Complainant

Respondent

Parties

Daniel  McLoughlin

North Dublin Inner City Homecare & Home Help Services Company Limited by Guarantee t/a North Dublin Home Care

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Mr Matthew Jolley BL instructed by Killian O'Brien Bowler Geraghty & Company Solicitors

Mr Conor Rock BL instructed by Robert Plunkett Plunkett Kirwan & Co 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-00040576-001

23/10/2020

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

CA-00040576-002

23/10/2020

The Complainant commenced working for the Respondent as a Scheduler/Systems Administrator on 5 December 2016. The Respondent provides a homecare and home help service.  He was paid on a weekly basis as follows: 4-day week €360 net and 5-day week €405 net. He worked 4 or 5 days a week and varied between working day shifts and night shifts. The Complainant has two complaints: (1) that he was unfairly dismissed under the Unfair Dismissals Act 1977, as amended, and (2) That he was subject to discriminatory behaviour by the Respondent contrary to the Employment Equality Acts 1998-2015, in that the Respondent did not reasonably accommodate his asthma condition in the workplace. The Respondent denies both claims. The Respondent asserts that the Complainant was fairly dismissed due to gross misconduct. The fact of dismissal is not in dispute. The Respondent submits that it was not aware of the Complainant’s condition, nor did he seek accommodation for his disability.

The Respondent is a non-profit organisation with charitable status and is engaged in the provision of care services to service users with a variety of needs in the area of North Dublin in the clients’ own homes. During the Covid-19 pandemic, the respondent was providing front line services to its service users.

The Complainant commenced his employment with the Respondent on 5 December 2016. The Complainant’s contract of employment encompassed the Employee Handbook which contained the Respondent’s code of conduct. The Complainant acknowledged the Handbook by signature.  It was a term of the Complainant’s contract of employment that the place of work would be North Dublin Home Care, or any other place linked to the business.

CA-00040576-001 UNFAIR DISMISSAL COMPLAINT:

 On 25 April 2020, the Complainant was rostered to work at the Respondent’s premises. One of the core duties of the Complainant on this occasion was to allow access to the premises for carers to obtain Personal Protective Equipment (PPE) for subsequent use in the homes of service users. When the Complainant was required to be present in the office, he would have been the sole person in the office. However, on the day in question the Respondent submits that he was not present to carry out critical duties.

Summary of Evidence of the Community Supervisor:  

The witness gave evidence on affirmation. On Saturday 25 April 2020, she was on her way to the home of a service user and required PPE. She made a phone call to the Complainant upon reaching the Respondent’s premises to let her in so that she could obtain the items of PPE. The Complainant was not in the office because he was working from home. She told the Complainant that she needed PPE and that someone was meant to be in the office for the day shifts to ensure there was access to the PPE. She told the Complainant that she would need to ring the CEO and report on the situation.

In cross examination the witness said that she could not have accessed the office even if she had been given the key/alarm code.

Summary of the Evidence of the CEO:

 The witness gave evidence on affirmation. The CEO phoned the Complainant and asked him why he was not in the office on 25 April to which the Complainant replied that he was working from home. The Complainant did not have permission to work from home. The CEO reminded the Complainant that his role included being in the office and that he was responsible for giving out PPE and that only evening shifts could be done from home when no PPE needed to be handed out. The Complainant responded that he would prefer to work from home and refused to attend at the office on the following day, 26 April. The CEO relayed that the Complainant accepted that he had not told anybody that he was going to work from home on that date.

The witness denied that she had told the Complainant that he was fired during the phone conversation but had said to the Complainant that “he didn’t get to pick and choose”. She indicated that if the Complainant would not fulfil his contractual obligations, then she would need to source somebody that could.

The CEO telephoned the Complainant on Tuesday 28 April 2020 informing him that he was suspended with pay. The Complainant asked if he was “fired”. The CEO indicated that he was not dismissed and that a formal investigation procedure would be taking place.

In cross-examination the witness said that there was no written record from the original job interview of the Complainant’s statement that he was asthmatic. The witness accepted that the Complainant had a previously unblemished work record.  

