FULL RECOMMENDATION
PARTIES : UNITED PARCEL SERVICE OF IRELAND LTD DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00025639. BACKGROUND: This is an appeal under the Employment Equality Act 1998-2015, ‘the Act’. Mr. Roberts, ‘the Complainant’, was employed by United Parcel Services, ‘the Respondent’ from October 1986 until his dismissal in August 2019. At the time of his dismissal he was a senior manager, (Grade 16) deployed as a Solutions Manager. This role involved extensive travel in Ireland and abroad. He lives in the mid West. For medical reasons, that are not disputed, the Complainant was unable to continue with the amount of travel that his job involved. After a lengthy period of sick leave and medical evidence that he was unable to continue with the amount of travel that his job entailed, the Respondent advised the Complainant that there were no other suitable roles available. On 1 July 2019, the Complainant was advised that he was being dismissed due to incapability. This decision was appealed and upheld. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, claiming that the Respondent had breached his rights under the Acts by failing to provide him with a ‘reasonable accommodation’. A second complaint of discriminatory dismissal was also made. The Adjudication Officer, ‘AO’, found that the complaint of discriminatory dismissal was not well founded but that the Complainant’s right to reasonable accommodation had not been met. He awarded €20000 in compensation. The Complainant appealed this Decision to this Court. SUMMARY OF COMPLAINANT ARGUMENTS: The Complainant had requested a change of from a previous role on a number of occasions prior to 2012. In late 2013, following the death of both his parents, the Complainant requested leave of absence of 6 to 12 months. This was declined. The Complainant engaged in grief and anger management counselling. In January 2015, the Complainant attended a standard medical assessment arranged by the Respondent. This assessment identified that he was suffering from a high number of stressors that were affecting his wellbeing. At his request, the Complainant was offered and accepted an alternative role in Solutions management. This role involved extensive travel. In or around November 2015, the Complainant began to suffer from panic attacks. In January 2016 the Complainant went on sick leave and was advised to separate himself from all work related stressors. In April 2016, a company arranged medical assessment stated that he was not fit to return to work but that he might be in a position to do so in three months, provided his treatments were successful. The Complainant continued to be ill throughout 2016 and 2017. In May 2018, following family intervention, the Complainant was admitted to St. Patrick’s Mental Health Services for 10 weeks. On 3 December 2018, the Complainant was declared fit to return to work, subject to him being facilitated with reduced travel requirements and being able to maintain proximity to his support network. It was agreed to ease him back into work by supporting package deliveries in the run up to Christmas. In that time, there were discussions regarding a role in the Integration Team based in Dublin. While it was not ideal, the Complainant indicated that he would be interested in the role but he was then advised that it was not available as the Integration Team Manager had concerns regarding his senior grading level at Grade 16, when compared to other members of the team. The Complainant was then asked to remain at home. He was paid but there was an issue about use of his accrued annual leave, which was resolved eventually. In February 2019, the Complainant was told that there was no suitable role for him in Ireland. The Respondent proposed a lower-level role, which the Complainant declined due to his pension being based on final salary. In the circumstances, the Complainant, reluctantly, raised the possibility of a severance ‘package’ but he was advised that the ‘compensation committee’ was not agreeable. In March 2019, the Complainant attended another agreed medical assessment that found he was not fit to return to his role but that he was fit for alternative roles which would minimise travel and responsibilities. In advance of a meeting with the Respondent in May 2019, the Complainant was told that if a solution could not be found, the Respondent might terminate his contract on grounds of capability. Arising out of that meeting, a Director of the company, Mr. David Eastland, wrote to the Complainant to advise him of his dismissal. The Complainant appealed. The appeal was not upheld by Mr. Andy Smith. The Respondent failed to provide the Complainant with reasonable accommodation and discriminated against him contrary to s.88 of the Acts. Further, his dismissal was a discriminatory dismissal. The Complainant has a disability as per s.2 of the Acts. The Respondent was on notice of this disability since April 2016. S. 16(3) of the Acts provides that an employer must provide ‘appropriate measures’ to allow a person with a disability access to employment, to participate in employment or to advance in employment except where this imposes a disproportionate burden.. S. 85(A)(1) of the Acts provides that the burden of proof shifts to the Respondent where facts are established from which it may be presumed that there has been discrimination against the Complainant. The Court is referred toSouthern Health Board v. Mitchell 2001 ELR201, HSE NorthEastern Region v.Sheridan EDA0820, Melbury v. Valpeters EDA//0917.For definitions of ‘disability’, the