Complainant

Respondent

Parties

Joe  Myers

United Parcel Service CSTC Ireland Limited

Complainant

Respondent

Representatives

  Self- represented

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042396-001

09/02/2021

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

CA-00042396-002

09/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00042396-003

09/02/2021

The complainant has submitted a complaint that he was constructively dismissed on 13 January 2021.

He also submits that he was discriminated against on the grounds of disability on 16/9 /2020, and on the grounds of gender on the 14 November 2019 contrary to the provisions of the Employment Equality Acts 1998-2015, (“The Acts”).

He withdrew his complaint under the Equal Status Act. 2000.

The complainant was employed from September 2018 as a customer service representative with the respondent package delivery company until his dismissal on the 13 January 2021.

His gross monthly wage was €2500.

He submitted his complaint to the WRC on 9 February 2021.

CA-00042396-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant states that he was compelled to resign on 13 January 2021`because the respondent failed to adequately address his legitimate grievances.  They were:

His complaint of having been assaulted by a colleague was dismissed,

He was not allowed to work or retrain from home,

The respondent bullied him and engaged in unreasonable behaviour in permitting harassment of him and failing to acknowledge his grievances as per the company handbook.

He received a final written warning in November 2019.

Complaint of Assault on 14/11/2019.

On 14 November 2019, colleague A, a team leader prevented him from entering the workplace. She grabbed him by the left hand, pushed him out the door, telling him he could not enter. He reported the incident as an assault to the HR Officer. She never told him that she would investigate the matter. No one asked him if he was all right after the attack. He emailed the HR Manager twice. He received no response. On 15 November the HR Officer stated to him that nothing had happened. She told him to go to the HR Manager who on 15/11/2019 told the complainant that he was taking over the investigation. The Gardai were called in at 11.00 on the 15/11/2019. He had no privacy for that interview as it was conducted in full view of colleagues in an office where the blinds remained open.

He made a statement to the Gardai. They told him that the CCTV footage didn’t reveal any point of physical contact between him and colleague A. The HR Manager on 15/11/20 told him that the investigation had concluded. The Gardai had been unable to conclude that an assault had taken place from the CCTV footage. CCTV footage is no longer available.

 The Gardai did not make any findings in March 2020.

On 2 December 2019 the HR Manager told the complainant that colleague A was making a complaint under the grievance procedure against him.  The stress brought about by the sequence of events forced him to take sick leave. He was not facilitated in his attempts to return to work and remained on sick leave until his resignation in January 2021.

His salary was stopped on 28 November 2019. Later it was rectified, and the respondent stated that they had made a mistake.

Unfair procedure used in the investigation of his complaint of assault.

He wasn’t offered the right to be accompanied to any investigation by a colleague or a representative during the meetings on the 14/15 November 2019 concerning his complaint of assault. He wasn’t giving any clear course of action. It was classed as a verbal investigation by HR which he maintains is unfair. There were no minutes taken of any of these events on 14/15 November 2019. Notes of the morning 14/11/19 that he had signed were sent out in the data access report and are missing. 

Neither the HR officer who issued him with a final written warning on 12/11/19 or the HR Manager, involved in the disciplinary process of October/November 2019 culminating in this warning, should been involved in the investigation of his complaint of the 14/11/2019. It should have been with someone that was impartial and separate from the previous disciplinary processes.

Refusal to allow him to work remotely.

The respondent behaved unreasonably in refusing to allow him to work remotely and to insist that he return to the office at the height of the Covid-19 epidemic.

This complaint is addressed under his complaint under the Employment Equality Acts 1998-2015.

Unfair and bullying type treatment of the complainant.

The respondent failed to advise him of the process which he should employ to secure income continuance from Irish Life on foot of the respondent’s referral of him to the company doctor- a necessary element in securing income continuance. The complainant was uncomfortable with a doctor, not his own doctor but a doctor in Liverpool examining him as the respondent had conveyed a one-sided picture of him to this doctor.

In terms of activating the grievance procedure before his resignation, he wrote to a director requesting a remote working arrangement. He responded to say that he must retrain from the office and then they will consider their response after that. The complainant was unsure as to how many managers he had emailed on this request. But the HR Manager stated that he alone amongst all employees must retrain on site, despite the existence of COVID 19. He was frightened because of Covid.

