Complainant

Respondent

Parties

Grzegorz  Chrymecki

Abbott Laboratories Ireland Limited

Representatives

 Terry Gorry & Co Solicitors

Mark Rodgers BL instructed by  Matheson Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038610-001

09/07/2020

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

CA-00038610-002

09/07/2020

The Complainant claimed that he was discriminated against because of his disability and the Respondent failed to provide a reasonable accommodation for his disability. He also claimed he was unfairly dismissed.

The Complainant worked as a Production Assembler and commenced employment with effect from May 4th 2012. The Complainant was dismissed on June 29th 2020.

The Complainant was diagnosed with testicular cancer in 2009 and underwent Chemotherapy treatment and has made a successful remission. Regrettably the Complainant has suffered a number of other health complications as a result of undergoing chemotherapy.

In April 2016 the Complainant was approached by his Supervisor stating his performance was not up to standard and it was suggested performance targets were being missed intentionally. The Complainant was taken aback by this assertion and explained his health was deteriorating.

In April 2016 the Complainant reported the Supervisor in question to HR for harassing him by measuring his work output on a timer. In September 2016 the Complainant was sent to an Occupational Health Physician and he suggested the Complainant was not fit for full duties and would require long term restriction and it was suggested the Complainant could only operate in a seated role.

In December 2018 the Complainant attended a meeting with HR and he was informed he was being referred to the company’s long-term insurance income protection or failing this his employment could be terminated.

Since January 2017 the Complainant was approached by this Supervisor questioning his performance levels and frequent visits to the bathroom.  The Complainant advised he was taking medication and this was a side effect.

In January 2017 the Complainant attended a physician and it was outlined he was not in a position to return to full duties and he was pursuing alternative medical treatments.

In January 2017 the Complainant was told in his performance review that he was not meeting expectations, was not complying with attendance policy and the company expected a 100% attendance record. This despite the medical report that the Complainant was not fit for full duties.

In February 2017 the Respondent wrote to the Complainant and outlined three options; cease employment and receive long term disability, a career change or possible termination of employment if none of the first two options worked.

The Complainant applied for various positions both internal and external between December 2016 and June 2017.

The Complainant raised a formal grievance in June 2017 regarding the need to inform the Supervisor about going for toilet breaks and he was subsequently told he was not responsible for a station on his own.  The Respondent responded by stating that based on his restrictions put forward by the Occupation Health Assessment the company would not be able to accommodate him in a new area.

The Complainant emailed the company on September 2019 querying why he had not been interviewed for the positions he had applied for and stated in a further email that he believed he had the requisite experience and qualifications for the positions applied for and could not understand why he was not progressing to interview stage.

The Insurers for the Respondents wrote to the Complainant in February 2018 arranging for an appointment to determine whether or not he satisfied the definition of disability and this was rescheduled for July.

In November 2019 the Complainant was issued with a notice to attend a discipline meeting about his level of absence.

In May 2020 the Respondent wrote to the Complainant outlining he has one last option open to him, to claim under the Long-term Income Continuance Plan and failing that the company would be left with no option but to terminate him and asked him to make a decision by May 16th 2022. This was extended to August 31st 2020 and they subsequently asked him to submit the Long-Term Income Continuance forms by June 26th 2020 and failing that his employment would be terminated.

On June 17th 2020 the Respondent wrote requesting the Income Continuance forms and the Complainant was told to remain offsite until June 26th. On the 17th of June the Complainant turned up for work but was sent home.

On June 30th 2020 the Complainant was dismissed.

The Complainant made various legal arguments to accompany his submission, particularly sections of the Nano Nagle case (which are stated below in various sections). The Complainant submitted that the Supreme Court has held that the test when it comes to reasonable accommodation’ under the Employment Equality Act 1998 is one of the “test is one of reasonableness and proportionality” and that in this case the Respondent had significant resources at its disposal did not act reasonably or proportionality in its steps if any, to allow the Complainant continue un employment.

