate to the post. The Complainant declined this position, as the difference in pay would have a negative impact on his salary.

The Complainant continued to engage with HR. In February 2019 the Complainant met with HR. The Complainant thanked HR for his support during his sick leave and asked if he could agree "terms" with the Respondent. The meeting concluded with the Complainant saying he would consider returning to work in a similar role. with the Respondent. The meeting concluded with the Complainant saying he would consider returning to work in a similar role.

A follow up phone call with the Complainant also took place. In the course of these discussions the Complainant was advised of several options for him to return to a different role with the business that did not require international travel. The Complainant requested that if he transferred to an alternative role that he continue to receive the salary of a Program Manager in order to ensure higher pension entitlements. He was advised that while his previous role had been held open in the hope that he would be able to return no other role at that pay leave was vacant. He was further advised that he would receive the salary of the post he chose. The Complainant made clear that he would not accept a lesser salary due to the effect this would have on his pension.

In an email of February 15, 2019, the Complainant set out his position in writing. Under no circumstances was he prepared to return to his previous role, as it required international travel. Nor was he prepared to accept any role that was not paid at the same scale as one that did require international travel. The email concluded; "in the event of no other role being available at my grade that offers the appropriate working environment, then I must reluctantly advise that I am open to a discussion on a separation settlement."

The Respondent considered the appropriateness of a severance. The Respondent’s compensation committee discussed the matter. They concluded that as the Complainant's substantive role remained, and reasonable alternatives were available a severance was not appropriate.

This conclusion was discussed with the Complainant on March 1, 2019. At this meeting the Complainant reiterated that he would not be able to return to his substantive role. It was agreed that a further medical review would be arranged.

The medical report was issued on April 3, 2019. The report again confirmed that the Complainant was; "not likely to be fit to return to his role as Solutions Manager. However, he is fit for alternative roles which would minimise travel and responsibilities, as is available." I.E. the Complainant was fit for the reasonable alternative role that he had already declined for financial reasons.

The Respondent invited the Complainant to a meeting to discuss his absence and the recent medical report. The invitation letter advised the Complainant's right to representation and that the termination of his employment on the ground of capability was being in consideration. The meeting was rescheduled from May 11 to May 28, 2019 at the request of the Complainant who requested a deferral of at least 2 weeks to allow for the presence of his legal representative. The invitation to the meeting was reissued on May 10.A further letter issued responding to his request for legal representation. The letter informed the Complainant that representation would be in accordance with SI 146/2000 that defines representative as a colleague or Trade Union official. However, the Respondent explained that they would allow the Complainant to be accompanied by his solicitor who could act as a witness only.

The Complainant's solicitor wrote to the Respondent on May 23, 2019. The correspondence demanded that the Complainant be allowed legal representation at the welfare meeting. This letter incorrectly stated that SI 146/2000 had been superseded by case law and that they would seek a High Court Injunction: "to stop this process."

The Respondent reiterated its position on representation in further correspondence. In separate correspondence to the Complainant the Respondent asked that he confirm his attendance and companion in advance of the meeting. The Complainant’s solicitor wrote again asking if the Complainant could bring his brother as a witness. In the event, no High Court injunction was received, and the Complainant attended the welfare meeting on May 29, 2019. His brother acting as a witness accompanied him. The Complainant read a prewritten statement to the meeting. The two key matters in the Complainant's statement were the reiteration that he could not again work in the role of Solutions Manager. He went on to say; "I am unable to countenance a lesser position on a lower salary due to the impact that would have on my pension, following retirement, which is based on my finishing salary."

On July 1, 2019 the Respondent wrote to the Complainant outlining the decision to dismiss the Complainant on the grounds of capability. The letter explained that despite the best efforts they were unable to source a role at the same grade that does not involve international travel. It also explained that the Complainant had declined alternative roles that had been offered. The dismissal letter concluded by advising the Complainant of his right to appeal.

The Complainant appealed his dismissal to the Country Manager. An Appeal meeting was convened in October 2019. The Complainant set out his position as follows; I am capable of doing that role at that level, no travel." He reiterated the written statement of the dismissal meeting referred to above. The Country Manager concluded that the Respondent had taken all reasonable steps to bring the Complainant back to work and there were no grade 16 positions available that did not involve international travel. The decision to dismiss was upheld.

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

There is no dispute between the parties that at the time of the Complainant's dismissal he was suffering from a disability, as defined in the Acts.

