Complainant

Respondent

Parties

John  Baker

Doyles Veg Prep Limited

Representatives

  None

None  

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-00047426-001

01/12/2021

The Complainant is a long-standing employee of the Respondent company, having started working for the company in sometime 2007. The Complainant began working for the company relatively early in its history and was initially one of the only employees. Since then, the company has grown significantly and has a large staff and new premises and business partners.

The Respondent is engaged with providing fresh preprepared vegetables to the catering industry.

The Complainant has, for the past number of years, worked on a preparing cabbage.

In June 2018 the Complainant went on sick leave, returning for relatively short periods of time until July 2019 when he went on long term sick leave. The Complainant has brought a complaint alleging discrimination on the basis of disability and the Respondent has failed to provide him with reasonable accommodation for his disability, COPD. The Complainant submitted a complaint under the Employment Equality Acts on 1st December 2021.

The Complainant attended the hearing unaccompanied and provided evidence on affirmation.

The Respondent attended the hearing represented by their HR Manger Ms. Susanne Ray who gave evidence on affirmation.

The Respondent provided a submission and a copies of the internal grievance process utilised by the Complainant as well as medical reports relating to the Complainant’s absence.

The Complainant indicated that he had first taken this case with advice and support from South Dublin Citizens information.  Unfortunately, the official in Citizen’s Information who had worked with the Complainant had moved on from the organisation and the Complainant has been left without representation and advice at the time of hearing. The Complainant gave extensive oral evidence, much of it not relevant to an Employment Equality case and aspects of it which were unhelpful to the Complainant’s case.  

I attempted to direct the Complainant back towards the scope of his complaints under the Employment Equality Acts at various points in his evidence.

The Complainant began working for the Respondent in 2007. He proceeded to recount a number of instances that had occurred from that point on.

At some point between 2010 to 2012 the complainant requested a payslip from the Respondent. USC had just been brought in and there was a dispute about how the company was handling the deductions. The company did not normally issue payslips. Around this time an additional two partners came into the business but one left soon thereafter. The Complainant had been asked to take a wage cut as a result of the recession. On a particular day in February or March everyone got sent home and work ceased, however the Complainant stayed. He asked one of the Directors Mr Doyle about wage cut and specifically about the USC deduction. The Complainant alleges that Mr Doyle was surprised that he had a payslip. When the Complainant asked for a reversal of the pay cut Mr Doyle responded that the Complainant lucky to have a job at all. Shortly thereafter the Respondent looked into how USC was deducted and changed how it was carrying out these deductions. The Complainant felt this was held against him going forwards. After that his working week went from 6 days to 5 but stayed at 45 hours per week. The Complainant was happy about this change.

The Complainant had a bad relationship with Mr Doyle. He once told Mr Doyle to “fuck off” during an incident in which the Complainant felt he was being over supervised. Following this incident he was told he was dismissed and then later was told he was not dismissed.

The Complainant referred to another incident where the staff were all sent home and work ceased. On that day the Complainant stayed as there was a part time employee with special needs who was attending the workplace that day. The Complainant frequently worked with him so stayed in order to make sure there was someone there for him. Both directors were on site and noticed the Complainant and asked why he was there. Shortly thereafter other workers, who were not known to the Complainant and who were all foreign nationals, came in to carry out work. The Complainant says they seemed surprised to see him there.

The Complainant felt Mr Doyle didn’t like him and that there was frequently pulled up for small issues. One morning, upon the Complainant’s arrival to work he discovered a broken blade at one of the machines which he believed was caused by the night shift. When he brought it to the attention of Mr Doyle he was accused of breaking the machine. The Complainant felt Mr Doyle didn’t like him partly because they were related to each other.  

The Complainant was once sent home from a meeting when he asked why a night shift was being set up while day workers were getting sent home due to lack of work.  Mr Doyle later told him he wanted him gone.

After my making repeated requests that the Complainant focus on the issues before the WRC he began to refer to the issues relating to his health and disability which might come under the scope of the Employment Equality Acts.