 The Respondent is a global healthcare business whose Vascular Division in Clonmel specialises in the manufacture of medicinal products to treat heart disease and vascular disease.  The Complainant commenced his employment on 17 November 2008 and most recently worked as a Production Operator.  The circumstances in which the Complainant has brought his claim arose from the decision of the Respondent to terminate his employment by letter dated 30 June 2020. 

The Complainant had previously recovered from a serious illness suffered by him in 2009 and which recurred in January 2010.  During these periods, the Complainant was absent from work for prolonged periods of time.  However, the Complainant remained on full pay and was provided with extensive support from the Respondent.  On his return to work, the Complainant was placed on reduced hours and was exempted from overtime.

Unfortunately, however, the Complainant continued to suffer from chronic health issues following the treatment received by him.  On 6 October 2016, the Complainant was assessed by Medmark and the Respondent’s occupational health nurse relayed the findings of that report to the Respondent and confirmed that the Complainant was not fit for full duties, was not fit for a rehabilitation programme and that those health issues were preventing him from returning to full and normal duties in the long term.  In particular, the Complainant was only able to work in a seated role, working mainly at his own pace (and was not in a position to reach his target on a day to day basis). Following this, the Respondent then sought to determine if the Complainant could be reasonably accommodated in relation to his condition.  It analysed a number of roles within the Respondent and assessed whether or not he would be capable of fulfilling them.  This was communicated to the Complainant at a meeting held on 27 October 2016.  If no alternative role could be found for the Complainant, he was informed that he would have the opportunity to apply for long term income protection.  If that was not forthcoming, the Complainant was informed that his employment might cease.  This was entirely consistent with the steps that would be taken for any employee within the employment of the Respondent.  Unfortunately, no alternative roles could be found for the Complainant.  Those that consisted of seated roles required the Complainant to meet targets that were not suitable for him. The Respondent then sought to consider whether the Complainant, having regard to his qualifications, could apply for other roles within its wider business. Again, the Complainant was informed of the possibility of applying for long term income protection but advised of the possibility that if no accommodation could be found for him, his employment might be terminated.

 As part of this assessment, the Complainant was assessed again by the Respondent’s occupational health physician.  In his report of 13 January 2017, the Physician outlined the nature of the Complainants medical difficulties and gave his opinion that he was not fit for full duties.  In particular, the Physician noted the Complainants increased necessity to go the toilet during shifts.  As well as resulting in additional fatigue, this caused a particular difficulty in that on each occasion a trip to the toilet was needed, the Complainant had to ‘de-gown’ from his station. A copy of the findings was relayed to the Respondent in an email.

At a meeting of 1 February 2017, the Complainant was informed that they were unable to identify any other location of the Respondent’s business that he could be moved to and that they were unable to reasonably accommodate his needs.  In those circumstances, the Respondent proposed placing the Complainant on a long-term income protection plan and suggested that the Complainant might apply for any other positions within the Company that became available for which he might be suitable.  In arriving at its decision, the Respondent took into account the findings of the Complainants medical assessment. This was communicated formally to the Complainant by letter dated 3 February 2017 from the Operations Supervisor with the Respondent.  To this end, on 21 September 2017, the Respondent subsequently wrote to the Complainant providing him with the steps that remained to be taken for his application.