THE INVESTIGATION PROCEDURE AND OUTCOME:

 On 6 May 2020 the Respondent’s HR Officer contacted the Complainant by letter requesting the Complainant to attend an investigation meeting. The text of that letter listed the issues to be investigated as follows:

• Failure to attend work on 25th of April 2020

• Failure to inform management that you would not attend work on 25th of April 2020

• Refusal to attend for work on 25th and 26th April 2020

• Failure to follow management instructions to attend work as an essential worker, resulting in potential harm to colleagues when you knowingly and willingly left your colleagues without access to the necessary and vital PPE they require in order to attend vulnerable clients.

The Complainant was invited to bring a representative of his choice.

On 14 May 2020 the HR Officer wrote to the claimant to advise him as to the outcome of the investigation meeting. This letter is annexed to these submissions. The letter contained the following findings (appropriate redaction):

I have reviewed the information that has been provided as part of this investigation in full detail. With regards to the allegations, Mr McLoughlin admits he did not ask permission to work from home on the day in question and did not notify anyone of same. Mr McLoughlin states that he did not think he needed to do this as he had been working from home for the evening shifts. However, as the Company is a front-line service and PPE is needed, access to the office is needed during the day. Mr McLoughlin also states that he refused to come into work to finish his shift or for the next day, Sunday 26th, though he was told by XX (the CEO) that this was part of his contract conditions.

It is now a matter for Management to decide what steps, if any, to take, in accordance with policies and procedures.

 On 19 May 2020, the Service Manager, wrote to the Complainant inviting him to attend a disciplinary hearing.  A disciplinary hearing was held via ‘Zoom’ on 22 May 2020. In attendance were the Complainant, the Service Manager, and a note taker.

Summary of the Evidence of the Service Manager: `

The witness gave evidence that the Complainant’s asthma was not brought to the attention of herself, nor any other members of management before the incident of 25 April. In cross examination the witness accepted that she did not consider a lesser sanction than dismissal nor did she consider using the informal disciplinary option as provided for in the procedures.

 An appeal meeting took place on 25 June 2020. Present at that meeting was the Complainant, the designated appeals person, and a minute taker. The Complainant chose not to have a representative present.  On 7 July 2020, the designated appeals person wrote to the Complainant with the appeal findings. That letter upheld the dismissal decision.

LEGAL SUBMISSION: CA-00040576-001 UNFAIR DIMISSAL:

Section 6(4)(b) of the Unfair Dismissals Act 1977 provides that the dismissal of an employee shall be deemed not to be an unfair dismissal where it results wholly or mainly from “… the conduct of the employee.”

 The Respondent submits that general approach of WRC to cases involving a dismissal occasioned by virtue of misconduct is that set out in Hennessy v Read & Write Shop Ltd UD 192/1978. In that case, the EAT held as follows:

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

(ii) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and

(ii) the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

 The Respondent submits that the standard of review that the WRC ought to apply to a situation such as this, is to ask whether dismissal was part the range of reasonable responses open to the employer. This approach was confirmed by the High Court in the decision of Bank of Ireland v Reilly [2015] ELR 299.

 he Respondent asserts that the range of reasonable responses test was discussed at length by the English Employment Appeals Tribunal in Burchell v British Home Stores [1978] IRLR 379. In that case, the employee had been dismissed on grounds of fraudulent abuse of a staff discount purchasing scheme. The English Employment Appeal Tribunal, rejecting the employee’s argument that the evidence did not support the finding, held that it was sufficient it was one which a reasonable employer might make.

The Respondent submits that this approach was followed in Ireland in Looney & Co Ltd v. Looney UD 843/1984. The claimant had been accused of pilfering Mars bars from the grocer’s shop for which he worked. He disputed the finding that he had stolen the goods and argued that the punishment was disproportionate. The EAT rejected this contention saying:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate whether we in the employer’s position, would have acted as [the employer] did in his investigation, or concluded as he did or decided as he did, as to do so would be to substitute our own mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer, in [the employer’s] position and circumstances at that time, would have done and decided and to set this up as a standard against which [the employer’s] actions and decision be judged.”

The Respondent asserts that an element of reasonableness that the WRC can consider is that fair procedures were followed in the investigation of any allegation of misconduct. In Frizelle v New Ross Credit Union [1997] IEHC 137, Flood J. remarked that “put very simply, principles of natural justice must be unequivocally applied”.

