Complainant

Respondent

Parties

Aidan  Kelliher

BT Ireland

Representatives

  N/A

Mr. Christopher Ryan, DAC Beachcroft, instructing Mr. Kevin Bell B.L..

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-00051793-001

21/07/2022

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

CA-00051813-001

22/07/2022

On 10 October 2007, the Complainant commenced work for the Respondent’s corporate predecessor as an Electrician/Power Operations Professional. His role involved prolonged periods of driving and significant manual handling. The Complainant earned a base salary of approximately €3,719 per month, working approximately 40 hours per week. He also worked overtime.

In 2016 the Complainant had neck surgery and went on sick leave. The Complainant subsequently returned to work. In June 2021 the Complainant had further neck surgery and went on sick leave. An Occupational Health Report dated 6 September 2021 (the “OH Report”) certified the Complainant as being indefinitely unfit to undertake the duties of his contracted role. The Complainant ultimately never returned to work and resigned from his role on 24 January 2022.  

The Complainant filed two Complaint Forms with the Workplace Relations Commission (the “WRC”) on 21 and 22 July 2022. In the Complaint Form dated 21 July 2022, the Complainant alleged that the Respondent discriminated against him by reason of his disability and discriminated against him in failing to provide reasonable accommodation for his disability, in breach of the Employment Equality Acts 1998-2015, as amended (the “EEA”). In the Complaint Form dated 22 July 2022, the Complainant alleged that he had been constructively dismissed, in breach of the Unfair Dismissals Act 1977-2015, as amended (the “UD Act”).

The Respondent denied that it discriminated against the Complainant in any way and submitted that it discharged its statutory duty to reasonably accommodate the Complainant’s disability. The Respondent also denied that any constructive dismissal occurred and submitted that the Complainant resigned from his employment voluntarily.

The Complainant provided detailed written and oral submissions.

The Complainant outlined that from 2007 to 2022, he worked for the Respondent as an Electrician/Power Operations Professional.

In 2016 he had neck surgery and went on sick leave. The Complainant outlined that he returned to work early, as agreed with his (then) Line Manager. He outlined that it was verbally agreed that he would undertake a less physical role, however he submitted that this did not occur. He also outlined that he was not required to complete various return to work procedures when he returned to work. He outlined that when he raised his concerns with his (then) Line Manager, he was told that it was the only available role and that if he could not fulfil the role, he should seek alternative employment. The Complainant outlined that he did not have any evidence to corroborate these events and that the relevant Line Manager no longer worked for the Respondent. The Complainant further outlined that he had not pursued a grievance. There were no further issues until 2021.

The Complainant outlined that on 7 June 2021, he went on sick leave as he was suffering from neck problems. On 29 June 2021, he had neck surgery. On 6 September 2021, he attended an Occupational Health interview. The resultant Occupational Health Report (the “OH Report”) dated 6 September 2021, certified the Complainant as being indefinitely unfit to undertake the duties of his contracted role. The OH Report confirmed that the prognosis of him returning to his old role was poor. The OH Report stated that he was capable of a sedentary/desk-based role. The Complainant outlined that following receipt of the OH Report, the Respondent informed him that he had to remain on sick leave as there was no alternative role available.

The Complainant outlined that he wanted to remain with the Respondent. He stated that he had worked for the Respondent for 15 years and that the Respondent should have trained and upskilled him into a new role.  He believed that the Respondent should have accounted for his loyal service. He believed that the Respondent owed him a duty of care.

The Complainant outlined that he engaged extensively with the Respondent by way of calls, emails, meetings and interviews from September 2021 until January 2022. He outlined his belief that he received mixed messages and that the Respondent did not treat him well.

The Complainant outlined that in September 2021, he applied unsuccessfully for an internal Project Lead role. He accepted that he did not have the necessary experience but believed that with training, he could obtain the role.

The Complainant further outlined that, during this time, the Respondent contacted managers across the business to see if new roles were available for him. However, he understood that none were available.