The Complainants initial application for long-term income protection was unsuccessful in January 2018. A second assessment was carried out which recommended the use of an ergonomic chair for the Complainant. On the Complainants behalf, the Respondent also sought to engage with the income protection policy provider, and representations were made on his behalf and supports were made available to the Complainant.  By telephone call with the insurance company providing the cover, the Respondent understood that if the Complainant reapplied for protection, it was likely that his application would be successful.  Ultimately, despite a significant amount of time being afforded to the Complainant for this purpose, he did not reapply for protection. The Complainant was again assessed by the Respondent’s occupational health physician in February 2019 which reported no change to the Complainants condition.   Following this, the Respondent again informed the Complainant that it could not reasonably accommodate him having completed an assessment of all areas of the Respondent’s business.  This occurred in December 2019.  Up to that point, the Respondent had employed the Complainant in a ‘floating role’ providing assistance to other workers.  However, this arrangement was simply not sustainable.  In December 2019, the Production Supervisor, met with the Complainant and explained to him that the Respondent could not continue to accommodate him give the restricted manner in which he was able to work.    The assessment had been arrived at following a detailed exploration of whether or not the Complainant could be accommodated across any of the roles with the Respondent’s Vascular Division within which the Complainant was employed.  For the purposes of that assessment, the Respondent constructed a matrix of all of the roles within the Respondent’s Vascular Division to determine whether or not any accommodation could be made for him.  In none of these roles was it possible to accommodate the Complainant on account of them requiring either the employee to remain standing during his shifts (which his condition prevented him from achieving) or requiring him to meet certain production targets (which again his condition prevented him from achieving).  It was for this reason that the provision of an ergonomic chair could not also reasonably accommodate the Complainant.  An ergonomic chair would not have assisted the Complainant in carrying out the duties required of him.

During this time, the Respondent’s occupational health assessor also confirmed that the Complainants conditions prevented him reaching the targets expected of him.  A copy of an occupation health report of 22 November 2019 confirmed this.  The Respondent also informed the Complainant that he had the opportunity to apply for long term income protection or any other positions (separate to those considered in the assessment matrix) that might arise in the company.  The Complainant was also informed that, if he was prepared to complete the forms for his income protection policy application, that the insurance company providing cover for the policy was ready to provide cover.  If neither of these were possible, the Complainant was informed that his employment may be terminated.   This was communicated to the Complainant in series of letters on 6 January 2020, 26 February 2020, 7 May 2020, 14 May 2020, 16 June 2020 and 17 June 2020, and in an email of 26 June 2020.

The Complainant did not complete any long-term income protection application, despite a number of extensions to the deadline for such an application and despite being informed, that, if he completed the form, long-term income protection would be provided to him.  In respect of other positions with the Respondent which the Complainant may have been able to apply for, he was actively encouraged to apply for those positions on an on-going basis and was offered support with them.   Between 2016 and 2020, a total of 140 positions for which the Complainant would have been eligible were advertised but he was not successful for any of the ones he applied for. The Complainant did not apply for any role in 2019 or 2020. Ultimately, the Respondent had no option but to dismiss the Complainant.  This was communicated by the Respondent by letter dated 30 June 2020.

 The Complainant has brought two specific complaints.  The first complaint (under the number Specific Complaint CA-00038610-001) is a claim for unfair dismissal under section 8 of the Unfair Dismissals Act 1977.  In his Complaint Form, the Complainant stated that he was unfairly dismissed despite being in possession of an occupational health report stating that he was fit for work provided accommodation could be made for social distancing as he had an underlying health condition.  The second complaint (under the number Specific Complaint CA-00038610-002) is a claim under section 77 of the Employment Equality Act 1998 that the Complainant has been discriminated against by reason of his disability and in failing to provide him with reasonable accommodation for that disability.  In his Complaint Form, the Complainant stated that he was sent home and not allowed to work despite the Respondent’s doctor confirming that he was fit for work but required social distancing.   

The Workplace Relations Commission has confirmed that the Complainants second complaint, in so far as his relates to his dismissal, has been deemed withdrawn.  Consequently, the only complaints which remain before the Adjudicator is a claim under the Unfair Dismissals Act 1977 and a claim for discrimination other than discriminatory dismissal.

Specific Complaint CA-00038610-001

 Section 6(4)(a) of the Unfair Dismissals Act 1977 provides that the dismissal of an employee should be deemed not to be an unfair dismissal if it results wholly or mainly from the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.  Section 6(6) of the Act provides that, in determining whether a dismissal is fair or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from the grounds set out in sub-section (4), of which sub-sub-section (a) is one. 

