FULL RECOMMENDATION
PARTIES : MULTIROOFING SYSTEMS LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: DEC-E2018-016. This is an appeal by Mr. Madaczyk, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, under the Employment Equality Acts 1998-2015. The Complainant was employed as a roof cladder from 2005. In October 2010 he went on sick leave due to pains in his arm, neck and back. He was diagnosed as having a spinal cord injury. In December 2011, he received a certification of disability in his native Poland, which certified him as ‘moderately disabled’. There was a subsequent, further, detailed medical assessment in Ireland for insurance purposes. The Complainant submitted regular medical certificates. The Complainant was unable to give a return to work date. The Respondent dismissed him in October 2013 on grounds of incapability. The Complainant was paid €15.14 per hour for a 39 hour week plus 1.75 hours travel time per week. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’, on the grounds that he had a disability and the Respondent had failed to provide reasonable accommodation to enable his return to work. The AO did not uphold this complaint. The Complainant appealed to this Court. Summary of Complainant arguments. The Complainant was certified as fit to return to work to certain duties provided steps were taken by the Respondent but, throughout his three year absence, at no time did the Respondent do anything other than expect the Complainant to return to his full duties. Reasonable accommodation was never discussed with the Complainant. No indication of possible re-distribution of tasks was ever put forward. The Respondent has accepted previously that an email of 6 February 2012 had referred to the Complainant undertaking the whole role. No expert opinion on a reasonable accommodation was ever obtained by the Respondent. The Respondent had no written policy on how to deal with staff who had a disability. The only options offered by the Respondent were to return to the full role or to cease in the employment. The Complainant could not give a return to work date as the Respondent expected him to return to full duties, which he could not do without a reasonable accommodation. No assessment was made by the Respondent as to whether a reasonable accommodation could give rise to a disproportionate burden. The Respondent referred the Complainant for a medical assessment in June 2011, 30 months before dismissal. This was not an occupational health assessment. The Complainant was dismissed on grounds of incapacity and disability without any up-to-date medical advice. Certain adjustments in working arrangements could have enabled the Complainant to return to work. The Respondent was not in a position to objectively evaluate and propose such adjustments. The Respondent never seriously considered the adaptation of the Complainant’s role. The Respondent cannot simply self-certify that the Complainant was incapable of performing his role, relieved of any duty to provide a reasonable accommodation. The Respondent acted in an arbitrary manner. The Respondent did not consider the removal or redistribution of tasks. The Respondent never sought public funding to assist in making a reasonable accommodation. The Complainant’s good relationship with the Respondent disimproved when he had sought to be appointed as a safety representative in 2010. The Respondent never considered the possibility of part-time working for the Complainant. The Complainant made clear to the Respondent that he wished to return to work. The Respondent failed to consider a range of options including seeking a medical prognosis, considering a professional assessment of the risks of return to work or deferring a decision on the Complainant’s future to determine the level of impairment and the duration of the disability, as perHumphries v. Westwood Fitness Club, (2004),15 ELR 296. There was no medical assessment of the Complainant’s disability and there was no consideration of alternatives available, see s.16 of the Acts. There was no encouragement of meaningful consultation with the Complainant. The Complainant was never referred to an occupational health expert. Summary of Respondent arguments. The Respondent refutes the allegations. When the Complainant was out of work after 2010, the Respondent maintained regular contact with him in order to enquire about the Complainant’s health and any proposed return to work date. He was never able to give any such date. When, in January 2012, the Complainant enquired about reasonable accommodations, Ms. Jean Farrell, the Health and Safety Officer, considered this request, in accordance with the two medical reports that she had received. The report from by Dr. Kwasnicki stated that the Complainant had a neurological deficit in his right upper limb, that he had limited movement range, that he should not overwork or overload his hands and ‘he can’t lift’. The second report by Dr. Pat O’ Neill said that the Complainant had difficulty undertaking many of the work tasks, particularly those of a physical nature and in confined spaces. This went on to describe how fitting soffits and working in confined space and awkward positions aggravated certain conditions. It described pain, shoulder restriction, weakness and tenderness. Ms. Farrell considered