Court is referred toChacon Navas (2006) ECR I-06467andA Government Department v. A Worker EDA094. It is apparent that the Respondent accepted that the Complainant was not fully competent and capable of carrying out his duties, which is a requirement before an obligation of reasonable accommodation would arise. No offer of an alternative role was ever actually made to the Complainant. No exploration was undertaken of what appropriate measures could accommodate the role he was actually in. Therefore, the Respondent failed to examine if the Complainant could have been reasonably accommodated and did not satisfy the defence in s. 16(1) by setting out the prevailing reasons why said accommodation would have been a substantial burden, as per s.16(3). Managers at Grade 16 in the Respondent company were able to conduct their role during the pandemic, despite a travel ban, due to appropriate measures. Such measures may have been identified if the Respondent had conducted a relevant assessment of the Complainant’s role under s.16(3). S. 16(3) (b) places a positive duty on an employer to take appropriate measures, seeA v. Government Department (2008) ELR 354.InNano Nagle v Marie Daly (2019) IESC 63the Supreme Court held that all appropriate measures to facilitate an individual must be taken, limited only by the avoidance of a ‘disproportionate burden’. In that case also, the Supreme Court re-endorsed the view that while employers are not definitively required to consult with employees, they are wise to do so, seeHumphries v. Westwood Fitness Club (2004) ELR 296, A Horticulture Worker v. A Fruit Producer ADJ-00003417. InHK Danmark CaseC-335/11 and Case-337/11, 920130 IRLR 571it was held that reasonable accommodation was a broad definition that refers to the elimination of barriers that hinder participation in professional life. InMcKevitt v. Dublin bus (2018) IEHC 78,it was held that when dismissing on grounds of incapacity, an employer had to show that incapacity was the reason, that the reason was substantial, that the employee received fair notice and was given the opportunity to be heard. In circumstances where the Respondent failed in their obligation under s.16(1) any dismissal thereafter is deemed to be discriminatory. As the UK EAT noted, the causal connection between the ‘something’ and the disability allows for a broad approach. In the absence of any meaningful examination of what accommodation could be implemented, the Complainant was dismissed solely as a consequence of his disability. In summary, the burden of proof shifts to the Respondent; any defence under s.16(1) is inoperative and the dismissal is directly discriminatory. The correct comparator is any manager who did not suffer a detriment due to being unable to travel. In determining quantum the Court is referred toLee t/a Peking House v Fox EEED036,in which it was held that an award should not just reflect financial loss but also the distress and indignity associated with same andFinancial Services Union v. Gerry Hanna ADJ-00017540,in which the Court noted the need for an award to be dissuasive. Further inVon Colson and Kamann (1984) ECR 1891the legal principles were set down that awards must be effective, dissuasive and proportionate. A claim for reasonable accommodation is a claim in its own right, seeComplainant v. Employer DEC-E2008-068andZ v. Chain Store DEC-E2009-111and this has to be taken into account when determining quantum. The Complainant’s salary was €74017 p.a. but with his annual share option bonus, (unguaranteed), his remuneration was €102,000 p.a. SUMMARY OF RESPONDENT’S ARGUMENTS: In January 2016, the Complainant commenced sick leave. The illness progressed to work-related stress between December 2017 and June 2018. In May 2016, the Complainant met Ms. Lisa Johnson and Mr. Jim Dempsey of HR. A further requested welfare meeting in 2017 never took place as the Complainant did not respond to the request. In April 2018 an occupational health assessment determined that the Complainant could not return to work for at least six months. Mr. Dempsey met the Complainant in September 2018. The Complainant stated that he hoped to return to work in a few months to a role that did not involve travel. The Complainant’s sick leave ended in December 2018 and he took up temporary work supporting the Shannon operation in peak season with delivery of packages. The Respondent examined alternative roles that did not involve international travel. A possible role in the Integration team was identified. This was a management role but not at the Complainant’s previous level. The Complainant requested that any pay be at his previous level. The Respondent advised that this was not possible. The Complainant declined the post as the difference in pay would have a negative effect on his pension. In February 2019, the Complainant asked Mr. Dempsey if he could agree ‘terms’ with the Respondent and he said that he would consider returning to a role at his grade level. A follow up call discussed other options of roles to which the Complainant might return that did not require international travel. The Complainant sought to return at his previous level. It was explained that there was no role available at that level. He was advised that he would receive the salary for the role that he chose but he made clear that he would not accept a lesser salary. The Complainant emailed to say that if a role at his level could not be found, he would be open, reluctantly, to a discussion on a separation agreement. The Respondent’s compensation committee concluded that as the