It was submitted that it is not the function of the Adjudicator to establish whether the employee is in fact incapable: if an employee is dismissed for such reasons, it is sufficient that the employer honestly believes on reasonable grounds that the employee is incapable: per the Labour Court in O’Brien v Dunnes Stores (UDD1714) (7 April 2017) . As Lardner J. stated in Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184, at p. 186: “In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable for performing his duties as a forklift driver.  For the employer to show that the dismissal was fair, he must show that: 

It was the ill-health which was the reason for his dismissal;

 That this was substantial reason;

 That the employee received fair notice that the question of his dismissal for incapacity was being considered: and

 That the employee was afforded an opportunity of being heard.”  

 Clearly, there can be no question that the provisions of section 6(4)(a) of the Act and that the conditions laid down by Lardner J. in Bolger have been satisfied.  As can be seen from the letter dated 30 June 2020 and the history of the Respondent’s dealings with the Complainant, including the meetings held with him and prior correspondence, his ill-health was clearly the reason and the substantial reason for his dismissal, he received abundant notice the question of his dismissal for incapacity was being considered and he as offered an opportunity of being heard. 

Consequently, the Complainants claim under the Act of 1977 should fail. 

Specific Complaint CA-00038610-002

 Section 16 of the Employment Equality Act 1998 provides a general defence to claims of disability discrimination.  Section 16(1) in particular provides:

“Nothing in this Act shall be construed as requiring any person to recruit, or promote an individual to a position, to retain an individual in a position or to provide training or experience to an individual in relation to a position, if the individual […] 

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”  

Thus, section 16(1)(b) is clear in that an employer is not required to retain an individual who is not “fully competent” to perform the duties required of him.  For the purposes of section 16(1)(b), section 16(3)(a) of the Act provides a definition of “fully competent” in the following terms: 

“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.”  

Section 16(3)(b) of the Act then provides the circumstances in which an employer must take appropriate measures to employees with a disability.  These circumstances are in the provision of access to employment, in the participation or advancement in employment or the undergoing of training and apply unless the measures required would impose a disproportionate burden on the employer.  In determining whether such measures would impose a disproportionate burden on an employer, section 16(3)(c) of the Act provides:

 “In determining whether the measures would impose such a burden account shall be taken, in particular, of

 the financial and other costs entailed,

  the scale and financial resources of the employer’s business, and

  the possibility of obtaining public funding or other assistance.”

 Appropriate measures are defined in section 16(4) of the Act in the following way:

 “appropriate measures” in relation to a person with a disability

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

 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 of integration resources, but

 does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself of herself[.]”

The Respondent went on to analyse the Supreme Court in Nano Nagle v Daly [2019] IESC 63; [2019] 3 I.R. 369.   In these particular proceedings, the Respondent stated it had made every effort to accommodate the Complainant and has sought to support him from the period in which he first became ill. It has carried out a thorough review of his role and has attempted to accommodate him within every aspect of its business.  The Complainant was assessed for the entirety of the roles within his division.  Unfortunately, due to the nature of the Complainants chronic condition, it was not possible to find an adaptation of the Complainants role that allowed him to sit permanently or to work without reaching certain productivity targets.  While the Respondent attempted for as long as possible to see whether the Complainant could be accommodated, this was not possible.

 In doing so, the Respondent took into account financial and other costs, and the scale and financial resources of its business.  Accommodation within that framework was not possible.  Nor was it possible to obtain public funding or other assistance for the Complainant.  Moreover, in its assessment of what measures it could take to accommodate the Complainant, the Respondent, in its assessment matrix, considered adaptation of its place of business, equipment, working time, tasks and training.  Despite this, the roles examined required either the Complainant to stand or to meet targets for which he was not capable.  For the Complainant to continue working within the Vascular Division of the Respondent’s business would have required it to hire an additional employee to assist the Complainant.  Public funding or other assistance is not available for this, nor would it be possible bearing in mind the financial and other costs entailed, and the scale and financial resources of the Respondent’s business.