It is common case between the parties that the Complainant was offered an alternative role with the Respondent that he was fit to perform. It is further common case between the parties that this role was declined solely for financial reasons. The Complainant has produced a single authority to support the claim that reasonable accommodation includes payment for work no longer carried out.

The position of Grade 16 Manager is a high responsibility, high value role for which international travel is a necessity. For these reasons it is higher paid role than that of Managers who do not need to travel. The Complainant seems to be advancing the argument that because the Respondent did not treat him more favourably than other employees he was therefore discriminated against.

The Complainant has not produced any evidence that such discrimination occurred and has failed to name a comparator against which such alleged unequal treatment may be judged. Furthermore, he has not set out how this alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the Complainant being the victim of discrimination.

The Respondent submitted that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

The Complainant's submission to Adjudicator cites a number of cases concerning reasonable accommodation. These cases can be easily distinguished from the instant case. In all of those cases the dispute concerned whether reasonable accommodation was available or whether the company and adequately examined the question. In this case both parties agree on the following key matters:

The Complainant could no longer carry out a role that involved international travel

The Complainant was offered role that did not involve international travel

The Complainant was medically fit for this role

The Complainant declined this role for financial reasons

The role was to be paid at the grade appropriate to that role.

Therefore, the question that is dispute between the parties is whether or not reasonable accommodation extends to paying an employee at a higher grade than the work they are carrying out.

The Respondent contends that the Complainant has failed to establish a prima facie case of discrimination in that he has not provided any evidence to demonstrate that he was treated less favourably than any other employee on the grounds specified. Furthermore, the Complainant has failed to provide details of any comparator on which he wishes to rely.

The Complainant has also claimed discriminatory dismissal. He reiterated and restate the arguments above concerning the burden of proof, lack of a comparator and the lack of a prima facia case.

The reason for the Complainant's dismissal was capability. It is common case that the Complainant was at the time of his dismissal incapable of carrying out his role due to his inability to travel internationally. It is further common case that at the time of his dismissal the Complainant had, at the time of his dismissal, been incapable of performing these duties for three years.

Furthermore, it is further common case that had the Complainant accepted the reasonable alternative role he would still be an employee of the Respondent.

There is not even the most tenuous link between the dismissal on capability grounds and discrimination. In fact, the Respondent went to great lengths to retain the Complainant as an employee.

The burden of proof rests with the Complainant to show that he has been treated less favourably on the grounds specified. It is the Respondent’s position that the Complainant has failed to provide facts from which it may inferred that discrimination has occurred and has therefore failed to establish a prima facie case of discrimination. The Respondent respectfully submitted that the claim must fail.

Decision:

		Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. Prior to outlining my decision in this case, I would like to take the unusual step of commending both parties and their Representatives on the sensitive and respectful manner in which they presented their respective positions in this case. The applicable Law;
		6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
		(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
		(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”),
		Section 85A (1) of the Act states: “Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. It was accepted that the Complainant had a disability by both parties. Based on an assessment of the background to this case I determine that the Complainant has met the presumption of discrimination, in particular to finding a reasonable accommodation or special treatment to his continued employment with the Respondent and is entitled to shift the burden of proof to the Respondent. Section 16 requires an employer to “do what is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities” However, an employer is not required to retain an individual in a position that the individual is not “fully competent and available to undertake” the duties attached to that position. The section provides, in effect, that an employer is not obliged to retain a person in a position with a disability unless that person is fully capable of performing the duties of the position at issue. It goes on to provide that a person with a disability is to be presumed to be fully capable of discharging their duties if by the employer making some reasonable accommodation, they can continue in their employment. The duty to provide reasonable accommodation must be given a broad scope. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicability of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required.HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S[2013] I.R.L.R. 571 considered this point. The nature and extent of an employer’s duty to an employee with a disability was considered by the Labour Court in A Worker v An Employer[2005] ELR 159. In relation to the effect of section 16, the Court stated as follows: “Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.”“Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment, they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.”“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus, it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull [2001] IRLR 60)” The Adjudicator has adopted this reasoning in my approach to the instant case. As Adjudicator I must examine whether the Respondent did all that was reasonable to provide “special treatment” to the Complainant and do all that was reasonable to accommodate/facilitate the Complainant’s retention in employment. The duty to provide special treatment or facilities, for which the Complainant contends, is derived from section 16 of the Acts. It provides as follows: 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) [ Not relevant] (3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer. It is for the Respondent to raise and make out a defence to a claim of discrimination on the disability ground in accordance with Section 16. The Supreme Court in Nano Nagle School v Daly[2019] IESC 63 held, inter alia ,that the primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where required in a particular case, to enable the employee to, inter alia, continue in employment. The duty to provide reasonable accommodation does not extend to an obligation to create an entirely new job and the duty to provide reasonable accommodation is not freestanding in nature. It arises, where required in a particular case, to enable the employee to, inter alia, continue in employment. There are therefore four core issues in this case. 1. Did the Respondent make appropriate efforts to make reasonable accommodation for the Complainant to continue in his job (Level 16)? 2. Was the Respondent required to provide the Complainant with a job at a different (lower) level grade? 3. Was the Respondent required to consider reasonable alternatives for the Complainant to remain in employment by making reasonable accommodations or special treatment? 4. Was the Complainant unfairly dismissed as a result of his disability ? It is clear to the Adjudicator that the Complainant could not continue in the job he was employed at due to nature and demands of the job with constant travel and being away from his support network. Taken in isolation the Respondent therefore had no requirement to find a reasonable accommodation for the Complainant per Section 16 of the Act. However, the Complainant was willing to do a job at a lower lever but the drop in Salary was so significant (in or around 30,000 Euros per year) and as the Complainant was on a Defined Benefit Pension Scheme with 33 years service, the reduction on salary would have significant consequences for his pension entitlements. In the Adjudicators assessment of the case this issue is critical to the question of “reasonable accommodation” and does not seem to have been given the appropriate consideration, by either party. This impact on his pension entitlements was a major factor for the Complainant in not accepting the job at Level 14 and on examination at the Hearing it was not proven that sufficient thought had been given to this issue by the Respondent to provide the Complainant with “special treatment” with regard to preserving his pension benefits and remaining in employment at the lower Grade position which he appeared willing to accept. In this case, the Complainant was accommodated with an offer of an alternative position, however, he contended, that the Respondent had failed to ensure he maintained his salary or/and his pension at its previous (earned) level and that the location would put him more at distance from his support network. In that context this case can more properly be seen as turning on the Adjudicators conclusions as to the extent to which the Respondent fulfilled its duty to provide the Complainant with reasonable accommodation for his disability. That involves an objective test and an employer’s duty is fulfilled where the measures taken have the effect of allowing the disabled person to continue in employment on the same terms as others without a disability. And this is the core issue: was the Complainant was not being accommodated on the same basis as others without a disability, as his pension benefit were being substantially reduced compared to other Grade 16 employees with the possible same service, if he took the job at the lower salary. The issue of being offered the reduced salary is not a discrimination in this case. It was the salary for the only available (or even created) role. It was clear from the evidence provided to the Hearing that the Complainant was neither capable or willing to continue doing the amount of travel that the role required and the Respondent had no other role at Grade 16. The question then is did the Respondent make reasonable efforts to make reasonable accommodation to continue in his employment. As stated above in Melbury each case has to be considered on its own merits “ 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 “. There is no one size fits all cases in assessing this issue. The Complainants Representative made substantial issue of lack of analysis of accommodating/modifying the Complainants duties and tasks to enable him remain in the role at level 16 and the Respondent stated that without the international travel element the role could not be performed by the Complainant. Both of these claims are true and maybe counteract each other. It is clear to the Adjudicator that the Respondent could not provide any further reasonable accommodation for the Respondent to stay in his current role as it involved significant international travel that the Complainant was unable or unwilling to undertake due to his disability. Therefore, the