Complainant’s role remained open and as there were alternatives available, a severance package was not appropriate. The Complainant reiterated that he would not return to his previous role. A further medical review was arranged. The medical report indicated that the Complainant was not likely to return to his previous role but would be fit for roles that minimised travel and responsibility i.e. that he was fit for roles that he had declined for financial reasons. The Respondent invited the Complainant to a meeting, advised of his right to representation and that the termination of his employment was being considered on grounds of capability. Following a delay and correspondence about who could accompany the Complainant, a meeting took place on 29 May 2019, at which the Complainant was accompanied by his brother and the Respondent was represented by Mr. Dempsey and Mr. Eastland. The Complainant read a pre-prepared statement to say that he could not return to his previous role and that he would not countenance a lesser position on a lower salary. On 1 July 2019, the Respondent wrote to the Complainant to outline the decision to dismiss him on grounds of capability. The letter explained that, despite best efforts, the Respondent was unable to source a role at the same level that did not require international travel and that he had declined alternative roles that had been offered. The Complainant appealed the decision. An appeal was heard by Mr. Andy Smith in October 2019. He upheld the decision to dismiss. There is no dispute that, at the time of his dismissal, the Complainant suffered from a disability. However, as perMargetts v. Graham Anthony and Co. Ltd EDA038,the mere fact that the complainant falls within a discriminatory ground is not sufficient, itself, to establish a claim of discrimination. The Complainant has alleged discrimination on grounds of disability and a failure to provide reasonable accommodation but has produced no evidence to support this allegation. It is common case that the Complainant was offered a role that he was fit to perform. It is further common case that this role was declined solely for financial reasons. The position of Grade 16 Solutions Manager is a high responsibility for which international travel is a necessity. The Complainant is advancing the argument that because the Respondent did not treat him more favourbly than other employees he was discriminated against. No evidence of discrimination has been produced. It is only when the Complainant has discharged this burden that the burden shifts to the Respondent to rebut an inference of discrimination. The Complainant has failed to discharge the burden. In all cases cited by the Complainant the dispute concerned whether reasonable accommodation was available or whether the company adequately examined the question. In this case, the parties agree that the Complainant could no longer carry out a role involving international travel, he was offered a role that did not involve international travel, he was medically fit for that role, he declined the role for financial reasons and that the role was to be paid at the grade appropriate to the role. Therefore, the question in dispute is whether reasonable accommodation extends to paying an employee at a higher grade than the work they are carrying out. The Complainant has not established aprima faciecase of discrimination as he has not provided any evidence to demonstrate that he was treated less favourably than other employees. He has not named a comparator. The reason for dismissal was medical incapability. It is common case that at the time of dismissal the Complainant was incapable of carrying out his role due to his inability to travel internationally. It is further common case that he had been unable to perform his duties for three years. Had he accepted the reasonable alternative role, he would still be an employee of the Respondent. The Respondent went to great lengths to accommodate the Complainant. Paying the Complainant his existing salary while he carried out a lesser role would have been a disproportionate burden on the company. Equally, his request to retain his salary for pension purposes, while he had fifteen years to go before his 65thbirthday was not a reasonable request. It would not be fair on colleagues to pay the Complainant a higher salary for doing the same work as them The Complainant’s job required travel, primarily to France and Germany. It would not have been viable to retain the role without travel. During the pandemic, the Respondent has been treated as an essential service and employees have the right to travel. While there are some changes, they are short term changes unlike for the Complainant who had stated that no travel was viable on a long term basis. The Complainant was not discriminated against on grounds of disability nor was he unfairly dismissed. WITNESS EVIDENCE: MR. KEVIN ROBERTS: Mr. Roberts is the Complainant. The witness said that he had been a Solutions Operations Manager with the Respondent dealing mainly with the auto industry across Europe. This role involved extensive travel. The witness said that in the course of his employment, the Respondent had, for cost reasons, introduced travel bans during which he worked off a ‘virtual’ template using emails etc. There had been three or four such bans in his time and it had been possible to get the work done. The witness outlined how, after a lengthy period of illness, he had been deemed fit to return to work and had done so by helping out with deliveries in the peak period from the Shannon