Complainant

Respondent

Parties

Mark  Lawlor

DNA IT Solutions Limited

Representatives

Setanta Landers, Setanta Solicitors

Alastair Purdy, Alastair Purdy & Co. Solicitors

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-00055166-001

17/02/2023

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

CA-00055166-002

17/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00055166-003

17/02/2023

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

CA-00055166-004

17/02/2023

The complainant commenced employment as Chief Technical Officer of the respondent on 01 July 2018.  He worked a 39-hour week, and his monthly salary was €7,500 gross. 

In February 2021 the complainant was diagnosed with cancer.  The complainant commenced treatment and was out of work on unpaid sick leave between March and October 2021.  He returned to work in October 2021 working on a part-time basis.  His hours of work increased in January 2022 to the equivalent of 3 days per week.  The complainant had to take sick leave again from August 2022.   In November 2022 he informed the respondent that he would be fit to return to work in January 2023.  The complainant asserts that on 18 November 2022 he was informed that his absence on sick leave had left large technical gaps in the company which had to be filled by reassigning roles to existing and new staff and consequently his role was no longer available.

The complainant submitted complaints to the Workplace Relations Commission on 17 February 2023 claiming that he had been dismissed because of his disability, that he was discriminated against by the respondent when it failed to give him reasonable accommodation for his disability and that he was victimised by the respondent because of his disability.  The complainant also submitted a complaint pursuant to the Sick Leave Act 2022 claiming the respondent penalised him, but this complaint was withdrawn at the hearing.

The respondent does not contest that the complainant suffered from a disability, as defined in the Act, at the date he left his employment.  The respondent rejects the claim of discrimination in respect of the complainant’s disability.  The respondent asserts that the complainant was not dismissed.  The respondent asserts that it took appropriate measures and reasonable steps to accommodate the complainant in the workplace.  The respondent asserts that the complainant was not treated adversely.

The complainant commenced employment as Chief Technical Officer of the respondent on 01 July 2018.  He worked a 39-hour week, and his monthly salary was €7,500 gross.

In February 2021 the complainant was diagnosed with cancer.  The complainant commenced treatment and was out of work on unpaid sick leave between March and October 2021.  He returned to work in October 2021.  The complainant had to take sick leave again from August 2022.   In November 2022 he was deemed fit to return to work in January 2023.  The complainant asserts that on 18 November 2022 he was informed that his absence on sick leave had left large technical gaps in the company which had to be filled by reassigning roles to other staff and hiring new staff and consequently his role no longer existed.

The complainant gave evidence on oath.

The complainant described his work as the Chief Technical Officer with the respondent company.  He was responsible for technical guidance and infrastructure architecture for both inhouse and clients.  He stated that the detailed description of his role at paragraph 1.3 of the written submission was accurate.  Part of his role involved the management of relationships with clients.  He stated that there were no performance issues with his work from the time he commenced employment in 2018 up to the time in 2021 when he was diagnosed with cancer.

After his diagnosis the complainant was scheduled to have surgery.  However, the surgery was cancelled when other complications were discovered.  Instead, the complainant commenced immunotherapy treatment every two weeks.  The complainant wanted to return to work, mainly for mental health reasons.  In August 2021 the complainant asked his doctors if he could return to work.  He received a letter from the hospital stating that the treatment should not prevent him from returning to work if feeling well.  He gave this letter to the Head of Operations.

The complainant asked to return to work, explaining that he wanted to return for mental stimulation.  The complainant stated that he was told by the Head of Operations that he could return for the equivalent of two days per week, spread over the week and he was not to fully engage with clients.  The complainant stated that he did not feel he had a choice other than to accept that arrangement.  Two months after his first request he returned to work in October 2021.

After returning to work his roles and responsibilities were removed.  Initially he did some work on pre-sales presentations and assisted the Head of Sales to prepare technical specifications, but that work stopped.   The complainant was assigned to develop documentation for ISO 27001 for the respondent.  The complainant found it difficult to do project work on his restricted work hours.  So, he requested to increase his hours.  He was allowed to increase his hours to the equivalent of three days from January 2022.  The complainant stated that he wanted to increase his hours to full-time, but he was told by the Head of Operations that it would be better for his health to increase by one extra day.  The complainant stated that he was not sent to an Occupational Health Professional.  The complainant had provided the letter from the hospital, dated 11 August 2021, that stated he could go back to work if he was feeling well.  The complainant stated that he was not asked for anything else.

The complainant was happy that his work hours were increased in January 2022, but he was not happy that he was not back full-time.  Although the complainant’s hours of work increased his workload did not.  He stated that he was capable of working but the respondent giving the understanding that it was conscious of his health did not allow him to work full-time.  The complainant stated that while he was happy to be working, he did not feel facilitated.  He felt the respondent was facilitating itself.

In April 2022 a role as Head of IT was advertised.  The complainant got a phone call from a friend asking him if it was his role that was advertised.  The complainant stated that he made a comment to the Head of Operations about the advertisement and was it was a role to help Sales in acquiring new business.

At the complainant’s one-year medical review he was informed that the treatment was unsuccessful, and new treatment had to be considered.  The complainant changed consultants and was put on a new trial drug in June 2022.  In July 2022 the complainant reacted negatively to the new treatment.  He stated that he was under stress at that time due to his cancer and he may have said something about leaving.  He was offered two weeks off, which he took, but due to the severe effects of the new drugs he had to return to long-term sick leave.  The drugs were effective and when he was changed to a lower dose the side effects were reduced.  By October 2022 the complainant’s cancer had reduced significantly and he discussed returning to work with his consultant.

The complainant’s consultant advised him to take it easy and suggested that maybe a good time to return to work would be January 2023.  The complainant contacted the Head of Operations and was invited to meet with him on 18 November 2022.  Having visited the office, the complainant and the Head of Operations went to a coffee shop.  The complainant stated that he was told that his roles had been redistributed and that here was no job for him.  The complainant stated that he told the Head of Operations that he had never expected to be fired because he was sick.  He stated that the Head of Operations said the business had to operate and keep going forward and he had to look after the business.  The complainant stated that the Head of Operations said he would arrange for a settlement figure to be given to him.  The Head of Operations suggested that the complainant tell other staff that it was his own idea to leave.  The complainant was shocked at this development as the Head of Operations had always said that his job was available to him.  The complainant stated that from 18 November 2022 his job was gone. He did not want to leave but the respondent wished to let him go.

The complainant stated that to his knowledge no other person was put on a 2.5- or 3-day week by the respondent.

