Complainant

Respondent

Parties

Damien  O'Sullivan

Fg Wilson Engineering (Dublin) Limited

Representatives

Hennessy & Perrozzi Solicitors. Mr. Lawrence Masterson, B.L.

 Respondent Managing Director, Respondent  Chief Financial Director and Respondent  Director of Operations.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040256-001

05/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040256-002

05/10/2020

The complainant has submitted a complaint that he was denied reasonable accommodation and discriminatorily dismissed contrary to the provisions of the Employment Equality Acts 1998-2015

(the Acts) due to a disability on 22 May 2020. He further contends that he was denied his statutory notice.

He commenced employment as a service engineer with the respondent in June 2013.

His gross monthly salary was €4564.

He submitted his complaint to the WRC on the 5 October 2020.

CA-00040256-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant submits that the respondent refused to allow his return to work and dismissed him on the 22 May 2020 owing to his disability, without taking any measures to facilitate his retention in employment.

Witness 1: The complainant.

The complainant gave evidence under affirmation.

He suffers from Psoriatic Arthritis, an auto immune, permanent illness which makes him very vulnerable to infections. The symptoms include incapacity due to swelling of the joints and pain. He is on regular medication.

He commenced employment with the respondent in 2014 as a service engineer. His job is primarily focused on servicing and repairing diesel generators for the respondent’s clients.

With the advent of Covid -19, the airwaves were full of the threat posed by the pandemic to immunocompromised persons. The complainant states that he was terrified and didn’t go beyond his back garden. He believed that it would have been very unsafe for him to have worked alongside other people on external sites without guarantees that government guidelines - social distancing-were in force on clients’ sites. Normally he works on his own in repairing or servicing a generator, but to get to the generator, he must first pass through a security hut or reception area.

On 12 March he was expected to do an induction in an office with 10 other personnel. He asked if he could do the induction online at a private desk. This was refused. At that time, the Government was closing schools. On Friday 13 March, the complainant told his line manager, the service manager, that he would have to cocoon. He gave the same information on the 23 March on the basis of Government Guidelines.  The service manager agreed that it would be wise for him to do so and replied,” fine, best decision”.  The following week he telephoned the service manager a few times. He asked him to supply a medical certificate. He was unable to get an appointment with his GP who was not operating a surgery, but a telephone consultation service and her telephone wasn’t taking messages. He phoned his supervisor on an almost daily basis to keep him updated.

The complainant made several calls over the following weeks to the service manager, he told him that he was at home, but looking forward to returning to work.

His supervisor told him in May that the company could hand pick sites which were safer and that he would not have to do on–site induction but could do it online.

On 18 May he sent in a doctor’s certificate stating that he was immunosuppressed and had been unable to work from 14 March to 11 April 2020. He had been unable to get a cert prior to this date. On 19 May the service manager asked him in an email if he was able to fulfil the terms of his contract. On the 20 May the complainant responded to state that he was in a position to fulfil the terms of his employment contract subject to medical certification of fitness to resume work. On 22 May the complainant emailed a copy of the doctor’s further certificate of 21 May to the service manager which stated that he had an immunosuppressant condition and that he was fit to resume work on the 8 June, provided good health and safety measures were in place in his workplace.  He also sent a copy of the Government Guidelines concerning a return to work. This included the advice to medically vulnerable persons to stay at home as much as possible. On 22 May the service manager emailed the complainant to state that as he was not able to fulfil the terms of his contract, they were terminating his employment. Following this, he telephoned him stating that he could not take any risks with him given his weakened immune system.

Prior to his dismissal on the 22 May, the respondent did not discuss his illness or any limitations which his illness may have imposed on his ability to perform the full range of functions of a service engineer. No other doctor was asked to assess him. No risk assessment was done as per Government Guidelines nor was any consideration given to any safety measures which might be put in place. Ninety per cent of the complainant’s work was outdoors and he could have worked by himself; 2 metres distance between employees should have been possible to organise.  The complainant was happy to return based on implementation of government guidelines. He received no notification that his job was at risk.

The respondent paid him the sum of €9000 which he understood was holiday pay and a redundancy sum.

The complainant states that he was treated differently to other employees because of his disability.