The Complainant outlined that in late September 2021 he was advised of a shift desk-based role in the Ballycoolin Data Centre. He outlined that he declined this role as he had started an online degree course in Building Energy Management and he had to attend compulsory online evening classes. He further outlined that he had childcare commitments. He also outlined that his GP had advised that it was too early in his recovery process to work 12-hour shifts. The Complainant outlined that his GP believed that an eight-hour day would be manageable. Finally, the Complainant took issue with the lengthy commute on public transport.

Around this same time, the Complainant was informed by the Respondent that he was not entitled to more than six months’ paid sick leave, as per the Respondent’s sick leave policy. He was advised that he could apply for Permanent Health Insurance (“PHI”), a long-term sick pay scheme. The Complainant outlined that during this same conversation, he was advised that there was a “strong chance” that his PHI application would not succeed as he had been deemed fit to return to work – just not to his contracted role. He outlined his belief that the Respondent was giving him mixed messages and treating him in an unprofessional manner.

The Complainant further outlined that he sought a “Leaver’s Package” and believed that this should have provided for a minimum of six months’ pay, which he believed he was entitled to in order to upskill and find a job. In January 2022, the Complainant was told that he was not eligible for a “Leaver’s Package”. He submitted that the Respondent did not consider his difficult financial situation.

The Complainant outlined that in January 2022, the Respondent informed him of a vacant Project Manager role. As this was a level above the role that he had unsuccessfully applied for in September 2021, he believed that this was the “final insult” to him and that the Respondent was engaging in a “box-ticking” exercise and treating him disrespectfully.

The Complainant outlined that in the circumstances, he believed that he had no alternative but to resign on 24 January 2022. The Complainant outlined in his written submissions that he wished that he had followed the grievance procedure, but he did not have the “wherewithal” to do so. The Complainant outlined the stress, financial and otherwise, which he suffered during this time. He also outlined his belief that the Respondent failed to provide sufficient support or treat him with respect and dignity. The Complainant outlined that he wanted compensation and acknowledgement.

The Complainant – Cross-Examination:

Under cross-examination, the Complainant was referred to the OH Report. He agreed with the assessment that due to his disability, he could not return to his contracted role. He also confirmed that he did not suggest practical measures which would allow for any driving or manual handling duties. He confirmed that he wanted to be redeployed to a desk-based role.  

The Complainant accepted that the Respondent was not concealing vacant roles from him and that he also had access to the Respondent’s internal vacancy database. The Complainant accepted that his two Line Managers tried to find alternative roles for him between September and December 2021. However, he believed that this was a “box-ticking exercise” and repeated his belief that the Respondent “could have done something” for him.

The Complainant was referred to the Respondent’s feedback regarding how to improve his future internal applications, however, he maintained that he was not provided with sufficient help and guidance.

The Complainant accepted that the role at the Ballycoolin Data Centre was not offered to him in bad faith. However, he stated that he declined it as he was attending online evening classes and had childcare commitments. 

The Complainant accepted that the Respondent did not discriminate against him regarding the PHI scheme.

The Complainant confirmed that since 28 February 2022, he has been working as a Project Manager, earning approximately €59,000 per year. The Complainant confirmed that he applied for this role in January 2022.

The Complainant denied that he had decided to leave the Respondent by December 2021 and that he would have accepted a “Leaver’s Package”. As regards raising a grievance, the Complainant stated that he was not familiar with the grievance procedure, despite it being put to him that he had invoked it previously. The Complainant also stated that he was in contact with the Respondent’s Managing Director regarding his grievance but had no proof of this. The Complainant also stated that his union representative had told him not to invoke the grievance procedure.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant has not provided any evidence supporting his allegations of discrimination and has not established a prima facie case. The Respondent denied that it discriminated against the Complainant in any way and submitted that it discharged its statutory duty to reasonably accommodate the Complainant’s disability. The Respondent also denied that any constructive dismissal occurred and submitted that the Complainant resigned from his employment voluntarily.  