 In addition, the Respondent consulted with the Complainant at all times and offered him alternative supports in the form of encouraging him to apply to long-term income protection and for any other roles that he might have been suitable for.  Consultation was open and clear at all times and every effort was made to accommodate the Complainant.  Sadly, and with regret, it had no option but to terminate the Complainants employment.   While, at this time, the Complainant had been deemed fit to work, this assessment was predicated on him working within restrictions that the Respondent could no longer continue.  In specific response to Specific Complaint CA00038610-002, social distancing requirements during June 2020 meant that it was not possible for him to work on site while observing those restrictions.  It was for that reason that the Complainant had to remain off site at this particular point in time.  Further occupational health reports conducted on 15 April 2020 and 3 June 2020 confirm this.  Finally, at no stage did the Respondent complain to or victimise the Complainant for his condition.  At all times, it sought to provide support to him where possible.  

 On the basis of the above submissions, and the evidence offered, the Respondent submitted that this claim be dismissed in its entirety.  

The Employment Equality complaint; (CA-00038610-002);

The relevant law; The Employment Equality Act.

Section 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 in subsection (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 of paragraph (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 to subsection (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 of subsections (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) In subsection (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 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;]

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 under section 79 may 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 under section 77(1)which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (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 under section 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

85A.— (1) Where in any proceeding’s 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.

Findings and Conclusions

There is no dispute about whether or not the Complainant has a disability.  The Complainant had a physical disability as a result of which he was unable to perform his normal duties and be at his work station regularly.  In summary the medical evidence stated the Complainant had a nerve problem in both his hands and feet and medically assessed that he should avoid forceful work with hands and would not be fit to achieve targets and would have long term restrictions. The Respondent made substantial efforts to place and support the Complainant to be put on Long- term Income protection as a result of his disability and went so far as to state that if he reapplied (he was refused initially) he would be approved for long term income continuance at 60% of his salary.  He was assessed as medically fit to return to work but the limitations regarding breaks and his output remained. On the basis of these facts the Adjudicator believes that there is prima facie evidence of discrimination, such that the burden of proof shifts to the Respondent in accordance with s. 85.A. While the burden of proof shifted to the Respondent it is important to state the main grounds on which the Complainant made out his case of discrimination. Firstly, that the Respondent did not assess his situation before dismissing him, secondly that they did not provide an ergonomic chair for his use and thirdly that the Respondent did not assist him with his efforts to find a different job in the company.

The Complainant was employed as a Production Operator in a clean room environment. Due to this medication, he required a minimum of 3 additional rest breaks a shift. Each time the Complainant took a rest break he was required to degown and gown up again as the operation is a medical/clean room environment. This applies to all operational roles. So, on average a shift was 8 ½ hours long with two planned rest breaks which included the times for degrowing and gowning back up again. This was agreed at the Hearing. It was also agreed at the Hearing that this combined degowning/gowning process took 15 minutes each time. Therefore, on the basis of a minimum of 3 additional rest breaks the Complainant was off the production line for 45 minutes a day to take the extra rest breaks. In addition, the consequence of the Complainants disability meant his being away from the workstation more and his disability meant he was on average only achieving 50% of his target.  Also, because the Respondents production is a continuous flow manufacturing environment the fact that the Complainant was away from his workstation both reduced his own output significantly and the output of other staff down the line who were dependent on the Complainants work throughput. It also increased WIP and parts building up. Therefore, the Complainant could not complete his duties adequately and his absences from his workstation and level of performance had knock-on consequences for the flow of the production operation and operational performance.  This was not contested at the Hearing in evidence by the Complainant