centre but that occupational health had continued to assess that he could not return to a role that involved extensive travel. The witness outlined how he had met Mr. Seitz regarding the possibility of taking up a role in the Integration team. He stated that Mr. Seitz had decided not to offer him the position and that he had established through a data access request that the reason related to concerns about the grade level of the witness. The witness denied that he did not want that job but reiterated that he wanted a role at his existing level. The witness said that he had been refused the right to return to employment. Under cross examination, the witness accepted that when travel bans had been introduced, it had remained possible to apply for permission to travel when this was deemed to be necessary. The witness accepted that being based away from home was a small issue for him with regard to the Integration role but he thought that this could be sorted out. He had discussed this with Mr. Dempsey but had been told that the role was no longer available. The witness said that the Solutions role required essential contact with customers and he thought that there were alternative ways to get around travelling but he had been told that travel was essential. He said that when he met Mr. Dempsey and Mr. Eastland, (who could not travel and conducted the meeting remotely), the only issue discussed was that of travel and his difficulties with travelling. The witness said that holding on to his grading was important for his salary and grading. Mr. MARTIN SEITZ: Mr. Seitz is in charge of an Integration team for the Respondent. The witness said that his team was seeking to integrate two previously separate companies. The role was quite specialised and he had members of his team at a number of different grade levels as their background and skills mix was important. The witness described how he had been asked by Mr. Dempsey to consider the Complainant for a role on his team. He knew the Complainant as the witness had worked previously in Solutions. He interviewed the Complainant. He was not happy that the Complainant had the skills that the witness was seeking but he felt that anybody can learn. However, for his own reasons, the Complainant had a need to be at home on Thursdays. The nature of the role required travel within the island of Ireland and the limits on the Complainant’s ability to travel outside of Monday to Wednesday meant that he would not suit the role. For this reason, he decided not to take the Complainant on. The witness said that the Complainant’s grade level was not a factor in the decision but he did have a concern that the Complainant’s grade level would lead to higher expectations of him. The question of pay had never arisen. Under cross examination, the witness was asked if he applied any sanctions to any members of his team for their inability to travel during the pandemic? He replied that this had not been due to any unwillingness to travel. There had been restrictions on international travel due to quarantine rules but the Respondent was deemed an essential service and travel within Ireland had been possible for the most part. In response to questions from the Court, the witness said that he could not recall discussing any concerns with the Complainant about the fact that he was at Grade 16. The witness said that he did not see the value the Complainant could bring to his team but he would have possibly explored that further in a second interview if he could have overcome the issue of travel. Mr. Jim Dempsey Mr. Dempsey is a HR Supervisor with the Respondent. The witness said that his role was to liaise with the Complainant with support from Ms. Lisa Johnson. The witness said that he met the Complainant in September 2018. The doctor had signed off on the Complainant’s return but not to a role that involved international travel. As a stepping stone to return, it was arranged that the Complainant would help out in the Christmas peak period with deliveries from Shannon. The witness inter-acted with Mr. David Eastland , a Director with responsibility for the Solutions team, in January 2019, who stated to the witness that the Complainant’s role there would require contact with customers and travel. The witness said that he looked at possible alternatives. There was a possible solution in the Integration team and he connected the Complainant with Mr. Seitz. However, the witness said that the Complainant made clear his wish to retain his grading and Mr. Seitz had difficulty with offering a role at Grade 16. The HR manager confirmed to him that the role could not be offered at Grade 16. He felt that there could be a work-around regarding the need for travel but the grading issue was an ongoing problem. The witness contacted the Complainant again and discussed him returning to his previous role. It was agreed to meet again. The witness was clear that only a Grade 16 role would meet the Complainant’s requirements. When the Complainant suggested a separation agreement, the witness raised this for him and it was considered by the compensation committee. The Complainant was disappointed and outlined why he needed to go back to a Grade 16 role. The witness said that travel was a key part of the Solutions role. There were limited options at Grade 16 and none in Shannon and none on the horizon. Accordingly, the Complainant met the witness and Mr. Eastland and Mr. Eastland had to decide what to do. There was a capability issue. When asked if it had been considered if the work of the Complainant’s role in Solutions