The Respondent outlined that it was common case that the OH Report certified the Complainant as being indefinitely unfit to carry out 90% of the duties associated with his contracted role, which involved prolonged periods of driving and manual handling. The Respondent further outlined that it was also common case that no reasonable measures could have been put in place to allow the Complainant to return to his contracted role. The Respondent submitted that the OH Report confirmed that the Complainant could return to a sedentary/desk-based role. The OH Report also indicated that the Complainant would be able to drive short distances from mid-November 2021 onwards.

The Respondent submitted that it had engaged extensively with the Complainant. The Respondent carried out an analysis of vacant roles, accorded the Complainant the opportunity to apply for certain roles, provided feedback and offered him a redeployed role in its Ballycoolin Data Centre, which he declined. The Respondent outlined that the Complainant also declined to apply for a Project Manager role in January 2022 and instead resigned voluntarily on 24 January 2022.

The Respondent further outlined that from 7 June 2021 until 6 December 2021, the Complainant was in receipt of paid extended sick leave and private health insurance contributions.  

In the circumstances, the Respondent submitted that it discharged its statutory duty to reasonably accommodate the Complainant’s disability and in fact went further than required. The Respondent further submitted that although it was not statutorily obliged to seek to redeploy the Complainant, it still took extensive steps to do so.

The Respondent referred to Nano Nagle School v. Marie Daly [2019] IESC 63 (the “Nano Nagle Case”), 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.”

The Respondent submitted that the Labour Court decision in O’Shea v. HSE EDA/2227 addressed the same argument advanced by the Complainant in this matter. The Labour Court held that section 16 of the EEA requires an employer merely to identify any reasonable measures that would accommodate a disabled employee in performing his contracted role. The section does not require that an employer identify a different role or create a new role for a disabled employee.

The Respondent distinguished this matter from Cunningham v. Irish Prison Service [2020] IEHC 282 (the “Cunningham Case”) as the Complainant in this matter was not fit to carry out his contracted role with the benefit of reasonable accommodation in the form of reallocation of certain limited duties. Instead, the Complainant in this matter sought redeployment to a new role.

The Respondent distinguished this matter from HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022 (the “HR Rail Case”), as that case held that not only must an actual vacancy exist, but the employee must also be adequately qualified for the role. The Respondent submitted that not only had it met its statutory obligations, it had in fact exceeded them. Finally, and in any event, the Respondent submitted that the EEA does not require redeployment to a new role to fulfil the duty to reasonably accommodate.

As regards the constructive dismissal complaint, the Respondent submitted that the Complainant’s resignation was neither a result of the Respondent’s conduct, nor of any breach of a fundamental term of his contract. The Respondent outlined that its actions towards the Complainant were reasonable, sympathetic and met its statutory duties. The Respondent submitted that the Complainant did not initiate or exhaust the Respondent’s grievance procedure. Finally, the Respondent submitted that it was likely that the Complainant voluntarily resigned on 24 January 2022 because he had secured alternative employment which he commenced on 28 February 2022.

Witness Evidence – Ms. Lawton:

Ms. Lawton outlined that she is an HR Business Partner for the Respondent since 2019.

Ms. Lawton outlined that she liaised with the Complainant and his two Line Managers in June 2021. She referred to a letter from the Complainant’s consultant dated 19 July 2021. She outlined that the Complainant was subsequently referred to Occupational Health in August 2021 in order to identify reasonable accommodations for his disability and a return-to-work timeframe.

Ms. Lawton referred to the Complainant’s OH Report dated 6 September 2021. She outlined that the OH Report did not suggest any measures which could be implemented to make the Complainant’s contracted role suitable for him. She outlined that it appeared that the only way for the Complainant to return to work was by way of redeployment or redesignation to a new role.

Ms. Lawton explained that when she spoke with the Complainant, he outlined that he had project management qualifications. She said that the Complainant had once briefly mentioned his ongoing degree course in building energy management, in an email dated 6 September 2021. She outlined that at that stage, he never mentioned that he had online evening class commitments.