The Respondent submits that considering the foregoing legal submissions, the dismissal of the Complainant resulted wholly from his conduct, fair procedures were rigorously followed, and dismissal was a reasonable response. The Complainant, upon entering a contract of employment with the Respondent, acknowledged receipt of an employee handbook containing a code of conduct. The employee handbook contains very detailed information in relation to the respondent’s disciplinary procedure and a definition of gross misconduct which included, amongst other things:

·         Refusal to carry out a management instruction which is within the individual’s capabilities, and which would be seen to be in the interests of the Company.

·         Failure to observe Company rules, regulations, or procedures.

 The Respondent argues that the Complainant was dismissed following a detailed and fair disciplinary procedure, which found that he was guilty of breaches of discipline which amounted to gross misconduct. The Complainant was given the option to appeal and did so.

The Respondent asserts that the decision to dismiss was a reasonable one in the circumstances of the case. The Respondent performs an essential front line business providing care to vulnerable individuals. To carry out that work, employees of the respondent required access to PPE throughout the daytime. The Complainant was required to be present in the office during the daytime to assist care providers in obtaining PPE. The Complainant would have been the only person in the office during this time. The Respondent argues that given the gravity of the claimant’s breach of discipline and his flagrant disregard for his colleagues and in particular, management, the Respondent submits that the decision to dismiss the Complainant was a reasonable one.

CA-00040576-002 Discrimination.

The Respondent denies that the Complainant ever notified management of his asthma either at the initial interview stage in 2017 nor in any subsequent date prior to the events of 25 April 2020. The first documentation the Respondent received was a medical certificate dated 5 May 2020, during the period of investigative disciplinary process as outlined above. The Respondent argues that the Complainant has not met the mark regarding establishing any case that he sought reasonable accommodation nor disclosed the nature of his disability to the Respondent at any relevant time.

CA-00040576-001 UNFAIR DISMISSAL COMPLAINT:

Summary of the Evidence of the Complainant:

The Complainant gave evidence under oath. In the weeks preceding 25 April 2020, the Complainant was working the evening shift.  He was working from home. On Saturday 25 April 2020 the Complainant was working the day shift.  The Complainant had to self-isolate in March 2020 having experienced what he believed were Covid symptoms. The Complainant suffers from asthma and felt more comfortable working from home due to the pandemic. The Complainant had been provided with a laptop by the Respondent to enable him to carry out his work duties remotely.

On the day in question, the Complainant received a phone call from a Community Supervisor in the Respondent company. The Supervisor asked the Complainant to buzz her into the Respondent’s office carpark. The Complainant informed the Supervisor that he was working from home. The Supervisor said that she should contact the CEO. 

The CEO called the Complainant asking him why he was not in the office stating that he was supposed to be there to let other staff members in to gain access to PPE for the carers. The Complainant informed the CEO that he was not aware that he could not work from home and that he had been working from home for a number of weeks prior, without any issue. The CEO informed the Complainant that people working day shifts could not work from home, only people working the night shifts could, but the Complainant said he did not know this. The CEO asked if the Complainant would be working in the office on Sunday 26 April, the following day. The Complainant informed the CEO that he would be working from home due to the pandemic and because he suffered from asthma and felt more comfortable at home.  The Complainant gave three alternative proposals to the CEO – to take a holiday, take a sick day or find an alternative cover. The CEO’s responded that he was dismissed. The Complainant understood that the outcome of the telephone conversation was that he was dismissed having been told so on a number of occasions over the phone by the CEO.

The Complainant gave an account of the timeline and correspondence emanating from the investigative and disciplinary process.   

On mitigation of loss, the Complainant gave evidence that he had not applied for work over the immediate 4 months after the dismissal because he believed that no work suitable work for a vulnerable person on a remote basis was available to him. He gave evidence of a number of applications in late September and in October 2020, as well as January, February 2021.  He was eventually employed in April 2021 at a warehouse company on a rate of €12.50 per hour for a 40-hour week

In cross-examination the Complainant accepted that he was a ‘closed off person’ and would not be inclined to discuss his personal life or medical issues with work colleagues. On mitigation of loss, he accepted that he did not try to mitigate his loss in a four-month period directly after the dismissal due to his belief that no suitable work was available to him and, after October 2020, for a further four-month period due to diagnosis of anxiety and depression, which he attributed to his dismissal.

