Complainant

Respondent

Anonymised Parties

A Warehouse Team Leader

A Car Parts Company

Representatives

Neil Breheny, Solicitor

Ann-Marie Burke, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00025021-001

15/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00025021-002

15/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00025021-003

15/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012.

CA-00025021-004

Withdrawn

15/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 - 2015

CA-00025021-005

15/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

CA-00025021-006

Withdrawn

15/01/2019

In February 2000, the complainant commenced working for the respondent as a warehouse operative.  In 2004, he was promoted to the job of warehouse team-leader and by 2018, his annual salary was €41,000.  His promotion in 2004 coincided with a change in the structure of the business from an Irish operation to a subsidiary of a Europe-wide business.  The warehouse saw a considerable investment in technology and became busier and the complainant said that, gradually, the demands of his job increased.  At the same time, he felt that the team of operatives reporting to him did not respond well to direction, didn’t always do their best and were indifferent to instructions.

In 2012, the complainant was diagnosed with prostate cancer.  He returned to work after chemotherapy treatment, initially on light duties and eventually, to his full role.  In the years up to 2017 however, he had significant health problems and several operations.  When he went back to work after his surgeries, he found that his job was becoming more and more difficult, with more paperwork and the challenge of what he described as people who didn’t care about doing the job well. 

Chronology from February 2017 until the Complainant Resigned in December 2018

The complainant began to suffer from anxiety and stress.  In February 2017, he went out sick and he telephoned the HR manager in England and asked her if he could step down as a team leader.  He told her that he couldn’t manage the job.  He said that his supervisor was aggressive and didn’t listen to his concerns.  He remained out of work due to depression.

On April 4th 2017, the HR manager and the depot manager visited the complainant in his home.  At this meeting, the complainant and his wife described the strain he had been under due to the pressure of the job and what he felt were difficult relationships in the workplace.  The complainant said that he would discuss the possibility of returning to work with his doctor at his next appointment.  Some time after this meeting, the complainant received a letter from the depot manager asking him to explain why he hadn’t returned to work.  As he had explained the reason for his absence at the meeting in his home on April 4th, he was very stressed out by this letter.  He was then asked to complete a medical consent form, giving his consent for the company doctor to contact his doctor.  He completed this form, agreeing to a contact from the company’s doctor, but, to his knowledge, no such contact was initiated.

In July 2017, the complainant was informed that his sick pay would be paid by the company’s occupational health insurers, and, from August 2017, 75% of his salary was paid by the insurer.  In that month, he had a hip replacement operation.  He recovered from this surgery but he continued to experience anxiety at the prospect of returning to his job.  The complainant contacted the depot manager on a monthly basis to update him on his state of health and in November 2018, he told the depot manager that the reason he continued to be absent was due to the fragile state of his mental health, and not due to his recovery from his hip operation.  Despite this, in February 2018, he got a letter from the occupational health insurers asking him to attend an orthopaedic specialist to assess his capacity for work.  The complainant attended the consultation.  In his evidence, he said that, when he tried to explain the reason for his absence, the attitude of the consultant was dismissive and insulting.

On April 11th 2018, the complainant’s doctor wrote in a report that his patient “has reached a point in his mental health where he would be unfit to return to work in the medium to long term.”

On May  4th 2018, the complainant and his wife attended a meeting with a HR business partner, a senior manager and the depot manager.  The meeting took place in a hotel near the warehouse.  At this point, the insurers had informed the complainant of their decision to stop paying his sick pay; however, he told the HR manager and the depot manager that his mental health was too fragile and that he could  not return to work.  

The complainant attended a consultation with a doctor for the occupational health insurers on May 9th 2018.  The doctor concluded that the complainant’s “symptoms are becoming prolonged and this is more attributable to the lack of resolution of his work-based problems than to insufficient treatment of his mental health problems.”  The report concludes as follows:

“He impressed as an honest claimant but the longer his work problems remain unresolved, the harder it is to see him making a full recovery.”

On June 13th 2018, the occupational health insurers wrote to the respondent with their conclusion that he was capable of returning to work.  They noted that, in his examination of the complainant on May 9th 2018, the psychiatrist recognised that “there may be non-medical work issues that may impact on a possible return to work” for the complainant.  The insurers offered the services of a case manager with expertise in supporting employees to return to work “in complex work-related situations.” 

Based on the psychiatrist’s report, the respondent concluded that the complainant should return to work.  On June 19th 2018, the HR manager wrote to him and asked him to attend a meeting to discuss a gradual return “back to a role that is suitable to support a sustained return to work.”  She suggested that he visit the workplace around lunchtime on June 29th 2018, “so that you can meet all your colleagues in a more social setting prior to your return to work.”  The complainant did not attend this meeting. 

On June 27th 2018, the complainant attended a consultant psychiatrist in St John of God’s Hospital.  The psychiatrist concluded that he was not fit to return to work and that if he did go back, he would “become unwell again and suffer a relapse of depression.”

As part of his appeal against their decision to cease payment of sick pay, on September 24th 2018, the complainant was assessed by another psychiatrist on behalf of the occupational health insurers.  The consultant was in possession of an “information form” completed by the depot manager in July 2017, the previous consultant’s report of May 2018 and the St John of God’s psychiatrist’s report from the complainant’s consultation with him on June 27th 2018.  In his report to the insurers, the consultant concluded that the complainant was capable of returning to work.  He also recommended that,

“It would be very much in his interest that the current impasse be resolved as soon as possible.”

On November 12th 2018, the complainant’s consultant psychiatrist diagnosed him as suffering from obsessive compulsive disorder with secondary depression.  On December 3rd 2018, on the advice of his psychiatrist, he resigned.

Summary of Claims

The complainant alleges that his former employer’s treatment of him was such that he had no alternative but to resign.  He complains also that he was discriminated against because he has a disability, a diagnosis of recurrent depressive disorder as a result of the conditions in his workplace.  He alleges that the company failed to provide reasonable accommodation for him to enable to return to his job, or alternatively, to a different job.

Direct Evidence of the Complainant

The complainant said that he is aged 63 and that he joined the respondent in 2000, as a warehouse operative.  He was promoted to a team-leader role in 2004.  His job involves ensuring that parts arrive in and are dispatched out on time.  He said that, since 2004, the job has become technically more advanced, with the use of computers and hand-held terminals.

The complainant described the health problems he had from 2012, when he was diagnosed with prostate cancer.  His treatment involved chemotherapy as well as 38 days of radiotherapy.  He went to work in the afternoon of each day that he was on radiotherapy.  When he completed his radiotherapy, for a period of 10 months, he worked a four day week and took one day as sick leave.  He had other surgeries associated with a bowel problem and he also had bone problems.  In August 2017, he had a hip replacement operation. 

Describing the atmosphere in the workplace, the complainant said that it was very demanding, and that it became more so as time went on.  He said that he was struggling and he began to be anxious going into work.  He was upset and had nightmares.  He said that he felt disrespected, that the managers didn’t understand and that they didn’t take account of his feelings.  He said that the attitude of the staff was poor and that if he asked them to do something, they would respond by sniggering, or he might be ignored.  He said that if he reprimanded people, they would laugh.  He said that he didn’t feel supported by the managers.

The complainant said that his supervisor was aggressive and dismissive.  He said that he was shouted at, and, if he remarked that something wasn’t right, his supervisor would respond along the lines of, “that’s the way you perceive things.”  He said that his supervisor’s attitude was, “just get on with it.”

Asked about a timeline for when things began to deteriorate in work, the complainant said that it was when he returned to work after a bowel operation.  In October 2016, he said that he told his doctor that he was very stressed out about work and that his doctor told him to “take it easy.”

The complainant said that he spoke to the HR manager many times over the years.  When he was diagnosed with prostate cancer in 2012, he said that when she came over from the UK, she would ask to see him.  Then she herself became unwell and she came over less often.  He said that he told her that he was under a lot of stress and that people in the warehouse didn’t care.

