Complainant

Respondent

Parties

Kristian  Browne

Kilkenny Limestone Quarries Limited

Representatives

Catherine Browne

 Construction Federation of Ireland

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-00060404-001

04/12/2023

The Complainant, a general operative, complains that he was dismissed as a result of his disability from his employment with the Respondent. He was represented by his mother, Ms. Catherine Browne and gave evidence on affirmation. In addition, his brother Mr. Paul Browne also gave evidence on affirmation.

Ms. Kate Murphy, HR Officer, gave evidence on affirmation as did Mr. Paul Maher, General Manager, on behalf on the Respondent.

Both parties presented evidence and cross examined the witnesses.

Neither the Complainant or Respondent agreed for the matter to be held in public and for the decision to name the parties when asked at the end of the hearing.

It was the Complainant’s evidence that he attended an interview with the Respondent during which he advised them that he had seizures. He was subsequently hired by the Respondent and worked until his dismissal on 27 September 2023.

It was his evidence he was asked for further information from the Respondent regarding his seizures and provided posters about what to do in the event he had one. He said he told his colleagues about the seizures.

The Complainant he suffered a seizure in the canteen at work.

The Complainant returned to work and stated 3 days later that he was called into the HR office by Ms Murphy who was accompanied by “Sínead”. During this meeting he was dismissed from his employment. It was his evidence that he was told he was a good worker and was always on time, but the Respondent had to let him go “because of his seizures”. The Complainant stated Ms Murphy told him he was a risk and he had to leave. 

The Complainant was cross examined by Mr Hegarty, Respondent’s representative. In particular he was asked if he provide any medical information about his seizures. He explained that he had seizures and was on medication for it and the Respondent thanked them for telling him.

The Complainant accepted he met with the Health and Safety Officer regarding his seizures and there were discussions about his seizures. He also accepted that he signed an incident report form on 19 September 2023 but was unclear as to the date of the seizure or the date of termination. The Complainant disputed he worked for a week after the seizure before he was dismissed.

It was put to him that at the exit interview, the HR Officer just told him that his employment was terminated and there was nothing said about his seizures.

The Complainant was asked to recall the conversation with the HR Officer on the date of his termination. The Complainant referred to the requirement to reach a certain amount of work each week and he exceeded that. He added that Ms Murphy told him that the Respondent did not know how the seizures would affect him.  

Upon inquiry, the Complainant did not believe he was given a contract of employment or a handbook. He was given work boots and gloves but denied receiving manual handling training or a risk assessment. The Complainant stated he did not receive anything in writing from the Respondent as to why he was dismissed.

Asked if the Respondent put the posters he provided up around the building, he did not recall seeing them.

Mr Paul Browne gave evidence of his telephone call with Ms Murphy on the day his brother was dismissed. When he asked why the Complainant had been dismissed, Ms Murphy told him that she could not be put in a position where she had to call him if something serious happened to his brother in work. He described her as being upset on the phone. It was Mr Browne’s evidence  that the reason she had to let him go was due to his seizures.

Mr Browne was cross examined, and it was put to him that Ms Murphy made no reference to the seizures in the phone call, nor did he state it in his first account of the phone call. In response Mr Browne stated it was the context of the conversation and she was upset about it.

Ms. Katie Murphy gave evidence that the Complainant signed a contract of employment on 29 August 2023. It was flagged in the starter form that the Complainant suffered from seizures.

On 27 September 2023, she met with the Complainant to advise him that he had failed probation due to performance at work. It was her evidence that the decision was made after she spoke to the Supervisors regarding the employee’s fitness for the role. It was her evidence that, based on different aspects of the job, an employee would be reviewed.

Ms. Murphy stated that the Complainant did not have any issues with lateness. Referring to the machine he was working on, she described it as being the simplest machine and that his performance was not what was expected. It was her evidence that seizures were “not necessarily taken as a disability.”

“Fairly heated” was the description she gave of the conversation with Mr. Paul Browne that afternoon. The following day, Mr. Browne presented an ES.1 Form to her onsite. She also referred to various missed phone calls from the Complainant’s parents in the days following the termination.

It was Ms. Murphy’s evidence that she would normally send a letter to an employee who had been dismissed, but because the conversations were fairly heated, she felt it was “adding petrol” to send a letter. The next correspondence received was the ES.1 Form on 28 September 2023.

Ms. Murphy was asked under cross-examination whether the Complainant was told that he was not meeting his targets or given any reports. In reply, Ms. Murphy stated that the volumes that the Complainant got through in a day were down, and this was “judged on the day.” She added that “enough stone was not packed.” When asked if this was raised with the Complainant, she said no, “it’s simplest not to get into a debate” at the meeting. She further described the meeting as “always quite straightforward” as it was “not a big conversation.”

