Complainant

Respondent

Parties

Colin McArdle

Adapt Engineering Limited

Representatives

J. Murray BL instructed by Caoimhe Connolly, Moran & Ryan Solicitors

K. D’Arcy BL instructed by Gavan Mackay, Mackay Solicitors

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-00038539-001

06/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042731-001

26/02/2021

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

CA-00042731-002

26/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00042731-003

26/02/2021

The issues in contention concern an Engineer and his alleged Unfair (Constructive) Dismissal allied to a Payment of Wagescomplaint,a Penalisation under the Safety, Health & Welfare at Work Act, 2005 and linked Employment Equality Act,1998 complaints of Discrimination on grounds of a Disability, Victimisation,Failure to provide Reasonable Accommodation, Conditions of Employment and Harassment.

The key allegation of Discrimination concerned the alleged refusal of the Respondent Employer to allow the Complainant work from Home and the alleged insistence that he physically attend the Respondent Premises.

The Complainant was an Organ Transplant recipient.

The Respondent Employer was a specialist Engineering company in the Medical Devices field.

The employment commenced on the 01/11/2016 and ended on the 02/09/2020. The rate of pay was stated to be a Gross of € 68,000 per annum for a 39-hour week.

The Hearing took three days. Extensive Written and Oral evidence was submitted and fully cross examined by Mr. Murray BL and Mr. D’Arcy BL for the Complainant and Respondent respectively.

1:1        The Complainant furnished a detailed written submission and gave an extensive Oral Testimony. He was supported by oral evidence from Mr. McG, a former colleague. Both witnesses were extensively cross examined by Mr. D’Arcy BL for the Respondent.

Evidence was not, realistically, given separately, for each Complaint but using the Complaint Numbers as a guide the evidence can be summarised as follows.

A key factor that has to be noted was the fact that the Complainant was a Transplant recipient.

1:1:1       CA: - 00038539-001 Employment Equality Act complaints of Discrimination on grounds of a Disability, Victimisation, Failure to provide Reasonable Accommodation, Conditions of Employment and Harassment.

The Complainant is an Organ Transplant recipient. This a well-accepted Disability under the 1998 Act.

The outbreak of Covid 19 and the Government response in March 2020 resulted in the Complainant working from home since on or about the 16th of March 2020. As an Organ Transplant Recipient (for convenience abbreviated to an OTR) he was in a particularly high-risk category as regards a Covid infection. Detailed HSE/Government papers on this area were exhibited.

 Nothing transpired until an email of the 27th of May 2020 from Mr. McG, the Complainant’s Manager, requesting details of the Complainant’s plans to physically return to work in the Respondent premises. The Respondent, Mr. McG, asked for details from the Complainant as to what physical changes would need to made to the Offices to facilitate the Complainant Exchanges of correspondence followed.

On the 10th of June 2020, Mr. R, the Company Owner, became involved and sent an email that was confrontational in tone and pointed out that the Complainant was the only employee not physically attending the offices on a regular basis. Medical evidence was requested. A critical letter from the Complainant’s GP was supplied – Dr W, dated the 12th of June 2020 which strongly advised the Complainant to work from home in view of his vulnerability as an OTR.

Exchanges, with Mr. McG, followed regarding a Covid Compliance Plan for the Offices especially regarding interactions with Shop Floor Machinists. On the 25th of June 2020 the Complainant attended a client meeting in the offices and spoke to Mr R, the Owner. Mr. R made it clear that, without any ambiguity, he wanted the Complainant physically back into the Offices. This was despite all the medical advice/Government/HSE advice etc regarding OTR patients and the need to minimise all contacts. A lengthy E mail from Mr. McG was received on the 26th of June effectively repeating the request to return to the offices.

The Complainant had to take Sick leave due to Stress from the 29th of June to the 10th of July 2020.

