Complainant

Respondent

Parties

Ruzain Reza

MCR Outsourcing Limited

Representatives

Siobhan Gaffney BL instructed by Neal Murphy Murphys Solicitors

Warren Parkes Warren Parkes Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00044381-001

27/05/2021

The complainant outlined that he was discriminated against on grounds of a disability, asthma and the respondent failed to provide reasonable accommodation. The respondent denied the claim.

The complainant outlined that he was discriminatorily dismissed on grounds of his disability and the respondent failed to provide reasonable accommodation. The complainant drew the respondent’s attention to his severe asthma. He was permitted to work from home during the lockdown. His asthma made him vulnerable to Covid-19 as per his medical evidence. The complainant was then required to attend work for two days per week. He had then to work in the office until August 2020. A colleague was permitted to work from home. The complainant was forced to take PCR tests and this amounts to discrimination.

Evidence of the complainant

The complainant was employed as a payroll specialist and at the outset of the pandemic, addressed a team meeting to say that he had asthma and pointed to his vulnerability. He was allowed work from home and came back to the office to train a new colleague. Ms Fox joined the team and was clear that everyone had to be in the office. A named colleague was allowed to work from home. A named manager advised the complainant to get a new job as her successor would not let him work from home. The complainant raised compliance issues, for example the awarding of pay rises and paying leavers their full annual leave entitlements.

The complainant found new employment in a month or two.

In cross-examination, the complainant said that he wanted to work from home because of the pandemic. His allergic issues arose from his asthma. At the June meeting, he recollected that Ms Fox had not accepted his suggestion that he work from home in September. He could not recall Ms Fox saying to him to come back to her to discuss working from home. He had informed the respondent of his asthma and took time off. The dismissal meeting was the first time any performance issue was raised. There was nothing in writing about his performance. The complainant said that he was dismissed for raising the compliance issues and his disability. He accepted he had not mentioned asthma at the meeting. It was put to the complainant that his complaint was out of time.

The complainant submitted Revenue information which showed a ‘leaving date’ of the 30th November 2020.

Closing

The complainant relied on the submissions. The respondent never asked the complainant for a medical certificate. The date on the Revenue document states the 30th November 2020 as the leaving date and the complainant was still employed until this date.

Evidence of Carrie Fox

Ms Fox said that she was not informed of the complainant’s asthma. The office was repainted in June 2020 and the complainant raised the paint fumes issue. The complainant asked to work from home and was permitted to do so.

The complainant made a request to work from home on the 30th June 2020. He was looking to do this from September for the school run. Ms Fox replied that they would revisit this in September. The complainant raised a health issue on the 4th August 2020 and asked to work from home. This was facilitated. This related to a Covid test for the complainant’s daughter.

It was part of the complainant’s role to reply to employees. This was addressed at a meeting. The complainant was moving the emails to his personal email account, so the respondent lost visibility.

The complainant was ill on the 18th September 2020. He was working from home and there were emails about clearing the inbox. The complainant never submitted a medical certificate regarding his asthma.

Ms Fox said that the complainant never spoke to her about his asthma. He told me he had allergies.

The system went down on the 10th September and Ms Fox and the complainant stayed back to resolve the issue. Mr McCarthy emailed to say thank you.

The October meeting was called as the complainant was not up to the standard of a senior payroll specialist. He was not making decisions on his own. Ms Fox brought this to the complainant’s attention on two occasions. The complainant was not doing things Ms Fox had asked him to. Ms Fox said that the email inbox had to be cleared of queries. A decision was made at the meeting to terminate his employment. The complainant did not plead with Ms Fox about his position.

The complainant was given a week’s notice and he was paid a further five weeks. This was to soften the blow.

In cross-examination, Ms Fox could not answer whether the reference in the email of the 31st March 2020 to ‘asthma medication’ did not mean that he had asthma. Everyone was in the office when Ms Fox took on the pay roll role. Other emails were put to Ms Fox that relate to the complainant’s asthma. It was put to Ms Fox that the flexible place of work in the contract encompassed working from home; she replied that everyone was required to work in the office. The duties were not being done at home. The training could not be done from home, so everyone was required to be in the office to train the new staff. The complainant’s reason for working from home was the school run and this was to be revisited. It was put to Ms Fox that a manager had emailed to say he was doing a good job. The performance meetings were informal and there were no notes. The complainant was offered more training. Ms Fox did not agree that the complainant had asthma and maladies and was dismissed on this basis.

In re-examination, Ms Fox confirmed that no certificate of illness was ever presented to the respondent. She was not on notice of the asthma. It was Ms Fox’s preference that the complainant work from the office and he was facilitated in working from home. Underperforming staff are spoken to and offered training.

Evidence of Roy McCarthy

Mr McCarthy outlined that the email thanking the complainant was in the context of the complainant and Ms Fox staying back to address a systems issue. It was a courteous thank you for work done. The painting caused issues for the complainant’s allergies. The complainant was facilitated in working from home. On one occasion, Mr McCarthy asked the complainant to go home as his daughter was a close contact. Mr McCarthy was aware of the complainant’s allergies and not his asthma.

Evidence of Geoffrey Doyle

Mr Doyle had been speaking to Ms Fox about the complainant’s performance for some time. The complainant was not at the level and needed help and advice constantly. The decision was made to terminate his employment. Mr Doyle explained their reasons and that the complainant’s employment would end. Mr Doyle offered five weeks on top of the one week of notice. The complainant was put out and asked if he could change the respondent’s minds. Mr Doyle was never aware of the complainant’s asthma.

Closing of the respondent

The respondent relied on Swan O’Sullivan Accounts v Counihan EDA1810 and McCarthy v Cork City Council EDA082 regarding the onus on the employee to inform the employer of the disability. The complainant brought insufficient information to the respondent to put them on notice of a disability.

The complaint was submitted on the 27th May 2021. The complainant was dismissed at the meeting of the 16th October 2020. The contract provided one weeks’ notice, bringing his date of dismissal to the 23rd October 2020. The Revenue document’s ‘date of leaving’’ is a tax record and not determinative of the ending of the employment. The ex gratia payment was not extended notice. The complaint was, therefore, referred to the Workplace Relations Commission slightly outside the six month period from the date of dismissal. For completeness, I make a substantive finding of the case.

I find as fact that the respondent was aware of the complainant’s disability. He was open about his asthma in emails.

It is clear that the dismissal was unfair. The complainant was summonsed to a meeting and dismissed on the spot. The basis of the dismissal was performance but there is not a single email or document that charts these performance issues. The complainant’s email of the 21st September refers to 170 emails in the inbox; Ms Fox replies ‘thanks’ and no concern is raised about this number. The other emails show the opposite; the complainant is thanked for staying late.

While the dismissal was unfair, the question is whether it was discriminatory. I find that there is insufficient evidence of causation between the complainant’s asthma and the dismissal. There was no mention of asthma during the meeting, for example the complainant did not raise it. Over the months, the complainant raised his health issues, mainly arising from the pandemic and was facilitated in working from home. This goes against any link being drawn between the two.

The complainant had an arrangement with Ms Fox’s predecessor that he work from home. Ms Fox did not continue this arrangement, albeit facilitated the complainant working from home when a family member was a close contact etc. The complainant continued to want to work from home, and this is more likely the background to the termination of the complainant’s employment.

For completeness, I find that asking the complainant to attend Covid tests was not an act of discrimination, but a step appropriate in the context of the pandemic.

I find that the complainant has not established prima facie discrimination on grounds of disability.

CA-00044381-001

I decide that the complainant has not established a prima facie case of discrimination on grounds of disability.

Employment Equality Act / disability