He made a complaint on 5/1/2021 to the HR Manager Europe, about the conduct of the investigation into his assault on 14/11/2019. He also complained about what he believes was an unfair characterisation of him to an Occupational Health Doctor in June 20 by the HR Officer. In this email he also complained of discrimination relative to his colleagues in being obliged to retrain on site. His complaint was ignored.

The respondent did not want him back. The respondent accepted his resignation within an hour, whereas previously it took the respondent five days to seven weeks to respond to his emails. He found the whole situation very stressful. He became very distressed with their failure to address his concerns.

The complainant maintains that he had exhausted all avenues.

CA-00042396-002 Complaint under section 77 of the Employment Equality Act, 1998.

The complainant contends that he was discriminated on the grounds of gender and disability.

 Complaint of Discrimination on the grounds of gender.

The complainant contends that he was discriminated on the grounds of gender in the aftermath of his complaint, submitted on the 14/11/2019 when he, a male, experiencing an assault from a female colleague was treated less favourably than a female would have been treated in the same circumstances. He contends that his complaint was not taken seriously.

Complaint of Discrimination on the grounds of disability.

 He requested that he be allowed to return to work remotely in September 2020 and January 2021. Other colleagues were allowed to retrain from their homes. The HR Manager knew that he had asthma. There were no vaccinations at that time. His colleagues were allowed to work and train from home. The respondent was completing discount training for staff in new roles from home via zoom. He was told he must work from the office putting him and his family at risk during a pandemic.

He is unfamiliar with the sick leave policy

The complainant states that he informed the HR Manager, Ireland of his need for reasonable accommodation. He refers to an email to the Manager informing him of his Asthma on 7 September 2020 and the consequential need for him to work remotely. He offered to provide a doctor’s report confirming same. The respondent chose not to respond or take him up on his offer of medical evidence. He received no request for this data. It was discriminatory against him as compared to all other employees who were allowed work from home. He was never told to get a certificate attesting to his need to work remotely.

He wrote, again, on the 30 September 2020 to a DHL Director referring to the fact that many colleagues have received new training remotely and had the choice to work from home and protect themselves against the virus. He referred to his underlying condition and offered to supply medical evidence but received no response.

Complaint of Harassment.

This occurred on 14 November when he was prevented from returning to work by colleague A, team leader. He cannot say on which grounds contained in the Acts that he was harassed.

Cross examination of the complainant.

The complainant accepted that he was aware of the Grievance Procedure and that he had used it in relation to separate complaints prior to the incident of the 14/11/2019. He was not satisfied with the outcome of his grievances lodged in August 2019.

He stated that he did appeal the final written warning which had issued to him on 18/11/2019 due to his decision to bypass the local HR personnel and mechanisms contrary to management’s instructions to him.

He confirmed that he reported the incident of 14 November at 9am on that date. The complainant is unsure if HR took details from the complainant and the team leader A.

He confirmed that he saw a 10 second clip of the CCTV footage of the incident. The security staff failed to corroborate his version of events. He confirmed that he did not make a written complaint about colleague A. He accepts that colleague A’s complaint against him, lodged two weeks after the 14/11/2019, did not proceed as he was on sick leave from that date until his resignation in January 2021. He confirmed that he did not raise a grievance about the respondent’s statement to the insurer or the insurer’s treatment of him as he was uncertain. He confirmed that his objection to engaging with OH Doctor was accepted by the company/ respondent.

 He confirmed that he made a complaint of bullying to a company Director on 6 October 2020 on foot of the request to supply a fitness to return to work certificate which he did not consider to be a reasonable request as his own doctor had supplied the respondent with the necessary information.

CA-00042396-002 Complaint under section 77 of the Employment Equality Act, 1998.

Remote training

He was advised that remote working would be considered when he was declared fit to resume work. He stated that he was told he would have to attend Ballymount Office for training before he commenced work.

 He is unsure as to whether he raised a grievance about having been refused remote working.

CA-00042396-003. Complaint under Section 21 Equal Status Act, 2000.

The complainant withdrew this complaint.

CA-00042396-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977 

The respondent disputes that the complainant was unfairly dismissed. He left of his own accord without using the grievance procedure to address his complaints.