LEGAL SUBMISSIONS

Reasonableness of the Decision

The Complainant submits that the reasonableness of the Respondent’s behaviour is a factor that should be considered. Section 6(7)(a) of the Unfair Dismissals Act 1977, as amended, states:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, …”

 The Complainant asserts that the “band of reasonableness” as applied by Judge Linnane in Allied Irish Banks -v- Purcell [2012] 23 ELR 189 and approved by Noonan J in Governor and Company of the Bank of Ireland -v- Reilly [2015] 26 ELR 229 does not give an employer carte blanche in relation to the decision to dismiss.  

The Complainant asserts that It was held by the UK Employment Appeals Tribunal in Iceland Frozen Foods Ltd -v- Jones [1982] IRLR 439 at para.25, whilst band of reasonableness test is entirely accurate in law, “it is capable of being misunderstood so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be fair within the section.”  The Complainant cited the following passage from Noonan J in Reilly Noonan where he went on to hold at para.55 ff:

“56. In assessing the reasonableness of the employer's conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer's response. …

60. Having regard to all of the foregoing, I am satisfied that the conduct of the bank in relation to Mr Reilly's dismissal and the events leading up to it could not by any objective standard be described as reasonable. The evidence has driven me to the conclusion that at a very early juncture, probably on February 17, 2009, a decision was made within the hierarchy of the bank to make an example of Mr Reilly in order to deter others from similar behaviour in the future. That decision may or may not have been made by GIR, but as a minimum was strongly influenced by it. Whilst lip service was paid to observance of procedures, it is clear that there was only ever going to be one outcome. The bank's response in this case was entirely disproportionate and could not in my view be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue.”

 Thus, under the test a reasonable employer is presumed to act with regard to the principle of proportionality.  Therefore, the application of the test of the band of reasonable responses permits, indeed requires, the Adjudicating Officer to have regard to the proportionality of the Respondent’s actions.  Another way to put this that the more severe the consequences of an employer’s action, the narrower the band reasonable responses open to the employer become. 

Substantive Fairness:

The Complainant cites Section 6 of the Unfair Dismissals Act 1977 where it provides:

(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 the 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 the 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 made under statute.

Procedural Fairness:

The Complainant cites Hennessy -v- Read & Write Shop Ltd UD 192/1978the Employment Appeals Tribunal 445, (Unreported, High Court, McGovern J, 5th December 2008) where the reasonable aspect of unfair dismissal was described as follows:

(1) the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant, and (2) the employer’s conclusion following such enquiry that the claimant should be dismissed.

Flawed Disciplinary Procedure:

The Complainant submits that the procedure was flawed for the following reasons:

·         The complaint giving rise to the investigation and subsequent disciplinary process was instigated by the CEO, whom the Claimant had believed already dismissed him.

·         The disciplinary process was carried out by a subordinate of the CEO. Further, no documentation submitted or furnished by the Respondent establishes that a decision to dismiss can be made by a subordinate of the complainant.  Such a process is inherently flawed.

·         The Respondent did not have a policy in place for dealing with complaints by the CEO – e.g., that any disciplinary process be undertaken by a member of the Board of Directors, or by an independent person.

Proportionality:

The Complainant submits that the test to be applied whether the sanction was reasonable was set out by the Employment Appeals Tribunal in Noritake (Ireland) Limited -v- Kenna (UD88/1983) where the Tribunal considered the matter in the light of three questions:

“1. Did the company believe that the employee mis-conducted himself as alleged? If so:

2. Did the company have reasonable grounds to sustain that belief? If so:

3. Was the penalty of dismissal proportionate to the alleged misconduct?”

The Complainant asserts that if the Adjudicating Officer concludes the procedures were fair, the decision to dismiss was so lacking in proportionality that it was unfair. 

The Complainant refers to  Redmond on Dismissal (3rd edition - 2017) where it deals with the proportionality as follows:

“[13.32] In Bunyan v United Dominions Trust [[1982] ILRM 404 at 413] the Irish EAT endorsed the view that:

‘“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.” [[1978] IRLR 225 (EAT)] The Tribunal therefore does not decide the question whether, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.’