whether there were duties that the Complainant could do. She considered ad hoc duties such as flat roof fixings, which arose from time to time and are normally kept for bad weather days. Usually this would only take two days to complete. She considered also some welding to flat roof gutters but this would involve some dragging and lifting, working in narrow channels and awkward body position. Her view was that this would not be conducive for somebody with shoulder pain and restriction. Ms. Farrell looked at the role of Teleporter, again an ad hoc role, but she considered that an operator has topull themselves into a vehicle and to be able to rotate their neck for 180 degrees, plus the vehicle can be jumpy, so she did not feel that this work would be suitable for the Complainant. She considered also flashing work from Mobile Elevated Working Platforms, (MEWP) but this involved a worker lifting his hands to head height and above. It also involves harnessing with pressure on the shoulder, plus the vehicle can jerk, the role can involve going up scaffolding and working in confined spaces. Again she did not judge this work to be suitable for the Complainant. She noted the unsuitability of flashing work, which involves a worker lifting his arms above his head. She did note the Complainant’s skill with zinc, though this would involve carrying tools and organising material. In any event, during the economic downturn, the Respondent had no zinc work. There was no part-time role that could be created that did not involve some heavy labour, lifting or working in a confined space. Even taking the Complainant back on a trial basis would involve such labour intensive work. Ms. Farrell thoroughly thought through the tasks associated with the Complainant’s role but the nature of the Respondent’s business is labour intensive and construction work takes place on all sorts of terrain in all sorts of climatic conditions. The Complainant stated continually that he was not fit to perform his duties and he could not give any indication as to when he could be medically certified to return to work in any capacity. Without such certification, the Respondent could not risk taking him back. Ms. Farrell concluded that the only work that the Complainant could do were very light duties of an ad hoc nature, which might never arise. The only position that was suitable was an office based role. The Respondent is a small company and the only office based positions are management roles, in which there were no vacancies. In responding to Ms. Farrell’s letter of 25 January 2012, the Complainant did not dispute Ms. Farrell’s assessment regarding an inability to adjust his position. Instead he sought a redundancy payment. The parties did not meet at the time as the Complainant was residing in Poland. In October 2012, Ms. Farrell wrote to ask the Complainant about his intentions on returning to work. The Complainant replied stating that he was still unfit to return and that the prognosis was difficult to predict. He confirmed that it was not possible to indicate when he could return to work. In a further email, the Complainant re-stated that he was unable to return to work and that it would probably be the following year before he would be undertaking further tests. Due to the ongoing situation, the Respondent advised the Complainant in December 2012 that they were at the stage where they felt they had no alternative but to terminate the Complainant’s employment. He was allowed the opportunity to respond before this step was taken. The parties met in February 2013 and the Complainant was accompanied by a union representative. The Complainant had every opportunity to put forward suggestions regarding reasonable accommodations. Instead he sought redundancy. It was agreed that the Complainant’s job would be kept open until July 2013, to see if the Complainant could provide a return to work date at that point. In correspondence in August 2013, the Complainant stated that he remained unfit for work, that he needed an operation but that this could not be done due to medical complications. The Respondent considered the two medical reports, the unavailability of alternative positions and the inability of the Complainant to alter his situation so that he could return to work. The Respondent decided to terminate the Complainant’s employment and wrote to convey this to him in September 2013. The United Nations Convention on the Rights of Persons with Disabilities defines any necessary adjustments in terms of not imposing disproportionate or undue burden. Likewise the relevant Directive 2008/78/EC, states that measures that impose a disproportionate burden on an employer are not required of the employer and goes on in Recital 17 to make clear that there is no obligation on an employer to recruit, promote or maintain in employment, an individual who is not capable of performing the essential functions of the relevant job. Advocate General Kokutt of the CJEU noted that ‘Employers are exempt….where such measures would impose a disproportionate burden on them’. S. 85A of the Acts make clear that the burden of proof is on a complainant unless there can be an inference of discrimination based on facts of sufficient significance so that the burden shifts to a respondent. As perArturs Valpeters v Melbury