Respondent simply could not sustain the Complainant doing the job with the international travel element to meet customers not being included. It is important to state that this situation occurred pre Covid 19 and the assessment of the role/duties/tasks has to be seen in the context of that time mindset. This may be a different analysis (albeit temporary) in the current situation especially regarding the international travel aspect of the role. Perhaps in the current environment the expectation of a Respondent to consider more broader solutions regarding a reasonable accommodation may be expected but this is not appropriate to consider in this case as the decision making of the Respondent was pre Covid 19. Unlike the other discriminatory grounds prescribed by the Acts, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the House of Lord decision inArchibald v Fife Council [2004]IRLR651: “But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment.” In effect, the import of the Complainant’s position is that he was entitled under the Acts to have his normal pay retained irrespective of the role he is engaged in, even if it warranted a lower grade. That raises a question as to the ambit of the obligation imposed on an employer by section 16(3)(b) of the Acts. Implicit in the submissions made on behalf of the Complainant is the contention that the Respondent was not only obliged to provide the Complainant with duties that he is capable of performing but that it was also obliged to preserve him previous level of earnings. This is not supported by the Legislation or precedents. The Adjudicator finds that the Complainant had a disability, that the Complainant could not and was not willing to fulfil the position he was employed in (for understandable reasons), that the Respondent was not obliged to provide the Complainant with another position at Grade 16, that the Respondent considered what reasonable accommodation it could provide to retain the Complainant in his role/Grade but its options were very (if not totally) limited by the duties of the role, that the Respondent had no obligation to provide the Complainant with a position at a lower Grade and that the Respondent made a reasonable effort to maintain the Complainant in employment but did not make a reasonable effort to provide “special, treatment” for the Complainants pension issue and retain him in employment and as such the Complainant was discriminated against on that issue, alone. This is where is where the evidence provided at the Hearing is relevant. The Complainant was willing to take up a job at a lower pay grade providing his long service at his salary at the time on his return to work could be protected by the Respondent, for the pension service accumulated. At the Hearing, it was put to the Respondent did they consider any options in this respect and the Respondent appeared to have given this issue very little thought, from the perspective of the Complainant. No real effort appeared to have been made by the Respondent to consider any solution along the lines of allowing the Complainant the accommodation of working for his remaining years at the lower level and salary and then reverting to his current salary for his final year to enable him keep most of the pension benefit he had accrued by his long and unblemished service. While this was only an exploratory scenario put forward at the Hearing, the purpose was to examine the lengths the Respondent had gone to find a reasonable accommodation to retain the Complainant in employment. From the perspective of the Complainant he declined the lower job offered so he also has to bare some culpability in this respect. I find that the Respondent could have done more than it did to keep the Complainant in employment, albeit in a different role and preserving his pension rights. Against that background, the Adjudicator however, could come to the view that the Respondent did not breach its statutory duty under section 16 of the Acts in relation to the Complainant and did not discriminate against him as the Complainant was no longer capable or willing to perform the duties/tasks of the role, specifically international travel. However, in this specific case the Respondent, with credit, considered an alternative role for the Complainant but at a reduced salary with significant reduced pension implications. The Respondent did not have an obligation to maintain the Complainant at his level 16 salary but failed to provide a “special treatment” for the preservation of Complainants pension entitlements when offering the Complainant the level 14 position to meet his disability needs and retain him in employment. Now it may seem harsh to the Respondent that it should be judged in this manner for making the offer of continued employment which the Complainant declined. However, this claim has to be seen in the context of a) the Complainants unblemished service of 33 years and how close he was to retirement b) his history of service and promotions c) the Capability of the Organisation due to its size and fundamentally (d) that the Complainants role did not have to be replaced within the organisations Irish operations thus providing a probable cost saving for the Respondent. In effect one could argue, although it is not an issue for consideration, arising from the Complainants disability that the Complainants position become redundant due to the transfer of duties outside the Respondents Irish Organisation. It also must be considered that the Complainant must have, in some way, concluded that he could no longer remain in employment as he had initiated talks for a settlement package to leave the company. The Respondent, as was its right, declined to engage in these discussions at any serious level. These aspects, somewhat, also contributes to the assessment of the merits of this case solely on its own basis as to what contributes to a “reasonable accommodation” for the Complainant with a disability to remain in employment. For all of the reasons set out herein, if as Adjudicator I took a very narrow view of this case I would have to be satisfied that the Complainant had a disability and was not, as a consequence of his disability, treated less favourably with regard to his current role. But, on taking the broader view of the case I have concluded that on a “technical basis ” the Respondent did discriminate against the Complainant on the disability ground in not affording a more favourable “reasonable accommodation” to continue in employment in the reduced position with unaffected pension rights. The Adjudicator finds that the Complainant was discriminated against, albeit on a very limited technical basis, and I find in favour of the Complainant and award him compensation of 20,100 Euros (CA-00032482-001). The rationale for this quantum is based on what is proportional to the circumstances of this case and considering what a redundancy calculation would have paid of a person with 33 years by 1200 Euros per year plus 600 Euros but reduced in half on the basis of the “technicality” of the breach and the Complainants contribution to not continuing in employment with his disability when he had the opportunity to do so. For the avoidance of doubt the award is not in the nature of remuneration. With regard to the claim for discrimination for unfair dismissal as a result of the Complainants disability, the Complainant was not capable of continuing in his role and could not fulfil the duties of the role and in accordance with Section 16 of the Act the Respondent did not have an obligation to retain the Complainant at Level 16. This effectively means the contract of employment came to an end by operation of law due to frustration. I find the Complainant was not unfairly dismissed as a result of his disability and the claim for unfair dismissal as a result of discrimination fails (CA-00035455-001).

Dated: 30th October 2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Disability