Complainant

Respondent

Parties

John  Conroy

Atlantic Troy Limited

Representatives

Not represented

David Gaffney  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-00050985-002

03/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00050985-003

       03/06/2022

The complainant was employed as a Conference and Events Porter from 7th January 2022. On 29th April 2022 he attended a meeting with his supervisor which was held to discuss how he was getting on in his post. He attended a further meeting on 27th May 2022, where he was informed that he had not passed his probation and his employment was to be terminated on this date.

On 3rd June 2022 and 25th September 2022, the Workplace Relations Commission received a referral of the issues from the complainant. The relevant complaints to be decided on under the Employment Equality Acts 1998-2021 are discrimination on disability grounds, not being afforded reasonable accommodation, and dismissal on grounds of disability. 

The complainant gave evidence that he worked mainly as a porter with some hours in the bar. He thought he was getting on well in his job. He gave a description of the type of work he carried out in arranging meeting rooms for guests of the hotel and working occasionally in the bar. His supervisor commented on one occasion that he was too slow hoovering the floor. He outlined that he did not accept that he was too slow as he had sufficient time during his shift to ensure that all tasks were undertaken in a thorough manner. He outlined that he was very conscious of hygiene and cleaning and would ensure that everything was thoroughly cleaned. He was diligent in cleaning all glasses and cutlery to prevent any cross contamination.

He attended two meetings with management on 29th April 2022 and 27th May 2022. He was informed at the 2nd meeting on 27th May 2022 that he did not pass his probation and that his employment was being terminated. He said he only received a note of the termination meeting on 30th June 2022 which was a month after his employment was terminated.

He acknowledged in evidence that he raised a difficulty understanding the events board but denied that he was requested to interact more with guests and meeting organisers. He questioned the validity of the delayed note of the meeting confirming his termination. He also questioned the reason given for not passing his probation in the note of 30th June 2022. He stated that his impression was that hotel management were looking for someone to work faster in setting up and clearing meeting rooms.

He outlined that he did not receive advance formal notice of the meeting on 27th May 2022 and was not afforded the right to be accompanied at this meeting. He was aware that his work colleague was in discussions with hotel management prior to his meeting and that he presumed that this was to gather criticism of his work. He questioned the validity of the reason given for not passing his probation which included the speed of carrying out his duties. He outlined that he preferred to use the lift due a strain on his legs which arose from his regular hobby of running which he was advised by his doctor would assist in relieving his stress.

He gave evidence that he had never disclosed a disability although he expected that management should have been aware of his needs and that he had requested training on manual handling. He confirmed that it was at the end of the termination meeting on 27th May 2022 that he raised his disability. He felt that after this disclosure there was still time for hotel management to take pro-active steps to facilitate his continued employment, and even assign him to an alternative role.

He was informed that although his employment was being terminated on 27th May 2022 that he could work out his shift. He decided to go home after a brief exchange with his supervisor that he would take a case against the hotel on disability grounds.

The complainant was cross examined on a health status form which he completed on 8th March 2022. This form did not identify a disability. He was questioned on the late disclosure of a disability after the decision to terminate his employment. He was questioned on the exact nature of his disability and why he had not raised any issues within the employment, particularly when he had signed a document that he was aware of the company procedures.  

The respondent representative confirmed the sequence of events at the termination meeting of 27th May 2022, in relation to the late disclosure of his disability. The respondent agreed that it was only after the decision to terminate his employment that the complainant stated that he had a disability.  It was also outlined that this was a general statement by the complainant with no specifics as to the nature of his disability. It was denied that the decision to terminate his employment was in any way related to his disability particularly as there was no awareness of this within the employment. The respondent did not put the witness present into evidence, so no evidence was given under Oath by the respondent.

CA-00050985-002

Discrimination on Disability Ground

Discrimination for the purposes of this Act. 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where-

• (a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) ……

(b)……

(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”).

Finding on Discrimination

It is clear from the submissions made in evidence that the respondent was unaware of the complainant’s disability. The complainant’s evidence confirmed that a disability was only disclosed after the decision to terminate his employment during the probationary period.

Section, 85A, of the Employment Equality Acts 1998 – 2021 states:

“85A – (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.”

The effect of s.85A above is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  The responsibility is on the complainant to show primary facts that there is “prima facie” evidence that he has been discriminated against because of his disability.