The first issue for the Adjudicator to consider is whether the Respondent made the efforts required in s.16 to facilitate the Complainant in remaining in work.  Section 16 was analysed in considerable detail by the Supreme Court in Nano Nagle v Daly [2019] IESC 63; [2019] 3 I.R. 369.  MacMenamin J. summarised the main obligation imposed on employers by the section in the following manner, at pp. 408 to 409 of the report: “Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden.”  However, while compliance with those terms is mandatory, the obligation to accommodate is not limitless.  As MacMenamin J. went on to say, at p.410 of the report, section 16: “does not, of course, mean that the duty of accommodation is infinite, or at large”.  As he also said, at that same page, the duty placed on employers will not require the creation of an additional or difference job to facilitate an employee.   Moreover, once the steps referred to in section 16(3) are 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 Complainant would be capable of performing that function thus adapted. But it is that "position" or job, not another one.  If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a Complainant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.” (Page 416 of the report.)

 As emphasised by Charleton J. in the same case, at p. 425 of the report, the exercise is a practical one: “A job can best be seen by looking at what is involved on the ground.  Seeing that job carried out through observation, or experience of that employment, can define the nature of a post much better than any contract of employment or any paper exercise.  That was the approach in this case and that approach is right. This is a practical exercise.”

 The Judge then went on to emphasise the practical nature of the enquiry by providing a series of examples of the manner in which the obligation under section 16 should operate, at the same page of the report: “Leeway to a reasonable degree is to be afforded to disabled persons in order to enable them to do a job. As mandated by section 16(3) of the 1998 Act, those with a disability are "fully competent to undertake and fully capable of undertaking" a job on "reasonable accommodation … being provided by the person's employer."  Examples may assist.  A person putting together exhaust manifests in a car factory requires to be both highly mobile and very strong, since the items are both heavy and cumbersome, as well as skilful in welding. A physical incapacity coming about while holidaying during employment may mean inability to do the job.  On the other hand, a person sitting at a work bench and assembling ignition systems for a car may just as easily do that job from a wheelchair.  That person's place of work or access to a workbench may need sensible adjustment.”

 Subsequently, Barr J. in Cunningham v Irish Prison Service [2020] IEHC 282; [2020] E.L.R.317, albeit in the context of an analysis of section 37 of the Act of 1998, summarised the effect of Nano Nagle, at pp. 335 and 336 of the report of that case,as making it clear, that:  “the employer does not have to create a job for the person with the disability, nor do they have to provide measures that are unduly burdensome. This is the test of proportionality or reasonableness: see Nano Nagle judgment at paras. 89 and 106. That includes a consideration of the financial and other costs entailed in providing appropriate measures, the scale and financial resources of the employers’ business and the possibility of obtaining public funding or other assistance. It would also include a consideration of the operational capacity of the organisation.” 

In a recent Labour Court Decision, United Parcel Service of Ireland Ltd and Kevin Roberts (EDA2136) the Court found discrimination had occurred and regarding conducting an assessment of a situation stated “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 and 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.”

In the instant case the Respondent submitted details of a number of meetings with the Complainant, many of which related to the assessment of accommodation needs. In October 2016 the notes stated “the focus at present is looking at what work Greg can do in order to see if it is possible for him to be reasonably accommodated at work” and “a matrix of stations is currently being developed across all assembler roles with a view to finding alternative work for him”. In November 2016 meeting notes of a Management meeting were submitted where “the purpose of the meeting is to identify if the employee (Greg) could be reasonably accommodated as an assembler within the organisation taking into account the employees ability and taking into consideration if the employee can be reasonably accommodate, could the accommodation pose a separate risk e.g. fixed station v rotation”. In December 2016 the Complainant attended a meeting to discuss an accommodation and the notes of that meeting state “we have now looked across the business to seek alternative roles. The matrix of assembler stations has now been completed and we have been unable to identify a suitable role which can be reasonably accommodated for you. While we have a number of seated roles across the business all stations do require that production targets are met”. The note went on to state “You have mentioned you have a Master’s degree in chemistry. We would invite you to apply for any suitable role which may become available”.