Ms. Lawton referred to her email to the Complainant dated 9 September 2021. In her email, she explained that she had contacted two managers separately regarding vacant project management roles. While one manager had no vacancies, the other advised that there was an internal Project Lead vacancy. Ms. Lawton provided the Complainant with the specific recruiting manager’s contact details so that he could discuss the role with her before applying. Ms. Lawton outlined that the Complainant later told her that his interview did not go well. Ms. Lawton explained that her colleague, Ms. Mornell, then took over the Complainant’s job search. 

Ms. Lawton outlined that she had a number of telephone conversations with the Complainant. She explained that she also encouraged him to apply for Permanent Health Insurance (“PHI”). She outlined that the PHI decision is taken by “Aviva”, the PHI provider, and not by the Respondent. This decision is based on inter alia the OH Report and an independent medical assessment. She outlined that she never told the Complainant that it was highly unlikely that his application would succeed, rather that there was a risk that “Aviva” would reject his claim as he had been cleared in the OH Report for light duties. She further outlined that the Complainant did not attend his PHI interview as he had Covid, and that he also did not attend the rescheduled interview.

Ms. Lawton outlined that the Respondent provides private health insurance through “Leya Healthcare”. She explained that the Respondent, at its discretion, continued to pay the Complainant’s private health insurance contributions while he was on sick leave. She outlined that when an employee leaves the Respondent, these payments can be recouped, however the Respondent elected not to do so in the Complainant’s case.

Ms. Lawton confirmed that the Respondent’s grievance procedure is available on the Respondent’s intranet homepage. Ms. Lawton outlined that she was aware of other complaints previously raised by the Complainant.

Finally, Ms. Lawton confirmed that the Complainant received pay for six days sick leave in December 2021 and that he was paid for 27 days of accrued annual leave in February 2022.

Cross-examination:

Ms. Lawton denied that she told the Complainant that he would not get PHI and repeated that she had encouraged him to apply for it.

Witness Evidence – Ms. Mornell:

Ms. Mornell outlined that she is a Service Assurance Manager for the Respondent and that she was the Complainant’s Second Line Manager.

She outlined that on 29 September 2021, she received an email from the Complainant’s First Line Manager in which he stated that he had spoken to the Complainant on 28 September 2021. The Complainant had informed him that he was unsuccessful in his recent internal interview, that he did not feel that he could return as an Electrician and that he was actively pursuing an alternative role. The First Line Manager confirmed that they had discussed five possible different areas of interest in the business – Networks, the Network Operation Centre, the Chief Technology Operating area, Wholesale and Marketing. The First Line Manager asked Ms. Mornell to check with other areas in the business to see if there were any current or anticipated vacancies.

Ms. Mornell outlined that upon receipt of this email, she contacted two other managers, both of whom confirmed that they had no vacancies in their teams.  

Ms. Mornell explained that she understood from the Complainant’s OH Report that he could not return to his contracted role due to prolonged periods of driving and manual handling duties. She understood that the Complainant sought a desk-based role and she wanted to find a role for him. She had not discussed locations with the Complainant until the role at the Ballycoolin Data Centre arose. She outlined that she knew that the Complainant was friendly with the manager in the Ballycoolin Data Centre.

Ms. Mornell outlined that at the end of November 2021, during her 2nd Line Review meeting with the Complainant, she learned for the first time that the Complainant had compulsory online evening classes. She said that she did not know that the Ballycoolin Data Centre role was a shift role. Ms. Mornell stressed that she was not trying to set the Complainant up with a role which he would decline. She had simply sought a desk-based role for him. Ms. Mornell outlined that the annual salary for the role was €36k but that it had been agreed by the Respondent that the Complainant could take up this role on his current annual base salary of approximately €44k and that his terms and conditions would be ring-fenced. The Complainant declined this role.