In February 2017, the complainant went to his doctor and was certified as unfit for work.  He said that he rang the depot manager to tell him that he was unwell.  He phoned the HR manager and he told her that he would have to step down from his team leader role.  He also asked her about the possibility of early retirement.  He said that he had tried to do things properly, but the demands were increasing and he couldn’t manage.  He had had a bowel problem and a bone condition and his mental health was under strain.  He was emotional and finding it difficult to sleep.  He said that he found that he was frightened going to work.  He said that it was difficult to deal with his supervisor, who he considered to be aggressive and who interrupted him when he tried to speak.  He said that he felt he was at work 24 hours a day.

A few weeks after he went out sick, on April 4th 2017, the HR manager and the depot manager visited the complainant at home.  His wife was at the meeting with him.  He said that he talked about the effect of what was happening in work and the behaviour of his supervisor.  The complainant said that, at the meeting, the depot manager admitted that “things got a bit out of hand at times” in the warehouse.

The depot manager wrote to the complainant asking him to say what was preventing him from returning to work, “as agreed” at their meeting on April 4th 2017.  The complainant said that this caused further anxiety and stress and he replied that he had not agreed to return to work. 

Mr Breheny asked the complainant if, when he was working, he ever raised a concern about the behaviour of the supervisor, and he replied that he didn’t.  When he brought his concerns to the attention of the HR manager in April 2017, he wasn’t asked for details and he doesn’t think that the issues he raised were investigated.

From August 2017, the occupational health insurance company commenced paying 75% of the complainant’s wages.  In February 2018, he received a phone call from the depot manager asking him to attend a medical assessment with the insurer’s orthopaedic surgeon.  He said that the focus of this consultation was wrongly, on his recovery from his hip replacement operation.  He said that the consultant treated him dreadfully and asked him questions about his sex life.  He was declared by the consultant to be fit for work.  Having recovered from the hip operation, the complainant remained out of work due to stress and depression. 

In May 2018, the depot manager asked the complainant to attend a meeting in a hotel near the warehouse, to meet his manager and a HR business partner.  At this point, he had been requested by the insurance company to attend for a consultation with a psychiatrist and, although he felt terrible, he agreed to go to the meeting.  Accompanied by his wife, the complainant said that the meeting lasted for only 20 minutes and the depot manager introduced the new HR manager.  He said that the managers said that everything was going well in the job and that the person who was in his role was doing a great job.  The complainant said that he told the managers that he was upset at the prospect of having to be examined by the insurer’s psychiatrist.

On May 9th 2018, the complainant attended for an examination by the insurer’s psychiatrist.  He said that the meeting went on for an hour and a half.  He said that he explained to the psychiatrist that he had been attending a psychologist, and that he spoke to a counsellor in the Arc Cancer Support organisation.  He also went to relaxation classes.  In his report, the psychiatrist recommended that he continue to avail of the support strategies that he had undertaken and he said that he was “fit to return to work in a safe environment.”

Following this outcome, the complainant said that he got a letter from the insurance company advising him about a service that was available to him to attempt to resolve the conflicts in the workplace.  He was asked to return to work and to attend on a Friday afternoon, so that he could meet his colleagues before returning.  He said that he sent an email to let the managers know that he would not be returning to work and that he would appeal the finding of the insurer’s psychiatrist that he was fit for work.

The complainant consulted a solicitor, Mr Ormonde, and, on July 27th 2018, Mr Ormonde wrote to the HR manager setting out the complainant’s concerns about how he was treated at work.  In his letter, Mr Ormonde said that, since he returned to work having been treated for cancer, the complainant began to have difficulties with some work colleagues and that this caused him to suffer from stress and anxiety.  Mr Ormonde said that the complainant’s mental health had been affected by the way he was treated.  He described the supervisor as was “very aggressive and dismissive” and that he “barely concealed his anger and hostility towards him which led our Client to believe that his safety may be in jeopardy.”

At the end of August 2018, the insurance company stopped paying the complainant’s sick pay.  On September 10th, as part of his appeal against the earlier decision that he was fit for work, he was examined by another psychiatrist for the insurance company.  He brought with him a copy of a report from his own consultant psychiatrist.  The complainant said that the insurer’s psychiatrist was “very derogatory” in respect of a particular matter.  He did not contact the complainant’s doctor or his psychiatrist.  He concluded that the complainant was fit for work and that the “current impasse must be resolved.” 

As a result of this, the complainant said that he felt “totally lost.”  He went to see his own consultant psychiatrist who suggested that he consider resigning and seeking alternative employment.

Also, on September 10th 2018, the HR manager replied to Mr Ormonde’s letter of July 27th.  In the letter, she suggested that the complainant’s “interpersonal approach with others” was a cause of some of the issues in the workplace.  The complainant said that he was appalled by this statement. 

On December 3rd, Mr Ormonde wrote to the HR manager to inform her that the complainant resigned from his job.  When this was not acknowledged, on December 21st, the complainant wrote to the HR manager to confirm that he resigned with immediate effect, explaining that, “in conjunction with the advice of my doctor, the treatment I suffered at work and (the HR manager’s) summary dismissal of my complaints has reinforced my conclusion that my position is untenable.”

Concluding his evidence, the complainant said that he is utterly disappointed about how he was treated by his former employer.  He said that he wanted to speak openly about the difficulties he experienced at work and to try to thrash things out.  This didn’t happen and every correspondence he received would make him feel worse.  He said that the HR manager agreed that he needed support and she said that she would do the best she could.  However, he said that no one took any steps to properly assess his medical condition and he got no support to get back to work. 

Cross-examining of the Complainant

In response to questions from Ms Tiilikainan, the complainant said that he kept in touch with his former employer every month and that he sent medical certs to the office by post.  He said that he completed a medical consent form to give consent to the company’s doctor to speak to his doctor, but that this opportunity was not taken up by his employer.

Ms Tiilikainan referred to the reports from the complainant’s doctor, from his consultant psychiatrist in St John of God’s hospital and from the doctors for the insurer.  She said that the respondent did not have these documents before the complainant resigned in December 2018.  Two of the three documents referred to were compiled by the respondent’s insurers.

Ms Tiilikainan asked the complainant what explanation he gave to the HR manager for his absence.  The complainant said that he told her that he had been doing the team-leader job for 10 or more years and that it had changed beyond recognition.  He said that his mental health was very bad and that he had consulted his doctor.  He said that he couldn’t stand the stress of the job and he was in a bad way.  He said that the company was demanding more and more and that the pressure was unbearable.  He said that he didn’t feel that he had any support, and that he felt unsafe and afraid.  He said that he was nervous going to work.  Although he was doing his fair share, he was unable to cope and he was frightened.  He said that he wasn’t respected, not only as a team-leader, but as a person.  He said that he told the HR manager that he needed to stand down from the team-leader job, that he was “in a very bad place” and that he was getting no respect from the supervisor or the depot manager.

When he met the HR manager and the depot manager in his house in April 2017, the complainant said that he told them that he was unable to continue in the job.  He said that his wife told them that he was disrespected at work and that such behaviour would not be tolerated where she works. 

The complainant agreed with Ms Tiilikainan that he didn’t lodge a grievance, saying, “what would be the point?”  He said that he spoke to the HR manager on the phone in February 2017 and he spoke to her in his house in April that year.  He said he told her about his experience at work and about how he was feeling so stressed out and afraid.

Referring to the report of the insurer’s doctor in July 2018, the complainant said that the doctor said that he was fit for work, but that there were issues that would inhibit his return.  When he appealed this finding to another doctor, the second consultant also said he was fit, but he echoed the findings of the first report.  At the end of 2017, an orthopaedic surgeon had decided that he was fit.  But he wasn’t absent due to his hip and he said that he asked the surgeon what the point was of the consultation.

Answering questions about his financial losses, the complainant said that he works as a driver for about eight hours a week.  He was involved in a bad accident in September 2019, and he had to have surgery.  He has developed a neurological condition as a result.