CA-00055166-001

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

Discriminatory Dismissal

The complainant was diagnosed with cancer in February 2021.  The complainant suffers with a disability as defined by section 2(1)(b) of the Employment Equality Act, 1998.  The Act provides that one employee shall not be treated in a less favourable manner than another employee in circumstances where “one is a person with a disability and the other is not or is a person with a different disability” section 6(2)(g).  It is submitted that the complainant was treated differently from other employees without disabilities in being restricted to certain duties, having his roles removed from him and being restrained from engaging in client facing activities.

It is admitted on the record by the solicitors for the respondent that the respondent actively and purposely removed the complainant from all client-based tasks and client interactions due to his disability.

The complainant was informed that due to his disability and absences that the respondent had ‘addressed gaps’ and consequently his role no longer existed for him.

The complainant was instructed to tell other employees that he had chosen to leave his employment when in fact he was being dismissed due to his disability.

Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination.  The complainant is required to establish facts from which discrimination may be inferred.  The established facts must be of sufficient significance to raise a presumption of discrimination.  It is submitted that the complainant has established facts that raise a presumption of prima facie direct discrimination.

The complainant cited the Labour Court’s decision in Valpeters v Melbury Developments Limited [2010] E.L.R. 64 as confirming what is required by section 85A of the Act.  The decision in 2 Named Complainants v A Catering Company [2018] E.L.R. 105 was also cited.

The complainant’s position is that due to his disability his roles and responsibilities were redistributed and reassigned to the extent that no role existed for him within the respondent company, and he was dismissed because of his disability.

CA-00055166-002

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

Reasonable Accommodation

Section 16(3) of the Act requires an employer to take appropriate measures, where needed, to enable a person with a disability to have access to employment, to participate in and advance in employment or undergo training.  MacMenamin J in Nano Nagle v Daly [2019] IESC 63 held that the section 16(3) of the Act places a ‘mandatory primary duty’ on the employer to provide reasonable accommodation unless this would impose a disproportionate burden on the employer.  The Supreme Court held that the test is one of reasonableness and proportionality.  If the employer makes reasonable accommodation for the employee but the employee is still unable to fully undertake the duties of the position, then there is no discrimination.  It is the complainant’s position that he was not provided with reasonable accommodation.

The respondent failed to provide the complainant with reasonable accommodation when it did not allow him to return to full duties and responsibilities.  The complainant’s normal duties were reassigned to other employees.  The complainant was not allowed to return to work a five-day week, he was instead kept on a three-day week.  The complainant was not allowed to engage in client facing activities as he had done before becoming ill.  The complainant asserts that he was able and willing to carry out his ordinary duties, but the respondent refused on the basis that it was not possible due to his disability.

The respondent’s only reason for refusing a return to normal duties was stated to be a concern for the complainant’s health.  Despite this concern the respondent did not refer the complainant to occupational health to inquire as to whether accommodations would be needed to allow the complainant return to full duties.

In support of the contention that the complainant was not provided with reasonable accommodation the decision in Cunningham v Irish Prison Service [2020] IEHC 282 was cited.  The High Court held: “Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome on the employer and did not impair the operational capacity.”

The complainant submits that to avail itself of a defence pursuant to section 16 of the Act to the claim of discrimination the respondent must show it formed a bona fide belief that the complainant was not capable of performing the duties for which he was employed.  The decisions in Humphreys v Westwood Fitness Club [2004] E.L.R. 296, A Worker (Mr O) v An Employer (No 1) [2005] E.L.R. 113, Bus Eireann v Mr C EDA0811 and McMullan v Apcoa Parking Ireland Limited ADJ-00026107 were cited.

The complainant submits that the respondent did not make any adequate enquiries to rely on the defence of competence.  The complainant provided a letter from his medical consultants certifying his fitness to return to full duties but, the respondent refused to allow him to return to his full role and responsibilities.  Although the respondent cited concern for the complainant’s health it did not refer to complainant for an occupational health assessment at any point.

The complainant submits he was discriminated against by the respondent because of his disability when it failed to reasonably accommodate his return to his full duties.

CA-00055166-003

Complaint pursuant to the Sick Leave Act, 2022

This complaint was withdrawn by the complainant at the hearing.

CA-00055166-004

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

Victimisation

The complainant contends that he was victimised by the respondent in having his roles removed from him and ultimately being dismissed for seeking to return to work on a full-time basis.

Conclusion

The complainant’s position is that due to his disability he was prevented from returning to full-time employment when he had been certified as fit to return to work.  The respondent failed to provide him with reasonable accommodation for his disability and did not allow him to return to his normal duties.  The complainant asserts that his roles and responsibilities were redistributed and assigned to others so that no role existed for him within the respondent company, and he was ultimately dismissed due to his disability.  The complainant submits he suffered actual discrimination due to his disability.

The complainant commenced employment with the respondent in July 2018 as its Chief Technical Officer.  The complainant’s total remuneration package was €90,000 per annum. 

In or around 02 February 2021 the complainant was diagnosed with cancer.  The complainant informed the respondent of his diagnosis and the fact that he would need to take time off work to undergo treatment

From March until October 2021 the complainant was on sick leave.  The respondent does not operate a sick pay scheme.  The respondent has an income protection scheme, which was offered to the complainant, but he failed to avail himself of that scheme.  During that period of sick leave, the complainant remained in frequent contact with the respondent regarding the progress of his treatment.

In August 2021 the respondent received a letter from the hospital where the complainant was being treated.  It stated that the complainant was on immunotherapy, and this should not prevent him returning to work if he was feeling well, as long as the work would not negatively affect his ongoing treatment. 

The complainant returned to work in October 2021, initially working 12 hours per week.  His hours of work were in time increased to 22.5 hour per week, by agreement with the complainant.  The reduced work week was suggested on the basis it would facilitate his health and ongoing treatment.  The work arrangements were made with the health and wellbeing of the complainant in mind.  The respondent contends that the complainant accepted this work arrangement and was content with same.  The respondent denies that it dismissed any concerns raised by the complainant.

Being mindful of the complainant’s health and ongoing treatment the complainant was assigned to a different project.  He was assigned to the implementation of the security standard ISO 27001 project.  Working on this project meant that complainant could work at his own pace and with limited pressure around deadlines and deliveries.  The complainant did make requests to increase his hours of work and each time he did, agreement was reached on the hours he was to work.  At no time did the complainant request to return to full-time work, he often indicated that this was not his desire given his condition.  The respondent accommodated the complainant with the greatest flexibility for his illness and his frequent hospital and doctor visits.

The respondent asserts that the complainant was accommodated with flexible arrangements to return to work when he was fit.  The respondent denies that the complainant was dismissed due to his disability.

Head of Operations, Mr Brian Campion gave evidence on oath.

The Head of Operations described the company as providing IT managed services to clients.  The Chief Technical Officer and Operations work closely together on a lot of activities.  He recalled that the complainant had informed him in February 2021 of his cancer diagnosis.  The complainant was out of work on sick leave between March and October 2021.  During that period the complainant would contact him with updates on his treatment.  He described his relationship with the complainant as that of colleague and friend and not just work colleagues.