Ms. Mornell outlined that during that same meeting, the Complainant asked he if could be paid in lieu of his accrued annual leave from 6 January 2022. She looked into this query and explained in her subsequent email dated 1 December 2021 that payment in lieu of annual leave could only be made when an employee leaves the business.

Ms. Mornell also referred to her email dated 26 November 2021 where, in response to the Complainant’s queries, she had explained that the Respondent had the right to recoup any monies paid to cover private health insurance contributions while he was on unpaid sick leave. Ms. Mornell outlined that the Respondent, at its discretion, had decided not to recoup these monies.

Ms. Mornell outlined that the Complainant also wanted to discuss a possible “Leaver’s Package” with her at the end of 2021/beginning of 2022. Ms. Mornell raised this with the Head of HR but she was informed that it was not an option for the Complainant at that time as they were awaiting the outcome of his PHI claim. In his email dated 14 January 2022, the Complainant stated “[a]s there is no desk based role for me within the company I am in my eyes, along with the physicians, fully fit to work in a desk based role so can I please be let free to find a desk based role elsewhere”. Ms. Mornell understood from this that the Complainant was actively discussing his resignation, ten days before his actual resignation on 24 January 2022. She outlined that there was no suggestion of a grievance or complaint.

Ms. Mornell referred to her email to the Complainant dated 19 January 2022, in which she provided him with information concerning a vacant Project Manager role. She outlined that she honestly believed that it would be worthwhile for him to apply for the role. She outlined that the Complainant did not reply to her email.

Ms. Mornell denied that the Complainant was on the “scrap heap” as he had alleged. She outlined in detail, the lengths to which the Respondent went to in order to find him a new role. These steps had also been set out in her email to the Complainant dated 25 January 2022 as:

-          Seeking out suitable desk-based roles by contacting numerous people in different areas of the business, in which the Complainant had expressed an interest;

-          Reaching out to managers regarding possible vacancies, with details of the Complainant’s experience;

-          Providing the Complainant with details of the vacant Project Lead role, for which he applied in September 2021;

-          Discussing the Dublin-based electrical role which the Complainant declined to progress;

-          Offering the Complainant a desk-based role in the Ballycoolin Data Centre which he declined;

-          Providing the Complainant with details concerning a vacant Project Manager role in January 2022;

-          Assisting the Complainant with his PHI application;

-          Extending the Complainant’s period of paid sick leave to the full six months permitted; and

-          Taking the Complainant’s request for a “Leaver’s Package” to the Head of HR who advised that it was not on offer as they were awaiting the outcome of the PHI application.

Cross-examination:

Under cross-examination Ms. Mornell explained that she did not realise the hierarchy of the Project Lead and Project Manager roles. She stressed that she was trying to assist the Complainant and she never intended to antagonise him.

CA-00051793-001: Complaint Pursuant to the Employment Equality Act 1998, as amended:

The Law:

Legislation: Employment Equality Act 1998-2015, as amended (the “EEA”):

Discrimination:

Sections 6 and 8 prohibit employers from discriminating against employees on the basis of disability. The most relevant parts are:

“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 of the EEA addresses the extent of the obligation of an employer to provide reasonable accommodation to an employee. The most relevant parts of section 16 are:

“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 position, having regard to the conditions under which those duties are, or may be required to be, performed.”

Section 16(3) outlines the obligation to provide appropriate measures for an employee:

“(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.”

Section 16(4) addresses what are appropriate measures.

“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:

Under section 85A of the EEA, the burden of proof is on the Complainant. If the Complainant meets the threshold, it is then for the Respondent to rebut the presumption of discrimination.

In Melbury Developments Ltd v. Valpeters [2010] E.L.R. 64 (the “Melbury Developments Case”), at page 68, the Labour Court addressed the burden of proof, finding:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Caselaw:

In Nano Nagle School v. Daly [2019] IESC 63 (“the Nano Nagle Case”), the Supreme Court addressed the obligation to provide reasonable accommodation to an employee in the following terms:

“89. This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a "disproportionate burden". If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or "stripped out ". But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, "fully capable of undertaking the duties" attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be 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 is reasonable accommodation in the job, or whether, in reality, what is sought in 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.”