The Labour Court, recently citing Bunyan with approval, has confirmed the applicability of the British Leyland test. [See for example O’Brien v Dunnes Stores Limited UDD1714 (7 April 2017), Labour Court; Morey v Dromina Community Playgroup UDD1715 (7 April 2017), Labour Court.] It is important to emphasise, however, that the British Leyland test does not immunise an employer from scrutiny by the Workplace Relations Commission or the Labour Court: such a result would clearly be to set the protections in the Unfair Dismissals Acts at nought. Thus it has been judicially emphasised that ‘the band is not infinitely wide’. [Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677 per Bean LJ at [61].]  As the Labour Court has again recently confirmed:

‘If the decision to dismiss was not with the range of reasonable responses then there cannot be substantial grounds justifying the dismissal.’ [Morey v Dromina Community Playgroup UDD1715 (Labour Court, 7 April 2017). See also the 2017 determination of the EAT in Dudoit v Boyne Valley T/A Boyne Valley Group (UD737/2015) where the EAT held that dismissal ‘was a disproportionate response and should have been dealt with, at least initially, in a more low-key and constructive way’.]

[13.33] The temptation to substitute the adjudicating body’s own view for that of the employer must, however, be resisted as seen, for instance, in McGee v Beamount Hospital [McGee v Beamount Hospital UD 136/1984. See, too, Curley v Texaco (Ire) Ltd UD 829/1986] where the EAT sought to ask whether a sanction less far-reaching than dismissal might not have been more appropriate, but it recalled that:

‘the task of the Tribunal is not to consider what sanctions the Tribunal might impose, but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses.’

[13.34] Similarly, the Circuit Court (which previously enjoyed a de novo appellate function on appeal from the Employment Appeals Tribunal) affirmed that it is not within its power to interfere in any way with the employer’s decision by reducing it to, or substituting for it, some more lenient measure of discipline, such as a period of suspension:

‘If, in all the circumstances, there are substantial grounds to justify the dismissal then the decision of management to that effect is not to be subjected to interference from the Tribunal nor from this Court on appeal. The policy of the [Unfair Dismissals] Act is, as I read it, that if the dismissal is not an excessive or otherwise unjustifiable remedy on the part of the employer in all the circumstances, then it must stand.’ [Kelly v CIÉ (11 February 1985) CC (Judge Clarke). For detailed judicial examination of an example of a case where dismissal was held not appropriate see Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241. For analysis see Boughton, ‘Holding Suspensions, Policies, and Remedies in Unfair Dismissal—Bank of Ireland v Reilly’ (2015) 12 IELJ 72.] [13.35]

The Complainant argues that in the circumstances described above it is submitted that the decision to dismiss cannot be said to be in any way proportional.

CA-00040576-002 Discrimination - Failure to provide reasonable accommodation:

Summary of the Complainant’s Submission.

 The Respondent did not reasonably accommodate him for his disability contrary to the Employment Equality Acts 1998-2015.  

The Complainant stated in his job application interview that he  advised the Respondent that he was asthmatic.   Asthma is a disability within the meaning of the Employment Equality Acts Section 2 to of the Employment Equality Acts defines;

“ 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.

 At the time of his dismissal, the Respondent was fully aware of the Complainant’s asthmatic condition. The Respondent did not challenge that fact at any time, or any way seek to have the Complainant medically assessed or examined.

On 25 April 2020, the Complainant reminded the CEO of the Respondent company that he was asthmatic, and in the context of the rapidly escalating and evolving global and domestic pandemic, the Complainant who had been working from home on a laptop provided by his employer for that purpose, was not prepared to place himself, a vulnerable person, at significant risk of contracting Covid-19.

The Complainant is obliged by law, under the Safety Health and Welfare at Work Act, 2005, and was under a duty not to expose himself to risk of injury or illness at work as provided for in Section 13:

— (1) An employee shall, while at work— (a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee's acts or omissions at work.

