Complainant

Respondent

Parties

Eamon  Murphy

Michael Connolly & Sons Limited Supervalu Supermarket

Complainant

Respondent

Representatives

Ms R Mallon BL instructed by Aisling Murphy  of O'Shea Barry Solicitors

Ms H Barry, Consultant, of Simplify HR.

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-00045336-001

23/07/2021

The issue in contention was alleged Discrimination against the Complainant on the grounds of a Disability, Discriminatory Dismissal and Failure to give Reasonable Accommodation on the grounds of a Disability.

The Complainant was employed a Store Manager by a large Supermarket franchise.

His annual salary was stated to be €70,000 plus a potential bonus of €10,000 for an average 45-hour week.

The employment began on the 19th of September 2005 and ended on the 27th of January 2021.

The Complainant was represented by Ms. R Mallon BL and gave a comprehensive Oral Testimony. The evidence was supported by an extensive Written Submission. Full cross examination of the Complainant took place by Ms. Barry for the Respondent.

It was accepted that the Complainant was an Alcoholic. He had a number of alcoholic related issues culminating in a serious incident at work on the 21st December 2019.  He had been sent home. He saw the Company Doctor, Dr.P, on the 31st December 2019. Dr.P certified him as unwell but on the 13th January 2020 he was declared fit for work. The Complainant was extremely remorseful and undertook to attend at AA with no repeat of the alcoholic incidents. He was seen again by Dr.P on the 17th of September 2020.

Regrettably a further serious Alcoholic incident took place at work on the 24th October 2020. The Complainant had to be assisted home by his colleagues. The Complainant was suspended. He immediately entered the Aiseir residential Alcoholic treatment programme and remained for a 28-day treatment programme.

An investigation meeting with the Respondent too place on the 16th December 2020. The Complainant openly admitted that he had been seriously intoxicated on the 24th October 2020.

He pointed to his successful outcome from the Aiseri programme and was now a “Changed man”.

A Disciplinary Hearing took place on the 18th of January 2021 chaired by Mr Tom Connolly, the MD of the Respondent. Following the Hearing a Dismissal letter was issued on the 25th January 2021.

It was clear that the Complainant was being dismissed and was being refused a Reasonable Accommodation because, simply, he was an Alcoholic. Mr. Murphy, the Complainant appealed this decision by letter of the 4th February 2020.

An Appeal Hearing was held, chaired by Ms. Barry of Simplify HR, on the 10th of February 2020. The Appeal was unsuccessful, and a confirmation Dismissal letter issued on the 17th February 2020. The Appeal did not take his Alcoholism in proper account and all possibilities / Complainant suggestion of Reasonable Accommodation were not considered.

In his Oral Testimony the Complainant, Mr. Murphy, expressed his remorse for what had happened. In December 2019 he had thought that he could resolve his Alcohol issues largely on his own. Dr P, the Company Doctor, was helpful but was not an addiction expert and realistically was of little value. He had made little progress during 2019. He accepted that he had written to the Respondent on the 24th December 2019 effectively giving his word that no incidents would reoccur and if so, the Respondent would be within their rights to dismiss him. However, he was a progressive Alcoholic and the incidents of the 24th October 2020 had to be seen in that light.

He had “hit the wall” with Alcohol which had completely taken over his life. Recognising, for the first time the extent of his problem he had immediately booked into the Aiseir programme. He had become a “changed man” following the programme and in February 2021 was asking the Respondent for another chance in whatever capacity this might be possible.

 He had always been a very efficient and loyal employee and had often been commended by the Respondents for his excellent performance. He completely respected the Respondent Family both personally and professionally.

His dismissal had been devastating for himself and his family. He had to move house and secure a much lower paid position elsewhere. His wife had also to give up her job and move with him.

At this stage, with the passage of time, Compensation, was the only realistic option for him.

In Legal arguments Ms. Mallon Bl referred to An Employer v A Worker ADE/12/64 and Café Kylemore DEC-S/2004/24 . Alcoholism was an accepted Disability.

The Respondent, in this case, made no recognition of the Complainant’s efforts at Aiseri and paid no heed to any consideration of possible Reasonable Accommodation.

The defnce of “Incapability” was not considered by the Respondent. In ay event such a defence would have required, as set out in the Westwood Fitness case EED037, a detailed Independent medical examination to ascertain the Complainant’s true condition or in this case the risk of a relapse.

In plain English the Complainant was dismissed simply because he was an Alcoholic - this was grossly discriminatory.

As regards Reasonable Accommodation, Ms Mallon referred to the Nano Nagle Supreme Court [2019] IESC 63 case and EU Council Directive 2000/78/EC. An employer is under a clear duty to actually consider and assess whether or not a Reasonable Accommodation could render a Complainant capable of doing a job. Nothing of this nature took place here and furthermore there was no independent Medical Examination in this context. Reasonable Accommodation was never considered by the Respondent.