In Cunningham v. Irish Prison Service [2020] IEHC 282 (the “Cunningham Case”), Barr J. noted at paragraph 72:

“In addition, the case law makes it clear that the employer does not have to create a job for the person with the disability nor do they have to provide measures that are unduly burdensome. This is the test of proportionality or reasonableness: see Nano Nagle judgment at paras.89 and 106.”

Barr J. concluded that there was no one-size-fits-all approach and the nature of the obligation to provide reasonable accommodation depended on the circumstances.

In HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022 (the “HR Rail Case”), the Court of Justice of the European Union determined that “reassignment to another job may constitute an appropriate measure”, albeit not to such an extent that it poses a “disproportionate burden” on the employer. The employee must also have the necessary competence, capability and availability for the new role. There must also be a vacancy available for the employee to fill.

Findings and Conclusion:

It was accepted that the Complainant has a disability within the meaning of the EEA and therefore enjoys the protections of the EEA.

The focus of this complaint centred on the Respondent’s alleged failure in its obligation to provide him with reasonable accommodation over a four-month period, from September 2021 until January 2022. While the Complainant also took issue with how he was treated on his return to work following sick leave in 2016, he did not have any evidence to corroborate the events. He had not invoked the grievance procedure and the relevant Line Manager no longer worked for the Respondent.  

It was common case that following his neck surgery in June 2021, the Complainant was certified as being indefinitely unfit to carry out 90% of the duties associated with his contracted role, which involved prolonged periods of driving and manual handling. It was also common case that no reasonable measures could have been put in place to allow the Complainant to return to his contracted role. The OH Report dated 6 September 2021 confirmed that the Complainant could return to a sedentary/desk-based role. The OH Report also indicated that the Complainant would be able to drive short distances from mid-November 2021 onwards.  

On 6 September 2021, following receipt of the OH Report, the Respondent commenced extensive engagement with the Complainant to identify a suitable alternative role. The Respondent sought details of the Complainant’s qualifications and experience. The Respondent noted the Complainant’s preference for a project management role based on his qualifications and his preferred five business areas. At least six managers across the business were contacted, to seek out a suitable desk-based role. The Complainant, who also had access to the Respondent’s internal recruitment site, confirmed that there were no suitable desk-based vacancies about which he was not informed and given the opportunity to apply for.

In September 2021, the Complainant unsuccessfully applied for a vacant Project Lead role. The Respondent had provided the Complainant with details of the role and the recruiting manager. According to the Complainant, the interview did not go well. After the interview, he was provided with feedback concerning the Respondent’s products, skills and topics to focus on; as well as recommended courses to complete, so as to improve his future internal applications. The emails were detailed and helpful and they did appear to be a one-sided communication, as alleged.

In November 2021, the Respondent identified a desk-based role for the Complainant in its Ballycoolin Data Centre. It had been agreed by the Respondent that the Complainant could take up this role on his current terms and conditions and his current annual base salary of approximately €44k. On 11 November 2021, the Complainant declined to apply for the role as inter alia it was a shift role. While the Complainant alleged that the Respondent was completing a “box-ticking” exercise, this was not borne out by the evidence. In fact, under cross-examination, the Complainant accepted that this role was offered to him by a manager, with whom he was friendly, in good faith.

In January 2022, the Respondent provided the Complainant with details of a vacant Project Manager role. The Complainant took offence to this. He believed that the Respondent was now suggesting he apply for a role which was more senior to the role for which he unsuccessfully applied in September 2021 and this was the “final insult”. In evidence, the Service Assurance Manager credibly explained that she did not realise the hierarchy of the roles, she was trying to help the Complainant and that she never intended to antagonise him.

The Complainant was in receipt of extended paid sick leave for a period of six months from 7 June until 7 December 2021. The Respondent also continued to pay his health care benefit contributions. The Complainant was encouraged to apply for PHI.