Re-direction by Mr Breheny

Answering further questions from Mr Breheny, the complainant said that he told the HR manager in February 2017 and in April of that year, about how he was treated at work.  He said that he didn’t put his complaints in writing.  He had previously told the HR manager about his cancer and he said that she used to ask to meet him when she was in Dublin.  He agreed with Mr Breheny that, on more than one occasion, he told her how he was treated by his colleagues and managers at work.

At a later part of the hearing, when everyone had finished giving evidence, the complainant said that he would not have resigned if the occupational health insurers had continued to pay the 75% of his wages that he was paid up to September 1st 2018.  He also said that he knew that SIPTU represented some of the employees in the warehouse, but that he did not seek the union’s advice.

The complainant’s wife said that “things started to go bad” for her husband shortly after he was promoted in 2004.  She said that the job quickly became more difficult. 

By 2017, she said that her husband went from being a happy person, to coming home every evening feeling dejected.  She said that he always worked hard.  She used to wait to see how he would be feeling every evening when he came home from work.  She said that a lot of evenings, he would cry about what happened during the day.

Asked about the meeting on April 4th 2017, the complainant’s wife said that the HR manager and the depot manager came to their house and they asked how he was.  He told them that he wasn’t well.  She said that she told them how shocked she was at what was going on in the warehouse.  She said that she referred to the shouting matches that her husband had told her about.  She said that the depot manager apologised and said that “things got a bit heated.”  She said that it sounds like more than “a bit heated.”  She asked how anyone could complain to a supervisor who was “roaring and shouting like a thug.”

Following this meeting, the complainant’s wife said that he got a letter asking why he wasn’t back at work as had been agreed.  She said that her husband had not agreed to go back to work and that what he had said was that he would discuss going back to work with his doctor.

The complainant’s wife recalled the meeting in the hotel with the HR business partner, the depot manager and his boss over a year later in May 2018.  She said that their understanding was that the meeting was for her husband to meet the HR business partner.  She said that she mentioned the difficulties her husband had with the behaviour of his supervisor and manager at work, but she said that they just got “blank faces.”  

Direct Evidence of the Human Resources Manager

This witness said that she has worked as a HR manager for the company in Great Britain and Ireland for 27 years.  She spent 10 years in the production factory and the past 12 years in the car parts division.  She had some affinity with the complainant; she said that she was diagnosed with breast cancer in 2007 and, in 2010, she got a diagnosis of skin cancer.  After he was treated for prostate cancer in 2012, the HR manager said that, when she was in Dublin, she would meet the complainant to see how he was.  She said that she was diagnosed recently with terminal systemic cancer.

Following his recovery from prostate cancer, the complainant had a number of medical conditions and the company supported him to return to work.  The HR manager said that she managed the complainant’s sick leave in line with the company’s policy on absence.  She said that he kept in good contact with the depot manager.  She recalled that two meetings took place, one in the complainant’s home in April 2017, and then in May 2018 in a hotel. 

Referring to the telephone call from the complainant in February 2017, the HR manager said that he told her that he wanted to step down from the team-leader role.  She said that she didn’t want him to step down and lose part of his earnings and that she told him that they should look at options.  She said that the most important thing was for him to get better.  She said that demotion could be considered, but that a decision should be made on this when he was better.  She said that in this phone call, the complainant made no mention of the behaviour of the supervisor or the depot manager.

Referring to the meeting of April 2017 in the complainant’s home, the HR manager said that she advised the depot manager to “just listen” to what the complainant had to say.  She said that, during their conversation, the complainant said that he was struggling with the workload, but she said that he didn’t complain about anybody’s behaviour.  She said that she suggested that he just drop in to the warehouse at lunchtime to say “hello” to people.  She said that she was thinking that he could come in for one or two hours and then take a day off.  She said that she wanted the complainant’s return to work to be “successful and sustainable.”

At the end of the meeting, the HR manager said that the complainant said that he would speak to his doctor and explain what the plan was to help him to get back to work.  However, following the meeting, the complainant sent in another medical certificate and did not come back to work.

Having been examined by one of the insurer’s doctors in May 2018, the complainant was considered to be fit for work.  The HR manager said that she wrote to him to invite him to come in to meet his colleagues, before coming back to work properly.  She said that the complainant didn’t attend the meeting.  She said that she noticed that his medical certs from his doctor began to refer to stress and anxiety.  She said that she wasn’t aware of any cause of stress in the workplace, and she thought that the complainant was suffering from anxiety as a result of his treatment for cancer.  She said that there was no indication of a problem in the workplace until she received a letter from the complainant’s solicitor in July 2018.  She said that when the insurers stopped paying sick pay, they heard from the complainant’s solicitor.

In response to Ms Tiilikainan, the HR manager said that if she had received a complaint about bullying or aggression in the workplace, she would have carried out an investigation.  She said that she would have asked someone from the company’s UK or Belgian office to do the investigation.

The HR manager said that the Dublin warehouse has 20 employees with very long service, and that there was never any concern and never a complaint about bullying or harassment.  The HR manager said that, from 2009, when she took on responsibility for the warehouse, until today, there have been no complaints about bullying and harassment in the warehouse.

Cross-examining of the Human Resources Manager

Mr Breheny asked the HR manager if she could remember a telephone call from the complainant in which he told her about people making his life hell.  In response, she said she remembers one phone call in which the complainant asked if he could step down from the team-leader job.

The HR manager agreed that, at the meeting in the complainant’s house in April 2017, he and his wife said that some people behaved aggressively in the warehouse.  She said, “from my experience, people can have issues and blame the workplace, when it may not be the case that the workplace is the problem.”  She said that, “at the meeting, we just listened” and she said that she did not hear “one single example of inappropriate behaviour.”  She said that there were no specifics and that she did not carry out an investigation.

Mr Breheny asked the HR manager if, knowing the stress he was under, she expected him to “quote chapter and verse.”  He asked if she could not have phoned him and asked what needed to be done.  The HR manager said that the complainant talked about the stress of the role and how the responsibilities had increased.  She said that he never mentioned a situation “with X or Y.”  She said that there were no specifics in the discussion about the workplace.

Mr Breheny referred to the letter from Mr Ormonde on July 27th 2018, and he asked why the HR manager didn’t ask for specific examples of what the complainant alleged was going on.  The HR manager said that by the time it came to deal with Mr Ormonde’s correspondence, she was ill herself, and undergoing radiation therapy.  The witness agreed that it was not acceptable to ignore a complaint because it wasn’t committed to writing, but she said that in her meetings with the complainant, he never raised a concern with her.  She said he could have spoken to another manger, but he did not bring his concerns to the attention of any manager.

Referring to the HR manager’s letter of September 10th 2018, Mr Breheny asked her what she meant about the complainant’s “interpersonal approach” being part of the cause of his problems at work.  In response, the HR manager said that there had been two complaints from other employees about the complainant’s behaviour.  Mr Breheny said that these complaints were not provided in the response to the complainant’s data access request.  The HR manager said that a small amount of information from the warehouse was not sent as part of the response to the data access request.

Mr Breheny asked the HR manager why an investigation was not carried out into the disabilities suffered by the complainant.  She responded that the complainant had been treated for cancer and that he had had a number of serious health issues subsequently.  She said it was understandable to suffer from anxiety as a side effect of his treatment.  She said that she would very rarely send an employee to be examined by the company doctor.  She said he was absent for a long time and it was acceptable to the company for him to be out.  When the insurers decided that he was fit to return to work, she said that they looked for a meeting to discuss his return, but that he didn’t attend that meeting.

Asked about the assessment of the insurer’s doctor and its purpose to determine if they should continue to pay the complainant’s wages, the HR manager said that “the expert opinion is that he was fit to come back to work.”  On June 13th  2018, the insurer concluded that the complainant was “not totally disabled” to the extent that he could not work at all and that his request to retire on the grounds of ill health would not be entertained.

Mr Breheny asked what steps would normally be taken for a person with a disability who is returning to work.  The HR manager said that she would discuss what restrictions the employee was facing and how these could be accommodated in the workplace.  She said that each case is individual and, if he had engaged with the company, they would have “sat down” with the complainant and talked about hours of work, and perhaps what days he would work.  She said that they asked him to come to a return to work meeting, but he didn’t attend.