The Complainant’s Solicitor wrote to the Respondent on the 30th of June setting out the situation in detail and pointing out the failure of the Respondent to provide “Reasonable Accommodation” and making various positive suggestions but primarily that the Complainant be allowed where possible “work from home”. Various exchanges with the Respondent Solicitor followed. However, the Respondent again unambiguously demanded that the Complainant physically return to the offices. Respondent Solicitor of the 3rd and 10th of July set out the view that the Business needed the Complainant to be at work. On the 13th of July 2020 the Complainant made a formal complaint of Bullying and Harassment.  The Respondent subsequently appointed an independent investigator, Clifford Learning, Mr. Henshaw, but the process came to naught as the Investigator never met with the Complainant. Correspondence was exchanged with the Complainant’s Legal representatives but scheduling issues / annual leave, made any meetings difficult.

An issue then rose with a software licence – SolidWorks -that was essential to the Complainant. The licence was effectively withdrawn from the Complainant making it almost impossible to work from home. This was clearly Victimisation of the Complainant.

Further correspondence followed and by e mail of the 17th of July 2020 Mr. R wrote to the Complainant giving a “Final chance” to return to work by Monday the 20th July 2020.

At this time the Complainant was due to begin Annual Leave for two weeks from the 31st of July – to get married. The Respondent refused to sanction this leave and maintained that it had never been properly applied for. This was a nonsense as it had been agreed as early as January with then Manager, Mr. H. Again, this was a clear case of Victimisation of the Complainant.

The Respondent then ceased payment (by e mail of 4th August) of Salary to the Complainant. Further e mail exchanges followed between the Solicitors for both Parties. Due to the intolerable approach of the Respondent the Complainant felt that he had no choice but to resign and did so on the 2nd of  September 2020.

In summary the Complainant felt that he had been grossly discriminated against on the ReasonableAccommodation issue. He had been victimised and penalised for taking his principled stance based on his OTR status and treated completely unreasonably in the stopping of his Salary.

In Legal Arguments the Complainant referenced Section 16 of the EE Act,1998 and the Nano Nagle School v Daly case [2019] 3 IR 369 where the correct interpretation of Reasonable Accommodation was set out by the Supreme Court.

1:1:2         Unfair Dismissal complaint CA -00042731-002

 The Unfair Dismissals complaint was supported by reference to the standard legal tests of Unreasonable Behaviour and Breach of Contract. On both headings the Respondent here was incontrovertibly at fault. The case of Berber v Dunnes Stores [2009] IESC 10 was quoted in support.

1:1:3       Payment of Wages CA - 00042731-001

The Payment of Wages claim was also self-evident. The salary of the Complainant had been stopped without any due procedures.

1:1:4         Safety Health and Welfare Act,2005 complaint of Penalisation. CA-00042731-003

The behaviours of the Respondent in withdrawing the software licence and the stopping of salary were clear examples of Penalisation under the Act.

1:1:5       Oral Testimony

In lengthy Oral testimony from the Complainant and his witness, Mr. McG, all the above arguments were set out in substantial detail.

In cross examination from Mr. D’Arcy BL for the Respondent the Complainant resolutely denied that he had adopted a very truculent and “absolutist” manner from the start and had not given the Respondent employer any real chance to address his needs as regards Reasonable Accommodation. Mr D’Arcy challenged the Complainant on the status of being “Disabled” as required by the EE Act.1998 by virtue of being an ODR. A heated exchange took place. The Complainant referred to HSE/Govt Guideline regarding the extreme vulnerability of ODR in the Covid pandemic.

As regards the evidence of Mr. McG, Mr D’Arcy BL noted that the Complainant witness had been a key Respondent Manager at the time of the case but had since left the employment in a contested situation. Accordingly, his evidence would have to be seen as open to some questioning. The area of the involvement of Mr Bolger of ESA and Mr. Henshaw of the HR Consultancy (both Respondent Witnesses) was discussed in this light with Mr McG.