The Respondent stated they prepared a matrix of options and assessed the Complainants capability to perform other roles and concluded he could not do so satisfactorily with his condition.  The Respondent submitted this in evidence and it was a comprehensive assessment of every position in operations and specifically as it related to the Complainant.  It analysed every area, position and subtask of production (almost a  hundred different areas) and assessed the Complainants capability to perform each role/task under the following headings; sitting/standing/sitting and standing/ walking/use of gloves and requirement to meet targets and assessed the Complainant in each area and classified the conclusion into red or green (red for a problem and green being no problem). In no area of the comprehensive assessment were all lines green. This assessment concluded there was no reasonable accommodation for the Complainant.

The Complainant, under cross examination, could not recall meetings to discuss his situation with his Supervisor but did state he saw a broad matrix of options only once of the assessment of his situation but could not recall the detail but that he disagreed with the matrix primarily as it related to jobs with targets. In evidence the Complainants Supervisor stated he “was not able to identify any roles where the Complainant could attain the output required” and that the “chair may have improved somewhat but all production areas are broken down by the second and the line can’t function with the Complainant gone for at least an hour a day”. The Supervisor stated he did offer to assist the Complainant with other job searches but could not remember being asked for assistance. The Supervisor stated that they created a floating job for a while for the Complainant to assist others but the continuing need, and financial justification, for this role was not required or valid and would necessitate the hiring of another person to do the Complainants job.

Again refereeing to the United Parcel decision, the Labour Court stated “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. 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.”  With regard to doing other operational roles the Complainant stated the Respondent only did a brief analysis of the situation and because they did not provide an ergonomic chair as suggested by the Physician in his report, the Respondent failed to adequately assess if this would have been a reasonable accommodation. In evidence, the Operations Manager (the Decision Maker in this case) for the Respondent stated that as different employees would be assigned to different work stations at times and on shift changeover the provision of a specialist chair in the operations area was not practical. This may well be the case and an argument could be made out that the provision of an ergonomic chair should have been tested for the Complainant in another operations role and then assessed if it was practical or not with the results as evidence of its success or not to accommodate the Complainants disability. However, even if this was tried and had been successful from an accommodation perspective the fundamental issues of the Complainant having to take rest breaks for almost 10% of his shift and the resultant effect on his output remained (and probable effect on others on the line also). So, the question then becomes is it reasonable for an employer to accommodate an employee with a disability who needs to take 10% (approx) amount of time away from work and produce approximately 50% performance due to this time away and the effect of his disability? The answer to this question would normally be no as the contract of employment is frustrated as a result and any accommodation would place an operational burden of the Respondents continuous flow process.

The instant case differs from the United Parcel case in two key areas. Firstly, a detailed assessment was conducted by the Respondent and secondly the Operations Manager who conducted the assessment (and was party to the decision to dismiss) gave evidence to the Hearing that he conducted an assessment of the situation and concluded that the Complainant could not both attend at his work station as required or meet the expectations of the role. He stated in evidence he assessed the Complainants situation in detail and concluded that the Complainant could not perform his current or other production role as is or with an accommodation of an ergonomic chair. He gave detailed evidence at the Hearing to this effect and his conclusions seemed both reasonable and considered and he underwent cross examination.  It is clear from the evidence of the Operations Manager that the Respondent conducted an assessment of whether the Complainant could be accommodated in other roles in production and they concluded that he could not, with or without an accommodation.  I have given consideration to the issue that the Respondent did not trial the Complainant in other roles with an ergonomic chair and taken into account the evidence of the Respondents Representatives that this would have been a false exercise as the circumstances that existed in the Complainants role would have transferred to any other role tried and it would have yielded the same results even if it had been done on a trial basis. The Respondent detailed analysis of every task in production and the detailed assessment of the Complainants possible ability to function in each area was strong evidence of other roles being given considerable assessment by the Respondent. It is true that if the Respondent had tried and tested the Complainant in other roles their evidence would be stronger in this regard, but I can’t see, in the evidence presented at the Hearing, how the situation would have changed even if they did trial It. To deliver a decision of discrimination focusing on this aspect alone of the complaint would not take into account the complete picture of the efforts and assessment the Respondent went to over years to try accommodating the Complainants situation.