In final summary the Complainant is entitled to relief under the EE Act,1998. He suffered a blatant Discriminatory Dismissal and Discrimination by Failure to Provide Reasonable Accommodation.

The Respondent was represented by Ms Barry and gave oral testimony from a number of witnesses principally by TC, MC, DL and MO’D. A substantial Written submission was also offered in support.

It was accepted that Mr. Murphy, the Complainant was an Alcoholic.

The history of the case was largely as stated by the Complainant. Mr MC , the Operations Manager ,gave an oral testimony.

In December 2019 he had observed the Complainant in a very intoxicated state. On questioning he admitted that he had also been intoxicated on a number of earlier occasions. Mr MC had driven him home. Mr. MC, in view of the excellent previous record of the Complainant, had suspended him on full pay. He, Mr MC, wrote on the 23rd December, to the Complainant setting out the Respondent requirements. The Respondent was anxious to be supportive and no formal Disciplinary or investigative process would be initiated.  He was asked to attend with Dr. Plant, the Company Doctor. The Complainant wrote back on the 24th December a letter of fulsome apology and accepted that if there was a reoccurrence his employment would be in serious jeopardy. He had assured the Respondent that he was taking all the necessary steps with his GP and Professionals to get over his alcoholic addiction. The Respondent had accepted these assurances in good faith. Dr Plant certified him fit to return to work on the 20th January 2020.

Covid 19 hit in March 2020 and the Store was extremely busy. The Complainant appeared to have coped well with the extra burdens of the Covid situation.

On the weekend of the 24th and 25th October 2020 the entire Respondent Family were travelling to a Family / Daughter’s wedding in Kildare. There would be no Family presence in the Store, and it was agreed in advance that the Complainant would have sole and exclusive responsibility for the business that weekend.

Unfortunately, the Complainant had a major alcoholic related incident on the 24th October. He had brought a considerable volume of alcohol to the Store. He had consumed it on the premises, to such an extent that he had become completely unconscious and seriously alarmed his immediate colleagues as to his well-being. He was brought home by his colleagues. In their Testimony the Respondents referred to the old saying “ When the cat is away the mice can play”. In this context the bringing in of a large amount of alcohol by the Complainant was particularly egregious and personally upsetting for the Family Managers who had implicitly trusted him.

Mr MC, the Ops Manager, had a meeting with the Complainant on the evening of the 27th October 2020. He advised Mr MC that he was immediately going into a Residential Asiri course. Mr MC agreed to continue to pay the Complainant’s salary while he was on the Course. The Complainant was deemed fit to return to work on the 7th December 2020. Mr. MC immediately suspended him on full pay while a formal Investigation/Disciplinary process got under way. Simplify HR, HR Consultants,  was tasked with carrying out the process. Ms. O’K was the Investigator. Full procedures were followed, stements taken and provided to the Complainant. Representation was offered but declined. The Investigation report was completed by the 6th January 2021 and provided to the Complainant. It recommended proceeding to the Disciplinary stage. A Disciplinary Hearing was held on the 18th January 2021. Mr.TC, the overall MD of the Respondent, was the Chairman.

A Dismissal decision was communicated to the Complainant by letter of the 25th January 2021. He was dismissed for Gross Misconduct. An Appeal Hearing was held Chaired by Ms Barry of Simplify HR on the 10th February 2021. The Appeal was unsuccessful. Copies of all correspondence were submitted in supporting documentation.

The Oral Testimony of the Respondents was crucial. Mr TC, the overall MD of the Respondent, gave a detailed Testimony. Mr. MC, the Operations manager also gave details of the Complainant’s work and the incidents of the 21st December 2019. Mr TC was a good witness and clearly spoke with considerable personal feeling regarding the Complainant and his situation.

The decision maker was Mr TC. Although recovering from ill health he gave clear evidence. The Respondent business was large Supermarket in a Midlands Town. It was essentially a family run, for a number of generations, franchise from a major chain. In his evidence he emphasised the value that was placed on trust and integrity from all staff. He had always found the Complainant an excellent worker. However, in December 2019 his alcohol problems had come very publicly to the surface. The Company had been very sympathetic and had supported the Complainant in whatever way possible. He had given his word both verbally and in his letter of the 24th December 2019 that he was addressing his alcohol problems. He was cooperating with Dr Plant. The Company, in view of the long relationship, saw no reason but to trust the Complainant.

The weekend of the 24/25 October 2020 was well known in advance as a major Respondent family event. No family Management would be present in the Store for the weekend. The Complainant was entrusted with full responsibility for the Store while the Owners were away.