could be done another way, the witness said it had not. The role required travel. The witness hoped to find work for the Complainant with an NGO associated with the Respondent but Mr. Eastland felt that the role would involve travel and would not be suitable. The decision was taken to terminate the Complainant’s employment. There was no way to ‘ring-fence’ the Complainant’s pension. He was advised of his right to appeal. The witness said that the Respondent had often accommodated employees who had acquired disabilities but that it was more difficult in this case because of the Complainant’s grading. Under cross examination, the witness said that he had been part of the discussion regarding dismissal but the decision was taken by Mr. Eastland. The witness accepted that the Complainant had never been given an actual offer of an alternative role but said that there had been discussion with him, as outlined in the witness’ evidence. When it was put to him that there was a conflict in his evidence with the evidence of Mr. Seitz, who had said that grading was not a factor in his decision not to take the Complainant into the Integration team, the witness said that he was clear that this was a problem and that the Complainant would accept nothing below Grade 16. When asked, the witness re-affirmed that there was no discussion about ‘tweaking’ the Solutions role. He said that his understanding was that it was not feasible to perform the role without travel. He confirmed that there had never been any attempt to break the role down. When it was put to the witness that the attempts at reasonable accommodation were simply to cast the net to see if alternatives emerged, he described that observation as ‘fair’. The witness said that he was not aware of any attempts to get around the Complainant’s pension concerns. He suggested that it might have been considered by the compensation committee but he could not confirm this. When it was put to him that the Solutions team could not travel to the same extent during the pandemic, the witness noted that not all customers were in their work premises, so it was not necessary to do so. In response to questions from the Court, the witness said that he was part of the decision making but that the decision to dismiss was that of Mr. Eastland. In response to further questions about a conflict in evidence with that of Mr. Seitz, the witness reiterated that he believed that Mr. Seitz had a problem with the Complainant’s grading. THE APPLICABLE LAW: Employment Equality Act 2. “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; 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— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), (b) that they are of different civil status (in this Act referred to as “the civil status ground”), (c) that one has family status and the other does not (in this Act referred to as “the family status ground”), (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”), (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”), (f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”), (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), (i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”). (2A) Without prejudice to the generality ofsubsections (1)and(2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
(3) (a) 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)— F34[‘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 84.— (2) Where an appeal is brought to the Labour Court undersection 83and it considers that its determination on the appeal would be assisted by the exercise of its powers under this subsection, the Labour Court may refer all or any of the matters in issue on the appeal to the Director General of the Workplace Relations Commission for further investigation or, as appropriate, re-investigation; and, where such a reference is made, the Director General of the Workplace Relations Commission shall conduct the further or new investigation of the matters so referred and submit a report thereon to the Labour Court. (3) Where the Labour Court refers any matters to the Director General of the Workplace Relations Commission under subsection (2) — (a) it may suspend, in whole or in part, or adjourn its investigation of the case in question or, as the case may be, its hearing of the appeal, pending the receipt of a report from the Director General of the Workplace Relations Commission , and (b) it shall take account of the Director General of the Workplace Relations Commission ’s report on the matters referred in reaching its determination. (4) Where, on an appeal undersection 83, the Labour Court determines that the decision of the Director General of the Workplace Relations Commission which is in question should be set aside, it may, by its determination, also refer the matter in issue back to the Director General of the Workplace Relations Commission for a new investigation and decision undersection 79 85A.