The complainant was employed by the respondent from September 2018 as a customer service representative and was on a permanent contract of employment.

The respondent is a package delivery company and a leading global provider of specialised transportation and logistics services.  The complainant is employed in the combined Shared Services site in Citywest (GBS & GAC functions).

Alleged assault on 14/11/2019.

An immediate preliminary investigation was conducted to determine whether the alleged assailant should be suspended. CCTV footage was examined, and interviews were conducted with witnesses.to the incident. The CCTV showed no assault; the two ‘witnesses’ did not witness any assault. In short, no evidence existed that any assault had taken place. When presented with this information, the complainant made the decision to call the Garda. All 3 parties (the complainant, the alleged assailant and a witness) were interviewed by the Garda and each were requested to present at the station to provide formal statements. The Garda also viewed the CCTV. In December 2019, the Garda determined that there was no case to prosecute.

Witness 2. Respondent HR Manager, Ireland, gave evidence under affirmation.

Concerning the complainant’s request for a request for CCTV footage of the incident of the 14/11/2019, the witness explained that the respondent retained CCTV footage for only 28 days. They did retain it thereafter on a memory stick for the complainant and the Gardai. The Gardai never collected the memory stick. It had become corrupt.

The witness was unable to meet the security guard who witnessed the incident until the 15 November. The HR Officer had interviewed the complainant and colleague A who had reportedly blocked his access into the building. There was a lack of evidence as to whether an assault had occurred.

Colleague A submitted a complaint two weeks later against the complainant that his complaint against her had been malicious and vexatious. The complainant got a copy of the complaint. A manager external to the Ballymount site was appointed to investigate colleague A’s complaint but did not as the complainant went off on sick leave.

Training on admission to the building and escort procedures is included in all employees’ induction training. That is if an employee’s badge does not work or prompt access to the building, access must be delayed, permitting the situation to be checked. Not all team leaders knew of complainant’s suspension which was no longer live on the 14 November. Colleague A, who delayed his access was unaware that his suspension had expired.

Application of the sick leave scheme.

With reference to the complainant’s complaints about the scheme, it is discretionary. It does not provide for paid sick leave which the complainant expected.

All employees are informed of income continuance on day 1 of induction. The witness informed the complainant of the necessary steps to secure income continuance. The HR officer reminded him, later, of how to secure the benefit. This usually happens in week 14-16 of long-term absence. The Insurer informed the respondent that the complainant had not applied for the benefit. The HR officer reminded him of how to secure the benefit.

CA-00042396-002 Complaint under section 77 of the Employment Equality Act, 1998.

The respondent denies that they discriminated against the complainant on any of the grounds contained  in the Acts.

The complainant must prove that the facts presented demonstrate a prima facie case of discrimination on grounds of disability. He has failed to do that.

The respondent did not refuse the request to train remotely; rather he sought a medical certificate declaring the complainant fit to work before he could resume work.

Evidence of HR Manager

Concerning the complainant’s objections to being assessed by a doctor outside of Ireland, all doctors in the Republic were fully engaged in providing care to patients affected by Covid – 19 and were unavailable. The respondent ultimately sourced an Irish doctor to assess the complainant. The witness stated that the complainant was still unfit to work as per his doctor’s certificates in October 2020. He received a fitness to work certificate on 5 or 6 January 2021 from the complainant. The witness wanted to put a return-to-work plan in place. The plan was for the complainant to train in February 2021 over a four to six week period in the Ballymount site with new employees.

The respondent company was an essential service. They were scrupulous in their observance of Covid 19 protections and rules, and the complainant had been reassured in this regard.

CA-00042396-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The dismissal is in dispute and therefore it is for the complainant to establish that in the circumstances of this case, the dismissal was unfair.

The Law.

Constructive dismissal is defined in s 1. of the Unfair Dismissals Act, as

“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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

Where the dismissal is in dispute, the burden of proof rests with the complainant.  The tests for proving that you were constructively dismissed were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal. They are the contract test and the reasonableness test and are described thus:

 “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 discharged from any further performance”.

The reasonableness test was expressed as

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

The proofs which the complainant must advance to prove his case are that the behaviour of the respondent and of which he complains correspond with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation.