1:2       Conclusion

Mr Murray BL for the Complainant summarised that this was a clear case of discrimination under the EE Act of 1998 as regards Reasonable Accommodation. He had a clear and accepted Disability which was effectively ignored, was subject to Victimisation and totally unreasonable Behaviours & Breach of Contract by the Respondent. His Constructive Resignation was completely understandable.

2:1        The Respondent furnished a detailed written submission and the Owner /Chief Executive, Mr. R, gave an extensive Oral Testimony. He was supported by oral evidence from Mr. Bolger of ESA Consultants and Mr. Henshaw of Clifford Learning -HR Consultants. All witnesses were extensively cross examined by Mr. Murray BL for the Complainant.

Evidence was not, realistically given separately, for each Complaint but using the Complaint Numbers as a guide the evidence can be summarised as follows.

2:1:1       CA: - 00038539-001 Employment Equality Act complaints of Discrimination on grounds of a Disability, Victimisation, Failure to provide Reasonable Accommodation, Conditions of Employment and Harassment.

The Respondent is a small very specialist Engineering Company operating in the Health Care/ Pharmaceutical Sector. They make bespoke specialist Manufacturing machinery for the large pharmaceutical companies. The Complainant was a Senior Engineer centrally and critically involved in designing and overseeing very complex machine manufacture.

As part of the Health Sector the Company was permitted to remain open during Covid. The Complainant started working from home at the time of the St. Patrick’s holiday in March. This was initially understood to be a very short-term situation as overall Government / HSE positions were in considerable flux over that weekend. However, it continued. The Respondent soon realised that the nature of their specialist business required the Complainant to be physically at work in the Offices/Manufacturing Plant. It was expressed that the manufacturing/design process could not be done remotely. Drawings needed to be checked and machinists needed to be able to discuss, in real time, with the designer, the intricacies of a design. The effective absence of the Complainant gave rise to numerous production issues/delays. A major project – the INTEGER contract – ran into serious delays and damaging customer negative feedback.

The Respondent made numerous efforts to contact the Complainant, but calls were not being accepted before 11:00 hrs. In frustration the Respondent e mailed the Complainant on the 27th of May 2020 regarding his return to the physical premises and what steps the Respondent needed to take to make the Premises Covid compliant from the Complainant’s point of view. The Complainant did not reply until the 9th of June. Extensive correspondence between the Complainant and Mr. McG, his then Manager, was exhibited. The Respondent characterised the approach of the Complainant as “absolutist” and having no regard to the welfare of the Company. There was no doubt that the Complainant was an ODR, but the Respondent view was that this was not a complete “Stay at Home” scenario. Allegations of “Hanging up on calls” were exchanged to demonstrate the alleged unreasonable approach of the Complainant.

The Owner/Chief Executive was over 70 years of age and had a history of Heart problems. He was coming into the Premises daily despite being technically also at “High Risk”.

Various Covid compliance scenarios were proposed to the Complainant (special office spaces, mandatory face coverings for all staff likely to be in contact etc,) to no avail. Respondent photographs of proposed arrangements were exhibited.

The Complainant did attend the office briefly on the 25th of June 2020. He had a very short conversation with Mr. R and the question of his return to the offices was discussed. It was not a good exchange. Shortly afterwards the Complainant went on Stress Sick leave for two weeks. A formal Grievance of Bullying and Harassment was made by the Complainant. This was largely directed at Mr. R.

The Complainant sought two weeks Annual Leave – this was refused as it had not been properly applied for.

Exchanges of correspondence began between respective Solicitors – as set out in the Complainant statement. As the Complainant was not coming into the Premises, as required in his contract of employment, payment of Salary was stopped for August. It was a clear case of Frustration of Contract by the Employee.