— (1) 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 DELIBERATION: There is no dispute about whether or not the Complainant has a disability. As per s.85A of the Act, the onus to prove that discrimination occurred rests with him in the first instance. However, there are facts that, in the view of the Court, give rise to an inference of discrimination. The Complainant has a disability as a result of which he was unable to travel to the extent required in his job. He sought a return to work. He was assessed as medically fit to return, subject to him not being required to engage in travel and subject to adjustments in responsibilities. He was not accommodated. As a result of his inability to travel which, in turn, was due to his disability, he was dismissed. On the basis of these facts, that Court believes that there isprima facieevidence of discrimination, such that the burden of proof shifts to the Respondent in accordance with s. 85.A. The first issue for the Court to consider is whether the Respondent made the efforts required in s.16 to facilitate the Complainant in returning to work. The Supreme Court set down clearly the requirements on employers in order to meet the terms of s.16 regarding the reasonable accommodation of employees with a disability and the requirements on this Court in determining if these have been met. 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 deals with two matters regarding the instant case. Firstly, there is no requirement on the employer to find another distinct and separate job for an employee with a disability. Secondly, there is a requirement on employers to explore alternative modes of accommodation to establish if the position held by the employee with a disability is capable of adaptation so as to accommodate that employee. On this latter point, Mr. Dempsey, in his evidence, was crystal clear and stated both in evidence in chief and in cross examination that there was no attempt made by the Respondent to evaluate if the role occupied by the Complainant was capable of adaptation to determine if it could be done without the travel element. Rather, it appears that there was an assumption that, as Mr. Dempsey put it, such an adaptation was not feasible. This may, or may not, be true but it overlooks the clear requirement on the Respondent to conduct such an evaluation. Indeed, it may be that Mr. Eastland, the decision-maker in the dismissal, could have provided the Court with evidence that would suggest some process of evaluation on his part but Mr. Eastland did not give evidence, so the Court cannot speculate as to what he did, or did not, undertake before deciding that the only course available was that of dismissal. There is no need for the Court to put this particular matter further. The Respondent has admitted that it did not do what it is very clearly required to do and, as a consequence, the terms of s.16 were not met. The Respondent did not meet the requirements for a reasonable accommodation of the Complainant. However, McMenamin J. also observed in NanoNaglethat the Court must satisfy itself that, if there had been a reasonable accommodation, the Complainant would have been capable of performing the functions of the job. In the instant case, in the absence of any evidence from Mr. Eastland, the Court has very little evidence on which to base an assessment. Conflicting beliefs were expressed to the Court on the question by the Complainant and by Mr. Dempsey. The consistent medical evidence is that the Complainant could no longer undertake international travel. What is less clear is whether the job was capable of being done without this element. Without Mr. Eastland’s evidence on this point, the Court has to have regard to the fact that there have been periods in the past when travel was curtailed for budgetary reasons yet, it would appear, it was possible to ensure that the work was done. Even if the Respondent was concerned about the long-term viability of attempting to have the job performed without this level of international travel, it was open to them to trial such an approach on a time limited basis. Had they done so, either it would have proved that such an approach was viable or, alternatively, it would have provided them with the basis to argue to the Court that it had proven not to be viable. As it is, no hard evidence was provided to the Court, beyond assertions, and the Court cannot be satisfied that, as the Respondent argues, the Complainant would have been incapable of carrying out the necessary functions of the job if a reasonable accommodation had been provided. It follows, therefore, that the Court is satisfied that the Complainant’s rights under the Act were breached, resulting in a discriminatory dismissal. The Act requires the Court to assess compensation for the effects of discrimination. In this regard, the Court is mindful that, although there was no requirement on the Respondent to do so, the question of providing alternative employment within the company for the Complainant was explored by the Respondent. Had these attempts borne fruit, the effects on the Complainant of the failure to meet his rights under the Act would have been mitigated. The Complainant’s refusal to countenance anything other than employment at his existing salary level hampered the ability of the Respondent to mitigate the impact for him. This does not absolve the Respondent of its responsibility to adhere to the requirements of the Act. However, it does suggest that the effects on the Complainant would not have been so severe if he had been willing to show more flexibility and the Court takes this into account in assessing the level of compensation to be awarded. Furthermore, the Court is not minded to take account of unguaranteed bonus payments, for which the Complainant may or may not qualify depending on circumstances, in assessing the compensation to be awarded. Having regard to all factors of the case, the failure to provide reasonable accommodation and the consequential discriminatory dismissal, the Court determines that the appropriate award is €75,000. DETERMINATION: The Decision of the Adjudication Officer is set aside.
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