The Complainant referred to sodium metabisulfite which was a chemical he had serious concerns about which was in use by the Respondent.  The chemical is used to keep produce fresh and preserved in packaging. The Complainant was sent an article by GP who was concerned about the affects of this chemical on the Complainant.  The Complainant went out sick around then.

The Respondent business obtained a new premise sometime around 2014. The Complainant is of the view that the ventilation in “old factory”  where he worked up until 2016 was not sufficient and was only updated some 7/8 years after him starting there. A particular issue was created when the Respondent moved to using power washers rather than just normal hoses when washing down machines and the floor. This practice created spray which would bring chemicals into the air.  The Complainant alleges that he spoke up about this but was dismissed by one of the Directors, Mr Ray who said attributed the Complainant’s breathing issues to him smoking 40 cigarettes a day. The Complainant rejected this and is clear he smoked max 20 a day. The Complainant sought to have his work station moved to a better ventilated part of the factory but was unsuccessful.

In September 2016 the Complainant was moved up to the new factory.  The Complainant attributed this move to Romanian HR official who he didn’t like. The Complainant referred to an incident where the Complainant proactively told staff not to give the HR official their PRSI details when this was being requested of them.

The Complainant didn’t want to go up to then new factory as Mr Doyle worked there. When the Complainant arrived there no one knew he was coming to the new factory. From late 2016 when he moved to the new factory matters began to get worse. The Complainant alleges that was being harassed by Mr Doyle.  The Complainant pointed to an incident where, following him growing a beard, he was the only one challenged on not having a beard net. The Complainant alleges that he was shouted at and told he could be sacked for not wearing the net. After this incident he and other staff started wearing the beard nets.  

After I again asked the Complainant to focus on issue relating to his disability the Complainant referred back to the power washing and its impact on his health. The Complainant alleges that the Respondent refused to open up sky lights that would have alleviated the problem. The Complainant alleges that Sodium Metabisulfite was left sitting open beside where he would normally change into his work clothes. The Complainant had asked for better ventilation in the old factory but then was moved shortly after conditions improved.

The Complainant cut himself at work on two occasions, he attributed these incidents to badly maintained equipment, particularly dull knifes. The first aid provisions on the floor where not good enough and he had to go to canteen for the medical supplies there. On one occasion the Complainant got blood on a kitchen roll in the canteen.  The Complainant was reported by Mr Doyle and a Health and Safety Officer came down and photographed the cut. The Complainant alleges he was ultimately sanctioned due to having gotten blood on the kitchen roll.

In June 2018, the Complainant alleges that he was at a low ebb following these various incidences. There was an incident at a HR meeting with management where he began feeling extremely unwell. The Complainant became confused and then concerned for his own health. The Complainant felt he needed to go to hospital. The management personnel wouldn’t call an ambulance or drive him in. The Complainant walked to the red cow hotel nearby and got a taxi. The Complainant attended the hospital who identified extremely high blood pressure which persisted. The hospital similarly carried investigations into his O2 levels which were determined to be okay. The Complainant was referred to his GP. The Complainant returned to work Monday but began feeling unwell again. Despite this he was told to stay by his supervisor. He can’t remember if he left on time or early.

Following this incident the Complainant’s GP signed him off work for a prolonged period of time. The Complainant was referred to occupational health and went in March 2018. It was determined that he needed to get a spirometry test to determine his lung capacity. The Complainant came back for 2 weeks in October 2018. The Complainant left again because of chest infection and other issues at work. He was pulled up for clocking out having already changed out of his overalls. He alleged during this time period he overheard Mr Doyle shouting at the Ms Ray, the HR Manager present in the hearing, that he wanted the Complainant gone.

I sought again to ascertain what the Complainant’s disability was and how he felt this kept him from work. The Complainant clarified that he suffered from COPD. The Complainant summarised the  issues keeping him from work as follows: feeling generally felt harassed by Mr Doyle; that he has never been promoted or encouraged to apply for promotion or extra responsibility and the general very poor health and safety conditions in the workplace including ventilation.