Developments Ltd (2010) 21 ELR 64,‘mere speculation or assertions….cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. The requirements on an employer in s.16(3) of the Acts are subject to an individual being capable of undertaking their job. In this case, the Respondent made adequate enquiries to establish the factual position regarding the Complainant’s capability and formed a bona fide belief that the Complainant was not fully capable of carrying out his duties, seeA Health and Fitness Club v. A Worker,EED037, ED/02/59. InHumphreys v. Westwood Fitness Club (2004) ELR296,it was determined that an employer should ensure that they are in full possession of material facts regarding an employee’s condition; the employee should be given fair notice that dismissal for incapability is being considered; the employee must be given a chance to influence the employer’s decision; if it is apparent that the employee is not fully capable, the employer must consider what reasonable accommodation can be offered to make the employee fully capable. This test was followed inShannon Regional Fisheries Board v. A Worker EDA1318.The Labour Court inA Worker v. An Employer (2005) ELR 159,referred to the House of Lords decision inArchibald v Fife Council (2004) IRLR 651in which the scope of the duty on an employer was observed to be determined by what is reasonable, which includes consideration of the costs involved. The Court noted inDept. of Justice v. Kavanagh (2012) 23 ELR 34that the purpose of s.16(3) was to provide a person with a disability with reasonable accommodation in order to render them fully capable of undertaking the full range of duties associated with their post. InNano Nagle School v. Marie Daly (2019) IESC 63,the Supreme Court noted that an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. This was referenced in the case ofA Manufacturing Team Member v. A Manufacturing Company (ADJ-00012037)and in the case ofAn Employee v A Factory EE/2013/313no accommodation was deemed possible as the worker could not carry out her duties even with appropriate measures. InAn Employee v. An Employer EE/2013/613the Equality Tribunal held that relieving a worker with a disability of certain tasks that others were required to carry out was not operationally feasible in a small employment. InWilliam Hayes v. Boliden Tara Mines Ltd. UD1218/2014,the EAT accepted that there was no obligation on an employer to create a role in terms of alternative work to facilitate an employee’s return to work. In this case, the employee was extremely limited in the work that he could do. All of the tasks of a roofer are labour intensive and restrictive. The only way that the company could accommodate him was to pay him while he waited for small ad hoc duties that might never arise. This would have been ‘disproportionate’ and an ‘undue burden’. Further, the Complainant was never certified as fit to return. The Complainant could not carry out the essential functions of his role, it was not possible to adapt the premises or equipment and a reduction in working time or work pattern was not appropriate. Any redistribution of tasks would leave the Complainant with little or nothing to do. Any fair and reasonable employer would have come to the same conclusions. The Complainant never put forward any proposals. There were no accommodations, modifications or adjustments that could be determined as reasonable and proportionate in order to enable the Complainant to fulfil his role and Ms. Farrell made her assessment using her knowledge and expertise. The Complainant was afforded every opportunity to influence this decision. In light ofNano Naglethere is, in any event, no obligation to consultation. The Respondent refutes any allegation against Ms. Farrell of bias. The Complainant, if he wished to be appointed as a safety representative must be appointed by his fellow employees. There was no grievance raised by the Complainant and Ms. Farrell had no bias in making her decision to terminate the employment. The Respondent is a small company that, at the time, employed fewer than 30 people. Ms. Farrell made her assessment, taking account of medical reports. The Complainant was never certified as fit to work and he never disputed the assessment made regarding accommodations. Witness evidence. Mr. Boguslaw Madajczyk. Mr. Madajczyk is the Complainant. The witness gave as sworn evidence the contents of his submission and swore that arguments put forward by him were the full truth to the best of his knowledge. Under cross examination, the witness acknowledged that when he went out sick, he had been working on a site that was less physical than the normal work required of him. The witness accepted that a medical report said that he could not lift and noted that this was true at that time. Again, he acknowledged that a medical report referred to the limited movement of his arm as something that was correct at that time. The witness accepted that he never got surgery that was identified as required and that he never indicated to the Respondent that his condition had improved. The witness outlined the complications that prevented him from availing of surgery. When it was put to the witness that he had opportunities to suggest accommodations he had, instead, sought redundancy, the witness said this was in