The complainant asserted that the respondent was in breach of its own grievance procedure but made this complaint on the basis that he was not offered the opportunity to be represented when he presented his complaint to the respondent on the 14/11/2019. He accepts that he did not formally activate the grievance procedure. He did not ask to be represented at this meeting on this date. He was the one making this verbal complaint about a colleague as opposed to a person facing a complaint and possible adverse consequences.

The complainant did not identify any other breach of his contract.

I can find no evidence of a contractual breach in support of his complaint of constructive dismissal.

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

The complainant advanced a number of reasons to substantiate his complaint that his decision to resign satisfies the “reasonableness test”.

His complaint of an assault was not treated properly.

An assault in the workplace is never acceptable. The respondent had an obligation to investigate these conflicting complaints. The complaint was investigated. The respondent was unable to uphold the complainant’s accusation of having been grabbed by the wrist by a colleague. The Gardai reached the same conclusion.  I accept that the complainant did not activate a grievance procedure about what he believes to be a failure on the respondent’s part to properly investigate the complaint of an assault which could have provided an orderly process for an examination of his complaint of an unfair procedure.  I accept that he did complain almost a year later to a director, who was outside of the scope of the disciplinary procedure, about the conduct of the investigation into his complaint of 14/11/2019. His specific complaint concerning the investigation was based on the fact that persons involved in the disciplinary procedure which ran in October and November 2019, and prior to the incident of the 14/11/ 2019, and who issued him with a warning were the very people who investigated his complaint against colleague A on 14 and 15 November 2019. But this was not a complaint against him, but rather a complaint by him against a colleague and so he was not at risk of adverse consequences as a result of making his complaint and thus the requirement to have different persons investigating his complaint to those engaged in the different stages of a disciplinary process need not apply. 

I accept that his entrance to the building on the 14//2019 was impeded. This was due to the failure to alert the appropriate staff that his suspension from the workplace had expired. I accept that this was humiliating for the complainant. The respondent omitted to acknowledge that they had failed to inform the relevant staff that the suspension imposed on the complaint for the previous weeks had expired .But neither the respondent’s investigation or the Gardai investigation of the incident found that an assault had occurred. Shortly after the incident of 14/11/209, colleague A, the subject of his complaint, lodged a counter complaint stating that his complaint of 14/11/2029 was malicious. Due to stress, the complainant went off on sick leave. He remained on sick leave until his resignation on 13/1/2021.

Alleged bullying.

The complainant believes that the respondent’s referral of him to an Occupational Health Doctor on the 15 June 2020 to be an instance of bullying as his own doctor had declared him unfit for work. He contends that the referral document drawn up by the HR Officer presented him in a poor light.

The complainant also believed that the request for him to provide a fitness to resume work certificate was an instance of bullying when his own doctor believed that he was fit to return to work. The complainant confirmed that he was unaware of the respondent’s sick leave policy which provides for same after a period of long-term illness.

He received a final written warning.

 The complainant did not contest the fact that he had submitted his complaints to persons outside of his workplace and not in accordance with the respondent’s procedures for which he received the final written warning. The complainant did make general complaints about the absence of fairness almost one year later. Crucially, he provided no evidence of having appealed this warning to the named person within the 5 days allowed in the respondent’s procedure and in accordance with the notification supplied to him on the 18/11/2019.

Finnegan J in considering the ‘reasonableness test’, in the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, stated

 “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.”

 Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence”

“. The test is objective.

 The test requires that the conduct of both employer and employee be considered.

. The conduct of the parties as a whole and the accumulative effect must be looked at”.

The relationship between the complainant and the respondent was fraught-partly attributable to the complainant’s misunderstandings and misguided conclusions. The respondent was entitled to request the complainant to observe the parameters of the grievance procedure and to engage with the designated personnel -those who were more familiar with the complainant’s work and the service, as opposed to appealing to persons outside of the country who had no designated role in the procedure. This was not unreasonable conduct or “without proper cause”.

The respondent was unable to conclude that an assault had occurred on the 14/11/2019.  The complainant was clearly very disturbed by how his complaint was handled. He did engage in repeated correspondence where he criticised the management and their decisions. He wrote to a director on 12/11/2020 asking him to investigate the conduct of the investigation. He questioned a particular aspect of the investigation. Finally, on 6/1/2021 he did make a formal complaint to a director.