The Head of Operations recalled that the complainant provided a letter from the hospital in August 2021 about his fitness to return to work.  He had discussed a return with the complainant, and it was agreed that he would gradually work himself back.  He resumed work in October 2021, initially the complainant worked 12.5 hours per week, 2.5 hours per day.  The complainant was having treatment and the respondent adjusted work arrangements according to the treatment schedule.  The respondent was working with the complainant to make reasonable accommodation and allow him to return to work.  The complainant had wanted to return to work partly to help his own mental health.  There were discussions about how the complainant felt and the work hours were increased based on how he felt. The hours were increased from 12.5 to 16 per week and eventually to 22.5 per week.  The respondent accommodated the complainant’s hospital visits and if he was hospitalised and needed the following day off that was accommodated.

The Head of Operations confirmed that a role in Sales had been advertised in August / September 2022, but he stated that this was not a leadership role.  It was not a role at the same level as the Chief Technical Officer role.

He recalled that the complainant’s health began to deteriorate in July/August 2022.  The complainant came into work one day in early August 2022 in an upset state.  He and the complainant moved into the CEO’s office to talk as the complainant had bad news about his health.  The complainant was not completely lucid, and he asked should he resign.  The Head of Operations replied he should not make a hasty decision but rather take two weeks off work for his health and to think.  The complainant did take the two weeks’ off and he was paid for this period.  On another day at the end of August or September the complainant came to the premises but remained in the car.  He went out to see the complainant and recalled that the complainant’s voice was very low, and it was difficult for him to speak.  He told the complainant to take care of himself.

In early November 2022 the complainant and the Head of Operations met in the Finance Office.  The Head of Operations stated that the complainant was requesting to return to work part-time in January 2023 and full-time in February 2023.  They also discussed contract roles in other companies.  He expressed his view that such roles would not be great options for the complainant to contemplate.  The complainant’s request was to return to work part-time in January 2023 and then move to full-time in February 2023.

The Head of Operations stated that he discussed the complainant’s request with senior colleagues, including a Director and the Head of Finance.  They were all concerned that it might be reckless for the complainant to return to work full-time so soon.  He arranged to meet with the complainant again on 18 November 2022.  The complainant came into the office on that day and briefly met Mr Hussey and Mr Kelly.  Then the Head of Operations and the complainant then went to a local café to discuss the request to return to work over lunch.  The Head of Operations stated that he told the complainant about the concerns that he was proposing to return too soon to his full-time role.  The respondent wanted to put an alternative to the complainant to consider, the option of leaving with a package.

The Head of Operations stated that the management had a responsibility to look after the business and so parts of the role of Chief Technical Officer had to be temporarily assigned to others.  The complainant’s job was there for him if he was fit enough to return, his role was not permanently reassigned.  The respondent in putting an alternative for consideration was aware that the complainant was travelling to Germany for treatment.

The following day, 19 November 2022, the Head of Operations, and the complainant spoke by telephone.  He asked for a private email address to which he could send the proposal.  The proposal was sent to the complainant in early December 2022.  The Head of Operations stated that he expected to receive a phone call from the complainant to discuss the proposal.  The response from the complainant was a letter sent by email on 21 December 2022.  The Head of Operations stated that he was taken aback at the contents of the letter.  The Head of Operations spoke with the complainant by phone on 22 December 2022 and informed him that the respondent could not reach the settlement amount sought.  He assured the complainant that his job was there for him when he was fit to return.  As the Head of Operations was going away on leave it was agreed that they would talk again on 16 January 2023.

When he returned from leave in January 2023 the Head of Operations tried to contact the complainant by phone and WhatsApp messages but, there was no reply.  He made several attempts to contact he complainant without success.  He was concerned that he complainant’s health might have become worse. 

The Head of Operations recalled that he received an invitation to an online meeting with an external company.  He saw the complainant’s work and personal email addresses on the list of attendees and so he joined the meeting as he was keen to contact him.  The Head of Operations called the complainant after the online meeting.  During the call he restated that the complainant’s job remained available to him.  It was agreed that they would talk again to try to resolve matters but there was no further contact.  

The Head of Operations stated that he had told the complainant that his job was there for him on 18 and 19 November, on 22 December 2022 and again on 09 February 2023. 

The complainant’s solicitor wrote to the respondent on 17 February 2023.  The Head of Operations sent a WhatsApp message to the complainant to check if the solicitor was acting on his behalf.

The Head of Operations stated that the complainant was very talented, and it would be hard to get someone with his level of competence.

CA-00055166-001

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

Discriminatory Dismissal

Due to the broad definition of disability in section 2 of the Act it the respondent does not contest that the complainant suffered from a disability at the date he left his employment.

The respondent submits that it never terminated the complainant’s contract nor forced him to work on a part-time basis. 

The complainant maintained the position that the respondent forced him into working part-time and terminated his contract by virtue of refusing to facilitate his return to work.  The respondent submits that this allegation by the complainant is an assertion unsupported by evidence.  Therefore, the complainant has not established facts from which it may be presumed that discrimination may have occurred.  Section 85A of the Act requires a complainant to prove the primary facts upon which he or she relies in alleging discrimination.  The respondent cited the decision of the Labour Court in Southern Health Board v Mitchell [2001] 1 E.L.R. 20.

The respondent submits that:

·       During the complainant’s periods of sick leave, it was necessary to re-distribute his tasks.  This is normal practice in business and would occur whether or not the complainant was suffering from a disability.

·       The complainant was not restrained as alleged from returning to full-time duties and he willingly continued to work part-time.

·       The complainant was at all times made aware that his job remained open for him once he returned to full health.  Despite to being asked to return, as late as 28 February 2023, he refused to do so.

There are therefore no facts from which the complainant can properly assert that he has been discriminated against in respect of his disability.   Nor is it accepted that there is a valid comparator who would have been treated differently.

Constructive Dismissal

The respondent submits that the complainant was not dismissed but rather left his employment. 

In cases of constructive dismissal where an employee leaves employment there are two recognised tests.  The contract test where an employer is guilty of conduct which is a breach going to the root of the contract, or where it can be shown that the employer no longer intends to be bound by one or more of the essential terms of the employment contract.  The respondent contends that it always intended to be bound by the terms of the contract of employment and accommodated the complainant with a great deal of support and flexibility.  The respondent submits that its actions did not amount to a breach of contract.  Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 cited.