response to suggestions that he should resign. When it was put to the witness that on one occasion he had declined to provide medical information, the witness noted that he had advised that this information could be sought from his legal representatives. The witness said that he had not worked since going on sick leave. The witness denied that an accommodation would require him to stand around doing nothing while awaiting ad hoc duties. He stated that there were duties such as MEWP work and flashing that he could have done. The witness said that his relationship with Ms. Farrell disimproved after he sought to become a safety representative. The witness acknowledged that his medical certification made no reference to him being able to return to construction work. In response to questions from the Court, the witness said that re-distributing the work would have enabled him to carry out about 80% of the tasks as they did not involve heavy lifting such as flashing, PVC welding, MEWP, zinc work and Teleporter work, all of which were parts of the job and not ad hoc work. Ms. Jean Farrell. Ms. Farrell is in charge of health and safety matters for the Respondent. The witness described how she visited sites, conducted safety audits, gave tool-box talks and provided training for the Respondent. She outlined how she held a Masters qualification in Occupational Health, a Higher Diploma in Environment Engineering and a degree in Recreation Management, so that she was very familiar with issues around posture etc. The witness described how work for the Respondent was usually carried out by teams of two. She explained how the company had been forced to respond to the economic downturn by reducing from more than 80 to 24 staff. The Complainant had been retained. The witness set out how she had tried to identify work that could be done by the Complainant after he was out on sick leave. She said that she tried to break down the tasks. She identified that some fixing of flat roofs was a possibility but noted that this was a job usually done in down time when weather was poor. She noted that welding work was also possible but this involved working in tight channels while kneeling. Teleporter work, she noted, was not constant and required the individual to use their shoulders to gain access and to use their neck constantly to look around and to bend forward to ensure constant observation plus sites could be bumpy. She acknowledged the Complainant’s skill in zinc work but noted that in the recession there was no such work on the Respondent’s books. She said that having risk assessed all tasks, even if the Complainant was to return part time, he would need to be a third man on 2 men crews and she could not ignore the medical advice that the Complainant was unable to lift. All tasks were manual and many involved lifting. Even MEWP work required heavy panels to be lifted in. She noted that soffit work required tight harnessing throughout the working day, something that was not suitable for somebody with a shoulder injury. In short, in her view, there were very few tasks that the Complainant could do. The witness said that it was not financially feasible to add a third man to crews. With regard to public funding, the witness noted that this amounted to a few euro per hour when the Complainant was covered by pay rates under a Registered Employment Agreement plus travel time. The witness estimated that, at most, the Complainant could have undertaken about 20% of duties. She noted that there was never light at the end of the tunnel to suggest that the Complainant would be able to return. The witness acknowledged that she was not medically trained but she was experienced in health and safety, she had knowledge of the work and a good knowledge of physiology plus 2 medical reports were available to her. She felt capable of making the assessment that she made. The witness said that the Complainant’s job was not redundant, the Respondent wanted to keep him but he was not fit to do the job. She denied that emails from her could be interpreted as pushing the Complainant to resign. On the contrary, she said she had looked at adapting his role but this was not possible. There were only management or general operative roles in the company and there were no management vacancies. The witness said that, at all times, the Complainant was clear that he was unable to return to his job. She noted that the medical certificate did not state that he would be fit to return to a construction site. At a meeting in February 2013, the witness said that the Complainant could have raised options for accommodation but he sought to be made redundant. It was agreed at this meeting, at which he was represented, that no decision would be made about the Complainant’s future until after an assessment due in July of that year. When the witness requested an update after that time, there was no light at the end of the tunnel after three years of the Complainant’s absence. The job could not be kept open indefinitely. The witness reiterated the explanation given regarding the Complainant’s wish to be a safety representative. She denied any suggestion of bias on her part arising from this. Under cross examination, the witness, when asked if she had ever looked at what job the Complainant could do, reiterated that there