The Complainant openly requested whether he could continue, having done so for the proceeding weeks, to work from home, or even call in sick. The CEO ’s response was that the Complainant either attend the physical workplace or be dismissed.  The Complainant’s request that he be permitted to work from home at a time of increasing global and domestic pandemic and given his confirmed disability, constituted a clear request for reasonable accommodation of his employer within the meaning of the Acts.  The Respondent failed to engage in any way whatsoever, to consider the genuine and urgent need of the Complainant, his disability, and his repeatedly stated desire to remain in employment.

The Complainant had conducted his work without issue for many years with the Respondent and had in the preceding weeks been furnished with a laptop to facilitate his work from home, and which he had done to the knowledge of the Respondent without issue raised. The Respondent was obliged under s 16 of the Employment Equality Act, 1998 as amended, to take reasonable measure to enable a person who has a disability to have access to employment.

In circumstances where the Respondent had previously provided the Complainant with a laptop for working at home, and for a sustained preceding period had permitted the Claimant to do so, there cannot be any justification for the Respondent’s failure to provide the Complainant with reasonable accommodation.

 As can be seen from the various meetings, notes and documentation, the Complainant has repeatedly advised and reminded the Respondent of his diagnosed disability. At no time whatsoever, has any process been shown to have been engaged in by the Respondent, whereby any consideration been given to the making of reasonable accommodation or the Complainant’s request to permit him to continue to work from home. Where no consideration of the circumstances and request made took place, a clear breach of the duties of the Employer under s16 of the Act has taken place.

The Complainant contends that the submissions on law are entirely consistent with the judgments of the High Court, Court of Appeal, and the Supreme Court in the case of Nano Nagle School -v- Marie Daly [2015] IEHC 785 2 [2018] IECA 11 3 [2019] IESC 000 19 of 77   No expert assessment took place of either the Complainant, his role, or the workplace. The Respondent did, however, engage the services of expert HR advisors for the purpose of the conduct of a purported “appeal” process. The Respondent was prepared to and did expend resources to ensure the dismissal was maintained on appeal but did not see fit to expend any resources whatsoever in the consideration of whether the Complainant would be reasonably accommodated to permit his access to employment.

The Complainant submits that the failure to provide reasonable accommodation for his disability amounted to discriminatory treatment under the Employment Equality Acts.

CA-00040576-001 UNFAIR DISMISSAL COMPLAINT:

Applicable Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in relevant part, as follows:

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 the 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 the 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 made under statute.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration), provides that:

“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”

In determining whether the dismissal of the Complainant was unfair, the Respondent must show that the procedures adopted by the Respondent that resulted in the decision to dismiss were fair and that the conduct was that of a reasonable employer. Furthermore, I must examine whether the Respondent has discharged the burden that the decision to dismiss the Complainant fell within the range of reasonable responses that a reasonable employer could adopt. 

The band of reasonable responses test was considered by the Irish High Court in Bank of Ireland v Reilly [2015] IEHC 241. In that case Noonan J. highlighted that s.6(7) of the Unfair Dismissals Act 1977 provides that a court may have regard to the reasonableness of the employer's conduct in relation to a dismissal, and stated:

“That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

Procedural Fairness:

The Labour Court in Dunnes Stores and Kati Kipli UDD203 outlined the degree of flexibility afforded to employers when attempting to introduce fair procedures in a disciplinary process. It quoted the following passage from Laffoy J in Shortt v Royal Liver Assurance Limited [2008] IEHC 332.

“As is recognised in Industrial Relations Act 1990, Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No. 117/1996), the principles of natural justice “may require … that the employee concerned be allowed to confront or question witnesses.” (Article 11). That is in line with the authorities, which make it clear that, while an employee who is facing a disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action (per Barrington J. in Mooney v. An Post[1998] 4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v. The Revenue Commissioners (No. 2) [1995] 1 I.R. 55, at p. 76).” The Court continued:

It is clear that in the above passage, Laffoy J was restating the well-established principle that there is a wide degree of flexibility afforded to employers in relation to the manner in which the principles of natural justice are applied in the conduct of disciplinary procedures. For example, it is accepted that where an employee has freely made a clear and unequivocal admission of wrongdoing, the employer is not required to conduct as extensive an investigation into the allegations against the employee as it would in circumstances where employee has, at all times, maintained his innocence (Royal Society for the Protection of Birds v Croucher [1984] ICR 604).