In May 2022 the Complainant engaged with the Respondent about returning to work following a previous meeting in April having fallen through. The Complainant was met on site by the new operations manager and health and safety officer. The Complainant was unhappy about how the meeting went. The Complainant wanted a tour of the factory, shown where he might be working. The Complainant asked about whether the company was still using Sodium Metabisulfite and was told it wasn’t but felt that the operations manager was hesitant when he told him so. He also felt the operations manager didn’t want to be there. The Complainant was also told that his return hours were to be moved to 4.30am from 5.30am in line with the updated shift patterns. The Complainant was unsure as to what role he would be carrying out and whether he was capable. He still feels Mr Doyle does not want him there.

The Complainant was invited to provide a supplemental submission following the hearing which was dated 3rd November 2022 and concludes as follows:

Basically at work all I needed was a dry working environment with no powerwash spray combined with chemicals. Could have been so easy to do but the company would not do it.

For a company to refuse to call you an ambulance or drive you to the hospital just proved    how much respect they had for me working for them since  2007. To be honest I have limited trust in Doyle's veg Prep for my health and safety and a good working environment.

The Respondent outlined their submissions at the hearing. That Mr Baker had first gone on sick leave in July 2018. The Complainant returned to work on two occasions but has been on continuous sick leave since 17th July 2019.

Since the beginning of the Complainant’s sick leave he has submitted various sick leave certificates giving various reasons for his absence, including hypertension, Sodium Metabisulphite sensitivity, breathing difficulty, chest infection, respiratory problem and work related stress.

When work related stress began appearing on the Complainant’s sick certs in July 2019 the Respondent sought to proactively ask for what was causing this stress and to see if there was anything they could do to facilitate his return to work. The Complainant failed to engage.

In March 2020 the Complainant submitted a grievance which the Respondent worked to resolve.

The Respondent pointed to the fact that the Complainant submitted a fit to return sick cert in June 2019 allowing him to return to the same conditions as he previously had worked in.

The Respondent was also was subject to an inspection from the HSA related to concerns regarding Sodium Metabisulphite which did not identify any hazards.

The Respondent did seek out a medical report from the Complainant’s own doctor in June 2021 which involved a costly fee. The Respondent found the report to be inconclusive and failed to give any sort of definitive direction to the Respondent.

 The report identified the Complainant’s smoking as his main form contributing factor to his respiratory problems but still recommends that the Complainant return to different working conditions as before. The Respondent submits that the suggested working conditions that the Complainant might be able to return to were not feasible due to food safety regulations. The report suggested that the Complainant receive further occupational health assessments with a different practitioner which Respondent felt demonstrated that the Complainant’s GP was reluctant to suggest measures on the basis of their assessment alone.

The Respondent considers this an ongoing matter. They pointed to the attempt to have the Complainant return to work in May 2022. They are unsure of why this failed. They remain open to facilitating the Complainant if they can but they are not sure of the Complainant wants them to do.

In response to the allegation made be the Complainant the Respondent HR Manager stated clearly that the alleged incident where Mr Doyle was supposed to have shouted at her to get the Complainant out of the workplace did not occur. 

In addition to the case advanced in the hearing the Respondent, at my request, provided copies of the internal grievance process and updated medical reports.

The Complainant submitted a grievance in February 2020. This grievance concerned a number of issues but included reference to the impact of his working conditions on his asthma and the failure of the Respondent to do anything about this. The Complainant elaborated on this complaint in an email dated 2nd of October 2020 specifying that he wished to be relocated to a dryer area of the plant and that the Respondent had failed to follow up on the previously recommended spirometry test.

Grievance hearings were held in November and an undated decision issued sometime in late 2020 or early 2021. This decision considered the issue of raised regarding the Complainant’s asthma resolved because of an inspection from the Health and Safety authority regarding the use of Sodium Meta Bi Sulfite, ventilation and PPE.