were only two roles in the company. She acknowledged that she had not specifically asked the Complainant about what duties he could perform. The witness said that she had not sought an up-dated medical determination before taking the decision to dismiss. When asked on which up-to date expert evidence she had relied on, the witness outlined again how she had formed her opinion. The witness acknowledged that she had never put her assessment on the possibilities of a reasonable accommodation in writing and had not shared this with the Complainant. While acknowledging that the most recent, detailed, medical report was 2.5 years’ old when the Complainant was dismissed, the witness noted that medical updates were received constantly and none indicated that the Complainant was capable of returning to work. She said that the medical certification was self-explanatory. The witness said that company policy was to avoid staff going on jobs alone. In response to questions from the Court, the witness acknowledged that she had not done a written assessment that could be produced to the Court and that this was not referenced in any correspondence. She said that she looked at each contract in that period to assess the elements of the jobs with a view to identifying what parts, if any, the Complainant might be capable of undertaking. She did not believe that she needed a further medical report when making her decision. She did not believe it to be necessary to get an occupational health assessment. The applicable law. Employment Equality Acts 2.(1) “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; Discrimination for the purposes of this Act. 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— ( 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”), 16 (3) (3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer. (b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability — (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer. (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of — (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer ’ s business, and (iii) the possibility of obtaining public funding or other assistance. (4) Insubsection (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 ofparagraph (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; Redress which may be ordered. 82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission undersection 79may provide are such one or more of the following as may be appropriate in the circumstances of the particular case: ( a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral undersection 77(1)which led to the decision; ( b) an order for equal remuneration from the date referred to inparagraph (a); ( c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case undersection 77; ( d) an order for equal treatment in whatever respect is relevant to the case; ( e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. (2) (3) The types of redress for which the Circuit Court may provide on a reference undersection 77(3)are such one or more of the following as may be appropriate in the circumstances of the particular case: ( a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 6 years before the date of the referral; ( b) an order for equal remuneration from the date of the referral; ( c) the orders referred to inparagraphs (c) to (f) ofsubsection (1); ( d) and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration which may be ordered by the Circuit Court by virtue of this subsection. (4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation undersubsection (1)(c) or(1)(f) shall be — (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of — (i) 104 times the amount of that remuneration, determined on a weekly basis, (ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or (iii) € 40,000, or (b) in any other case, € 13,000. Deliberation. In this case, the Respondent accepts that the Complainant has a disability within the meaning of the Acts. In the judgment of the Supreme Court inNano Nagle v. Marie Daly (2019) E.L.R. 221,McMenamin J., noted as follows; ‘Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one.’ This extract from a lengthy judgment sets out clearly that the requirement on an employer when dealing with a situation where an employee has a disability is to examine if that employee’s job is capable of adaptation so that by taking ‘appropriate measures’ as per the Acts, the employee can carry out the full functions of the role. This clearly requires that an employer should examine the job thoroughly and ascertain what accommodations might be capable of being made that do not generate a disproportionate burden or cost. The instant case hinges on whether the Court is satisfied that this deliberative exercise was carried out to the level required so that the Court can, in turn, be satisfied that the Respondent has met their obligations under the Acts. The assertion by the Complainant that he was capable of carrying out 80% of his role, if the role was adapted, is of no benefit to the Court, firstly as the Court has no way of assessing the truth of such an assertion and, secondly, because even if this was accurate, the Respondent might validly claim that there is no requirement on them to continue to employ somebody who is incapable of carrying out the full range of