Complainant

Respondent

Parties

John-Paul  Barbour-Hyland

Daa Plc Dublin Airport Authority

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Des Courtney SIPTU

Adrian Norton IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059066-001

28/09/2023

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

CA-00059066-002

28/09/2023

The Complainant initially began working for the Employer in their Security department on 23 May 2022. There was a dispute between the parties as to whether his employment subsequently terminated on 14 July 2022 and if he was re-engaged on 10 October 2022 or if his employment continued from the date on which he initially started. Both parties accepted that the employment relationship was ultimately terminated by the Respondent on 30 March 2023.

The Complainant stated that he suffered from a number of disabilities, including dyslexia, irritable bowel syndrome, and a condition that makes him sensitive to sunlight. He also asserted that he was unable to push trolleys for an extensive period.

He stated that the Respondent discriminated against him in relation to these disabilities, both in dismissing him and while he was in their employment. 

The Complainant began working for the Employer in the Security department on 23 May 2022.

As a result of the Complainant’s dyslexia, he was unable to successfully pass necessary security exams after three attempts. The Employer offered the Complainant alternative employment, transferring him into Service Delivery in Operations in July 2022. At the time the Complainant decided to take that role under duress because he was concerned about his ability to do the role because of his skin condition that means it is dangerous for him to be exposed to direct sunlight. The Employer referred him for pre-employment medical screening as a result. The referral letter clearly stated that this role was an internal move, and that the reason for the referral was his acceptance of this role only under duress and his concern about one of his disabilities.

The Complainant attended the medical on 4 August 2022. The doctor assessed him and told him that he was able to do the service delivery role, provided he rotated between outside and inside regularly on particularly hot days. Otherwise, he said the Complainant was fit to do the role. The Complainant also told the doctor that the medication he had to take daily to deal with his skin condition, which had to be taken on an empty stomach first thing in the morning, could often exacerbate his IBS, which could have the effect of making it more difficult for him to attend morning shifts on time, as he would often have to break his journey to visit the restroom. The doctor told him that this was understandable and would be fine. It was only later, after his dismissal from employment, that the Complainant discovered that the doctor had not recorded this part of their conversation.

The Complainant began working in the Service Delivery role on 10 October 2022. The Complainant signed the new contract dated 12 October 2022 shortly afterwards, because he was told this was necessary by the Employer. However the Complainant wasn’t able to read the contract properly because of his disability and he only realised later that they had given him a new start date of 10 October 2022, which meant his probation period was starting again, even though he had worked for the DAA since 23 May 2022. The Complainant’s first contract provided for a 12 month probation period which would have expired on 23 May 2023, however this was before the European Union (Transparent and Predictable Working Conditions) Regulations 2022 came in reducing all probation periods to 6 months. The Complainant’s contract with Service Delivery also said he had a 12-month probation period, but this was later reduced to 6 months when the Regulations commenced in December 2022.

All of the Complainant’s colleagues who started at the same time as him in Service Delivery got a review meeting after three months where they were told how they were doing and whether they needed to improve. The Complainant was never given a meeting like this. However, the Complainant was called to a meeting on 3 February 2022 by his Team Leader, where the Complainant was told he had been late too many times and was told to improve this. This meeting did not review his performance generally and focused on timekeeping and attendance only. At that stage his Team Leader said the Complainant had been late 6 times, although three of these lates were only 1, 2 and 9 minutes late respectively. The Complainant explained the remaining lates were due to his disability, namely that his necessary medication for his skin condition and IBS combined to make it challenging for him to always be on time. The Complainant explained to both the Team Leader and the HRBP that this was the reason for his lateness and they said they understood and not to worry. The Complainant was subsequently given a performance improvement letter which did not record this explanation or the reassurances given by the Team Leader.

The Complainant was shocked when on 30 March 2023 he was called to a meeting by his Team Leader and a duty manager at DAA at which he was dismissed for being late 9 times, being absent twice and falling below expectations in 5 out of 6 competencies. The Complainant asked his Team Leader if he could have a union rep for assistance at the meeting but this was refused. The Complainant feels that this was unfair as especially with his disabilities he wasn’t able to defend himself properly in the meeting. The Complainant said that he was not late that many times and that he had explained about his disability and been told not to worry about that. One of the lates was on a day that he was not working, two were for lates where he was only a minute late according to their system, and one for being 9 minutes late. The other lates were due to the clock-in system being busy or unavailable or not working correctly, or due to his medical difficulties caused by his disabilities. Notwithstanding this, he was told he was being dismissed nonetheless.