The other test is the reasonableness test.  The test of reasonableness asks whether the respondent conducted its affairs in relation to the complainant so unreasonably that he could not be expected to put up with such conduct.  It is the respondent’s position that it always acted reasonably and fairly towards the complainant.  The respondent submits that it facilitated short-term working and made it clear that the complainant was welcome back to work and kept in contact with him during his illness.  Contrary to what is alleged it is submitted that the respondent went above and beyond its obligations to the complainant.   An Employer v A Worker ED02/57 and McCormack v Dunnes Stores UD 1421/2008 cited.

The respondent further submits that in a case of constructive dismissal, where an employee has left their employment, the employee must show that they have acted reasonably.  The decision in McCormack v Dunnes Stores UD 1421/2008 cited.  It is the respondent’s position that in advance of the complainant leaving he failed to notify the respondent of any concerns he may have had in relation to his employment.  In addition, the complainant did not utilise the internal procedures to try to resolve any grievance he may have had.  The respondent contends that the complainant acted in a hasty and unreasonable manner when he left his employment.  The respondent submits that there is an obligation on an employee to exhaust internal grievance procedures, even where a purported breach of contract occurs.  The respondent submits that as the complainant cannot fulfil the test of reasonableness, this cannot be determined to be a constructive dismissal.  Decisions in Conway v Ulster Bank UDA474/1981 and Travers v MBNA Ireland Limited UD720/2006 cited. 

CA-00055166-002

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

Reasonable Accommodation

The respondent contends that it took appropriate measures and reasonable steps to accommodate the complainant in the workplace.  Section 16 of the Act obliges an employer to reasonably accommodate employees who are suffering from a disability.  The complainant disclosed his diagnosis to the respondent in February 2021.  Following the first period of sick leave the respondent accommodated the complainant by offering him a reduced working week.  The reduction of working hours allowed for flexible working so that the complainant could work and attend hospital appointments for treatment. 

The respondent supported the wellbeing of the complainant throughout his illness.  To allow the complainant work at this own pace and with limited pressure he was assigned a specific project on his return to work.  The project was the implementation of the security standard ISO 27001 for the company.

The respondent contends that the fact that it did not refer the complainant to an Occupational Health Specialist is evidence that it expected the complainant to return to work in his full-time role.

The respondent submits that it took appropriate measures and reasonable steps to accommodate the complainant in the workplace.

CA-00055166-003

Complaint pursuant to the Sick Leave Act, 2022

This complaint was withdrawn by the complainant at the hearing.

CA-00055166-004

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

Victimisation

Section 74(2) of the Act deals with circumstances where victimisation may be deemed to have occurred.  The respondent submits that the complainant does not satisfy the definition of victimisation as described in the Act.  The respondent asserts that the complainant did not receive adverse treatment at any time.  The respondent further contends that reassigning duties would be normal where an employee is on long-term sick leave and that does not arise because of the illness itself.

The complainant commenced his employment with the respondent in July 2018 in the role of Chief Technical Officer.  He worked a 39-hour week at a salary of €90,000 gross per annum.  In February 2021 the complainant was diagnosed with cancer.  He had to take sick leave between March and October 2021.  He returned to work in October 2021 on a part-time basis and was assigned to work on a project.  The complainant claims he wanted to return to work full-time in his role as Chief Technical Officer.  He worked part-time between October 2021 and September 2022.  In April 2022 the complainant was told the treatment was unsuccessful.  In July 2022 the complainant began treatment with a new drug.  He became very ill in August 2022 and had to resume sick leave.

The complainant submitted four complaints to the Workplace Relation Commission on 17 February 2023.  He claims that he dismissed for discriminatory reasons due to his disability, that he was discriminated against by the respondent when it failed to give his reasonable accommodation for his disability and that he was victimised on the grounds of disability.  The fourth complaint pursuant to the Sick Leave Act 2022 was withdrawn at the hearing.

The respondent’s position is that it never terminated the complainant’s contract of employment nor forced him to work on a part-time basis.  The respondent submits that the complainant has made mere assertions unsupported by evidence.  That there are no facts from which the complainant can properly assert that he has been discriminated against in respect of his disability, nor is it accepted that there is a valid comparator who would have been treated differently.

In the chronology of events the complaint about reasonable accommodation regarding his return to work comes first so I intend to consider that complaint CA-00055166-002 first followed by the discriminatory dismissal complaint, CA-00055166-001.

Disability

The complainant was diagnoses with a serious illness in February 2021 and has been undergoing treatment since that time.  Section 2(1) of the Act provides the definition of disability:

“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

The respondent did not contest that the complainant suffered from a disability.  Based on the submissions and evidence presented I am satisfied that the complainant has had a disability as defined in the Act since February 2021 and that continues to be the position.

Burden of Proof

In cases of alleged discrimination, the burden of proof as between the parties must be considered.  Section 85A of the Act provides:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The Labour Court in Mitchell v Southern Health Board AEE/99/8 [2001] 12 E.L.R. 201 considered the onus of proof where a complainant alleges, they have been discriminated against.  The Court held that “a claimant 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.”

CA-00055166-002

Complainant that the respondent discriminated against the complainant in failing to give ‘reasonable accommodation’ for his disability.

The complainant’s claim has three elements:

·       The respondent did not allow him to return to his full duties as Chief Technical Officer.  Instead, the complainant’s duties were re-assigned to other employees.

·       The complainant was not allowed to return from sick leave to work a full five-day week.  The complainant was restricted to working three days despite requests to return to full-time.

·       The complainant was not allowed to engage in client facing activities.

The respondent’s position is that it accommodated the complainant by offering him a reduced working week to facilitate his health.  This reduction of working hours provided a great deal of flexibility allowing the complainant to attend hospital appointments for his ongoing treatment.  The complainant was assigned to a project implementing ISO 27001 security standard for the respondent.  Working on this project allowed the complainant to work at his own pace and with limited pressure.

Evidence

2021

Following his diagnosis in February 2021 the complainant had to take sick leave.  He commenced treatment and in August 2021 he was preparing to return to work.  In his evidence the complainant stated that one of the main reasons for wanting to return to work was for mental stimulation.  The complainant provided the respondent with a letter dated 11 August 2021 from the hospital where he was being treated.  In the letter it is stated that the complainant “is currently on immunotherapy … This should not prevent him returning to work if feeling well.  Returning to work would not be expected to have a negative impact on his treatment outcomes.”  The complainant’s written submission states that this letter certified his fitness to return to full duties.  Under cross examination the complainant said that in August 2021 he thought he was fit enough to go back to work.  The complainant acknowledged that he was not given the ‘all clear’ but he was cleared to return if he felt up to it. 

The complainant’s evidence was that he contacted the Head of Operations in August 2021 and provided him with a copy of the letter from the hospital.  He wanted to return to his own job, but he was told, by the Head of Operations, that for the sake of his health he could only work for two days spread over the week and he was not to engage with clients.  He stated that he wanted to return to work, and he didn’t feel he had a choice other than to accept the reduced work hours. 