The request to him at attend an Occupational Heath Doctor and, later, to supply a fitness to resume work certificate were not examples of “unreasonable conduct orwithout proper cause” and I do not accept that they were examples of bullying.

Overall, the respondent was over reliant on citing the rules to him and under reliant on any efforts to conciliate.

Obligation to use the Grievance Procedure.

The requirement to use the grievance procedure in cases of constructive dismissal has been identified as essential in McCormack V Dunnes Stores, UD,1421/2008, and in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed in many other decisions.

Finally, on 6/1/2021, almost 14 months later, he did make a formal complaint to a director but well beyond the time limits permitted

Given the evidence, I do not find that the complainant meets the heavy burden of demonstrating that the respondent’s behaviour was so unreasonable and without proper cause making the workplace so intolerable as to leave him with no choice but to resign.

CA-00042396-002 Complaint under section 77 of the Employment Equality.

The issues for decision by me are whether or not the respondent

discriminated against the complainant on grounds of gender,

discriminated against the complainant on grounds of disability in failing to provide reasonable accommodation to him,

harassed the complainant.

Complaint of discrimination on the grounds of gender.

The complainant asserts that the respondent’s handling of an assault of him by a female was entirely different to how they would address a complaint by a female against a male. The complainant maintains that the instances of discrimination- the respondent’s response and engagement with him extended over a period from November 2019- January 2021.

This analysis is speculative and devoid of a comparator.

I must first consider if the complainant has met the probative burden as required by section 85A of the Act as amended?

The person making a complaint of discrimination either on gender or disability grounds is obliged by virtue of section 85A of the Acts to establish facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when these facts have been accepted as sufficient to raise an inference of discrimination that the onus moves to the respondent to rebut the presumption of discrimination.

Has the complainant moved the burden of proof as required by section 85A of the Act as amended?

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that”

 “a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

 In order to show that a prima facie case exists, the complainant is obliged to satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 and in other decisions. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.”

Applying the above long-established tests to the circumstances of the instant complaint, I will consider if these tests have been met.

Complaint of discrimination on the grounds of gender.

The complainant is a male asserting a difference in treatment based on the incident of 14/11/2019 and is covered by the relevant discriminatory grounds of section 6 (2) (a) of the Acts.

The specific treatment is the respondent’s response over a twelve month period to the alleged assault of him on the 14/11/2019.

The contention that he was treated less favourably than a female would have been in the same circumstances is speculative and devoid of a comparator. I find that the complainant has failed to raise an inference of discrimination and this complaint must fail.

Discrimination on the grounds of disability in failing to offer the complainant reasonable accommodation.

Relevant law

Section 16 of the Acts addresses the nature and extent of employer’s obligations in certain cases.

Section 16(3) (a) states

“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”.

Section 16(3)(b) states

 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,”

The definition of disability which is a precondition to triggering an entitlement to reasonable accommodation as per section 16(3) of the Acts is found in Section 2 of the Acts which states that disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person”;

This complaint is based on what the complainant states was the respondent’s refusal to allow him, a person suffering from asthma, to retrain and work remotely in September 2020 and in January 2021 during the Covid -19 Pandemic. The email correspondence submitted by the parties reveals that contrary to the respondent’s assertion, the HR manager was on notice of the complainant’s asthma from September 2020. He had offered to supply the respondent with medical evidence of same which the respondent omitted to address in any way and failed to take up.

The circumstances of this case include the uncontroverted evidence of the complainant that he suffered from asthma and the absence of any denial on the respondent’s part that the complainant had a disability that conformed to the requirements set out in section 2(1) of the Acts.

The complainant was sincere in his submission that he suffered from asthma. Hence, I find that the compliant enjoys the protections provided to an employee whose disability conforms to the provisions of section 2 of the Acts.

In the leading case of Nano Nagle v Marie Daly,(2019), IESC 63, the Supreme Court considered the obligations which flow from section 16(3) of the Act as amended. Mr Justice John McMenamin in par 84 of the judgement, stated

“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.”

McMenamin continued in Par 107 to state

“ Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted.”

The Supreme Court in particular noted that the test “is one of reasonableness and proportionality”.

Application of the law to the facts of this complaint.