Asked about the Respondent’s response to the disability, it was Ms. Murphy’s evidence that the Respondent was trying to understand the situation; “it was a work in progress to understand it.”

Upon inquiry, Ms. Murphy stated that no minutes were taken at the termination meeting. The letter of termination would usually be processed later that week, but because of the interactions with the Complainant’s family, she did not want to add fuel. She repeated her answer when asked why the Respondent did not seek to defend its position when the ES.1 Form was received the very next day after the dismissal.

When asked how long the probation period was in the contract, she said 6 months, which could be extended to 12 months. When asked why, in this instance, the Complainant, who was only in the role for 5 weeks, was not afforded the 6-month period, Ms. Murphy described undertaking probationary period reviews at 3 and 6 months. It was her evidence that the decision was made. She explained that the Respondent was heavily focused on time and attendance but agreed this was not an issue for the Complainant. She stated that 2 employees had their contracts terminated due to failed probation. She said the Respondent did not have a “hire fast, fire fast” policy and that it had invested in PPE worth approximately €500 for the employee, along with induction.

When asked about the steps taken by the Respondent in relation to accommodating the disability, it was her evidence an appointment was made for him to attend the Company Doctor with two times on 6 September 2023. However, she accepted that no report was received, nor was there any follow-up with the Doctor to seek if any accommodations had to be made.

Mr. Maher gave evidence that there was a KPI for the machine which the Complainant was working on, which was not made available at the hearing. He explained there was a risk assessment on the machine, which, had he known of the Complainant’s disability, would have led to an updated assessment taking place. It was his evidence that the Complainant’s disability did not come to light until it was discovered on a form 5 – 6 days after he started, and he “did not believe it was that serious.”

He described meeting with Ms. Murphy in her office after she spoke with the Complainant’s family. It was his evidence that she was quite upset and felt threatened.

Mr. Maher was asked about the KPI reports for the machine and if they were recorded and presented to the Complainant. It was Mr. Maher’s evidence that he did not believe they were, nor were they brought to the Complainant’s attention.

Upon inquiry, Mr. Maher was asked what the KPI for the machine was and how it compared to the Complainant’s output. It was his evidence of the machine’s KPI, but he did not have the figures for the Complainant available.

It was submitted on behalf of the Respondent that the Complainant had not discharged the burden of proof and relied on the Labour Court determination in Cork Co Co v McCarthy.

It was accepted that the Complainant had initiated a complaint under the Employment Equality Acts for discrimination on the grounds of disability and failure to provide reasonable accommodation despite an ES.1 Form initially been relied upon and an incomplete Complaint Form being submitted.

It was also accepted that the Complainant had a disability for the purposes of the Act by the Respondent.

Section 6 of the Employment Equality Acts 1998-2015 (as amended) provides the definition of discrimination:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.”

Section 16 (3) provides the nature and extend of the employer’s obligations to employees with a disability:

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(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;”

Section 85A of the Employment Equality Act 1998-2015 sets out the burden of proof:

“(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”.

Therefore, the burden of proof is on the Complainant to show that he was treated less favourably on account of his disability and was not reasonably accommodated in the workplace.

InSouthern Health Board v Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant 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 is no infringement of the principle of equal treatment”.

Rotunda Hospital v. Gleeson, DDE003/2000 examined what is required to establish a prima facia case of discrimination;

“Evidence which, in the absence of contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The Labour Court in City Council v. McCarthy, EDA 21/2008, which was relied upon by the Respondent, held the Complainant must establish not only the primary facts on which she seeks to rely but also that those facts are of sufficient significance to raise an inference of discrimination

InMelbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court held that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Section 6 (1) (a) of the Employment Equality Acts is drawn from the same wording as Art.2 of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (“Framework Directive”). Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 note at para. 7-86, “his requires there to be a connection between the disability and the alleged discriminatory acts. This connection is not established by way of motive or intention to discriminate, but rather from the facts before the Tribunal from which it may infer discrimination.” Reliance is placed on the Labour Court determination in A Technology Company v A Worker EDA0714:

“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 that 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.”

Reasonable Accommodation

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

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

Dismissal on the ground of disability

In terms of the material facts of a complaint of dismissal on the grounds of disability, I find the following:

There is no dispute that the Respondent was made aware of the disability by the Complainant. The Respondent, and in particular the Health and Safety Manager, did seek further information from the Complainant about his disability, which was provided in the form of posters that were printed off at home by the Complainant’s mother.

The Respondent did not seek the specific assistance of its Company Doctor when there was a clear absence of understanding of the Complainant’s disability.

The Complainant was employed for a short period of approximately 5 weeks. No risk assessment was carried out on the Complainant and the work he was assigned to carry out. The only risk assessment was conducted on the machine itself, according to Mr. Maher.