As regards the Discrimination complaint this was resolutely denied- the specialist business of the Company required the physical presence of the Complainant in the offices. Various scenarios were proposed but to no avail. There was no Discrimination as understood by the 1998 EE Act

The Respondent felt that the Complainant was simply being obstructive and using his ODR status to his own very personal advantage to the detriment of the Company. Reasonable Accommodation was possible, but this required the cooperation of the Complainant which was never forthcoming. The withdrawal of the Solidworks software from the Complainant was perfectly reasonable as it was never envisaged to be the basis of a remote working scenario. It was not a Penalisation. Likewise, the Annual Leave refusal was a normal HR issue and not linked to any other agendas.

In regard to the Bullying and Harassment complaint of the 13th of July the Respondent had commissioned Clifford Learning -HR Consultants / Mr Henshaw - to investigate and also Mr Bolger of ESA to review the entire situation. The Complainant was very obstructive to both. Mr Henshaw never met the Complainant, despite efforts to do so detailed in correspondence. In default he did not sustain the Bullying and Harassment Complaints. Mr. Bolger of ESA, drawing on his Safety credentials, found the Premises to be Covid compliant to a high standard.

In legal arguments Mr. D’Arcy BL for the Respondent argued that the basic requirement for a Disability / Discrimination complaint is to have a Disability. Being an ODR was not a “disability” to any accepted standard as required by the 1998 EE Act.

As regards the various HSE Documents put forward by the Complainant these were “advisory” in nature – not legally mandatory.  The statement of “Working from Home where possible” could not be made into a “complete ban” on going to the Office. The Advisory Papers were not supported by any Statutory instruments for example. The Complainant had chosen to take an “absolutist” view and was most uncooperative in any reasonable efforts to meet the needs of the Respondent Company.

In overall review, even allowing for the Disability objection, there was no Discrimination as required to sustain an EE Act,1998 claim.  To suggest that the Respondent failed to provide Reasonable Accommodation – effectively allowing the Complainant work completely from home – was not borne out by the evidence. All attempts to reach a suitable arrangement were negated by the Complainant.

In his lengthy Oral testimony, Mr R, the Owner Manager, set out the above points in detail. No “discrimination” tookplace. It was a small very specialist Engineering Company, completely reliant on all staff such as the Complainant. Working Remotely was simply not an option. He found the Complainant very frustrating in his approach and he had displayed complete indifference to the business success or otherwise of the Company.

2:1:2 Unfair Dismissal complaint CA -00042731-002

The Respondent resolutely denied this. They had never been “unreasonable” in their behaviours and the only “breach of contact” had been by the Complainant in his refusal to attend the Respondent premises. The Complainant resigned voluntarily and very shortly afterwards secured a new position. He had quite probably been negotiating with his new employer for a considerable period before hand.

2: 1 :3        Payment of Wages CA - 00042731-001

The Payment of Wages claim was also resolutely denied. The Complainant had clearly broken his contract by his persistent refusal to come to work. Continued payment of salary in this context was not warranted.

2:1:4         Safety Health and Welfare Act,2005 - complaint of Penalisation. CA-00042731-003

The Complaint is of Penalisation. This is completely unsubstantiated and without any foundation. No penalisation as defined in the Act took place.

2:2       Additional Oral testimony from Respondent Witnesses, Mr Bolger of ESA Consultants and Mr. Henshaw of Clifford Learning. Witness evidence from Mr. McG / Respondent observations

Both specialist witnesses corroborated Mr R. They had found it very difficult to have any realistic engagement with the Complainant. Mr. Bolger had inspected the Respondent Premises and found it very Covid compliant. He had discussed the situation with Mr. McGee whom he found to be professional and competent.

As the witnesses had little contact with the Complainant, despite their efforts to contact him, their evidence was somewhat limited. Both had written reports which were submitted. Mr Henshaw had not been able to sustain any Bullying and Harassment allegations. Full cross examination by Mr. Murray BL for the Complainant took place.