He applied to other companies, one of whom advised him that he had heard from the respondent that he did not wish to work. He since took up a 2 day a week instruction job with an educational authority in December 2020.

Cross examination of the complainant’s evidence.

The respondent managing director stated that he did not wish to challenge the complainant’s evidence concerning the events leading to the complainant’s dismissal.

The complainant’s barrister stated that the complainant’s own evidence was that he was in good health. The complainant was entitled to assume that Government Guidelines would be adhered to by all employers. No measures were put in place to protect the complainant other than dismissal.

Legal Authorities.

In invoking the protection of the Acts for the complainant, the complainant’s barrister addressed the definition of ‘disability’ and signposted the case of HK Danmark –v- Dansk Almennyttigt BoligselskabC-335/11 and C337/11 where it was held that the concept of ‘disability’ in Directive 2000/78 must be interpreted as

“Including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.

The complainant’s barrister states that the complainant’s condition is a long-term illness which corresponds with this definition.

The complainant’s barrister then addressed the authorities dealing with the protection of persons with a disability and the accompanying statutory obligation resting with an employer to provide reasonable accommodation by virtue of section 16 of the Acts. He relies on the Supreme Court decision of Nano Nagle School v Daly [2019] IESC 63 where McMenamin J., at paragraph 84, set out how section 16 of the Act should be interpreted. In particular, the complainant’s barrister relies on paragraph 84, as considered and applied in a recent decision of the WRC, An Executive Assistant v A University, ADJ 00022851, a complaint of discriminatory treatment on the grounds of disability concerning the failure of that respondent to provide her with reasonable accommodation. The adjudicator found that the respondent

“in not carrying out an individual assessment of the various options on working from home did not take appropriate measures to enable the complainant to continue to participate in employment. I find that the respondent did not fulfil its statutory duty to the complainant. The respondent failed to make reasonable accommodation for the complainant’s disability. The complainant was discriminated against on the grounds of her disability”.

The complainant’s barrister applying the positive obligation set out in section 16 of the Act on an employer to enable the complainant to continue in employment, and found in the above authorities, states that the evidence reveals that no medical evidence was sought by the respondent as to how the complainant’s disability could be mitigated. An employer is prevented from dismissing an employee without exercising measures as prescribed by section 16 of the Acts. The only medical evidence was that of his own GP.

The respondent made no assessment as to how the complainant could be accommodated. The complainant was given no opportunity to contribute as to how he could be assisted.

An informal discussion with the directors on the 21 May concluded with a decision to terminate his employment on the 22 May. They may not have been ill- intentioned but that that is not sufficient to surmount the hurdle posed by section 16 of the Acts. 

The complainant’s barrister asks the adjudicator to find that the complainant was discriminatorily dismissed on the basis of his disability.

CA-00040256-002.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant is seeking his statutory entitlement.

CA-00040256-001. Complaint under section 77 of the Employment Equality Act, 1998.

The respondent provides an engineering service to clients.

The respondent denies that they discriminated against the complainant.

The respondent is not challenging the evidence given by the complainant but disputes the construction put on the events leading to his dismissal.

The complainant was unavailable to work for 2 -3 months. He stated that he was afraid to mingle with people.  His inability to fulfil the terms of his contract and the duties attendant on the role of a service engineer led the respondent to reluctantly terminate his contract. They had to have service engineers able to service the generators for their clients.

The first medical certificate which they received was dated 18 May and was back dated to 16 March.

Witness 2: Chief Financial Officer.

The complainant absented himself from work from 16 March 2020. The complainant was extremely afraid of the virus. He told the witness he could die if he contracted the virus.

The respondent received a medical cert from the complainant on 18 May, two months after his absence commenced and it only went as far as 11 April. The second certificate stated he could resume work subject to being in good health and to safety measures being in place at his workplace.

The witness stated that they introduced all government – recommended policies and protective measures such as social distancing, PPE, masks.

They, too, were fearful of the consequences of him contracting the virus. They could not guarantee his safety as they did not control the measures put in place in sites which he serviced. This informed their decision to dismiss him. He challenges the complainant’s statement that it would be possible for him to work in isolation.

Cross examination.

