Complainant

Respondent

Parties

Paul  Rice

Northern Trust Ireland

Representatives

  Self-Represented

Rosemary Mallon BL instructed by Mason Hayes and Curran  LLP

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-00047226-001

17/11/2021

I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant gave his evidence on affirmation.

Mr. Ian Moore, the  Complainant’s Line Manager i gave evidence on affirmation and along with the Vice President of HR, Ms. Kate Blessington.

Neither party had any objection to having the parties publicly named.

There was a related Unfair Dismissal claim bearing ADJ-0003542. The Complainant withdrew the Unfair Dismissal claim.

The Complainant commenced employment in November 2017. During his employment he took a leave of absence due to illness from 2018 – 2020.

It was the Complainant’s evidence that he met with the Company Doctor on several occasions and repeated his desire to return to work which was supported by his own doctor. It was his evidence that he was advised by HR that he could not return to work unless he could undertake overtime.

In November 2020, the Complainant returned to work 5 half days a week but described feeling bored by the work he was undertaking. The Company Doctor was reluctant to allow him to return to full time work, but he did return to full time hours in 2021. In January and February 2021, he gave evidence that he worked overtime but nothing was said to him. In March 2021 he spoke with the Team Lead who he stated in evidence was aware of his overtime hours but claimed she was not advised by HR anything regarding a restriction on overtime hours.

The Complainant outlined meetings he had with Ian Moore and Kate Blessington and accepted he was notified at each time his job was at risk. He described the period being a very stressful time. In October 2021, he described being harassed as the Respondent was asking for his medical records. He submitted this was private information. His employment was subsequently terminated by the Respondent.

The Complainant gave evidence of a colleague on the same team and had been accommodated with part time hours.

It was the Complainant’s evidence that he was aware his tasks were being outsourced and his role no longer existed.

The Complainant gave evidence of his efforts to seek alternative employment since his dismissal.

The Respondent was cross examined by the Respondent’s Barrister. The Complainant accepted he was assigned lower-level administration task that were not time sensitive. He was asked why he was doing overtime when it was unnecessary. The Complainant explained that he was given a huge number of tasks and the Team Lead was contacting him 8pm with further tasks. The Respondent’s representative raised the medical report from March 2021 to August 2021 with the Complainant and in particular his phased return to work and ability to carry out the role. The meeting with HR during this time were also put to the Complainant and the issues raised around his work performance. The meeting notes of September 2021 meetings were put to the Complainant, noting that there was no dispute as to the minutes at the time.  The Long-Term Ill Health Procedure was provided to the Complainant and it steps taken under this policy were put to the Complainant. It was the Complainant’s response that he believed the Respondent could have found an alternative role for him after 14 years’ service in a company that had 30 plus departments instead of terminating his employment. It was put to the Complainant that he took full advantage of the paid sick leave which he denied stating in his evidence that he wanted to work.

The Complainant confirmed he did not appeal the decision to terminate his employment. It is put to him that he did not dispute the Respondent’s Occupational Health Doctor, with the Complainant confirming he was open and honest with the Doctor.  

It was put to the Complainant that his comparator had a different medical issue.

He was asked in relation to his evidence that he was harassed by the Respondent and why he did not invoke the grievance procedure. It was the Complainant’s evidence that he was not aware of it and stated he told the HR representative present at the meetings that it was not their right to see these reports and refused.

Preliminary Objection

The Respondent objected to the claim for discriminatory dismissal on the basis the Complainant submitted his complaint to the Workplace Relations Commission on 17 November 2021.

Substantive Case

The Respondent submitted that the Complainant was dismissed but was not discriminated against.

Mr Ian Moore, the Complainant’s Line Manager, gave evidence on behalf of the Respondent. He described the role of a Senior Analyst as one which hold a high level of responsibility and acts as a signatory on behalf of the Respondent.

It was Mr Moore’s evidence that there were errors with the Complainant’s work, and this was discussed with him. 

He outlined the phased return to work and the work the Complainant undertook during this time. Mr Moore gave evidence that overtime was not required of the Complainant in the role he held. He spoke to the Complainant about working overtime.

Meetings were held with the Complainant as regards his medical condition with evidence opened of the minutes of the meetings. He denied the allegation of harassment.

Mr Moore gave evidence as to the discussions of the medical reports from the Respondent’s Occupational Health Doctor. The Complainant was invited to produce alternative medical reports disputing the advice, but none were forthcoming.

Mr Moore gave evidence of the alternative roles that were considered for the Complainant and the engagement with the Talent Acquisition Team. Asked if the Complainant ever disagreed with these efforts, Mr Moore said, “to the contrary, Paul understood.”

Mr Moore gave evidence of the decision to put the Complainant on garden leave in October because it was the right thing to do. The Complainant was given additional benefits and options to explore further employment opportunities with other companies.

Mr Moore did not dispute the Complainant gave 14 years of loyalty and believed the Respondent did everything it could. He was offered to appeal the decision taken to discontinue the permanent health insurance, but this was not taken up.