The complainant returned to work In October 2021.  He started work 12 hours per week, later increased to 16 hours per week and then in January 2022 his hours increased to 22.5 per week.

The Head of Operations in his evidence stated that he had discussed the request to return to work with the complainant.  He had suggested that the complainant should work himself back in, and this was accommodated.  The complainant was having treatment, so adjustments were made to accommodate his treatments.  He stated that he had agreed the hours of work with the complainant, and they had increased the hours based on how the complainant felt.  They started at 12 hours per week and at the complainant’s request increased that to 16 hours per week.  The complainant came back again to get more hours.  He asked the complainant if there was a financial reason for the increase and he said there was not.  It was about getting work done and his mental health.  The complainant asked for 3 days, and this was agreed. 

Under cross examination the Head of Operations stated that he had a close friendship with the complainant, and they had worked together on the arrangement for his return to work.  He said the if the complainant had not been his friend, he would have sent him to an Occupational Health Professional.  He stated that the complainant was doing some home projects as well as his work and he was worried about what he was doing.  It would have been irresponsible to bring the complainant back to work full-time.  However, the complainant did not request full-time work, he was happy with the increase to 3 days, which could be distributed as he wished.  The Head of Operations stated that he had a verbal agreement with the complainant about his return-to-work arrangements. 

2022

In April 2022 the complainant was informed that his treatment had not been successful.  He changed consultants and began a new trial drug in July 2022.  As a result of high doses of the new drug he became very ill in August 2022 and had to go on sick leave for a second time.  The treatment was adjusted and by October 2022 his health was improving.  The complainant then discussed with his consultant the possibility of returning to work.  In his evidence the complainant stated that his consultant told him to take it easy and maybe a good time to return to work would be January 2023.  He stated that he had always been told his job was available for him.  So, in November 2022 he contacted the Head of Operations and arrange to meet with him.  He stated that his request to the Head of Operations was to return to his job in January 2023, he did not say part-time or full-time, just he wanted to return to his job as Chief Technical Officer.

The complainant stated that he met with the Head of Operations on 18 November 2022 he was told that his roles had been redistributed to other people and that there was no job for him.  The redistribution was permanent.  The Head of Operations had told him that business had to operated and keep going and they had to look after the business. The complainant stated that the Head of Operations said he would arrange for a settlement figure to be given to him.

The Head of Operations in his evidence stated that the complainant had come into the office in early November 2022 to discuss his return to work.  His request was to return on a part-time basis in January 2023 and then move to full-time in February 2023.  The request was discussed between the Head of Operations, Head of Finance, and a Director.  That senior management group were very concerned about the complainant returning to full-time work.  In fact, they thought it might be reckless and detrimental to the complainant’s health if he returned so soon.  Particularly as he had been so ill in August 2022.  They decided to put some options to him to consider.  Under cross examination the Head of Operations stated that he had thought about a referral to Occupational Health but decided to discuss options with the complainant instead.  He stated that the complainant had always worked to the best of his ability and would have done so again but it was not in his best interests to return full-time so soon.

Finding

There is a conflict between the parties about the arrangements for the complainant’s return to work in 2021 and proposed return to work in 2023.  The complainant’s position is that he was treated differently to other employees because of his disability and was restricted or prevented from fully resuming his role as Chief Technical Officer.  The respondent’s position is that it accommodated the complainant with flexible work arrangements that facilitated his treatment requirements and were in the best interests of his health.  The complainant could not identify a specific comparator but stated that no other employee had been reduced to a 3-day week.  It was submitted that the complainant was entitled to rely on a hypothetical comparator. 

The Labour Court in Europa Plus Limited v Kvostiene EDA121 considered the use of hypothetical comparators – “In order to construct a hypothetical comparator the Court should establish the factual criterion for the impugned decision and consider if that criterion would have similarly been applied in the case of a person without the protected characteristic.  This frequently involves a conflation of the “less favourable treatment” question and the “reason why” question.” The Court went on to state that “Section 85A of the Act provides, in effect, that it is for the complainant to establish the primary facts upon which her complaint is based.  The irreducible minimum requirement of this section, in a case such as the instant case, is that the complainant adduce some credible evidence from which it might be inferred that she was afforded the treatment complained of because she is Lithuanian.” 

In this case the complainant’s position is that because of his disability he was not allowed to return to his full duties as Chief Technical Officer on a full-time basis.  Prior to becoming ill, the complainant had no work performance issues.  Indeed, the Head of Operations described the complainant as a person with an exceptional set of skills who always endeavoured to do his best.  Based on the evidence adduced I am satisfied that the reason for the change of roles and restricted work hours was directly influenced by the complainant’s illness and ongoing treatment.  That is sufficient to shift the probative burden to the respondent.  Accordingly, the respondent must prove, on the balance of probabilities, that the principle of equal treatment was not infringed in relation to the complainant.

It is the respondent’s position that the complainant was not restrained as alleged from returning to full-time duties and willingly continued to work part-time.  The respondent being aware of the complainant’s disability accommodated him by offering reduced working hours that gave him a great deal of flexibility to attend hospital appointments and was in the interest of his health.  The respondent asserts that it supported the complainant by assigning him to a project where he could work at his own pace with limited pressure.

Where a respondent must prove that the principle of equal treatment was not infringed, I note the comments of the Labour Court in A Technology Company v A Worker EDA0714 about the possibility of unconscious or inadvertent discrimination.  “The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability.  The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”  I must consider the respondent’s response and evaluation of the complainant’s requests when returning from sick leave. 

The complainant, in August 2021, provided the respondent with a letter from the hospital.  In that letter the doctor states that the complainant is “on immunotherapy … This should not prevent him returning to work if feeling well.  Returning to work would not be expected to have a negative impact on his treatment outcomes.”  The complainant in his evidence acknowledged that he was not given the ‘all clear’ but, he was feeling well enough to return to his duties.  The respondent did no independent assessment of this letter.  It is submitted that the fact that the respondent did not refer the complainant to an Occupational Health Specialist is evidence that the respondent always expected the complainant to return to work.  I accept that the respondent acted in what they considered to be the complainant’s best interests, but I believe they acted without an independent assessment of his capability at that time.

Section 16 sets out the obligations of employers as follows:

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.

(2) …

(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, Employment Equality Act 1998 unless the measures would impose a disproportionate burden on the employer.

(4) In subsection (3)— ‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.

The decision of the Supreme Court in Nano Nagle v Daly [2019] IESC 63 held that it is necessary to read section s.16(1) in the context of s.16(3) and, in turn accordingly, s.16(4) “full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures”.  MacMenamin J found that s.16(3) placed a “mandatory primary duty” on an employer to provide reasonable accommodation unless this would impose a disproportionate burden on the employer.  Section 16 may provide a defence to a claim of discrimination on the disability ground. 