Mr Breheny referred to a letter dated June 19th 2018 from the depot manager to the complainant.  The letter reads as follows:

“Further to your recent assessment we are pleased to be able to confirm that you have been deemed fit to return to work.

“Due to the nature and length of your absence it is extremely important that your return to work is gradual and back to a role that is best suited to support a sustained return to work.

“It is suggested in the first instance that you attend site and have a meeting to discuss this further and perhaps at a time close to lunch time so that you can meet all of your colleagues in a more social setting prior to your return to work.

“We would therefore propose a meeting to be held on 29 June 2018 at 12.30.

“Please confirm that you are available to attend this meeting.

“Kind regards…”

On June 20th 2018, the complainant replied saying that his medical advice was that he was unfit to resume work and he said that he would not attend the meeting on June 29th.

Direct Evidence of the Assistant Depot Manager

The depot manager said that he worked for the company for 31 years and has been the assistant depot manager since 2004.  He said that workforce comprises 20 employees and himself.  Their job is to get parts and accessories despatched to the motor dealerships.  He has worked with the complainant for 13 years.  He described him as a good worker, very conscientious and principled and he said that he wanted to do his job well. 

Ms Tiilikainan asked the depot manager if the complainant or any other employees ever complained about their workload.  He replied that, on a day to day basis, he would have conversations with employees about workload and manpower.  He said that the volume of work could vary and that they planned the workload based on history, but it could be busier than they planned for.  The depot manager said that the complainant was the team-leader of the shipping section and that area got priority in terms of manpower.  It was a priority to get the parts out to customers and if necessary, they could pull someone from another section to support the shipping team.

The depot manager said that they used a “kaizan” system of working.  This involved looking at the issues that caused concern in the processes in the workplace and trying to find better ways of working.

Ms Tiilikainan asked the depot manager to comment on the complainant’s assertion that the demands of the job increased over the years.  He replied that the role of the team-leader is to have a team of associates in position to get parts out.  The role changes depending on the volume of work and there is fluctuation.  He said that staff could work overtime if necessary and that the last area to be affected was the shipping section, because they always took people from other sections to help to get parts despatched to the dealerships.

Ms Tiilikainan referred to the meeting of April 4th 2017 and she asked the depot manager if he recalled saying that “things could get out of hand” in the workplace.  The depot manager said that he couldn’t remember making that comment.  He said that the purpose of the visit was to support the complainant and that they tried to take his concerns on board.  He said, “if I said, ‘sometimes things get out of  hand,’ it didn’t mean trouble, but that sometimes there can be a difference of opinion in a busy environment.  He said that it wasn’t the case that people were rude or aggressive.  He said that the management team would discuss how to manage under-performance, or people “taking umbrage” when asked to do a particular job. 

Ms Tiilikainan asked the depot manager if, at the meeting on April 4th 2017, the complainant made allegations about the behaviour of any specific person.  The depot manager said that the complainant talked about his health problems and he said that he was finding the workload difficult.  He asked to step down from his job as team leader.  He said that he and the HR manager took this on board and they considered the possibility that he could move an associate’s role over a period of three months, before his wages were reduced.  He could consider if he wanted to stay in the associate’s role before a final decision was made.  The depot manager said that the complainant never mentioned any person by name who had behaved aggressively towards him.

At the end of the meeting, the depot manager said that the complainant said that he would talk to his doctor about the possibility of coming back to work, based on the suggestions they discussed.

Referring to the meeting in the hotel on May 4th 2018, Ms Tiilikainan asked the depot manager if, at that meeting, the complainant made any allegations about how he was treated at work.  The depot manager said that the meeting wasn’t very long.  He said that his boss attended the meeting, and that he wanted to meet the complainant and his wife.  At the meeting, the complainant talked about his health issues and said that he was not fit to return to work.  He said, “we asked if there was anything we could do” and that they agreed that it would be okay for the complainant to move back to an associate’s role on his return.

The depot manager said that the complainant raised no complaint about anyone in the workplace.  He said, “I can guarantee that if a complaint was made about one of my staff, I would deal with it.”  He said, “if the complaint was about me, (the HR manager) would have dealt with it.”  He said that there were two senior managers at the meeting and that they would have done something if the complainant had mentioned a grievance about any matter.

The depot manager described his role regarding the complainant’s absence as the intermediary between HR and the insurers.  In his letter of June 20th 2018, he suggested a gradual return to work for the complainant.  He said that over the years, people have come back to work following illnesses or other personal difficulties and that they have always felt that a policy of a gradual return is best.  He said that the complainant was friendly with an employee who had a heart attack and he would have known that he could return to work on a phased basis. 

Apart from the formal meetings in April 2017 and May 2018, the depot manager said that he kept in regular contact with the complainant and that he received monthly and sometimes weekly updates while he was out sick.  Their contact was by telephone and he said that they discussed how he was, work issues, changes, “comings and goings” and the GAA.

The depot manager said that the complainant never raised a complaint or a grievance about how he was treated.  He said that, in his experience as a manager in the company, they have looked after people who suffered from various medical ailments.  He said that the managers were mindful of the complainant’s medical problems and that, physically and mentally, they knew that he wasn’t as strong as he used to be.  In the early years in his job, he pushed himself very hard and he often didn’t take his breaks.  The depot manager said that he encouraged him to take more breaks if he was under pressure.

The depot manager described the complainant as “a very proud man.”  He said that he may not have been feeling well, but he wanted to do his job well.  He said that he respected him for this.  He said that it was up to him to make sure that he got an extra break.

Cross-examining of the Depot Manager

Mr Breheny referred to the email from the HR manager to the depot manager after their meeting with the complainant at his home on April 4th 2017.  Near the end of a detailed summary of the meeting, the  HR manger said,

“It is appropriate to comment for the notes that some of the comments made by (the complainant) and particularly the views of (the complainant’s) wife could have been strongly argued / defended, but that was not the purpose of the visit.  Whilst some balancing comments were made the ultimate objective was to try and get (the complainant) to return to work.”

Mr Breheny asked the witness what he thought this meant.  He replied that, at the meeting, the complainant did most of the talking and he said that he thought that the workload was becoming too heavy.  He said that he and the HR manager could have challenged the assertion that the workload had increased, but this would have required a discussion about the complainant’s ability to do the job.

The depot manager said that he wanted to respond to the allegation by the complainant’s wife that people were “shouting and roaring at each other like thugs” in the warehouse.   He said that he found this comment hurtful, that he would not consider himself to be a thug.  He said that the warehouse is 8,000 square metres in size and people often shout to be heard.  He said that people treat each other with respect and that he has always treated people with respect, and if he had not, he would have been disciplined.  The complainant did not name any person and say that they said or did something unacceptable.

He said that he recognised that the complainant was finding things difficult at work.  He said that he sometimes made things difficult for himself by “bringing allocations forward” and that this caused unnecessary work.

Concluding his evidence, the depot manager agreed with Mr Breheny that he was not in a decision-making role.  He said that his role was “conversational rather than decision-making.”  He said he was not dictated to by HR, but guided by HR.

Direct Evidence of the Supervisor

The supervisor said that he has been with the company for 21 years and that he manages 16 employees.  He said that the complainant reported to him and that he thought that he had a good relationship with him.  He said that the employees in the warehouse are in a union and that “we don’t rush around.”  He said that, if they need extra manpower, they get it.

The supervisor said that the complainant would talk to him if an associate was falling behind with their work or if they needed training.  He said that there is sometimes shouting in the warehouse and that people have good and bad days.  He said that “we are able to talk and diffuse the situation.”  He said, “no one ever leaves.”  The supervisor said that it would be unusual for someone to raise a formal complaint and that they would generally resolve issues through the union.  He said that he is a member of the union himself.

Describing his contact with the complainant during his absence, the supervisor said that he called to the complainant’s house after he had an operation on his shoulder.  The complainant had tickets for a match that he couldn’t use and he gave them to him.  When he returned to work after his surgery, he gave the complainant lighter work.  When he had to lift boxes, he assigned another employee to help him with that work.