The Complainant in this instance case pointed out the deficiencies of the process in his submission as follows:

·         The complaint giving rise to the investigation and subsequent disciplinary process was instigated by the CEO,

·         The disciplinary process was carried out by a subordinate of the CEO. Further, no documentation submitted or furnished by the Respondent establishes that a decision to dismiss can be made by a subordinate of the complainant.  Such a process is inherently flawed.

·         The Respondent did not have a policy in place for dealing with complaints by the CEO – e.g., that any disciplinary process be undertaken by a member of the Board of Directors, or by an independent person.

The Labour Court in Dunnes Stores stated that “The circumstances of each particular case will determine the particular application of those principles in practice.” What cannot be ignored in this instance is the overarching circumstance of a rapidly developing and everchanging pandemic. The Respondent is a front-line health care provider engaged in vital services for the local community. The very fact that the Respondent was able to organise investigatory, disciplinary and an appeals process, with statements from various witnesses during such a crisis, is laudatory. Fundamentally, I find that the core principles of S.I. 146 of 2000 were adhered to in that the Complainant was fully informed of the charges made against him, he was allowed a right of reply and he was afforded the right to representation. It would have been preferable if the shortcomings as outlined by the Complainant did not occur, but I conclude that such shortcomings were of a technical nature and did not imperil the fairness of the process.  

Proportionality:

I must now examine whether the Respondent has discharged the burden that the decision to dismiss the Complainant fell within the range of reasonable responses that a reasonable employer could adopt. The Complainant in evidence admitted that he was shocked to have been dismissed and instead thought that a lesser sanction, like a suspension, might suffice. This was, in effect, an acknowledgement by the Complainant of some wrongdoing.  From a factual perspective, there was nothing complicated at issue – the Complainant was not at his designated workplace when vital PPE needed to be dispensed. However, the phone conversation with the CEO on the day in question is telling. I preferred the evidence of the Complainant on the point that the CEO declared him dismissed. I find, on the balance of probabilities, that this indicated a mindset at senior management level, somewhat corroborated by the Service Manager’s evidence in not contemplating a sanction other than dismissal when making the decision, that pointed towards a position of predetermination on the sanction of dismissal. No cognisance was given to the blemish free record of the Complainant nor to his perceived feelings of vulnerability during the pandemic. The exceptionalism of the pandemic works both ways – vulnerable staff members’ perceptions must be considered, even though their actions might unwittingly create critical situations for an employer and clients  

Having taken the foregoing into account, I conclude that the decision to dismiss was a disproportionate one that did not fall within the range of reasonable responses that a reasonable employer would adopt. I find therefore that the Complainant was unfairly dismissed.

Redress:

Section 7 of the Act, in its relevant parts, provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant originally sought reinstatement and/or compensation in the complaint form.  I find that reinstatement is not an option due to onset of time, the fact that the Complainant has acquired a new position and the fact that he contributed to his dismissal in no insignificant way. I am satisfied that compensation is the appropriate redress under the circumstances. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. In the decision of Coad v Eurobase (UD1138/2013) the Tribunal noted:

 “In calculating the level of compensation the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

The position in Coad clearly sets out the obligation of complainants to mitigate their loss. I note in this case that the Complainant did not try to mitigate his loss in the initial months from June 2020 to October 2020 and in a subsequent four-month period due to a diagnosis of anxiety and depression. There is an obligation to actively do so, and I am satisfied that the overall efforts of the Complainant to find alternative employment were somewhat feeble, albeit during a pandemic, although he eventually found employment in April 2021 when the pandemic was still widespread.

Having taken the foregoing into account, I find that the loss of the Complainant to be six months’ pay which equates to approximately €11,000 of a net loss. I find also that there was an aspect of contribution by the Complainant towards his dismissal which I estimate to be 20%. I order that the Respondent pay the Complainant the compensatory sum of €8,800 which I find is just and equitable having regard to all the circumstances.

CA-00040576-002 Discrimination - Failure to provide reasonable accommodation:

The Relevant Legislation:

Section 2(1) of the Employment Equality Acts 1998-2015 (hereinafter “the Acts”) defines “disability” as:

( 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.