The Complainant advised the Hearing he had a Master’s Degree in Chemistry and had completed a course in computer science. He advised that he applied for 7 roles outside Operations and was only interviewed once. The Complainant applied for 2 Administrative Assistant roles, 1 Production Supervisor role, 2 Quality Engineer roles (one as an outside applicant and which was applied for on the date the job advert was closed) and a Manufacturing Engineering Technician role. No evidence was supplied to the Hearing of the Complainants experience/capability or qualifications to perform these roles (nor was it contested).  There was evidence of one response to an application and when the Complainant did raise the issue of not being interviewed with his own HR Representative, it was in September 2017, some-time after he had applied for the roles. These applications were also made between December 16th 2016 and June 30th 2017, some years before the Complainant was dismissed.  It is unusual he did not get more replies to his applications, or at least there was no evidence of same supplied to the Hearing.  It is also surprising he stopped applying for roles given his qualifications. The Complainant advised he has since completed a computer course and is employed elsewhere as a Software Developer. In the United Parcel case the Labour Court repeated the judgement of judgment of the Supreme Court in Nano Nagle v. Marie Daly (2019) E.L.R. 221,McMenamin J., noted as follows; ‘Firstly, there is no requirement on the employer to find another distinct and separate job for an employee with a disability.2  Therefore,  there was no legal requirement at the time on the Respondent to look beyond the job the Complainant was employed in. The Respondent put forward in their submission at one point that they felt the Complainant was trying to engineer a promotion for himself. This was not really expanded upon at the Hearing, but it is slightly confusing to the Adjudicator how the Complainant could take up a new position of Software Developer, which generally involves the use of hands and fingers on a constant basis and the difficulties he had performing his role in operations.  Additionally, while the main duty to find a reasonable accommodation rests with the Employer under the Act, it is surprising that the Complainant did not apply for any of the 140 roles advertised in the company and did not pursue with anyone outside of production to try get a job that may have suited his qualifications. However, nothing rests on this issue.

The Respondent advised that no public funds were available to assist an accommodation and none were sought due to the Complainants situation. They also stated they were no able to continue to financially employ the Complainant as he was not performing the job required of him and it would necessitate the hiring of an additional person to cover for him.

There was disputed evidence of consultation with the Complainant about his situation and the assessment conducted. However, the requirement to consult is not mandatory but stated as “prudent” and the meeting notes at which the Complainant was present, clearly show engagement with the Complainant on the issue of accommodation.

Each discrimination complaint is different and what may be discrimination in one case may not be in another, depending on the circumstances of the case. In summary, the Complainant had a disability, he was not capable of performing the role he was employed to do and needed to take a lot of time away from his work station and his contract become frustrated as a result. The Respondent conducted a detailed and comprehensive assessment of all operations roles and considered the transfer of the Complainant to other roles and assessed these were not viable.  There was no reasonable accommodation that could be provided to allow him continue in the role he was employed to do as this necessitated accepting long toilet breaks, operate well below standard output required and placed a “disproportionate burden” on the production flow of the operation and financially to keep the Complainant employed necessitated the hiring of a replacement, whilst keeping the Complainant employed in a floating role. The availability of public funds was not a factor due to the circumstances of the situation and there was no obligation for the Respondent to consider moving him to a role outside his current job.

 It is for the above reasons that I find in favour of the Respondents case.  

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I Decide that the Complainant was not discriminated against.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

 I decide that the Complainant was not unfairly dismissed as he was incapable “for performing work of a kind which he was employed by the Employer to do” and his basic contract of employment had become frustrated.

Discrimination