A detailed memo of late June that Mr McG, the then Line Manager, had written to Mr R, setting out possible “solutions” was also discussed. In his Oral Testimony on Day two of the Hearings Mr. McG, now appearing for the Complainant, expressed the view that the Complainant “could have worked from home”. Mr. D’Arcy BL observed that this was contrary to all other evidence regarding his views while in employment.

Mr D’Arcy for the Respondent observed that the position of Mr. McG as a Complainant witness as well as being the author of the contested Management Memo offering ideas on possible solutions could possibly require some logical gymnastics on the credibility front especially as regards his allegedly changing views on the “Working from Home” issue.

3:1       As this case has four complaints it will be necessary to deal with them separately.

3:1:1        The primary complaint is the Equality Complaint CA-00038539-001 - Employment Equality Act complaints of Discrimination on grounds of a Disability, Victimisation, Failure to provide Reasonable Accommodation, Conditions of Employment and Harassment.

It is useful to review, at the start, the basic legal situation in this context.

3:1:2 Disability Ground – Legal Position.

It was submitted by the Complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.  

“Disability” is defined in Section 2 of the Acts as meaning –

                “(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”.

The key question is whether or nor being the recipient of an organ transplant with its associated on going medical /medication needs qualifies as a disability. The secondary argument, the questioning of the “absolute right” to only work from home raised by Mr D’Arcy BL for the Respondent is also worthy of comment.

It may be somewhat Jesuitical but much of the case hinged on whether or not Working from Home and the refusal to allow same was discriminatory even if it was accepted that being an ODR was a qualifying disability. Put simply a person may have an accepted disability but does that confer an almost subordinate right to only work in a physical location of your own choosing? Does Reasonable Accommodation allow/ require a joint agreed approach between the Parties?

In this case the Respondent wanted the Complainant to be in location A - the Office while the Complainant was insisting on being in Location B - his home - his interpretation of a “Reasonable Accommodation”. The Respondent felt that this was not feasible due to the nature of the Business. Agreement on this point proved impossible.

 3:1:3     Was there a Qualifying Disability by virtue of being an ODR?

 There is substantial Labour Court precedent in the definition of a Disability. Bolger, Bruton and Kimber I Employment Equality Law 2012 Edition Round Hall refer at Section 7-46 to the purpose of the Acts is to “prohibit discrimination” and not “whether or not a person comes withing the terms of a particular definition”.

Accordingly and following the extensive chain of Precedents quoted by the Authors it is accepted that being an Organ Donor Recipient an ODR is a Disability.

3:1:4       Discrimination on grounds of Disability / Reasonable Accommodation

The next key question in this case is, quite simply, who sets the Terms of a Reasonable Accommodation? What agreement, if any, is required between the Parties?

Reasonable Accommodation is dealt with, primarily, by Section 16 of the EE Act 1998

The Supreme Court in Nano Nagle School v Daly [2019] IESC 63 decided the following concerning the interpretation of Section 16 of the Act, 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.” 

The Supreme Court made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures where needed in a particular case to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden. 

Section 16(4) defines appropriate measures. Appropriate measures are not just physical changes but may include changes in work practices. Each individual case must be assessed by the employer to establish what appropriate measures are required. An employer’s response to assessing what appropriate measures are required is described in Employment Law (Regan 2017) at paragraph 17.277 as follows:

“It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the employee entering into an interactive dialogue with the employer, to search for the right kind of accommodation needed in the overall circumstances of the case. It is a proactive obligation placed on employers.”

Notwithstanding the Legal arguments and Precedents explored above any case has also to be based on its own facts and particular circumstances.

 3:1:4:1         The factual situation.

The Supreme Court referred to the need for “effective and practical measures” to be settled in a “Reasonable Accommodation” scenario.  Regan above refers to an “interactive dialogue” being required.

In this case a number of issues arose in considering what was or was not “Reasonable Accommodation”.

Oral testimony from the Parties was crucial as it conveyed the actual attitudes of the Parties. It was useful in considering the strict formalities of the Legal exchanges between the Solicitors.