The Labour Court in A Health and Fitness Club v A Worker EED037 held that “This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they were employer.  However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.”  The Court went on to hold that an employer, at a minimum, should ensure that it is in full possession of all the material facts concerning the employee’s condition. 

The Court held that this would normally require a two-stage enquiry, “which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration.  This would involve looking at the medical evidence available to the employer either from the employee’s doctor or obtained independently.  Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee becomes fully capable.” 

The decision of the Labour Court was affirmed by Dunne J in the Circuit Court Humphries v Westwood Fitness Club [2004] E.L.R. 296 wherein it was held that “I understand that there were legitimate concerns … regarding the plaintiff’s health.  I am in no doubt but that the employer is entitled to have legitimate concerns.  I am in no doubt that the employer did in fact have these concerns regarding the plaintiff.  However, the way to deal with these concerns was to take medical advice in order to allay those concerns.  An employer should take advice from the plaintiff’s own doctor or from an independent doctor.  The employer had a legal obligation under the Employment Equality Act 1998 to deal with her in that way.  … In respect of the employer, it has an obligation to put its concerns to the test.” 

In 2021 when the complainant wanted to return to work, while still undergoing treatment, he provided the respondent with a letter from the hospital where he was being treated.  The letter was I am satisfied a conditional approval to return to work “if feeling well”.  It is reasonable that an employer presented with such a conditional medical opinion would have concerns about the employee’s fitness to return to work.  Based on the evidence presented I accept that the respondent believed it was supporting a highly skilled employee during his illness.  However, the respondent holds no medical qualifications and without a proper enquiry of the complainant’s capability of the type described by the Labour Court in A Health and Fitness Club v A Worker EED037 could not put their legitimate concerns to the test. 

There was a conflict of evidence about whether the return-to-work arrangements in October 2021 were agreed between the parties.  I am satisfied that the Head of Operations did discuss the arrangement of returning for 12 hours per week with the complainant and believed this was agreed.  I am satisfied, on balance, that the complainant did agree this arrangement because he was anxious to return for mental stimulation.  However, the repeated requests for additional hours, which were acknowledged by the respondent, indicate to me that the complainant did not accept the arrangement on an ongoing basis.  I am satisfied that it was the Head of Operation that decided that the complainant should not have client facing work but, there was no evidence that the complainant agreed or accepted that restriction on his duties. 

In October 2022, following a second period of sick leave, the complainant sought to return to work in January 2023.  Again, there is a conflict as to whether he sought to return full-time.  The complainant in his evidence stated he sought to return to his role as Chief Technical Officer in January 2023 but, the respondent stated he sought to return part-time in January 2023 and then to move to full-time in February 2023.  On that occasion the complainant did not provide any medical evidence of his fitness to return to work and the respondent did not request such medical evidence.  I am satisfied that the respondent again failed to carry out any enquiry as to the complainant’s capability and fitness to return to work.  Rather the respondent formed an opinion, not based on medical evidence or independent enquiry, that it might be reckless for the complainant to return in January 2023. 

The Labour Court in A Worker (Mr O) v An Employer (No. 1) EDA0419 held that “an employer must make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before taking decisions which are to the employee’s detriment.”  I am satisfied that the respondent made decisions about the complainant’s work hours, assignments and client facing activities in 2021 and about his potential return to work in January 2023 without making adequate enquiries as to his medical condition and capability to fully perform all the duties of the role of Chief Technical Officer.  The respondent failed to establish what measures, if any, might enable him to fully participate in his employment.  In those circumstances I find the respondent did not fulfil its responsibility to provide reasonable accommodation to the complainant for his disability. 

Conclusion

The complainant is a person with a disability and the respondent acknowledged it was made aware of the disability in February 2021.  The respondent asserted that it accommodated the complainant by offering him a reduced working week in October 2021 and that it always supported his wellbeing.  I am satisfied that the respondent made decisions about the complainant’s hours of work, assignments and client facing activities without making adequate enquiries about his capability to carry out the duties of Chief Technical Officer or to establish what measures, if any, they could take that would enable him to participate fully in his employment.  Therefor, I find that the complainant was discriminated against on grounds of his disability by the respondent failing to reasonably accommodate his disability when he was not allowed to resume all the duties of his role as Chief Technical Officer.  The respondent has failed to show that the complainant was not fully capable of performing the duties for which he was employed within the meaning of section 16(3) of the Act. 

Redress

I decide that the appropriate form of redress for the effects of discrimination is compensation.  In A Worker (Mr O) v An Employer (No. 2) EED0410 the Labour Court stated “It is well settled that an award of compensation for the effects of discrimination should not be confined to economic loss but should contain an element which is dissuasive of future infractions of the principle of equal treatment.  If the respondent had made proper enquiries to establish the complainant’s capability to resume the duties of the role of Chief Technical Officer in October 2021, the complainant may or may not have been able to earn a full salary between October 2021 and the end of September 2022.  On his own evidence he was not fit to return to work between October 2022 and January 2023 and so was on sick leave for that period.  In all the circumstances I consider it appropriate to award the complainant compensation in the amount of €50,000 for the effects of discriminatory treatment.

CA-00055166-001

Complaint that the complainant was discriminatorily dismissed because of his disability

The complainant claims that his roles and responsibilities were systematically removed and reassigned.  He claims that he was informed that due to his disability and absences that the respondent had ‘addressed gaps’ in the company and consequently his role no longer existed for him.  The complainant claims that he was instructed by the respondent to tell other employees that he had chosen to leave his employment when in fact he was being dismissed.

The respondent claims that it never terminated the complainant’s contract of employment and that he was made aware that this job remained open for him once he returned to full health.

Therefore, the fact of dismissal is in dispute between the parties.

Dismissal

 Section 2(1) of the act defines dismissal as:

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of 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 to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly

The Labour Court in A Worker (Mr O) v An Employer (No. 2) EED0410 held that the above definition is practically the same as that contained in s.1 of the Unfair Dismissals Acts and that the authorities on its applications in cases under that Act are relevant.  There are two tests established in constructive dismissal case law and either or both may be used by the complainant to ground their claim.  The tests are described as the contract test and the reasonableness test.

The complainant’s representative asserted that but for the complainant’s disability an exit package would not have been offered to the complainant, resulting in his dismissal.  The submission did not address either the contract test or the reasonableness test in specific terms but did focus on the actions of the respondent, in November 2022.

Contract Test

This test is used in circumstances where a complainant asserts that their employer has or intends to significantly breach the contract of employment.  The test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 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 discharged from any further performance.”

The complainant asserts that his roles were removed and assigned to others on a permanent basis.  Consequently, his role no longer existed.