The Complainant appealed this decision in February 2021 and identified his entitlement to reasonable accommodation under the Employment Equality Acts in the appeal. The appeal decision issued on 30th of April 2021, this decision identified some confusion on the part of the Respondent as to what the medical issues which were keeping the Complainant out of work were, various issues had been identified in the Complainant’s sick cert. Following this decision having issued the Complainant was again referred to occupational health for an updated report. This is presumably the report which issued in June 2021 which recommended that the Complainant return to work in a dust and chemical free environment and with light duties, the report also recommended a further occupational health report.

A Medmark report issued in March 2022 this report identified the Complainant as being medically fit to work on a phased basis but that he was unlikely to do so because of his various grievances with the Respondent.

Following the issuing of this Report the complainant was asked to return to work. He had a meeting at the workplace in May 2022 which did not go well. Following this meeting he continued to submit sick certs.

The Respondent is unclear as to why the Complainant remains out and what accommodations they can make so that he might return. They submit that there is no reason related to his disability that keeps him from attending work.

It is clear that the Complainant is affected by a disability, Asthma and COPD, and enjoys the protections of the Employment Equality Acts under the disability ground.

The Complainant has brought a Complaint under the Employment Equality Act alleging discrimination due to disability and that the Respondent failed to provide him with reasonable accommodation.

Discrimination

Sections 6 and 8 prohibit employers from discriminating against employees on the basis of the various grounds covered in the acts, in this case disability is the relevant ground.

The most relevant parts of Sections 6 and 8 are detailed below.

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,

….

(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”),

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee…..

Reasonable Accommodation

Section 16 outlines employers’ obligations to provide reasonable accommodation to employees with disabilities. The most relevant parts of Section 16 are outlined below:

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 Employment Equality Act [1998.] 1998 PT. II S. 14A [No. 21.] 28 position, having regard to the conditions under which those duties are, or may be required to be, performed.

…….

(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.

Burden of Proof and Prima Facia Case

Section 85A of the Employment Equality Acts 1998 to 2015 provides that: 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.

As such the burden of proof in this matter is on the Complainant. If the Complainant’s case meets the threshold set out above then the burden of proof is reversed and it is on the Respondent to rebut the above presumption of discrimination.

Section 79 of the Employment Equality acts is clear that I must examine this matter by way of an investigation.

I note that the complainant was not able to obtain representation and perhaps unsurprisingly much of what he has presented in evidence is either unhelpful or irrelevant to a case under the employment equality acts. However In conducting my investigation l am required do my best to examine what both parties have brought to my attention with due regard to the legislation.

On review of the Complainant's complaint form and the evidence available l can summarise his case in following terms. He is protected from discrimination on the basis of the disability ground. He was discriminated because he was not able to attend work due to his employer’s failure to provide reasonable accommodation under Section 16 of the acts. His comparator for the purposes of Section 6 is a hypothetical comparator who does not have a disability and who was able to attend work as normal.

I am satisfied the Respondent was on notice of the Complainant’s disability and that it was keeping him from work. Of the 36 or so sick certificates provided, spanning a period from June 2016 to November 2021, the Complainant’s respiratory condition is referred to in some form or another 25 times. It is not exclusively referred to but it is the consistent and predominant medical issue identified as keeping the Complainant from work.

There was engagement between the parities on this issue in 2016, specifically about the location of the Complainant’s work station and ventilation. The Respondent was notified by the Complainant that the work environment was impacting on his asthma in March 2020 and that he thought that movement to a different work station would rectify the situation. In June 2021 a medical report explicitly concluded that the Complainant could return to work if was provided with a role that had no heavy manual handling or involved dusts or chemicals.

On review of the above I am satisfied that there is a prima facia case that the Complainant was discriminated against contrary to the Acts.

Decision

Section 16 above is clear that the Respondent has a proactive obligation to provide appropriate measures, so long as these are not disproportionate burdens. The act sets out criteria by which this might be assessed. As such the first action of any employer must take in fulfilling their obligations under S16 is to engage with the disabled employee and determine what needs to be done to facilitate their return to the workplace.