Cross-examining of the Supervisor

Mr Breheny referred to the letter of July 27th 2018, from the complainant’s’ solicitor, Mr Ormonde, to the HR manger.  Referring to the supervisor, Mr Ormonde said that the supervisor “barely concealed his anger and hostility” towards the complainant which led him to believe “that his safety may be in jeopardy.”  The supervisor said that the first time he heard about this was at the first day of this hearing at the WRC.  He said that he was hurt at the suggestion that he had been aggressive or hostile towards the complainant.  He said that the issue was never investigated.

Having been absent due to depression and anxiety for almost two years, on December 3rd 2018, the complainant resigned from his job.  Claiming that his resignation amounts to a constructive dismissal, he said that the difficulties he encountered in his workplace made it impossible for him to go back to work.  In his submission on behalf of the complainant, Mr Ormonde said that the respondent’s conduct was so unreasonable that the complainant had no option other than to resign.  He claims that the conduct of the employer amounted to a repudiatory breach of his contract of employment, such that he was entitled to treat himself as dismissed.  The unreasonable conduct faced by the complainant was unfavourable treatment of him due to his disability, treating him in an unsupportive and unsympathetic manner that was determined to make his return to work impossible, failing to address his concerns about “perceived bullying type behaviour towards him by work colleagues and management” and failing to comply with his statutory rights.

In his evidence, the complainant said that following his return to work from treatment for cancer in 2012, his job became gradually more pressurised and he felt under constant strain.  He said that the employees on his team didn’t take direction and that they were disrespectful.  He said that people shouted at each other in the warehouse and that his supervisor didn’t listen to his concerns, and that he was dismissive and aggressive.  He said that he was frightened, that he felt unsafe and that sometimes, he cried when he got home from work.

Over the years since he was diagnosed with prostate cancer in 2012, the complainant spoke on a regular basis with the HR manager about how he was getting on in the job.  When he went out sick in February 2017, he phoned her and told her that he couldn’t cope and that he wanted to step down from his job as a team-leader.  He also asked about the possibility of retiring early.  By December 2018 however, he decided that he couldn’t go back.

The complainant said that he didn’t raise a formal grievance, because he told the HR manager and the depot manager in April 2017 at a meeting in his home about how the pressures of the job made him feel that he was at work 24 hours a day.  He said that he didn’t seek advice from SIPTU, because he had no confidence in the union.  With no resolution of his concerns, on July 27th 2018, Mr Ormonde wrote to the respondent setting out his client’s view that “his mental health has been affected by the manner in which he has been treated at work.”  When his complaints were not investigated, and, when the respondent failed to “engage in some positive way in order to impress on the Complainant that they acknowledged his issues,” on December 3rd 2018, he resigned.

The respondent refutes the allegation that the complainant was constructively dismissed and it is their case that he voluntarily resigned.  Referring to section 1(b) of the Unfair Dismissals Act 1977 – 2015, Ms Tiilikainan said that the burden of proof rests with the employee to show that he was entitled to terminate his contract by virtue of a breach of the contract by his employer, or, that the employer acted so unreasonably, so that the continuation of his employment was intolerable and it would have been reasonable for him to resign.  It is the respondent’s case that the complainant has provided no evidence, facts or details to satisfy the burden of proof to substantiate such a claim.

Ms Tiilikainan said that the respondent operated at all times within the terms of the complainant’s contract of employment and that no violation of the contract occurred.  Referring to the 1981 case at the Employment Appeals Tribunal (EAT) of Conway v Ulster Bank, UD 471/1981 to support its position that the employer fulfilled its contractual obligations to the complainant, the respondent’s case is that “the contractual test” cannot be met.

In respect of “the reasonableness test,” Ms Tiilikainan pointed to two factors which must be considered:

1.  Did the employer act unreasonably so as the make the employment relationship intolerable?

2.  Did the employee act reasonably by resigning, particularly in relation to the use of the company’s grievance procedures?  

Ms Tiilikainan referred to the case at the EAT of McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal referred to the “high bar” presented by the burden of proof on an employee that they acted reasonably and exhausted their employer’s internal procedures to resolve their grievance.  She submitted that, in the case of the complainant, the respondent acted reasonably and fairly at all time, in accordance with its policies, best practice and appropriate conduct.  She said that the respondent managed the complainant’s absence from work in accordance with their absence management policy.  He was paid for the duration of his absence in accordance with the policy.  The HR manager and the depot manager met the complainant to see what support he needed and when he was considered to be fit to return to work, they arranged to meet with him to discuss how to manage his return.  He was offered the possibility of being released from the role of team leader and moving to a lower grade role.  Ms Tiilikainan asserted that these are not the actions of an unreasonable employer.

In their submission at the hearing, the respondent included a copy of the company’s grievance procedure which was negotiated and agreed with SITPU in 2014.  Ms Tiilikainan said that the requirement for reasonableness extends to the requirement for the complainant to exhaust the company’s grievance procedure and to seek to resolve his grievances before terminating his employment. 

Concluding the employer’s response to the complaint of unfair dismissal, Ms Tiilikainan said that, in the same way that it is unacceptable for an employer to dismiss an employee without recourse to fair procedures, so too, it is insufficient for an employee to claim to have been constructively dismissed without using and exhausting the internal procedures, so that the employer has an opportunity to remedy the employee’s concerns.  For this reason, she argued that the complainant has failed to show that his actions were sufficiently reasonable to meet the high burden of proof required in a claim of constructive dismissal.

The Legal Framework

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“[D]ismissal, in relation to an employee means -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the 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, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that his decision to leave his job was reasonable in the circumstances that prevailed at the time.  The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, was it reasonable for him to resign on December 3rd 2021, and to claim that, because of how he was treated by his employer, no other course of action was open to him?

Context in which the Complainant Decided to Resign

In the five years before he went out sick in February 2017, the complainant had been though the mill from a health perspective.  He was treated for prostate cancer in 2012 and this was followed by other abdominal operations.  In 2015, he had carpel tunnel surgery on both his hands.  When he returned to work, he began to suffer from anxiety and stress and he described how he used to come home from work in an emotional state.  In August 2017, when he was out sick suffering from depression, he had a hip replacement.  During the period leading up to February 2017, , he said that his job became more pressurised, with a greater reliance on technology, and he found it difficult to manage his team, some of whom he claimed, did not take direction from him.  He felt that he was not respected by his subordinates or his supervisor.    

When he resigned in December 2018, the complainant had been absent due to illness for one year and 10 months.  Apart from two meetings with members of management, regular phone calls with the depot manager and consultations with the occupational health insurance doctors, he had no other contact with his workplace during that time. 

For the first six months of his absence due to illness, the complainant was paid his wages less what he received in social welfare illness benefit.  From August 2017, 75% of his wages, less his social welfare benefit was paid by the ill health occupational health insurer.  These payments ceased on September 1st 2028.  In his evidence at the hearing, the complainant said that he would not have resigned if the insurance company had continued his payments.

The Burden of Proof in Constructive Dismissal Cases

In his submission on behalf of the complainant, Mr Breheny referred to the two tests that must be satisfied by an employee who claims that they have been constructively dismissed; the “contract test” and the “test of reasonableness.”  The final aspect of the burden of proof in constructive dismissal requires an employee to demonstrate that they used their employer’s workplace procedures to have their grievance resolved. 

Mr Breheny cited a number of precedent decisions where the outcome was a finding that the claimant’s contract was repudiated or where the conduct of the employer was so unreasonable that the employee was justified in their decision to resign (Kennedy v Foxfield Inns Limited Trading as the Imperial Hotel, UD 549/1994, Porter v Atlantic Homecare Limited, UD 971/2007, Allen v independent Newspapers [2002] ELR 84 and Stone v I Maloney & Sons Limited, DECE 2010 196).  In the cases cited, the claimants were the subject of harassment.  While the complainant here alleged that his supervisor was aggressive, he said that he didn’t listen to him and interrupted him when he spoke and the complainant gave no example of behaviour on the part of any manager that could be regarded as harassment.