 They did not discuss health and safety issues with the complainant or with any of the employers on the sites which he serviced. They were not in a position to guarantee his safety.

The witness stated that they are following all the Covid-19 government guidelines.

Witness 3: Managing Director.

The termination of the complainant’s employment was not a discriminatory act. It was done for health and safety reasons. The respondent did not ask the complainant to absent himself from work.

The complainant’s precondition for a return to work was a guarantee that the sites which he would be servicing should be compliant with Covid -19 guidelines. They had no control over these environments and therefore could not guarantee a safe environment as requested by his GP. They could not guarantee that social distancing would be in place on the sites. They could not knowingly send the complainant to a site where he might contract the virus. The onus is on the respondent to provide a safe place of work. It was not possible to adapt premises. He was on the road interfacing with companies. They would have to ask, for example, Hospital A to clear the site of personnel so he could work alone. More than 70 % of their machines would be inside. They could not have assigned him exclusively to outside machines, because a lot of their work is an on-call arrangement and they do not know if the generator is situated internally or externally. He was dismissed for his own safety.

It would not have been possible to adapt the premises.

Cross examination.

The witness stated that he accepts that the complainant has an autoimmune disease. They do not know if that prevented him from attending work during March – June 2020.

The witness stated that they did not engage another medical opinion about the complainant’s fitness to work. Nor did they contact his medical practitioner.

The witness explained that they never ceased working during Covid -19, so a Return-to-Work Protocol as per Government guidelines did not apply in their case. As to the relevance and applicability of this Protocol, the witness stated that the complainant had absented himself from work.

The witness stated that they dismissed the complainant because he was unable to perform his duties. They could not accept him returning to work on the basis of his GP’ s statement which set out adherence to safety measures in his workplace as a precondition for his return. 

The witness stated that they are following all the Covid-19 government guidelines.

The witness stated that they did not prepare an assessment in advance of his scheduled return to work on 8 June as they do not have control over the environments into which they send their employees. The respondent accepts that an auto immune disease can render you more vulnerable to infections. They did not talk to other employers about safety measures in place. They had to have service engineers service the generators in hospitals for their clients.

The witness advised that the board of the company which comprises three directors met on 21 May 2020 and decided to dismiss him as he was unable to perform the work for which he was employed. The witness confirmed that neither they nor his supervisor or service manager invited the complainant to discuss the matter or argue against his dismissal with them before they made the decision to dismiss.

Th witness stated that it was not possible to provide reasonable accommodation because his role was one of servicing diesel generators.

The witness stated that he was unaware of the statutory obligation to make reasonable accommodation, but Covid -19 changed everything because the complainant stated to the witness that he could become seriously ill or die if he caught the virus. The witness confirmed that the best thing in the circumstances was to dismiss the complainant. The respondent had to consider the mental health of the service manager faced with the complainant’s concerns about his vulnerability when he couldn’t be certain about safety measures on sites to which the complainant would be assigned. He confirmed that the complainant was physically able for the work.

There are 29 employees, 12 of whom are service engineers, the remaining 17 are engaged on project work, design engineers and administrative work. None of these roles could have been performed by the complainant.

He confirmed that no employee was assigned to deal with the complainant’s anxiety or concern.

Thirty percent of machines were outside. The percentage of jobs that are scheduled could be up to 30%; the remainder are on- call.

Online induction was not possible as it was not under their control.

He was dismissed for his own safety.

The sum of €9000 given to the complainant was for his holiday pay plus a tax-free ex gratia sum.

CA-00040256-002.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The respondent contests the complainant’s entitlement to notice. The complainant absented himself for almost three months from the workplace.  He received an ex-gratia sum.

CA-00040256-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant contends that he was discriminatorily dismissed because of his disability. The respondent disputes this and asserts that the Complainant was dismissed because he was unable to fulfil his contractual obligations.

I am obliged to decide if

1) the respondent failed to provide reasonable accommodation in order to enable the complainant to retain a position with the respondent.

(2)  the respondent discriminatorily dismissed the complainant contrary to section 8 (6) of the Acts.

Relevant Law

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) ….”.

 Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows –

 “as between any 2 persons, ...     that one is a person with a disability and the other either is not or is a person with a different disability".