This was the weekend that the Complainant choose to bring in large quantity of vodka to consume on the premises. On every level, both professional and especially personal to the witness who had known the Complainant for many years, the breach of trust was simply incalculable. From his demeanour and presentation, it was clear that he had been personally very upset by the broken promises of the Complainant who had put the business and the employees, in their view, at significant risk.

The Respondent witness had carefully considered all the arguments made by the Complainant as regards his situation. Two aspects were in his mind -the risk to a large business from an intoxicated Manager and the Personal Breach of Trust that had arisen. He was aware that the Complainant had given an undertaking, at the peril of his employment, in December 2019 never to repeat the Alcohol incidents of that year. However, on balance the breach of trust was the crucial factor. The relationship could not continue. In the absence of trust the risk that the Complainant was posing to the business was too great. Dismissal was a very hard decision to come to but there was no alternative. As regards alternative employments in the Store the Complainant was the Manager and “step down” jobs would never have been possible. The loss of confidence by the remaining staff in management procedures and control/discipline would be immense.

The Appeal Hearing with Ms Barry was comprehensive and covered all the grounds. The Appeal finding touched upon the repeat nature of the offence and again the breach of trust was paramount in the Respondent mind.

Procedurally the Respondent could not be faulted.

In summary the Complainant had been accommodated following the December 2019 incidents. He had been trusted again. The incidents of October 2020 negated all relationships of trust and had place the business at considerable risk.  Dismissal was the only and most regrettable option. Every other employer would have done the same.

3:1        The Legal position – The Employment Equality Act,1998 and Background Discussion.

Key issues

Disability Discrimination, Failure to provide Reasonable Accommodation, Discriminatory Dismissal,

Common Law - Breach of Trust defence.

3:1:1       Preliminary Legal issues

The Employment Equality Act,1998 together with referenced European Directives sets out clearly, in the numerus sections quoted in the lengthy written submissions of the Parties, the requirements of a Disability Discrimination case.

In essence Discrimination take place when an employee is treated “less favourably than another employee” who does not have the same or another Disability.

The first requirement is to establish whether or not an employee actually has a “disability”.

In this case there was little dispute over facts.

It was accepted by all sides that the Complainant was an Alcoholic which is a well-recognised Disability.

Accordingly, a claim for Disability Discrimination can be made.

It follows from the Disability status that there is then a requirement on an employer to “Make a Reasonable Accommodation” to allow the worker to perform his duties, disability notwithstanding, to the best of his efforts.

Section 16 of the Act sets out these requirements, including a possible employer defence, in detail. Section 16(3) allows an Employer to plead that “Reasonable Accommodation” would be an unduly onerous burden, either Operationally or Financially.

In the written pleadings and oral testimony from the Respondent witnesses these issues were never really discussed save for a view that as the Complainant was the Store Manager, a most senior role, giving him a lessor role or imposing a regime of very regular alcohol blood tests or such like would simply not be realistic or workable. To a reasonable observer and particularly if the case was under the UD Act,1977 this argument would have merit.

However, and as repeatedly pointed out by the Complainant’s Counsel, Ms Mallon, this case was not under that Act but was a case of an employee with a Disability being discriminated against.

The Legal precedents regarding the role of an Adjudicator or Third-Party tribunal have also to be noted. The role of the Adjudicator is not to suggest or impose a decision based on their own views but rather to ensure that Natural Justice is observed, and any Employer decisions are within the “Band of Reasonableness” for the Industry generally.

3:1:2      Background issues.

Legal issues not withstanding all Cases must be seen in their own context and situation. This was particularly the situation in this case.

In this context the Oral Testimony from the Respondent MD, Mr TC, was central. He gave a clear view of his thinking. The Complainant had a serious Alcohol incident in December 2019. It had transpired that this was only one of many in 2019. The Company, essentially Mr TC, had allowed, considering his previous high regard for the Complainant, a considerable degree of latitude. No disciplinary action was taken and the services of Dr Plant, the Company Doctor, were made available.  The Complainant had written on the 24th of December 2019 a most fulsome apology and recognised that a repeat incident would be most injurious to his continued employment. He had undertaken to avail of necessary Alcoholic treatments etc. Mr TC and his son Mr MC had accepted the good faith of the Complainant and let matters rest.

Mr TC had then experienced a bout of most serious life-threatening ill health which had in all likelihood distracted the Family Managers. Covid 19 was also rampant at the time with all the accompanying pressures for a major Retail Store.

The Family had some good personal news as in October (weekend of the 24/25) their Daughter/Sister was getting married in Co. Kildare. All the family would be travelling to Kildare and the Store would be solely in the care of the Complainant. This was a major testament to the Trust they placed in the Complainant.