There is a clear and consistent failure on the Respondent’s part to demonstrate engagement with the Complainant in this manner which stretches into the relevant period for this complaint, i.e. the 6 months before the complaint was submitted to the WRC on 1st December 2022.

I accept the Complainant was not an easy employee to deal with and, from of his own evidence, was at times insubordinate. I further note that the Complainant’s concerns regarding his disability and the workplace were being raised alongside a myriad of other grievances. However, neither of these factors absolved the Respondent of their responsibility to proactively engage with the employee as set out above. They were on notice of the Complainant’s disability and that he and his doctor believed that this was keeping him out of work and that this could be addressed by the Respondent offering a different working environment. I see no evidence that the Respondent actually examined whether these measures could be facilitated or whether they might demonstrate a disproportionate burden. On this basis I am satisfied that the Respondent discriminated against the Complainant during the 6 months before this complaint was lodged on 1st December 2021.

In March 2022 a new medical report issued which provided an updated position as to the Complainant’s medical position. The report was clear that the Complainant was ready, at that point, to return to work and made no recommendations as to accommodations other than that return be phased. There was a period of engagement between the parties and a return to work meeting was held, however the Complainant was unhappy with how this panned out and began again submitting sick certs. 

While I note that Complainant’s post hearing email “Basically at work all I needed was a dry working environment with no powerwash spray combined with chemicals. Could have been so easy to do but the company would not do it.” I do not think that this is what is keeping him from work currently.  

The Complainant under affirmation detailed his numerous grievances with the Respondent including alleged harassment by one of the directors, a general poor standard of health and safety, the proposal to move him to an earlier start time and him being passed over for promotion and training despite his service to the Respondent. I am of the view that these grievances and not the Complainant’s disability are what are keeping him from the workplace. While these are serious matters they do not constitute a breach of the employer’s duties under the Employment Equality Acts.

It is important to note that though there is now, on the balance of probabilities, no ongoing discrimination of the Complainant by the Respondent this does not remedy their earlier failure to appropriately engage with the Complainant regarding his disability and potential reasonable accommodations. Both an individual’s health and workplace grievances are complex and evolving matters. Though reasons other than the Complainant’s disability kept him from returning to work in May 2022 this does not necessarily mean that this was the case at any other point during the Complainant’s extended sick leave. Certainly I am of the view that it would be contrary to the proactive obligations outlined in Section 16 for me to make such an inference. 

In summary, on review of the evidence available to me I conclude that the Complainant was being discriminated against contrary to the acts in the months preceding the complaint being made to the WRC. I am not of the view that the Complainant remains out of work because the Respondent is failing to provide reasonable accommodation.

I suggest that the Respondent ought to engage an appropriate independent mediator to facilitate further discussions with the Complainant so that a solution might be found to the current differences between the parties.

Redress

The Complainant submitted that he was paid roughly €518 per week.

I have found in the Complainant’s favour on the basis of the Respondent’s failure to demonstrate appropriate engagement with the Complainant as to appropriate measures to bring him back to work. In my decision I have noted the difficulties the Respondent had with the Complainant some of which were caused by the Complainant himself. While I am not of the view that these matters can absolve the Respondent of their obligations as set out above, I am of the view that they can be taken into account when calculating the appropriate award. The Complainant been a difficult employee to deal with at times and has failed in his own obligations to maintain a proper working relationship with his employer. I am of the view that this contributed to the situation he has found himself in.

In light of all the circumstances and the evidence of both parties I am of the view that €4000 is an appropriate award.

I will also direct that the Respondent review their policies regarding accommodating disabilities in the workplace and provide training to management on any resulting policy updates.

In accordance with section 79 of the Employment Equality Act, I decide that the Complainant was subjected to discrimination as set out above. 

In accordance with my powers of redress under section 82 of the Acts, having regard to the effects of the discrimination, I order the Respondent to pay the Complainant €4000 in compensation. 

In accordance with section 82(1)(e) of the Acts, I direct Respondent to review their policies regarding accommodating employees with disabilities in continuing to participate the workplace and provide training to management on any resulting policy updates.

Reasonable accommodation