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which a complainant must first meet in making a complaint of discrimination.  The complainant must establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.   If he succeeds in doing so, then, and only then, does the burden shift to the respondent to prove the contrary.

In the case of Melbury Developments v Arturs Valpetters EDA0917, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination.”

In Hallinan v. Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the equality officer held that in order to establish a prima facie case of discrimination, the following must be established:

(a) The complainant must establish that he or she is covered by the protected

(b) Establish the specific treatment has allegedly taken place

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground

Applying the above provisions, it is necessary to establish if the complainant has a disability and consequential protection within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:

“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;”

I accept that the complainant’s diagnosis of psoriatic arthritis, an illness which can cause a malfunction in the joints, an immunosuppressed condition which can result in a heightened vulnerability to contracting infections and a condition which has been medically diagnosed  does match the definition of a disability found in the Acts.

The respondent accepted that the complainant has a disability.

Hence the complainant is covered by the protected ground by virtue of section 6(2) (g) of the Employment Equality Acts 1998-2015.

An adverse action occurred in that the complainant was dismissed upon advising the respondent of his intended return to work on the 8 June.

On the basis of these facts, I am satisfied that the complainant has raised a prima facie case of discrimination on the grounds of disability, such that the burden of proof shifts to the Respondent in accordance with s. 85.A.

 I am required to establish if this dismissal was because of the complainant’s disability.

Statutory obligation on an employer faced with an employee who is unable to work due to a disability.

An employer faced with an employee unable to work or an employee looking for special measures designed to increase the safeguards against contracting Covid -19 must comply with the requirements of section 16 of the Acts. Section 16) (1) states

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

( a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

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

The respondent states that the complainant was dismissed because of his inability to perform the function of his role. In this scenario Section 16(1) can provides a (qualified) defence to a complaint of discriminatory dismissal or to less favourable treatment given that an employer is entitled to have employees who are capable, able and available to perform the elements of job to which they have been appointed. But section 16(1) must be read in conjunction with Section 16(3) of the Acts which imposes the following obligation on employers concerning employees and prospective employees:

“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.

Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities could render the employee fully capable.

Section 16(4) of the Acts then illustrates the type of accommodations which could be made by an employer and these measures are described as appropriate measures and can include changes in work practices, premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources,

The obligations which flow from Section 16 and the efforts which an employer should make to enable the complainant to continue in his employment have been set out in the Supreme Court judgement of Nano Nagle v. Marie Daly (2019) [2019] IESC 63. Concerning compliance with of section 16 McMenamin J., noted as follows at paragraph 84:

“Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. 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. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

While McMenamin J acknowledged that the employer is not obliged to furnish a separate job to the one held by the employee, there is a requirement to engage in consultation or employ other necessary steps to establish if the job of the employee is capable of adaption so as to ensure compliance with Section 16 of the Act.

As to the nature of the consultation, the Labour Court in Humphreys v Westwood Fitness Club DEE-7/2003 set out the requirements as follows:

“The nature and extent of enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at medical evidence available to the employer either from the employee’s doctor or obtained independently. Secondly, even if it is apparent that the employee is not fully capable, Section 16 (3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a fully opportunity to participate at each level and is allowed to present relevant medical evidence and submissions”.

Examination by the respondent of appropriate measures.

At the point of dismissal, 22 May 2020, the complainant had been declared fit to return to work on the 8 June, two and a half weeks later, subject to the proviso that safety measures would be adhered to in his workplace- an unremarkable request. It was accepted that he was in good health and the only impediment in the way of him doing his job was his fear about and vulnerability to contracting the virus. At that point the future of the pandemic was unknown. Given the prevailing climate in March – May 2020, with no vaccines on the horizon, and a heightened sense of fear amongst those without a disability not to mention those who had an autoimmune disease, the complainant’s requirements for assurances that safety procedures and protocols were in place was at the very minimum, worthy of exploration with the client companies concerned. This did not happen. I accept that the late delivery of medical certificates to the respondent was very unsatisfactory even in the context of the then difficulties in accessing a General Practitioner’s services.