The respondent did not deny that many of its employees were working remotely in September and October 2020. The respondent asked the complainant for a fitness to resume work on 6 /10/ - a standard enough request when an employee has been absent on sick leave for almost eleven months, and where he has, misguidedly, declined to do so.

 On 7 September 2020 and 6 October 2020, the complainant asked to be permitted to retrain remotely and notified the respondent of his asthma in an email of the 7 September. The respondent emailed him on the 16 Sept to state that his retraining could not be done from home but once declared fit to resume work, he would review his request with his management team and outline his concerns about asthma to them and would revert to the complainant. The HR Manager stated in evidence that he received a fitness to work cert from the complainant on the 5 or 6 January 2021. He stated in evidence that they intended to place him in the on -site training in February 2021 with new employees.

Though in receipt of the complainant’s fitness to work on 5 or 6 January 2021, a precondition met by the complainant for access to remote training, the respondent HR Manager did not follow up on his commitment to discuss the complainant’s asthma with the management team nor revert to him about training remotely, and had decided, according to his evidence, that the complainant should engage in on-site retraining having been out of the workforce for a year. Nor did he consider in advance of the 5 or 6 January if and how the complainant could be accommodated should the fitness to work certificate emerge.

The statute and the authorities oblige an employer to demonstrate that they have fully considered the reasonable accommodation request and appropriate necessary measures. The respondent produced no evidence of having sought medical evidence from the complainant as offered. The respondent offered no evidence of how the request to train remotely was examined / explored or the costs associated with same. The onus of showing that the request for remote training would result in an unreasonable or disproportionate burden rests with the employer.

While there is no statutory duty on an employer to consult with the employee concerned, in the course of its consideration, the Supreme Court did point out in Nano Nagle that as a matter of prudence such consultation should occur.

The respondent failed to provide any reasons to the complainant or at the hearing as to why the content of the retraining programme demanded on-site training for him. The respondent gave no evidence of offering any information to the complainant as to why this remote training, on offer to other employees, was out of the question for the complainant.

The respondent withheld agreement from what appears to be a legitimate request for a person suffering from asthma during a period when Covid 19 was rife

In denying him access to remote training they were denying the complainant re-entry to the workforce. In this he was treated less favourably than a person without a disability or with a different disability who did not face impediments or obstacles to participating in the retraining identified as essential for the workforce as a result of covid 19, and, in addition, in the complaint’s case, because of his absence from the workforce a year.

Based on the evidence, the application of the statutory provisions and the precedents, I find that the respondent in failing to apply the terms of Section 16 of the Acts to the complainant, discriminated against him under Section 6 (1)(a) and 6(2)(g) of the Acts through less favourable treatment of him compared to an able-bodied employee or an employee with a different disability and contrary to section 8(1) which prohibits discrimination in terms of access to employment, conditions of employment and training or experience in relation to employment. 

As I have found that the respondent has discriminated against the complainant in what is far from a straightforward complaint, I am obliged by virtue of section 82 (1) of the Acts to compensate the complaint for the effects of the act of discrimination. The passage of the request to train remotely was complicated by the complainant’s lack of cooperation and was muddied by his focus on other grievances but that does not alter the fact that the respondent failed to address their statutory obligations, nor were they relieved of that obligation because of the complainant’s conduct, even if a genuine examination of his request would have proven to be of no assistance to him.

Taking all of the circumstances into account, I order the respondent to pay the complaint the sum of €15000 which equals 6 months’ salary.

Complaint of Harassment.

This complaint refers to an incident that occurred on 14/11/209. The complaint was submitted on the 9 February 2021.

It is clearly outside the time limits permitted in Section 77(5) (a) and (b) of the Acts.  Therefore, I do not have jurisdiction to hear this complaint.

Furthermore, the possibility of presenting a case that the incident represents a continuum with the in -time complaints which were based on the grounds of disability, was not made out nor could it have been made out as the complainant was unable to identify the grounds under which he was harassed.

He has failed to make out his case.

His complaint of harassment cannot succeed.

CA-00042396-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find this complaint to be well founded.

CA-00042396-002Complaint under section 77 of the Employment Equality Act, 1998-2015

I order the respondent to pay the complaint the sum of €15000 for the effects of the act of discrimination in failing to provide him with reasonable accommodation.

Constructive dismissal not upheld; Employment Equality Act, failure to explore reasonable accommodation request.