Taking key headline issues

The Complainant was working from home from effectively the St. Patrick’s weekend to the end of his employment. He never physically, save for a few very brief visits, actually ever returned to the physical employer premises. Technically speaking this was the Reasonable Accommodation sought although it was, clearly, not the wish of the Respondent.

To take the Supreme Court view we can look at what were the Practical implications of this situation.

The Respondent Md, Mr. R, in his evidence stated that the situation had become almost impossible for the Respondent Engineering Design function. The Company had a major project on hand the INTEGER project and it began to fall seriously behind. This was not all due to the Complainant but his absence for face to face-to-face Design interactions, interpretations of drawings, interaction with Staff actually building the machines was extremely disruptive. The Respondent began to experience financial losses of a substantial nature.

Connection issues /poor Broadband coverage at the Complainant’s home did not help.

In his Oral Testimony and Cross examination, the Complainant gave the impression, despite what was stated in his legal correspondence, that the difficulties of the Respondent were not really his problem. In his evidence he also referred to some staff resources issue /shortages / staff turnover, in the Respondent organisation that were major contributors to the Organisations problems. The Complainant often touched upon the staff shortage in the company and the “job creep” that had become part of his role. He felt that he was now doing a number of jobs outside of and in addition to his Contractual role. The issue of a “Controls” department was discussed.

The immediate Manager, Mr. McG, in his first incarnation as a Company Manager, was clearly very frustrated with the Complainant. Mr. McG gave evidence of efforts to get the Complainant to engage in a Covid Discussion/ Make Plans for a return to work in some form. This never came to pass.

Tellingly he, Mr McG, gave oral evidence on Day Two that he felt that

“There was a solution, but it did not happen” – Oral Testimony from the 10th of January 2022.

However, he did also say that in his view the personal relationship between Mr. R and the Complainant had deteriorated to an almost toxic level by the end of June/early July making any positive progress impossible.  Legal fusillades, while absolutely professionally proper, which began in late June made progress even less likely.

The professionally Independent Witnesses, Mr. Henshaw and Mr. Bolger were quite clear that the Complainant was very difficult to communicate with . Neither had any realistic interactions with him. Mr. Bolger in his Report felt that the Premises was Covid Compliant, but the Parties needed to actively engage to find a solution.

The Adjudication conclusion, having heard all the Oral Testimony and read the written material was that no sensible or practical accommodation over “Reasonable Accommodation” could be arrived at in the atmosphere prevailing form June onwards.

The Complainant, clearly from his Oral testimony notwithstanding the written assurances in his Legal/Written correspondence, had an Absolutist view of the situation of an ODR -it was work from home or nothing. Correspondingly the Respondent MD., Mr. R, under pressure on the INTEGER project front, adopted an inflexible view regarding the need for the Complainant to come to work.

If an outside view is taken that the period from St Patrick’s day to mid-June was a “Trial” of a Covid Reasonable Accommodation the view would have to be that it was not a success.

An issue has to be considered is that of a Disproportionate imposition on an Employer -in this case was the Stay-at-Home approach of the Complainant a Disproportionate burden on the Respondent.

In further considering “Reasonable Accommodation” from an Adjudication standpoint and bearing in mind the Nano Nagel case referred to above the key issue or fundamental principle as identified by the Supreme Court has to be that of Reasonableness. Quoting from the extract above

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.

The vital question now is how is a “Disproportionate Burden” defined. Obviously if extraordinary employer financial expenditure is involved it is clearly Disproportionate.

Section 16(4) of the Act, as referenced by the Supreme Court, give examples of

4) In subsection (3)—

           ‘appropriate measures’, in relation to a person with a disability—

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

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.