The Contract Test

The “contract test” requires an employee to demonstrate that his or her contract has been repudiated, meaning in effect that the employer has abandoned the provisions of the contract.  To stand up this argument, it requires an employer to have changed or repudiated some element of the employee’s agreed terms and conditions such as reducing their wages without their agreement, changing their place of work or insisting that they work long hours or under constant pressure.  The complainant had a frank conversation with the HR manager in April 2017 when he told her that he felt under pressure.  He was absent from then until his resignation.  A note produced in evidence by the respondent dated February 21st 2017 shows that the depot manager was aware that the complainant was struggling with the demands of the role and that he may have provided some support. 

I accept that the complainant was feeling under pressure.  I referred earlier to his ongoing health problems since 2012.  It would not be unreasonable for any person in similar circumstances to feel under pressure.  I cannot conclude however, that a manager or a supervisor inflicted pressure on the complainant.  It seems to me that the complainant’s feeling of being under pressure was the outcome of having been frequently and necessarily out of work on sick leave, anxiety about keeping up with the technical changes in the job, and stress associated with trying to do the job as he had done it in the past. 

The Reasonableness Test

The second element of the burden of proof, known as the “reasonableness test,” requires the complainant to show that his employer acted entirely unreasonably in the manner in which he was treated at work.  Setting out the extent of this burden, in the case at the former EAT of Kenouche v Four Star Pizza, UD 962/2008, the Tribunal described the nature of the unreasonable treatment that an employee must have been confronted with before deciding to resign:

 “…the conduct referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee.” 

The first issue for consideration is the conduct of the employer prior to February 2017, when the complainant went out sick, and, secondly, the conduct during the course of his absence up his resignation in December 2018.

If we consider the pre-absence conduct, we know that the complainant felt under pressure in his job.  In the week that he went out sick, he phoned the HR manager and he told her that he wanted to step down from the team leader role.  He also asked her about the possibility of early retirement.  In his evidence, the complainant said that he felt under stress and that he was very unhappy in his job.  He said that people disrespected him and that his supervisor didn’t listen to him and that he interrupted him when he was talking.  He didn’t say that he felt that he was given too much work to do, or that he hadn’t been trained, or that he was asked to work long hours.  He said that there was a lot of shouting in the warehouse and that he was afraid of his supervisor.  He didn’t say why he was afraid or what caused his fear.

The complainant went out sick in February 2017 having gone through a tremendous ordeal with his health since 2012.  He had been out sick on and off over that period, and my sense is that each time he returned to work, he lost confidence as the job got more technical, things got done differently and the relationships in the workplace moved on in his absence.  Apart from the technical aspects of a  job, managing people is an altogether different skill, more of an art form, requiring intuition and patience.  It seems to me that, as a hard-working and diligent person, the challenge of managing people who did not think about the job the way he did was extremely frustrating.

I accept that, in the lead up to his absence in February 2017, the complainant felt stressed out at work.  He must also have been physically less able than he was before his treatment for cancer.  The evidence of the supervisor is that he assigned someone to help the complainant when the work was heavy.  Before he went absent, he could have got help from his union and it may have been possible to provide additional supports.  He could have talked to the HR manager, with whom he seems to have had an open and constructive relationship.  He did neither of these things, and my sense is that he didn’t want to engage in a problem-solving process, and he simply needed a break.

While many others in similar circumstances would have done the same, it is my view that the complainant has not shown that, because of unreasonable treatment on the part of his employer, he had to take sick leave.  It is clear to me that the complainant was genuinely ill and, to use his own expression, “mentally fragile” after a prolonged period of serious illness.  It seems that the strain of continuing to work in what is accepted was a busy warehouse, was too much for him.

The next issue to consider is the employer’s conduct while the complainant was out sick.  Over the course of 22 months from April 2017, the complainant sent in medical certs on a monthly basis and he kept in touch with the depot manager in regular phone calls.  He had two face to face meetings with his managers, one in April 2017 and the second in May 2018.  The complainant was upset when, following the meeting in April 2017, he was expected to return to work. He felt that the managers who attended the meeting in his house had not listened to his concerns.  He was upset again more than a year later when, on June 19th 2018, the depot manager sent him an invitation to a return to work meeting.  The issue I have to consider is, were these actions so unreasonable that the complainant had to resign?  It seems to me that the managers who engaged with the complainant during his absence were concerned to have him back, and that they were prepared to change his job from that of a team leader to an associate, so that he would be relieved of the pressures of the supervisory role.  It is my view that this was the response of a reasonable employer.

In his evidence, the complainant said that he wouldn’t have resigned if the occupational health insurer had continued to pay 75% of his salary.  With the possibility of remaining out sick on income continuance payments removed, the two options left for the complainant were, to stay out sick on social welfare illness benefit or to return to work in a reduced role.  It is apparent that he could not contemplate returning to work in any capacity, particularly in view of the recommendation of his consultant psychiatrist that he should resign. 

The Reasonableness of the Complainant’s Decision to Resign

In the same manner that an employer contemplating the dismissal of an employee is expected to act reasonably and to follow procedures, an employee contemplating resignation on the grounds of constructive dismissal is expected to act with the same degree of reasonableness – barring an incident such as assault or some form of illegality or endangerment.  As I have already noted, it seems to me that the complainant did not want to engage in the grievance procedure in his workplace.  When he went out sick in February 2017, he enquired about the possibility of early retirement, so he was certainly considering the possibility of not coming back. 

Conclusion

It is my view that, on December 3rd 2018, it was reasonable for the complainant to resign.  The job that he was promoted into had become too much for him following extended ill health and depression and the possibility of returning to work increased his anxiety.  I accept that the complainant’s job may have been pressurised at times, but I find that he has not shown that his employer repudiated his contract, or that any unreasonable treatment of him on their part, before or after he went out sick in February 2017, was the cause of his resignation.  I also find that he failed to use the internal grievance procedure to try to get a resolution to his concerns.

I have a great deal of sympathy for this complainant as he is still dealing with very challenging health issues.  I believe that, while he could have returned to work in a role with less responsibilities, for the sake of his health, it was reasonable for him to resign.  I find however, that the conduct of the employer was not the cause of the complainant’s resignation, and that, ultimately it was the decision of the insurer to cease his income continuance payments that precipitated that outcome.

I find that the complainant has not made out the standard of the burden of proof required to show that the conduct of his employer was such that he had no alternative, but to leave his job.  Based on this conclusion, I decide that this complaint under the Unfair Dismissals Act is not well founded.

In his form setting out his complaint under this heading, the complainant said that he did not get a statement of his terms and conditions of employment at the start of his employment, or, at any time since.  For the complainant, Mr Breheny said that a data access request by the solicitors had failed to unearth such a statement.

At the hearing on April 26th 2019 Ms Burke presented a copy of a statement, which she said is a contract of employment, issued to the complainant and signed by him when he joined the company in February 2000.

From the evidence submitted, it is apparent that the complainant received a statement of his terms and conditions of employment when he joined the company in 2000.  While this document is relatively basic, I note that it was issued in 2000, and was generally in line with the format of terms and conditions documents issued to employees in the logistics / warehouse sector at that time. 

I have decided that this complaint is not well-founded.

In his complaint form, the complainant said that he did not receive a statement setting out the changes to his contract when he was promoted in 2004.  At the hearing, he gave evidence that he has a letter that he received confirming that he was promoted and the change to his salary as a result.

The respondent was not asked to respond to this complaint.

Any complaint that he did not receive written confirmation of the changes to his terms and condition on foot of his promotion in 2004 has been contradicted by the complainant as he claims that he did in fact receive a letter confirming his promotion.

I have decided that this complaint is not well-founded.

Discrimination on the Disability Ground

The complainant claims that he was discriminated against on the grounds of his disability.  Mr Breheny referred to the definition of a disability at section 2 of the Employment Equality Act 1998 – 2015 and the “extremely broad and all-encompassing manner” in which he said the definition has been interpreted by the former Equality Tribunal.  He referred to two legal precedents:

Mr O v A Named Company, DEC-E2003-052.  Here, the Equality Officer found that work-related stress amounts to a disability.