The respondent asserts that it always intended to be bound by the terms of the contract of employment and that it provided a great deal of support throughout his illness.  Moreover, the respondent never demoted or attempted to demote the complainant.

Reasonableness Test

The Labour Court in A Worker (Mr O) v An Employer (No. 2) EED0410 stated that “This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer.”  An employer’s conduct may be so unreasonable as to justify the employee in leaving.  The Court in this case stated that “what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.”

The Court in this case accepted that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.  However, there may be a situation in which a failure to give prior formal notice of a grievance will not be fatal.

Evidence

In April 2022 the complainant was informed that his treatment was unsuccessful.  He commenced on a new treatment in July 2022 on a very high dose and by the following month he was very ill.  He was offered two weeks leave in August 2022, which he took.  Under cross examination the complainant stated that he could not recall suggesting that he resign at that time.  He had to return to sick leave.  His treatment was modified and by October 2022 his health had improved.  He spoke with his consultant about a return to work and was told to take things easy, but that January 2023 might be a good time to return.  

In November 2022 the complainant met with the Head of Operations to discuss returning to work in January 2023.  On 18 November 2022 he met with the Head of Operations, and they went to a local coffee shop to discuss his request over lunch.  The complainant stated that he was told his roles had been redistributed to other employees and a contractor, and there was no job for him.  He stated that he said that he never expected to be fired because he was sick.  He recalled that the Head of Operations had stated the business had to operate and keep going, they had to look after the business.  A settlement figure was to be given to him.  He then asked if staff had been told and it was suggested to him that he should tell staff that it was his idea to leave.

The complainant stated that he had been told during his illness that his job was available for him but after 18 November 2022 his job was gone.  He didn’t want to go but the respondent wanted to let him go.

Under cross examination the complainant explained that in February 2023 a client contacted him through LinkedIn, and he reached out to the Head of Operations and put the two parties together on a video call.  He had used his personal email and had told the client he had left the respondent.  He said ‘left’ to the client as he did not want to disclose his status.

The complainant acknowledged that the Head of Operations had told him in November that he would arrange for a proposal to be sent to him and that he would be away on leave until 16 January 2023.  He also acknowledged that in January 2023 he knew that the Head of Operations was trying to contact him, but he didn’t return his calls because he was busy with personal stuff, studying for an exam and taking legal advice. 

The complainant stated that at the meeting of 18 November 2022 he had discussed the terms of his employment with the Head of Operations and that they did not have an agreement.  The had discussed an agreement that was to be finalised.  He acknowledged that in his letter of 21 December 2022 to the Head of Operations he had stated that he would settle for a minimum of one year’s salary but, the reason for the claim was that he was unfairly dismissed.

The Head of Operations in his evidence recalled the complainant coming into work in August 2022 in a very upset state.  He had received bad news about his treatment and his health was deteriorating.  The complainant had asked him if he should resign but he had advised him not to make any hasty decision.  He told the complainant to take two weeks off, which he did.  The complainant was paid for those two weeks.  In August/September the complainant had come to the premises but remained in the car outside.  He went out to talk to him.  The complainant was very ill, and his voice was very low.  He told the complainant to take care of himself.  The complainant was on sick leave thereafter.

In November he met the complainant in the Finance Office.  The complainant was looking to return to work in January 2023 on a part-time basis and then to move to full-time in February 2023.  They discussed other items including contractor roles that the complainant was looking at.  He said that he did not think they would be great options for the complainant to consider.  He was concerned about the request from the complainant to return in January 2023.

The Head of Operations discussed the request with the Head of Finance and a Director.  They were all very concerned and they thought it might be reckless of the complainant to try to resume full-time.  Following that he arranged to meet with the complainant on 18 November 2022.  The complainant came into the office, and they went to a local café to discuss the complainant’s request.  He stated that he told the complainant that he was worried about him coming back to work so soon.  He wanted to discuss alternatives and put an option on the table for him to consider.  He proposed the option of leaving with a package.  He had said the complainant’s roles were temporarily reassigned but he did not say there was no role for the complainant.  The respondent was aware that the complainant was travelling to Germany for treatment, and it was very concerned he wanted to come back to work too soon.  The complainant wanted to know the package and he told him he would get a proposal to him.

The following day the Head of Operations phoned the complainant to get a personal email address to which he could send the proposal.  The proposal was sent on 02 December 2022, and he said he expected to get a call from the complainant to discuss the proposal.  However, he did not hear from the complainant until he received a letter by email on 21 December 2022.  He stated that he was taken aback by the letter.  He phoned the complainant on 22 December 2022 and told the complainant that his job was there for him when he was fit to return.  He also told him that they could not reach to amount stated in his letter.  They ended the call saying he would be away until 16 January 2023 and he would contact the complainant then.  On his return in January 2023, he tried to phone and WhatsApp the complainant, but he did not get a reply.  He though the complainant might be worse and left it.

The next contact was an invitation to an online meeting with a client.  He saw that the complainant’s work and home email were on the invitation, so he joined the call as he was anxious to talk with the complainant.  He spoke with the complainant after the client call, and he again told him that his job was available for him when he was fit to return.  He stated that he told the complainant this on 18,19 November and 22 December 2022 and 09 February 2023.

Under cross examination the Head of Operations stated that the proposal was made because the senior managers thought he was attempting to return too soon.  He stated that after a discussion with the complainant he made a proposal of an exit package in his best interests.  He stated that he had not sent the complainant for a medical assessment as his capability was not questioned, he had exceptional skills and always endeavoured to do his best but, he thought he wanted to return too soon, especially after the deterioration in his health the previous August.

The Head of Operations, in reply to questions, went through the roles that had been reassigned temporarily to senior manager, other employees and a contractor.  Some roles were put on hold.  He stated that when the complainant had come back to work in October 2021, he had assigned him the project role.  That was the ISO project which was a key project and was important but not urgent.  The complainant had the skills, and he could work without pressure. 

The Head of Operations denied that the complainant was treated differently because of his disability.  There was concern for his health and he was being treated like a work colleague.

Finding

I have carefully considered the submissions and evidence presented.  There is conflicting evidence about the meeting of 18 November 2022.  There is no doubt that during the complainant’s periods of illness most of his roles were reassigned to other employees and to one contractor.  The respondent asserts that this was necessary as the business had to continue and it would be normal practice in any organisation to reassign roles.  The issue is whether this was done on a temporary or permanent basis.  The complainant asserts that he was told the reassignments were permanent and there was no role for him.