In the overwhelming number of cases the argument to justify a Disproportionate Burden has to rest with the Employer. However, the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 at paragraph 89 further commented

The text refers to

“the test is one of reasonableness and proportionality; an employer cannot be under a duty to entirely to redesignate to create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide ,in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether ,in reality, what is sought is an entirely different job. Section 16(1) of the Act refers specifically to “the position” not to an alternative and quite different position”

In the case in hand and from all the evidence, especially the Oral Testimony, it was hard to see the Complainant’s position/job portfolio being successfully delivered on a 100% remote basis. Maintaining an Absolutist position of staying at home regardless was in effect, it could be argued, creating a Disproportionate Burden for the Employer.

The exchanges of correspondence / legal letters, e mail etc between the parties continued during June/July. Realistically nothing was progressed other than increasing levels of frustration on both sides.  The correspondence became quite tendentious in tone and content.

Mr. Bolger of ESA was commissioned by the Respondent in late July to investigate the reasons why the Complainant “was not returning to work”. Mr. Bolger furnished his final report in August 2020. He also gave an Oral Testimony in support. He had been unable to have face to face meeting with the Complainant although a considerable e mail correspondence took place.

Mr. Bolger, following a thorough examination, stated at Section 5 of the Report that

“the demised  property presents no risks to occupiers, visitors ,or passers bye”.

In his Recommendation at Section 7.2 he stated

The Employee should engage with his Employer to arrange a suitable time to meet and where necessary examine the premises and documentation I refer to in 5.0. Where there are minor issues of concern, these should be discussed with a view to the employee retuning to work.”

In his Oral Testimony Mr. Bolger stated quite clearly that the Respondent Premises had Covid Protections to a high Standard and quite frankly there were no realistic obstacles to the Complainant returning to work.

Mr. Bolger’s evidence was important, from an Adjudication point of view, in that it clearly established that there were no physical obstacles to the Complainant returning to the premises. It was noteworthy that Mr Bolger suggested that the Complainant “should engage” with his Employer

 The Investigation by Mr, Henshaw of Clifford Learning, although the subject of correspondence with the Complainants; Solicitors also failed to reach any satisfactory conclusion regarding the Bullying and Harassment complaint.

Further Legal precedent regarding Section 16(3) of the Acts, requires an Employer to have all reasonable medical information to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club.  

In the case of A Health and Fitness Club -v- A Worker the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.

The Respondent Employer was remiss in this case in not commissioning an independent Medical assessment of the Complainant as regards to his position that he had to strictly following Public /HSE guidelines as regards “Cocooning”. The only medical evidence presented was the GP Letter of the 12th of June and reported comments from the Hospital Consultant - both of which recommended working from “home where ever possible.”

However, it was doubtful if a further Medical report would have given a definitive answer to the degree/amount of time ,if any, that an ODR could attend at an office even if the office was “Covid Safe” - if such a Covid scenario was even possible.

3:2         Summary / Reasonable Accommodation / Disproportionate Burden

In final summary from an Adjudication point of view, having reviewed all the written material and the extensive Oral testimony over three days of hearings was that the concept of Reasonable Accommodation, following Nano Nagle and the Supreme Court has to be based on “a basis of reasonableness and proportionality”.

Two competing interests were at play – an ODR with all the legitimate medical issues that are associated with it and the need for a small very specialist Engineering Design Company to have a key Engineer physically present at the workplace .

Reasonable Accommodation cannot be a unilateral concept, rather it has to have a mutuality of agreement between the parties if it is to have any prospects of success.

In this case this proved to be an impossible task, interpersonal relationships between the Complainant and Mr R , the MD, became almost impossible, argumentative legal correspondence, claims of Bullying and Harassment , Stress related Sick leave , refusals of Annual Leave all added to a toxic mix. The absolutist tone of the Complainant, recognised by all witnesses,  could well be seen as contributory to a Disproportionate Burden defence by the Respondent.

None the less the Law, Section 16(1) and 16(3) and the Nano Nagle Supreme Court case essentially places the primary balance on the Respondent Employer to provide a Reasonable Accommodation. However, the Supreme Court has tempered this view with their observations on reasonable behaviour in arriving at practical steps by the Parties.