Application of the Law to the Facts of this Complaint:

Section 16 of the EEA requires an employer to identify any reasonable measures that would accommodate a disabled employee in performing his contracted role. Given the nature of the Complainant’s contracted role, which required prolonged periods of driving and manual handling, it was common case that no reasonable measures could have been implemented to render this role suitable for the Complainant. Therefore, unlike the Nano Nagle Case and the Cunningham Case, the Complainant was not seeking to remain in his contracted role with certain limited reallocation of duties. Instead, he sought redeployment to a new role.

The HR Rail Case provides that “reassignment to another job may constitute an appropriate measure”, albeit not to such an extent that it poses a “disproportionate burden” on the employer. However, the employee must be capable of the new role and there must be a vacancy. The HR Rail Case represents the current interpretation of a key concept of EU disability anti-discrimination law. Here the Respondent has met its obligations pursuant to the HR Rail Case in that it offered the Complainant a desk-based role in the Ballycoolin Data Centre, which he declined. The Respondent also carried out an exhaustive search for vacancies, encouraged the Complainant to apply for roles so that his qualifications could be assessed and provided him with detailed feedback to improve his future internal applications.

Over time, the Complainant became more specific about the type of role he wanted: a desk-based, non-shift role, with a short commute by public transport from his home. He also had online classes and childcare commitments to accommodate. The Complainant, having worked for 15 years as an Electrician/Power Operations Professional, specified an interest in a project management role based on his qualifications. The Complainant believed that the Respondent should have accounted for his loyal service; had a duty of care to him; and should have created a vacancy for him. This position is not supported by the caselaw.

Moreover, the Complainant failed to provide details to support any other allegation regarding how he was treated less favourably on the ground of disability. He accepted that the Respondent did not discriminate against him regarding the PHI scheme. As per the Melbury Developments Case, mere assertions unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

It is clear from the evidence that the Respondent fulfilled and exceeded its duty to reasonably accommodate the Complainant’s disability under the EEA. I decide that the Complainant has not established a prima facie case of discrimination on the ground of disability or that there was a failure to provide reasonable accommodation. Therefore, I find that he was not discriminated against.

CA-00051813-001: Complaint Pursuant to the Unfair Dismissals Act 1977, as amended:

The Law:

Legislation:

Unfair Dismissals Act 1977-2015, as amended (the “UD Act”):

The definition of constructive dismissal as provided for under section 1 of the UD Act is:

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

Caselaw:

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the “Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavations Ltd v.  Colin John Sharp [1978] 1 All E.R. 713 the “Contract Test” is summarised as follows:

 “If the employer is guilty of 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 as discharged from any other performance.”

Addressing the “Reasonableness Test” the same decision assesses the conduct of the employer as follows:

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

The Supreme Court in Adam Berber v. Dunnes Stores Ltd. [2009] IESC 10 held that in cases of alleged constructive dismissal, there should also be an examination of whether the implied term of mutual trust and confidence has been repudiated:

“There is implied in a contract of employment a mutual obligation that the employer and employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. […] In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended.”

The requirement to exhaust internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd. (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Findings and Conclusion:

In a claim of constructive dismissal, the burden of proof rests with the employee to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer and the employee is justified in leaving. The Complainant provided no evidence of this here. Rather, the Respondent was responsive, reasonable and for the reasons outlined above, acted in compliance with its statutory duties. Moreover, the Complainant failed to invoke the internal grievance procedure.  In the circumstances, I decide that the complaint is not well founded.

CA-00051793-001: Complaint Pursuant to the Employment Equality Act 1998, as amended:

The Complainant has not established a prima facie case of discrimination on the ground of disability or that there was a failure to provide reasonable accommodation. Therefore I find that he was not discriminated against.

CA-00051813-001: Complaint Pursuant to the Unfair Dismissals Act 1977, as amended:

I decide that the complaint is not well founded.

Employment Equality Act, Discrimination, Reasonable accommodation, Unfair Dismissals Act, Constructive Dismissal.