required duties, as s.16(3) (a) refers to an employee being ‘fully competent’ if afforded appropriate measures. The Court has no reason to doubt the competence and qualifications of Ms. Farrell or to doubt the sincerity of her conviction that the Complainant could not be accommodated by appropriate measures given the nature of the work involved and the nature of the Complainant’s undeniable disability. Nor could the Court question her knowledge of the Respondent’s business and the physical demands on its employees so that, even to an outsider, it might appear to be self evident that she used these skills and insights appropriately when determining if the Complainant could ever be facilitated by a return to work. However, the extract from the Supreme Court judgment inNano Naglequoted above, makes clear that something more is required of an employer than simply instinctive judgment. What is required is a transparent, deliberative process. In this regard, the Court notes with concern that the evidence from Ms. Farrell was that she looked at these issues as contracts arose and that, in an ongoing way, she kept under scrutiny the questions as to what the Complainant may, or may not, have been able to do. At no stage did she sit down and itemise or document such an examination and, as a result, she was never in a position to put such a report to the Complainant to invite his views. While the lack of such possible consultation is not, itself, fatal to the Respondent’s case, the absence of hard concrete evidence of such deliberation is a concern for the Court. In addition, the Respondent placed heavy emphasis on two detailed medical reports. However, as the Complainant noted, these reports were 3 years and 2.5 years old respectively when he was dismissed. While Ms. Farrell believed, perhaps with some justification given the absence of obvious medical progress, that any up-dated report was unlikely to alter the information available to her, she could not be certain of this and the Court is concerned that an opportunity to obtain information that would have established definitively the up-to -date capabilities of the Complainant was not taken. Further, no occupational health report that might have reviewed the medical evidence available was obtained either. As noted inHumphreys v Westwood Fitness Club (2004) ELR 296,300,there is a requirement on employers to be in possession of all relevant facts when making such assessments. There is no doubt that Ms. Farrell had, on the face of it, good reason to believe that the Complainant could never return to his job. However, such a belief, itself, is an insufficient basis to deprive an employee of his livelihood, contrary to the requirements on an employer as set out in s.16 of the Acts and as elaborated upon by the Supreme Court inNano Nagle.Before coming to such a conclusion, a clear and demonstrable deliberative process of assessment is required, based on up to date medical evidence. An occupational health assessment of available medical evidence would also assist in clear and objective decision making. InA Health and Fitness Club v. A Worker EED 037it was noted that a bona fide belief that a worker is not capable of undertaking a job is a defence against a claim of discrimination on grounds of disability. However, the finding in that case went on to note that, before forming this belief, an employer is ‘..normally required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity’. As noted inA Worker v. An Employer (2005) ELR 159; The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.” It may very well be that, in the circumstances, such a process would have resulted in the same outcome, given the facts of the case, but in the absence of such a process, the Court is obliged to conclude that the Respondent failed to fulfil the requirements of s.16(3) of the Acts and that the Complainant was discriminated against. In assessing the remedy, the Court is required to fix compensation based on the effects of discrimination, see s.82(1) (c). The Complainant had been unable to work for three years prior to dismissal and remains in the situation that he cannot take up the full range of duties. While there is a positive requirement on the Respondent to examine what facilities or special treatment might have assisted in a return to work, a requirement that they failed to fulfil, the evidence available to the Court suggests that there was unlikely to be any special treatment that would have resulted in the Complainant being in a position to resume the full duties of his job. That being so, the Court has to take a realistic view in determining the effects of the Respondent’s breach of the Acts. If the Respondent had complied with its statutory obligations in full, the most likely effect would have been to enable the Complainant to enter into a discussion that might have delayed his dismissal and would have given him the opportunity to make arguments and suggestions before he was deprived of his livelihood but it seems unlikely that the ultimate outcome would have been much different. Having regard to this, the Court determines that compensation of €10,000 should be paid by the Respondent to the Complainant. Determination. The decision of the Adjudication Officer is set aside.
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