I am satisfied that it is normal practice to reassign roles where an employee is on long term sick leave so that work that is required to be done will be done.  I also note that in the reply from the Head of Operations most of the roles were assigned to existing staff who already had full-time roles.  The respondent consistently stated that the role of Chief Technical Officer was available to the complainant when he was fit enough to return.  Indeed, the complainant in his letter of 21 December 2022, acknowledged that he received several assurances that his job would be available for him when he was cleared by his medical team to return to work.  On balance I find the respondent’s evidence convincing that the reassignment of the duties of the Chief Technical Officer was necessary and was done on a temporary basis.  I reach this conclusion because most of the duties were assigned to employees in addition to their existing full-time roles and some roles were deferred.  Further, it was acknowledged by the complainant that throughout his illness he received several assurances that his role would be available for him when he was fit enough to return to work.

The complainant did not provide any medical report stating that he was cleared to return to work in January 2023 but, I note the respondent did not request a medical report.

Contract Test

The complainant has not shown that there was any fundamental breach of the employment contract or that the employer intended not to be bound by the essential terms of his contract of employment.  The complainant was paid his salary, appropriate to the hours he worked, he was not demoted and was never issued with any notice of dismissal.  He has stated that he was told that there was no job for him when he met with the Head of Operations on 18 November 2022.  The Head of Operations in his evidence stated that the duties were reassigned on a temporary basis and that the discussion at the meeting of 18 November 2022 was about options for the complainant to consider.  I believe that the respondent’s thinking was influenced by the events of August 2022 when the complainant was very ill and had himself raised the idea of resigning.  The complainant’s evidence was that he did not recall this, which may have been due to his state of health at the time, but the Head of Operations was very clear in his evidence that the complainant had asked if he should resign.  On balance I prefer the evidence of the Head of Operations that the meeting of 18 November 2022 was to discuss options with the complainant.

 I am satisfied that the complainant has not established that the respondent’s actions amount to a breach of the essential terms of his contract of employment.

Reasonableness Test

The complainant in his letter of 21 December 2022 expressed his appreciation for the support and encouragement he had received while he was ill.  During the whole of the complainant’s illness, he never raised any complainant or grievance with the respondent.  The respondent has in place a grievance policy, a copy of which was provided. 

The meeting of 18 November 2022 appears to have ended on reasonable terms because the complainant appeared to be willing to consider the offer of an exit package and was anxious to know the details of what was on offer.  After that meeting the complainant did not raise any grievance about the meeting or what had been discussed at the meeting.

Based on the evidence presented I am satisfied that the meeting of 18 November 2022 focussed mainly on the option of an exit package for the complainant to consider and this was a reasonable approach by the respondent against a background of the complainant having raised the issue of resignation in August 2022 when he was very ill.  The complainant gave no evidence of raising any objection to this approach until he wrote the letter of 21 December 2022, in which he clearly stated he was disappointed with the terms of the proposal made to him.

The Head of Operations and the complainant spoke on 22 December 2022, and it was agreed that they would talk again on 16 January 2023.  It is clear that the complainant was disappointed with the package that was on offer, but he indicated that he “would settle for a minimum of one year’s salary plus”.  That indicates to me that negotiations were ongoing.  In the letter of 21 December 2022, the complainant does not state that he was dismissed on 18 November 2022.

Grievance Procedure

It is well established that in a claim of constructive dismissal an employee is required to show that they had no option in all the circumstances other than to terminate their employment.  In McCormack v Dunnes Stores UD1421/2008 the Employment Appeals Tribunal held that there is a “high burden of proof on the employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve their grievance with his/her employer.  The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In the instant case the complainant admitted that he knew the Head of Operations was trying to contact him but, he did not return his calls.  That is not a reasonable way to act when arrangements had been made to continue contact in January 2023. 

The respondent has in place a grievance policy.  The complainant at no stage submitted a grievance to the respondent.  The complainant did not give the respondent any opportunity to address his grievance and did not seek to resolve his issues with his employer.  I am satisfied that the complainant broke off communications with the respondent when, having arranged to continue discussions, he failed to accept or return calls from the Head of Operations.  A letter from the complainant’s solicitor, dated 17 February 2023, was the first communication that indicated that the complainant felt his employment had been terminated.  He submitted his complainants to the WRC on the same date.  I am satisfied that the complainant did not act reasonably in leaving his employment on 17 February 2023 without exhausting the internal grievance procedures.

Conclusion

The complainant claimed he was dismissed because of his disability.  The respondent asserted that it never terminated the complainant’s contract of employment.  This was therefore a claim of discriminatory constructive dismissal, and it is for the complainant to prove that they were dismissed either because of a breach of an essential term of the employment contract by the employer or because of the unreasonable behaviour of the respondent.  Having carefully considered the submissions and the evidence adduced I am satisfied that the complainant has not established that he was dismissed.  I am also satisfied that the complainant has himself not acted reasonably in that he failed to return calls to the respondent and that he never made any complaint or raised a grievance using the grievance policy before leaving his employment.

I find that the complainant has not established that he was dismissed because of his disability or at all.  The complainant was not discriminated against on the ground of disability regarding constructive dismissal.

CA-00055166-003

Complaint pursuant to the Sick Leave Act, 2022

This complaint was withdrawn by the complainant at the hearing.

CA-00055166-004

The complainant claims that he was victims in having his roles removed from him and ultimately being dismissed for seeking to return to work on a full-time basis.

Section 74(2) provides the following concerning victimisation:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this ActorthesaidActof2000orwhichwasunlawfulunderanysuchrepealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

This section sets out specific circumstances where victimisation may occur.  The complainant has acknowledged that he received support from the respondent throughout his illness.  I have already found that the complainant was not dismissed from his employment.  There was no evidence adduced to show that the complainant’s work was compared with that of another employee.  The complainant’s roles were reassigned during his illness, but I find this would be normal business practice when an employee is on long term sick leave.  In those circumstances I am satisfied that the complainant has not been victimised by the respondent.

I am satisfied that the claim of victimisation does not come within the definition of victimisation contained in section 74(2) of the Act.  The complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Act.

CA-00055166-001

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

I find that the complainant has not established that he was dismissed because of his disability or at all.  He has not met the tests required to establish constructive dismissal.  The complainant was not discriminated against on the ground of disability regarding constructive dismissal.

CA-00055166-002

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

I find that the complainant was discriminated against by the respondent on the ground of disability.  I find that the complainant was discriminated against by the respondent failing to reasonably accommodate his disability when he was not allowed to resume all the duties of his role as Chief Technical Officer.     

 I am satisfied that the appropriate redress is an award of compensation for the effects of the discrimination suffered by the complainant.

I order the respondent to pay to the complainant compensation in the amount of €50,000.

CA-00055166-003

Complaint pursuant to the Sick Leave Act, 2022

This complaint was withdrawn by the complainant at the hearing.

CA-00055166-004

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

Victimisation

I am satisfied that the claim of victimisation does not come within the definition of victimisation contained in section 74(2) of the Act.  The complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Act.

Discrimination

Discriminatory Dismissal

Reasonable Accommodation