Section 6 of the Acts  define discrimination as follows:

(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—

…(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”)…

Section 16 (3) of the Acts sets out the employer’s obligation with regard to providing reasonable accommodation to employees with a disability as follows:

(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.

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

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

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

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

The Complainant must therefore first establish a prima facie case of discrimination, comprised of two elements as follows: (1) he has a disability and (2) he was subject to discriminatory treatment. The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act i.e., that he has a disability, is not enough in itself to establish a claim of discrimination. As per Graham Anthony above, the Complainant must adduce further facts from which it may be inferred on the balance of probabilities that he was not afforded reasonable accommodation, in this instance, as claimed.

It stands to reason that if a person who has a disability is seeking reasonable accommodation as described under section 2 of the Act, he/she must ensure in the first place that the employer expected to reasonably accommodate the employee must be aware of the nature of the disability. It was not disputed that the Complainant has asthma and medical evidence was submitted to that effect. However, it is significant that the Complainant in evidence accepted that the grade of his asthma did not impair him at work, nor did he ever experience an asthmatic attack whilst at work.  

The Complainant in evidence said that he had told the Respondent that he had asthma at his original interview. He was unsure of the date but suggested that it could have been the end of 2016 prior to taking up full time employment in January 2017. He wasn’t clear about whom he told this to at the interview but stated that it was as an answer to a query. The Respondent did not produce the persons who may have attended to give countervailing evidence, but the CEO stated that there was no record of the Complainant having declared a disability I was not convinced by the evidence of the Complainant on this point.  He came across as somewhat vague when further accuracy was required. Furthermore, clear evidence was given by himself that he had not mentioned to any colleague or member of management in the following three-and-a-half-year period that he had asthma or that he needed reasonable accommodation, save when he was questioned as to why he was not at work on 25 April 2020.

Further evidence was given by the Complainant that he experienced Covid like symptoms in March 2020 when the pandemic was reaching its height. The Complainant testified that he told management and was advised to self-isolate. Significantly, he said that he considered himself to be a vulnerable person on account of his disability but did not disclose this fact to the Respondent at this time. The Complainant described himself as a ‘closed off person’ who was reticent to disclose personal details about himself to work colleagues.

The Complainant points to the happenings of 25 April 2020 where he disclosed to the CEO that he had asthma and where he argues that this disclosure should have led to further enquiry and accommodation. I am satisfied that for the relevant purposes of this case, this latter date was the date of disclosure of his disability to the Respondent.  Medical certification as to his condition and vulnerability was supplied on 5 May 2020, during an investigatory/disciplinary procedure for not attending at his place of work.

 It is clear from the evidence that the Complainant refused to work on the 26 April from the office. He cited three proposals which he put to the CEO- (1) he would be given a day’s holiday, (2) he could take a sick day or (3) alternative cover could be provided by the Respondent. Such an interaction could never be described as requesting reasonable accommodation that could reasonably be seen to fall within the spirit of section 16 of the Acts. Furthermore, medical certification of disability was only provided after the material events of 25 April.  

There was no dispute that the Complainant had a disability by way of being an asthmatic. However, I am satisfied, for the reasons outlined above, that the Complainant did not notify the Respondent at the relevant time that he did have a disability. I am satisfied, therefore, but he did not adduce further facts from which it may be inferred on the balance of probabilities that he was not afforded reasonable accommodation.

I find that the Complainant did not discharge the initial burden of proof as required under section 85A, that he was denied reasonable accommodation in breach of section 16 of the Acts.  Therefore, I find that he was not discriminated against by the Respondent. 

CA-00040576-001 UNFAIR DISMISSAL COMPLAINT:

For the reasons outlined above, I find that the Complainant was unfairly dismissed, and I order that the Respondent pay the Complainant the compensatory sum of €8,800 which I find is just and equitable having regard to all the circumstances.

CA-00040576-002 DISCRIMINATION:

For the reasons outlined above, I find that the Complainant did not discharge the initial burden of proof as required under section 85A of the Employment Equality Acts 1998-2015, that he was denied reasonable accommodation in breach of section 16 of the said Acts.  Therefore, I find that he was not discriminated against by the Respondent. 

Unfair Dismissals Act 1977, Employment Equality Acts 1998-2015, Disability, Reasonable Accommodation.