A Government Department v A Worker, EDA 094.  In this case, at the Labour Court, it was decided that the “de minimis rule” applies and that a condition that manifests itself in a minimal level of symptoms can be classified as a disability.

Identifying a Comparator

Comparing himself to someone who was not discriminated against, Mr Breheny referred as a comparator to “any member of the Respondent’s workforce who was not disabled.”  He claims that,

“…these people were treated differently in the conditions of their employment in that they were not subjected to bullying and harassment; they were not subjected to an irretrievably flawed grievance and investigation process; they were not excluded from the workplace due to the Respondent’s failure to accommodate them or remove them from exposure to their stressor; and they were not treated in an unsympathetic and unsupportive manner, that was intent on making their return to the workplace from a period of leave impossible.”

If I do not accept as a comparator “any member of the Respondent’s workforce who was not disabled,” then, Mr Breheny submitted that I am entitled to use a “hypothetical comparator.”

In any event, Mr Breheny argued that as the respondent failed to provide the complainant with reasonable accommodation for his disability, he is not required to identify a comparator.  Finally, he suggested that the complainant himself is a comparator, because he returned to work previously, having been absent due to illness, and he was facilitated with reasonable support to do so.

Reasonable Accommodation

Under this heading, the complainant claims that, when his employer was notified from February 2017 onwards that he was suffering from depression and anxiety, he was not given any accommodation.  Outlining the complainant’s case that he was entitled to reasonable accommodation for his disability, Mr Breheny stated that the complainant suffered from “severe work-related stress and anxiety, OCD and a reactive depressive disorder.”  Setting out the ways in which the respondent failed in their treatment of the complainant, Mr Breheny submitted that,

1.  The respondent failed to investigate the complainant’s concerns about issues at work;

2.  That they failed to get independent medical advice regarding the complainant’s ability to return to work;

3.  They failed to engage with the complainant’s medical advice regarding his illness;

4.  They failed to consult properly with the complainant regarding a possible return to work and the option of shorter working hours or light duties.

Mr Breheny referred to a letter of June 13th 2018 from the insurer to the respondent in which they informed the employer that the complainant “is not currently totally disabled from following his normal occupation as required by the policy and is fit to return to work.”  In the letter, the insurer offered the respondent the services of their specialist care manager.  The executive from the insurance company noted in his letter that,

“It appears from Doctor Whitty’s report that there may be non-medical work issues that may impact on a possible return to work for (the complainant).  In this regard, we would be happy to make available to services of a specialist Case Manager, Active Work Solutions (AWS).  AWS have significant expertise in returning employees to work in complex work-related situations.  They would meet initially with the employer and then with (the complainant).  AWS would then draw up a return to work plan with the agreement of all the parties, which they would manage and oversee.  We would be responsible for their fee during this process.  Can you advise if the employer wishes to avail of this service, and if so, we will arrange for AWS to contact them directly to set up an initial meeting.”

In the circumstances when all the doctors that the complainant had been involved with had recommended that his work-related issues were addressed, Mr Breheny submitted that it is incomprehensible that the respondent took no steps to do so and that this offer was instead “casually brushed aside.”

In her submission on behalf of the respondent, Ms Tiilikainan said that they refute the claim of discrimination and they deny that the employer failed to provide the complainant with reasonable accommodation for a disability.

Ms Tiilikainan referred to the well-established practice of the former 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 have been on the basis of the discriminatory ground cited, which is the disability ground.  Ms Tiilikainan cited a number of legal precedents to support the respondent’s case that, with regard to the treatment of this former employee, discrimination did not occur.

Melbury Developments Limited v Arturs Valpeters, EDA 0917

Addressing the nature of the burden of proof, the Labour Court stated that,

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

ICON Clinical Research and Tsourova, EDA 071

Reflecting the Melbury Developments decision, the Labour Court held that it is only when the primary facts that lead to an assumption of discrimination have been clearly established, that the burden of proving that discrimination did not occur shifts to the respondent.

Southern Health Board v Mitchell, [2001] ELR 201

The decision here established the basis of the outcome in the ICON case referred to above.

Margetts v Graham Anthony & Company Limited, EDA 038

Finding against the complainant in this case, the Labour Court held that,

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Ms Tiilikainan submitted that the complainant has not produced any evidence that discrimination has occurred.  She said that the explanation that the complainant could not return to work due to work-related stress was provided by the complainant’s solicitor only after he was notified by the respondent that his income continuance payments would cease and that he was fit to return to work.  The respondent sought further information from the complainant’s solicitor with regard to the alleged work-related issues, but none was provided.  Neither the complainant or his solicitor lodged a grievance regarding a work-related issue that caused his illness.  He has not set out how this alleged unequal treatment influenced the behaviour and decision-making of the respondent as such that it resulted in the complainant being treated in a discriminatory manner.

During his absence from work, Ms Tiilikainan said that the complainant submitted sick certificates from his doctor stating that he was unfit for work.  She claimed that the respondent did not have full access to the reports of the medical consultants employed by the occupational health insurer and they relied on the information provided by the insurer itself.  The employer did not think it was necessary to subject the complainant to any further appointments because the insurer was “already taking comprehensive actions.”

In his submission, the complainant referred to a number of medical reports from his doctor, his consultant psychiatrist and assessments carried out by two psychiatrists for the income continuance insurer.  The complainant did not provide reports from his doctors to the respondent and the income continuance insurer did not provide the respondent with their consultants’ reports.

During his absences from work in 2012, the complainant was fully supported during his return to work when he was facilitated with adjusted hours and time off to attend counselling without loss of pay.  In February 2017, when he requested a demotion from the role of team leader, he was informed that the company would support this.  A phased return to work in an associate role was discussed during the visit to his home on April 4th 2017.  The respondent’s evidence is that the complainant agreed to discuss this possibility with his doctor.  Shortly after this meeting however, he submitted another sick cert.  The respondent contacted the complainant and confirmed that he could return to work as an associate for a trial period of three months without loss of pay or benefits.  The complainant didn’t take  up this offer.

Ms Tiilikainan’s submission notes that, at a meeting in May 2018, the complainant said that there was nothing further the company could do to support him.  On June 13th 2018, the income continuance insurer confirmed that the complainant was “not currently totally disabled from following his normal occupation” and that his income protection payments would cease on September 1st 2018.  On June 19th 2018, the depot manager invited the complainant to come to the warehouse on June 29th to discuss returning to work.  The complainant replied on June 20th and said that he would not attend the meeting.  Ms Tiilikainan submitted that these are not the actions of an unreasonable employer who did not make efforts to accommodate their employee and she asked me to find that the complaints of discrimination are not well founded.

The Legal Framework

The issue for consideration here is discrimination on the disability ground, which is listed at section 6(2)(g) of the Employment Equality Act 1998 – 2015 (“the Act”) as one of the nine discriminatory grounds.  It is the complainant’s case that, as a person suffering from depression and anxiety, his employer failed to provide accommodation to support his return to work.

In Section 2 of the Act, 

disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

The most recent medical report that was submitted in evidence is from the complainant’s consultant psychiatrist and is dated November 12th 2018, just over two weeks before he resigned.  I understand from Ms Tiilikainan’s submission that this report was not sent to the HR manager or the depot manager and that, until they attended the hearing of this complaint, they were unaware of the contents.  The consultant states that he has diagnosed the complainant with “OCD with secondary depression.”  I understand that “OCD” refers to obsessive compulsive disorder.  I am satisfied that OCD and depression fall within the definition of a disability at section 2(e) above, in that it is a condition that “affects a person’s thought processes, perception of reality, emotions or judgement.”  I am satisfied therefore, that, from the perspective of the definition in the Employment Equality Act, the complainant is a person with a disability and that he is entitled not to be treated in a discriminatory manner because of his disability.