The Complainant applied for the post of Airport Search Unit (ASU) Officer at the Respondent company on 18 April 2022. Following the selection process, the Complainant commenced employment with the Respondent on 23 May 2022 in the role of (ASU) Officer. He was provided with a contract of employment which he duly signed on 16 May 2022.

It was a condition of his employment that he undergo tests, as set out by the International Aviation Authority. During the recruitment process, the Complainant disclosed to the Respondent that he had dyslexia. He requested that the Respondent provide reasonable accommodations in the form of support for reading and writing during the tests. The Respondent agreed and organised for a support person to assist with the exams. The support person read out the questions and wrote out the answers for the Complainant. Before each exam was finalised and submitted, the Complainant was asked if he was completely happy with the submission. In each case he agreed.

The Complainant took the exam on three occasions, and on each occasion he failed. Due to the significance of the role, the pass rate for the exam is 85 %. The Complainant first took the exam on 26 May 2022 and scored 54%. He retook the exam on 27 May and scored 63%. Normally employees are only permitted to take the exam twice, but given the circumstances, the Respondent acted fairly & reasonably by facilitating the Complainant to take the exam a third time.

When the Complainant sat the exam for the third time on 1 June 2022, he scored 73%. On 10 June 2022, the HRBP as well as the trainer met with the Complainant to discuss the outcome of his exams and the implication this had for his ongoing employment with the Respondent. The Complainant was offered continued employment for a period of one month as “a host and support with tray returns”. The Complainant was advised that the Respondent was open to discussing “suitable alternative” roles during that time.

Over the course of the next month, the Respondent engaged with the Complainant around the possibility of alternative roles. An interview was scheduled for the post of Retail Professional with ARI, which the Complainant attended, but failed. HRBP #1, who had responsibility for Cleaning Operations, subsequently shared a role profile with the Complainant and arranged a follow up call. The Complainant chose not to pursue that opportunity. The possibility of a move to a third part contractor was also proposed, which the Complainant rejected.

On 4 July 2022, HRBP #2 met with the Complainant and advised him of the company’s intention to terminate his contract on 6 July 2022 should he not accept any of the alternative roles that had been offered him over the previous month.

On 6 July 2022, as the agreed timeframe drew to a close, the Complainant expressed an interest in a Service Delivery role in the DAP Ops division. HRBP #3 , who is responsible for that area called the Complainant to discuss the matter, but he refused to engage with her. She subsequently emailed details to the Complainant for his consideration.

On 7 July 2022, the Complainant responded by email to HRBP#2’s email of 4 July 2022, alleging that he was being mentally abused and discriminated against because of his disability and that his ongoing suspension, as well as any threat to dismiss him was illegal. HRBP#2 responded by email on 8 July 2022, clarifying the position, that being:

1) The necessity to pass security exams as a contractual requirement of the Complainant’s substantive role.

2) Clarification of the reasonable accommodations provided by the Respondent to assist the Complainant in taking those exams.

3) The ongoing process of engagement to identify a suitable alternative role.

4) Clarification that whilst the identification of a suitable alternative role was ongoing, that the Complainant could not engage in his substantive role, but was being paid anyway.

SIPTU official, Mr Niall Phillips also contacted HRBP#2 for similar clarifications at this time.

On 14 July 2022, the day his employment was due to terminate, the Complainant attended the office of the Respondent to seek to accept the role of Service Delivery Team Member, that had been discussed previously. In that meeting the Complainant asserted that he was accepting the offer “under duress” and informed the Respondent immediately after by email that he “cannot be in direct sunlight for long due to medication I am on”. By return email the Respondent requested confirmation from the Complainant’s GP whether or not he was in fact capable of working in direct sunlight, seeing as this was a clear requirement of this role. As no such confirmation was forthcoming, the Respondent confirmed that the Complainant’s contract would terminate on 14 July 2022, as previously advised. The Complainant’s role was then terminated on 14 July 2022. He was paid for his annual leave due and provided with a letter dated 18 July 2022, confirming the Respondent’s position. The Complainant responded to that letter by email contradicting his previous assertions with respect to his ability to work in direct sunlight.