The respondent witnesses stated in evidence in chief and in cross examination that they concluded in the absence of any engagement with the complainant that his role was incapable of adaptation.  The respondent made no effort to establish that safety measures were in place in the sites to which the complainant would be assigned. Why not do so and let him know what controls were in existence on these sites? The managing director repeated that he had no control. Correct, yes, but it did not prevent the respondent from establishing exactly what controls were in place on the sites, providing the complainant with that information and then determining the risk of or exposure to contracting the virus, if any, in collaboration with the complainant based on whatever medical or other advice was necessary. The respondent chose not to engage with the complainant’s own GP and chose not to enlist an independent medical practitioner to clarify how, and for what duration, his condition would compromise his ability to work as a service engineer.

An employer’s response to assessing what appropriate measures are required demands an individualised approach. There were a number of options which the respondent could have explored which might have enabled them to accommodate his disability. There was no exchange with the complainant  on the feasibility of any part time arrangements where he could focus on scheduled service trips (which constituted 30% of all assignments), or if he could be tasked with servicing external generators (again 30% of which were  externally situated ), or a period of leave until he could return on 8 June. If his fears were excessive, the respondent made no effort to assuage his worries or to provide him with medical or other advice as to how he could minimise risks and continue to work. 

 He was treated less favourably than his supervisor who does not have a disability. The managing director stated in evidence that he had to be mindful of the mental health needs of the complainant’s supervisor, faced with the complainant’s fears and hesitancy about going to sites, and the effect that this could have on the service manager, but the respondent’s response to addressing the service manager’s fears was to dismiss the complainant while failing to offer any assistance to the complainant to establish if his fears could be assuaged.

The respondent assumed without any examination that no reasonable accommodation measures were possible. The respondent may have been correct in this conclusion, but it ignores the requirement to conduct such an examination.

I am satisfied that the respondent in not carrying out an individual assessment of any options other than dismissal did not take appropriate measures to enable the complainant to continue to participate in employment. I find that the respondent did not fulfill its statutory duty to the complainant. The respondent failed to make reasonable accommodation for the complainant’s disability. The complainant was discriminated against on the grounds of his disability.

Discriminatory dismissal.

The respondent’s own evidence was that they were fearful of the complainant contracting the virus due to his disability and it was this as well as his inability to fulfil his role that led them to dismiss the complainant. The respondent thus accepts the connection between his disability and his dismissal. No evidence was proffered of any difficulties in the employment relationship until the complainant absented himself on sick leave due to Covid -19.

Prior to the dismissal, the complainant was not informed that his job was in jeopardy. The dismissal was instant. It came two hours following the submission of the complainant’s medical cert on the 21 May attesting to his fitness to return to work on the 8 June subject to safety procedures being in place.

The complainant was cursorily and summarily dismissed.

 In the absence of conformity with the obligation to consider alternatives to dismissal, the respondent is not entitled to avail of the statutory defence provided for in Section 16(1) of the Acts. I find that the respondent discriminated against the complainant on the disability ground pursuant to sections 6(2)(g) of the Acts, in respect of discriminatory dismissal contrary to Section 8(6) of the Acts.

In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

 I find

(ii) the respondent has failed to provide appropriate measures that would allow the complainant to continue to be employed by them

(iii) discriminatorily dismissed the complainant on the ground of disability

In accordance with Section 82 of the Acts, I order the respondent to pay the complainant the sum of €41,076 by way of compensation for the distress suffered as a result of the discrimination. This sum represents nine months salary.

CA-00040256-002.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The uncontested evidence is that the complainant was summarily dismissed without notice.

I find this complaint to be well founded.

Section 4 (1) (c) of the Act of 1973 requires an employer to provide the employee who has service of five years or more but less than ten years, four weeks’ notice.

I require the respondent to pay the sum of €4213 which represents four weeks paid notice, subject to all lawful deductions.

CA-00040256-001. Complaint under section 77 of the Employment Equality Act, 1998 -2015.

I find that the complainant was discriminated against on the grounds of his disability. I order the respondent to pay the complainant the sum of €41,076 by way of compensation for the distress suffered as a result of the discrimination.

 CA-00040256-002.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

I find this complaint to be well founded.

I require the respondent to pay the sum of €4213 to the complainant, subject to all lawful deductions.

Disability: failure to provide reasonable accommodation. Minimum notice.