The Complainant had a seizure on 19 September 2023 in the canteen. Upon his return to work, the Complainant worked between 3 and 5 days before he was terminated on 27 September 2023. The Complainant’s employment was terminated by the Respondent on 27 September by Ms. Murphy in a very short meeting.

No probationary reviews or feedback were given to the Complainant during his time working with the Respondent. No written notice as to the reason for termination was provided, nor were minutes of the meeting recorded.

On 28 September 2023, the Complainant presented a complaint of discrimination on the grounds of disability and failure to provide reasonable accommodation to the Respondent in the form of an ES.1 Form. No response was presented from the Respondent to the allegations.

Two other employees had their employment terminated in 2023 during the probationary period.

Considering the relevant evidence that is in dispute:

While it was not put to the Complainant whether he attended the Company Doctor after he disclosed his disability, nor was it raised with Ms. Murphy in her evidence in chief, it later transpired that at the very least, an appointment for 6 September 2023 at either 12 or 12:15 pm was made for the Complainant. It is also accepted that Ms. Murphy did not receive any communication from the Company Doctor. Therefore, it is reasonable to conclude, having regard to the Complainant’s disability and his disclosure at the outset of his employment, that he did not attend the Company Doctor where a report was not received.

It is further unclear as to what exactly the Complainant and the Health and Safety Manager discussed about his disability. The Complainant himself was vague on what was discussed but did deny in cross-examination that no further information was sought on his medication by the Health and Safety Manager. It is noted that aside from providing posters to the Respondent, the Complainant did not seek to assist the Respondent in understanding his disability. It is unclear as to the reason why she did not attend the hearing, particularly where she was an important witness as to the facts.

No probation policy was presented, but it is accepted the Complainant did receive a contract of employment, despite his evidence that he did not. Ms. Murphy’s evidence was particularly clear regarding the dates in which the starter form and the contract were provided and signed by the Complainant. In contrast, the Complainant lacked any clarity on dates or the paperwork he received from the Respondent.

It is accepted that the contract contained a 6-month probation period that could be extended. What is of particular relevance is the normal practice she described of periodic probation reviews, which began in the 3rd month of the contract. When asked why the Complainant was not given this opportunity to improve, it was her evidence that “the decision had been made,” with her role being to deliver the decision of the Complainant’s supervisor, who it is noted did not attend the hearing either. Various other reasons for the dismissal were provided at different stages in the Respondent’s evidence. There was a reference to the Complainant’s failure to meet the machine’s KPIs, but despite being asked, the Respondent was unable to provide any evidence on what the Complainant’s outputs were. Ms. Murphy said the decision to dismiss the Complainant was based on a discussion with his Supervisor about his “fitness for the role”. This is of significance where it was accepted that the Complainant had a disability, but the Respondent did not practically address this. On balance, it would be reasonable to expect the Complainant to assist the Respondent in understanding his disability beyond a poster printed off the internet. 

On the balance of probabilities, I find his disability was not specifically given as a reason for his dismissal at the meeting on 27 September 2023. I find the meeting was so rushed that no reason whatsoever was provided.

Despite this, I do find there was a clear link between the seizure on 19 September 2023 and the Respondent’s response to swiftly dismiss him within days of his seizure in the absence of evidence for his alleged poor performance, where the Complainant was not afforded the same periodic probationary reviews as his colleagues and the admission that there was a discussion around his fitness to work in the role without seeking any supporting medical advice.

In these circumstances, I find the Complainant has established a prima facie case of discrimination, and he was treated less favourably on the grounds of his disability. Based on this finding, a clear inference can be drawn of discriminatory dismissal. 

It is less clear as to the conversation between Ms. Murphy and Mr. Paul Browne, but I accept that this communication and subsequently correspondence was less than helpful. It is accepted that the conversation was heated, which is corroborated by Mr. Maher’s evidence that he witnessed Ms. Murphy in her office after the phone call in an upset state.

In conclusion, I find the Complainant was discriminated against by the Respondent.

Reasonable Accommodation

After listening carefully to the Complainant, I find that no evidence whatsoever was given by him in relation to his complaint of the Respondent’s failure to provide reasonable accommodation.

Consequently, he has not established that he has a prima facia case of discrimination on this ground.

I find he was not discriminated against by the Respondent on the ground of failure to provide reasonable accommodation.

(1) Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation and I order the Respondent to pay the Complainant the sum of €3,000. This sum is arrived at to compensate the Complainant for the discriminatory treatment but also takes into account the Complainant’s lack of candour during the hearing.

(2)     I order the Respondent to undertake professional training for all members of management, including Supervisors and HR on Diversity and Inclusion within 6 months of the date of this decision.