Reasonable Accommodation

Section 16 of the Employment Equality Act 1998 was amended by the provisions of the Equality Act 2004, which, in its turn, was enacted to transpose Article 5 of Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation.  Sub-sections 3 and 4 establish an obligation on employers to provide appropriate measures to support a person with a disability:  

(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.

(4) In subsection (3) -

‘appropriate measures,’ in relation to a person with a disability  -

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of  paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but 

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

(The remainder of this sub-section (c) is not relevant to the complaint under consideration here).

It is apparent that the intention of this amendment is to place an obligation on an employer, subject to the “disproportionate burden” criterion, to put in place certain measures to enable a person with a disability to be fully competent to undertake the duties of their role.  It is my view that the reference to the “distribution of tasks” at sub-section (b) above, is a reference to the capacity of an employer to adapt an employee’s role, or to change their job to suit their capabilities at a particular time.

The Burden of Proof

Section 85A of the Employment Equality Act 1998 – 2015 transposes into Irish law Article 19(1) of the EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of section 85A 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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Ms Tiilikainan referred to this evidential burden as it was described in the decision of Mitchell v Southern Health Board, DEE 11, [2001] ELR 201,wherethe Labour Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

My task therefore, is to consider if the complainant has shown that, based on the primary facts, he was discriminated against by the respondent when he wasn’t provided with reasonable accommodation for his depression and anxiety.

The Primary Facts

The facts of the complainant’s case have been set out in the previous section concerning his complaint of constructive dismissal.  Briefly, he suffered from many serious health problems from 2012 onwards.  He found that his job became more and more pressurised and he found his supervisor to be aggressive and dismissive of his concerns.  After the busy Christmas 2016 and January 2017 period, he couldn’t cope any longer. 

The complainant’s evidence is that in February 2017, he phoned the HR manager and he told her that he couldn’t cope.  On February 21st, in a note to the depot manager, the HR manager wrote about her discussion with him as follows:

“I had contact from (the complainant) – who, as you have been aware – is really struggling.

“He said that everyone at the Depot have (sic) been supportive, especially you – but he is struggling both emotionally and physically with the demands of the TL role.

“He has requested if we could consider him for a demotion to the position of Associate – he is quite prepared to accept the decrease in salary.

“He recognises that he is a perfectionist and puts a lot of pressure on himself but he is really very down and anxious and has thought long and hard about this and has discussed it with his doctor and his wife.

“I am on a course tomorrow, but it would be helpful if you and (a named manager) get the opportunity to have a discussion about it and I will call you.  It would be nice to give some feedback to (the complainant) ASAP.

From an HR perspective, I think we should support this request as I think it will support (the complainant) – on a more emotional perspective than anything else.

“Thanks very much…”

From the evidence of the HR manager at the hearing on April 12th 2021, this note summarises the response of the company to the complainant’s request for reasonable accommodation.  The HR manager said that the complainant’s request to step down from his role should be supported.  There is no evidence that anyone in the respondent company changed their minds about this course of action and it was always open to the complainant to return to work and to move into the role of an associate rather than a team leader.

Two months later, in April 2017, at a meeting in the complainant’s home, there was a discussion with him and his wife about moving out of his team leader role to an associate’s job instead and the complainant agreed that he would discuss this with his doctor.  It appears that in May 2017, the complainant’s doctor signed him off work until the end of June.  On July 26th 2017, in a letter to the complainant explaining that he could make an application to the occupational health insurance company for income continuance, the HR manager again referred to the possibility that the complainant could return to work in a reduced role:

“Further to our discussion in May we clearly would like for you to return to work as stipulated in our letter dated 23 May 2017.  As we also stated we are prepared to support your request for demotion from the position of Team Leader / Charge Hand and also a very gradual build up to work in line with any confirmed medical restrictions.

“We look forward to hearing from you at the earliest possible opportunity.”

The complainant had a hip replacement operation in August 2017 and from the end of that month, he was paid 75% of his wages (less social welfare illness benefit) by the occupational health insurer’s income continuance policy.  Following an assessment in May 2018, the insurer’s appointed psychiatrist concluded that he was “not currently totally disabled from following his normal occupation as required by the policy and is fit to return to work.”  It is apparent that, at his assessment with the psychiatrist, the complainant told him that he was concerned about the situation at work.  The insurer advised that they would fund the services of a specialist case manager to support his return to work by engaging with him and his managers to facilitate a successful return.  This option was not taken up by the employer.  While the complainant received a copy of the letter from the insurer in which the option was set out, he made no enquiries about the service at the time.

Findings

In the context of an employee who is absent from work due to a mental health condition such as depression, it is incumbent on the employer to be creative and strategic in their efforts to maintain them in employment.  I make this comment on the premise that it is possible for a person with a mental health condition to hold down a job, in the same way as it is possible for a wheelchair user or a person with a condition such as diabetes or epilepsy to do so.  Under the heading of the complaint of constructive dismissal, I have expressed my view that it was not unreasonable for the complainant to resign.  While it may appear contradictory, it is also my view that the respondent could have gone to some further lengths to encourage him to come back to work.  Part of the reason that this did not happen may be because the HR manager who was most familiar with his situation was also absent due to treatment for cancer during the period when the complainant was absent.

It is apparent to me that the complainant was fearful at the prospect of returning to work.  I have no doubt that, at times, the work was hard-going, particular during the early part of the year which is very busy in the motor industry.  He found it difficult to get on with his supervisor.  The complainant suffered from OCD and depression and I’m certain that he wasn’t always thinking clearly, but, as the adjudicator of this matter, it is not my role to have an opinion on how his mental health impacted on his capability to deal with his job.  I must accept his evidence and the evidence of the HR manager, that he was “struggling.”

From the employer’s perspective, it seems that the solution to the problem was to accede to the complainant’s request to step down from the team leader role.  By May 2017 however, when he submitted another medical certificate up to the end of June, it should have been apparent that the offer of a reduced role was not sufficient to allow the complainant to return to work.  In any event, by this stage, he must have been contemplating his hip operation which he had in early August 2017.  It was understandable that he remained out of work for some months after this surgery.

At a meeting on May 4th 2018, the complainant informed the depot manager that he had recovered from his hip surgery and that his mental health was the issue that prevented him returning to work.  While it appears that, at this meeting, the complainant did not request any specific accommodation, it is my view that there should have been some follow-up to determine what was required to get him back to work.  I accept that the HR manager with whom the complainant was familiar was absent at this time and that this may have been the reason that a less formal “everything on the table” discussion did not take place.  It is my view that some consideration could have been given to a different reporting line for the complainant, an administrative job, a job for two or three days a week, the possibility of working from home – all of these and perhaps more could have been considered.  I accept that the complainant did not make any suggestions along these lines; however, I remain of the view that the creative and strategic initiative should have come from the employer.

On June 13th 2018, the insurer, having concluded that the complainant was capable of returning to work, offered the support of a specialist company to work with the employer and the complainant to facilitate his return to work.  It is my view that, by failing to take up this offer, a vital opportunity was missed.  While I am satisfied that the complainant didn’t want to return to his job, and that it was not unreasonable for him to resign, I think that there may have been a chance, with the support of a professional liaison person, that he may have returned under some acceptable and adapted arrangement.

Conclusion

It is my view that, in respect of their failure to consider a broad range of options, apart from a demotion, to support the complainant to return to work, the respondent failed to provide him with reasonable accommodation for his disability.  I find that, as a result of this failure, the complainant was discriminated against on the grounds of that disability.

In accordance with section 79 of the Employment Equality Act, I decide that this complaint is well founded.  In consideration of redress, I am mindful of the fact that, shortly after he went absent, the respondent acceded to the complainant’s request to move to a role with less responsibility than his team leader job, but that this was inadequate accommodation for him to return to work.  I am also conscious of the fact that the complainant did not actively seek any other form of accommodation and that my findings are predicated on my view that it was incumbent on the respondent to be open and creative about the options that could have been offered to him.  I therefore direct the respondent to pay the complainant compensation of €20,500, equivalent six months’ pay.  This award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

Constructive dismissal, discrimination on the disability ground, reasonable accommodation