Evidence was given as to the comparator identified by the Complainant and the difference to the Complainant. Mr Moore gave evidence that the Complainant’s role was not outsourced.

The Complainant , although invited , choose not to cross examine the Respondent’s witness.

The Respondent summed up the position of the Respondent, relying on the decision in Bus Atha Cliath – Dublin Bus v Claire McKevitt [2018] IEHC 78 and Daly v Nano Nagle School [2019] IESC 63.

Section 6 (1) of the Employment Equality Acts 1998 – 2015 defines discrimination as:-

“(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,”

Section 6 (2) continues:-

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

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”),

The employer’s obligations are set out in Section 16 (3):-

(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.

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;”

The dismissal was not in dispute between the parties nor was the Complainant’s disability. Therefore, the question before this Tribunal is  set out by Ms Justice NÍ Raifeartaigh referred to the 1990 High Court judgement of Bolger v  Showerings [1990] ELR 184 where it was held that in a case involving dismissal for incapacity the onus is on the employer to demonstrate:

(1) That the incapacity was the reason for the dismissal

(2) That the reason was substantial

(3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

(4) That the employee was afforded the opportunity of being heard.

In relation to the first question there was no allegation or evidence that the dismissal was for any reason other than the Complainant’s ability to carry out a role within the Respondent.

Skipping ahead to the third element of the test, based on the Complainant’s own evidence during cross examination he confirmed he was on notice of the potential and eventual termination of his employment.

Similarly, there is no evidence before me that the Complainant was not afforded the opportunity to be heard by the Respondent. The Complainant was consulted with on the medical advice received by the Respondent and the phased return to work. There were numerous meetings with evidence of the meeting notes presented at the hearing and unchallenged by the Complainant. There was undisputed evidence of engagement with the Talent Acquisition Team within the Respondent and the accommodation of alternative role when the Complainant returned to work in January 2021 up to the time he was put on garden leave in October 2021.

Therefore, the only question that remains to be decided in this case is whether the reason for the dismissal was substantial. It is therefore necessary to consider Nano Nagle School v. Marie Daly [2019] IESC 63 which held at paragraph 89 that: “[t] he test is one of reasonableness and proportionality: an employer is not under a duty entirely to re-designate or create a different job to facilitate an employee. It is therefore the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment reasonable accommodation in the job, or whether, in reality what is sought is an entirely different job. Section 16(1) of the Act refers specifically to ‘the position’, not to an alternative and quite different position.”

106. But I would again wish to emphasise these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open-ended one. There is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa. The question is, rather, to consider whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.”

The Respondent organised for the Complainant to meet with its Occupational Health Doctor on numerous occasions. The Complainant’s own evidence was that he fully engaged with the Occupational Health and was open and honest. When the Complainant initially returned to work he was required to the undertake learning and development part of his role, a compliance requirement of his role, along with low level administration tasks and some duties of a Senior Analyist.

His Line Manager engaged with him and raised the performance related concerns with the  Complainant. It was subsequently advised that the Complainant’s hours would be reduced which was advised in a second time in April 2021. The Complainant was spoken to again about errors in his work. Another assessment took place in May 2021 advising that Complainant work four hours a day. This was unchallenged by the Complainant.

In July 2021, following a further medical assessment it was advised that the Complainant was unable to continue work in his role as Senior Analyst and the Doctor was unable to advise on a date he would be medically fit to do so. A detailed report gave clear medical instructions to the Respondent on the Complainant’s fitness to work. A similar report followed in August 2021. The Complainant was met with the Respondent on both occasions. In August 2021, the Line Manager wrote to the Complainant on notice that his job was at risk enclosing the relevant policies. A meeting to discussion the procedure and discuss alternative roles. The suggestions made by the Complainant were investigated with the Talent Acquisition Team. The Line Manager arranged a follow up meeting with the Complainant and reported back that here were no alternative positions available.

I find that this conclusion came as a result of numerous detailed medical reports on the Complainant’s ability to undertake the duties of his own role as Senior Analyst but also the role involving low level administration tasks which he had been undertaking in the previous months. Applying the Nano Nagle decision to this case, the Respondent did discharge the onus to provide  the reasonable accommodations for the Complainant and even went further in providing an alternative role for a period of months. However, as stated by the Line Manager in his evidence , this alternative role was not open ended and was a short-term measure to assist the Complainant in his return to work. Unfortunately, based on the undisputed medical opinion, the Complainant remained unfit for the work with the Respondent.  

I have had regard for the size and workforce of the Respondent which was discussed in the High Court in Cunningham v. Irish Prison Service [2020] IEHC 282.

It should be noted that the Complainant himself is to be credited in his level of engagement and willingness to work with the Respondent and its Occupational Health Advisers to allow him to continue working. The Respondent’s acknowledgment of the Complainant’s loyal service is not only evident from the accommodation and financial assistance given to him during his employment but also the continuing supports offered after his employment came to an end.

I find the Complainant was not discriminated on the grounds of his disability by the Respondent.

Employment Equality