The Complainant subsequently wrote to the CEO of the Respondent on 14 July and 22 July 2022 alleging that he had been bullied into accepting alternative employment at the organisation. The matter was referred to Head of Employee Relations at the daa for investigation. Having investigated the matter, the Head of Employee Relations responded to the Complainant on 4 August 2022 again clarifying the Respondent’s position, namely 1) His employment as an ASU Officer was terminated on 14 July 2022 as the Complainant had failed to pass the necessary exams on three occasions. 2) The Complainant had refused all other offers of alternative employment, which included a counteroffer, made by the Complainant “under duress” with additional terms and conditions that the Respondent had chosen not to accept.

Meanwhile the Complainant engaged separately with, HRBP #3 with a view to pursuing an opportunity as a member of their Service Delivery Team. As part of the application process, HRBP#3 referred the Complainant for an Occupational Health Assessment, in order to get clarity on the Complainant’s concerns regarding working in direct sunlight and his fitness to push and pull trolleys. The OHA advised that the Complainant was fit to work 12 hour shifts. It was recommended that “ideally, he should be rotate frequently between working indoors and outdoors on particularly sunny days” The assessment also clearly indicated that the Complainant “is fit to push and pull trolleys”. The Complainant was subsequently offered a new role, that of Delivery Terminals Team Member, which he could not commence until 10 October 2022 as he had taken up employment elsewhere since he had been dismissed on 14 July 2022.

He was provided with a new contract of employment, which he duly signed on 12 October 2022. He completed induction training over the following two weeks and went live on the roster from 23 October 2022. On 1 December 2022, the Complainant had to undergo barrier training for a second time as his performance in that area was falling well short of the required standards.

On 26 January 2023, the Complainant phoned a Service Delivery Team Lead and informed her that he was refusing to work on trolleys the next day, stating that he would “be sitting down & not pushing anything”. She explained to him that this was part of his duties, reminding him that he was on probation and thus his performance was under continuous scrutiny. The Complainant responded that “he didn’t care”.

On 27 January 2023, the Complainant went to the Team Leaders’ office and spoke to a Team Lead in the area and complained about being put on trolleys. The Team Lead explained the role to the Complainant and outlined how trolleys was a fundamental part of the role. The Team Lead outlined how everyone in that role worked on trolleys and that the longest period anyone would ordinarily spend on trolleys was three hours in a twelve-hour shift. The Complainant advised the Team Lead that he would be contacting the company Doctor to get a letter to seek an exemption. The meeting ended with the Complainant becoming aggressive and threatening to “bring the company to the Labour Courts”.

On 3 February 2023, the Complainant was called to a performance review meeting with the Team Lead. The Complainant’s overall performance was discussed, with his persistent lateness being highlighted as of very serious concern, especially given the impact it was having on his overall performance and the consequential impact it was having on the performance of the team. Following the meeting he was issued with a letter advising him that a failure to demonstrate the required improvement would result in further action being taken. On 11 February 2023, at a return to work meeting, the Complainant was advised by the Team Lead, that his level of absence whilst on probation was deemed excessive.

On 1 March 2023, Team Lead #2 was contacted by the Complainant, having been informed to bring his outdoor PPE with him to work the following night. The Complainant lied to Team Lead #2, advising him that he had been “exempted from working outside” by the company doctor and threatened to ring in sick if he were to be scheduled for outside work. He further advised that he apparently “had issues with his ear and could not get it wet”.

On 2 March 2023, unhappy with his task allocation for that evening, the Complainant rang Team Lead #2 again, alleging that the Respondent was “failing to follow the UN Convention Article 27 – Working around a person with a disability”. He stated that his disability meant he was not “able to push stuff around” and incorrectly informed Team Lead #2 that he was employed as an “Airside Delivery Terminal Team Member”, meaning he should only be “working airside or in the terminal”. Later that day, the Complainant phoned Team Lead #2 again to enquire if his task allocation had been changed for that evening. When Team Lead #2 informed him that it hadn’t and that it was his understanding that the task allocation was in line with the Complainant’s contract and OHA recommendations, the Complainant advised that he would not be attending for work, alleging he was being bullied & discriminated against.