However, this was the weekend that the Complainant, by his own admission, chose to bring into the Store a considerable quantity of alcohol and proceeded to consume it on the premises until he became comatose. As Store Manager, with all the responsibilities attached, this, to any reasonable observer this was a catastrophic breach of trust that would render any future employment relationship very difficult if not impossible.

It is against this situation that we have to see the Employment Equality complaint. It is context but the requirements of the Employment Equality Act,1998 are paramount.

3:1:3       The Discrimination claim

On the basic facts the case is straightforward. The Complainant had a Disability. The Respondent Employer did not properly consider a Reasonable Accommodation in the belief that such a scenario would be impossible for a former Store Manager. Whether or not this was the case, it was never realistically discussed with the Complainant. Section 16 of the Act refers.

As Ms Mallon BL correctly pointed out for the Complainant no Independent Medical or Addiction advice was sought to review the Complainant and his likely prospects of Alcoholic incidents re occurring. The Westwood Sports and Leisure Club EED037 case, cited by Ms. Mallon BL, is the headline case here.

The Respondents placed considerable emphasis on the “Risk” factor such a return-to-work prospect posed. However, in the absence of Independent Medical /Addiction advice it has to be seen as simply speculation on the Respondent behalf.

On both grounds, Disability Discrimination & Reasonable Accommodation, the case for Discrimination has, at first glance, to succeed.

To what extent do the Respondents have any realistic defence based on the Breach of Trust argument is the next question.

3:1:4        Respondent Defence & The Breach of Trust Argument. Section 16 of the EE Act,1988

It is first important to note again the point made by the Complainant Counsel, Ms Mallon, that this case was brought and was being defended under the Employment Equality Act,1998. Accordingly, any reliance on case law/precedent from complaints under the Unfair Dismissals Act,1977 must be treated with caution. The parties, in this light, disputed the relevance of UDD1710 - IAA v Reddin cited by the Respondents Counsel, Ms. Barry, which was focused on an Unfair Dismissal case involving Alcohol addiction.

Ms. Barry for the Respondent’s argued that UD Act,1977 cases established “persuasive” arguments.

For interest in the Reddin case the Complainant was an Air Traffic Controller, and the “Risk” factor was accordingly much higher than in a Retail environment like the case in hand. The Labour Court did however state

“The Court is of the view that generally speaking when dealing with an employee who has an alcohol dependency problem, employers should give such employee an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account when deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take”

However, this case is under the EE Act ,1998 and Section 16 has to be our focus. Relevant extracts are quoted below.

Nature and extent of employer’s obligations in certain cases.

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

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

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

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

‘‘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;

Sub section 1 (b) states

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

In this case the Respondent did not believe that the Complainant was, because of his Alcohol problems “fully competent and available” to undertake the duties of a major Supermarket Manager. None of the Appeal / Return to Work suggestions made by the Complainant were deemed to be viable.  In was the view that Supermarket Managers do not return to work, in much reduced or restricted capacities following an addiction issue of the grievous nature displayed on the 24th October 2020.  Their Managerial standing and status with the other employees are simply gone.

However, and as already stated no Respondent efforts were made to, for example, seek the views of the Asiri Counselling/Addiction service as to the reoccurrence risks from the Complainant and how these issues might be addressed.

Furthermore, the Complainant’s supporting references to European Directives and in particular to the Nano Nagle Irish Supreme Court case [2019] IESC 63 in relation to Reasonable Accommodation had to be very telling in support of their case.

3:1:4:1 Breach of Trust Arguments. / The alleged Discriminatory Dismissal.

In Section 15-110 “Action for Breach of Contract” of Employment Equality Law (by Bolger, Bruton and Kimber, 2012 edition Round Hall Press) the issue of the interplay of the Common Law and Equality Law is touched upon. The Authors state that this area “remained largely unexplored”. The Authors were looking at the issue from a predominantly employee perspective, but the employer perspective would apply equally.

Legal precedent would indicate that a Breach of Trust in an Employment Contract is primarily a matter for the Unfair Dismissal Act,1977 and or the Civil Courts.

Unless and until tested in a Higher Court Breach of Contract or Breach of Trust, as argued in this casecannot stand as an effective Employer defence in an Equality Discrimination Dismissal case.

3:2         Summary Conclusions.

This case was under the EE Act,1998.

For the reasons discussed above, the Respondent Employer is found to be in breach of Section 77 as Regards Discriminatory Dismissal and Section 16 as regards Reasonable Accommodation.

Alcoholic ,Disability Discrimination. Reasonable Accommodation, Employment Equality Act,1998.