Accordingly, any Adjudication finding in this case , in favour of the Complainant, has to be seen in the context of the non-co-operative behaviours of the Complainant and any compensation must reflect this.

As regards the additional complaints of Discrimination on grounds of a Disability and Conditions of Employment and Harassment, a similar conclusion has to apply.

As regards Victimisation and Harassment it was not really possible to see direct specific evidence. The removal of the Software and the Return of Computer equipment were upsetting but did not really meet the legal bar as constituting Harassment or Victimisation.

It has to be noted that the issue of the Payment for August is the subject of a linked Payment of Wages Act complaint as is a complaint of Victimisation under the Safety, Health & Welfare at Work Act, 2005.

In this case the final Adjudication finding has to be that the Respondent Employer filed to provide Reasonable Accommodation with serious reservations attached to the approach of the Complainant.

3:3         Unfair Dismissal complaint CA -00042731-002

The key issue in this linked Complaint is that the standard legal terms or Tests of (1) Breach of Contract and (2) unreasonable Behaviours as set out in numerous Legal precedents apply in this case.

SI 146 of 2000 -Statutory Code of Conduct on Grievance and Disciplinary Procedures is a touch stone Legal and Procedural Guide in these cases.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However Legal precedents not withstanding all cases rest on their own evidence and factual background, and we must look at these below. The Template of the Two tests is a useful tool.

 3:3:1         Review of the Evidence / Unfair Dismissal

3:3:1 (a)      Breach of Contract

The normal test here is the failure to pay Salary or Wages especially without any due process or consultation. The Respondent ceased payment of Salary on the 4th of August 2022. While the Complainant was notified of the Wages deductions no disciplinary or HR procedures appear to have been followed. As a Test for Constructive Dismissal, it is clearly in the Complainant’s favour.

3:3:1 (b)       Unreasonable Behaviours.

The Complainant pointed to the actions of the Respondent in refusing Annual Leave which he maintained had been pre booked with Manager Mr B -unfortunately no longer with the company as regards giving evidence. However, the correspondence clearly indicated that the Respondent made the taking of the Leave difficult. The return of the computer equipment and the disputed Software Licence were also cited as “Unreasonable Employer” behaviours.

Nonetheless it was not a one-way street. The Complainant behaviours regarding the Covid situation and issues related to contact /communication difficulties were not helpful to his case. No formal Grievance complaints regarding the non-payment of Wages were lodged. However, as a formal Grievance was already on file this might be excused.

3:3:2:       Summary Adjudication view as regards Constructive Dismissal complaint

On review of all the evidence both written and oral it has to be decided that the claim for Constructive Dismissal is proven but with a major contributory factor attached to the Complainant.

3:4         Payment of Wages CA - 00042731-001

The Payment of Wages for August 2021 was withheld by the Respondent. The reason given being the alleged Non-Attendance of the Complainant at work.

Section 5 of the Payment of Wages Act, 1991

Regulation of certain deductions made and payments received by employers.

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

Clearly in this case and from all the evidence there was a major disagreement in progress between the Parties no agreement or proper notification of a complete wage stoppage was provided to the Complainnat. No opportunity to discuss the Wage stoppage was afforded.

Accordingly, the complaint has to be upheld.

3:5       Safety Health and Welfare Act,2005 - complaint of Penalisation. CA-00042731-003

From all the evidence both Oral and Written it was clear that this element of the overall case had already been comprehensively addressed in both the Employment Equality complaint, the unfair Dismissal complaint and the Payment of Wages Act complaint.

Penalisation is normally an employer action in “retaliation” for a Health and Safety complaint specific to the 2005 Act.

There was no realistic stand-alone evidence to support an independent complaint under the SH&W Act 2005.

Accordingly, this complaint is not upheld.

Equality, Working from Home, Reasonable Accommodation, Victimisation, Constructive Dismissal, Penalistion.