When the Complainant arrived for his shift at 7pm that evening, he was met by Team Lead #2 and Team Lead #3. The Complainant confirmed that he was both mentally & physically fit for work.

On 30 March 2023, the Complainant attended a probation review meeting with Team Lead #2, which was also attended by the Services Delivery Manager. The review meeting followed a process where the performance of all employees on probation are collectively reviewed by the team of team leaders. They collectively decide whether or not an employee has demonstrated the requisite level of performance to successfully pass their probation. Their collective decision is then endorsed by the Senior People & Product Leader over terminals and operations. In that meeting the Complainant’s overall performance and conduct across all six competencies of his role was discussed. The Complainant was advised that he had been deemed to be below expectations in five out of the six competencies measured. Feedback was provided to the Complainant to support each area. Having failed to demonstrate the requisite level of performance during the probation period, the decision was made to terminate the Complainant’s employment contract. He was paid in lieu of notice, as provided for at Section 26 of his contract of employment.

CA-00059066-002:

Disability is defined in Section 2 of the Acts:

‘‘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;”

Section 6(1) of the Employment Equality Acts provide:

“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’)”

Section 6(2) provides:

“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”),

Section 16(3)(b) of the Act provides that: “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 such measures would impose a disproportionate burden on the employer”.

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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."

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"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.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates 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.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the disability ground. It is only when he has discharged this burden that the burden shifts to the Respondent to rebut the prima facie case raised.

Findings:

Prior to making a decision on whether or not the Complainant was discriminated against, I must firstly examine whether or not he had a disability as set out in section 2 of the Act and if the Respondent was aware of same. I note firstly that he had dyslexia but that the allegations of discrimination in relation to this disability related to the period on and prior to 12 October 2022, the date on which he signed his second contract of employment and were therefore outside the cognisable period. Given that the Labour Court in Ann Hurley v Cork County VEC EDA 1124 found the admissibility of incidents outside the cognisable period was “dependent upon some link being established between the occurrences outside the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely” I will now proceed to examine the allegations of discrimination in the cognisable period. If I find the Complainant was discriminated against in this period, I will determine if there is any link between these allegations and those on and preceding 12 October 2022.

I note that the Complainant stated that he was discriminated against by the Respondent on the grounds that he had both a sensitivity to sunlight as well as irritable bowel syndrome (IBS) and was physically unable to push trolleys for a sustained period in the cognisable period. In assessing whether any of these constitute a disability for the purposes of the Act and if the Respondent was on notice of same, I note that the Complainant attended an Occupational Health Assessment on 4 August 2022, where his suitability for the role of Delivery Terminals Team Member was assessed. That review concluded that there were “no medical contraindications to [him] taking up the proposed role”. While I note that the assessment stated that the Complainant had an “increased sensitivity to sunlight” which could be managed by “rotating frequently between working indoors & outside on particularly sunny days”, the doctor did not stipulate either that this constituted or was linked in any way to a disability. In addition, there was no suggestion in the medical report that the Complainant could not move trolleys for a prolonged period of time or that he had IBS. 

In A Worker v An Employer EDA 1927, the Labour Court, in finding that the Complainant had not established a prima facie case of discrimination, highlighted that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”.

In the absence of any medical evidence having been presented by the Complainant in the instant case to suggest either that his sensitivity to sunlight was linked to a disability, that he had irritable bowel syndrome (IBS) or was physically unable to push trolleys for a sustained period of time, I find that he has not established a prima facie case in respect of the allegations of discrimination in the cognisable period.

As there was no evidence presented to suggest that the Respondent discriminated against the Complainant in the cognisable period, I cannot, as set out above, consider any allegations of discrimination on the grounds that he was dyslexic, given that these were out of time.

CA-00059066-001: This complaint was withdrawn

CA-00059066-002: As the Complainant did not establish a prima facie of discrimination for the reasons set out above, I find that he was not discriminated against.