In Mitchell v Southern Health [2001] ELR 201, the ‘Mitchell’ test set out that a standard must be reached before a fact in issue can be accepted as proved. This was re-enforced by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, when commenting on the nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The complainant outlined in detail the circumstances under which his employment was terminated. He got no advance notice of the nature of the ‘termination meeting’ nor was he allowed adequate notice so that he could be accompanied. Despite outlining in detail how he carried out his work, the complainant’s evidence lacked details of specific instances or occasions of alleged discriminated on disability grounds. Due to the absence of specific instances to ground a ‘prima facie’ case, the complainant has not shifted the burden of proof onto the respondent. The lack of awareness of a disability within the employment (until after the decision to terminate was made) combined with a lack of specific instances of discrimination is not sufficient to shift the onus onto the respondent.

I find that the complaint of discrimination on disability grounds is not well founded.

CA-00050985-002

Reasonable Accommodation

Section 16 sets out the law in this area as below.

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

Subsection (1) of s.16 provides: -

(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.

Subsection (3) provides: -

( 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. 

 Subsection (4) provides: -

(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; 

Finding on Reasonable Accommodation

I accept and find that the complainant did have a disability as defined within the ambit of the Act. The complainant asserted in evidence that it was not too late after the decision to terminate for the employer to provide reasonable accommodation or even to offer an alternative post. It is regrettable for the complainant that the respondence was not on notice of his disability as his expectations to be accommodated should really have occurred during his period of employment and before a decision was made on his probation. By the time the respondent had been informed of a disability, a decision had already been made that he had not passed his probation, so it was a big ask that the respondent was being asked to set the clock back to zero.

As the respondent was not on notice of his disability (as confirmed by the complainant in evidence), there was no onus on the respondent to provide reasonable accommodation. The onus was on the complainant to outline his needs which may have assisted him during his employment. This would have also triggered the possibility of obtaining occupational medical advice as to what the complainant’s requirements actually were.

Regrettably, the complainant did not update or inform the respondent of the onset of his disability. The respondent in these circumstances could not have been expected to identify or be aware of a disability without being informed. To the contrary, the respondent had records of a clear health status confirmed by the complainant when he completed the form on 8th March 2022.

I accept the complainant’s evidence that this form was completed in good faith. He provided evidence that his knee problem had deteriorated only recently, and he had a copy of his consultant appointment scheduled for July 2022. It is regrettable that the complainant had not updated his employer on any medical condition prior to the termination decision.

Due to the circumstances of this case, there was no obligation on the employer to provide an alternative job. By not being on notice of the complainant’s disability, the employer cannot be criticised by failing to provide ‘reasonable accommodation’ in accordance with the Acts provisions.

I find the complaint on the failure to provide reasonable accommodation not well founded.

CA-00050985-002

Dismissal on Grounds of Disability

The uncontested evidence confirms the lack of awareness of a disability until after the decision to terminate the employment was made. As already decided, there is insufficient evidence of alleged discriminatory treatment to shift the burden onto the respondent. Having already made the decision not to continue the complainant’s employment, the respondent could not have been expected to re-consider everything based on a very late disclosure of a disability. There was insufficient evidence presented in evidence which inferred that the decision to terminate the employment was linked to the complainant’s disability. The dismissal was for grounds other than disability and was based on not passing probation.

I have some sympathy with the complainant in that the respondent did not put him on formal notice that his job was in jeopardy in the period leading up to the termination. This meeting was one-sided in that he attended on his own without any assistance or support. Furthermore, an awareness by the complainant of a previous meeting with his work colleague immediately before his meeting did not demonstrate a well-managed process. Inevitably, given the circumstances of the termination meeting, the complainant must have felt that he was cornered. This may have contributed to his decision not to remain to finish his shift and to comment that he would be taking a case due to his disability.

During the probationary period, it is management’s prerogative to assess an employee’s performance. This though, should be a two-way process with no surprises and regular formal performance reviews. Although the process was lacking in a number or respects, this does not assist the complainant in grounding a discrimination claim particularly due to his very late declaration of having a disability.

I find that the complaint of dismissal on grounds of disability is not well founded.            

CA-00050985-002-Discrimination on Disability Ground- I find that the complaint is not well founded.

CA-00050985-002- Reasonable Accommodation- I find that the complaint is not well founded.

CA-00050985-002-Dismissal on Grounds of Disability- I find that the complaint is not well founded.

Disability, Reasonable Accommodation, Termination