Complainant

Respondent

Parties

Mary  Tracy

Smurfit Kappa Ireland Ltd t/a the Educational Company Of Ireland

Representatives

Michael Kinsley BL instructed by Irish Human Rights & Equality Commission

Niamh McGowan BL instructed by Byrne Wallace LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00059569-001

24/10/2023

The complainant was employed with the respondent as an educational sales representative.  The complainant has Systemic Lupus Erythematosus.  Further to occupational health and therapy recommendations, the complainant undertook her role with accommodations from in or around March 2023.  The respondent terminated the complainant’s employment in August 2023 on grounds that the complainant was not capable of fulfilling the essential duties of her role.

This decision concerns claims referred to the Commission on 24 October 2023 under section 77 of the Employment Equality Acts 1998-2015, namely claims of discriminatory dismissal and victimisation. 

The respondent entirely rejected the claims.

A summary of the submissions and oral evidence tendered is set out in ADJ-00046740.

A summary of the submissions and oral evidence tendered is set out in ADJ-00046740.

The complainant commenced employment with the respondent as an educational sales representative in March 2019.  The respondent is a leading educational publisher in both the primary and post-primary school sectors.  The complainant was diagnosed with systemic lupus erythematosus (“SLE”) in December 2013.  She experienced difficulties in April 2022 with joint pain and was advised to wear wrist supports when lifting.  In January 2023, occupational health assessed the complainant as medically fit to remain at work in her contracted role with an accommodation or support of not lifting weight greater than 3kg.  Following occupational therapy certification as fit for light duties in February 2023, the respondent arranged for another staff member to accompany the complainant to carry out all lifting and carrying for the complainant and to drive the complainant on her calls.  There followed in June 2023 further occupational health assessment and recommendation that the 3kg manual handling restriction continue for at least a further period of 6 months.  The respondent decided that the sales representative role was not viable for the complainant with the weight restriction and, on 20 June 2023, asked the complainant to consider moving into an alternative role.  Ultimately the alternative role did not progress and the complainant’s employment with the respondent ended on 22 August 2023.

These claims referred to the Workplace Relations Commission on 24 October 2023 under section 77 of the Employment Equality Acts 1998-2015 were of discriminatory dismissal and/or victimisation for having raised a complaint of discrimination and sought reasonable accommodation.  

The Legal Framework

The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in employment-related areas on nine protected grounds, which includes the disability ground. 

Discrimination on grounds of disability occurs where a person with a disability is treated less favourably than another is, has been or would be treated, where the other person is a person without a disability or a person with a different disability. 

Discrimination in relation to conditions of employment, which includes treatment in relation to dismissals, is prohibited, as is victimisation by an employer of an employee occurring as a reaction to certain specified matters.

A person with a disability is fully competent and capable of undertaking the duties attached to a job if the person could do so on being provided with appropriate measures/reasonable accommodation.  An employer has a duty to take appropriate measures where needed in a particular case, provided that such measures do not impose a disproportionate burden on an employer.  A disproportionate burden is evaluated by taking into account, in particular, financial and other costs, the scale and financial resources of a business and the possibility of obtaining public funding or assistance. 

Section 16(1) provides:-

“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual –

(a)    will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b)    is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”

Section 16(3) provides:

“(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,”

Findings

I have considered the date of the referral of the case to the Commission and the relevant time limits in section 77(5) of the Acts and am satisfied that the within claims of discriminatory dismissal and victimisation in respect of an internal appeals process have been referred within the statutory timeframe.

I am satisfied that the complainant had a disability within the meaning of the Acts.  I refer to my consideration of this issue and decision in ADJ-00046740 for further information.

I am further satisfied of facts which give rise to an inference of discrimination.  The complainant has a disability which gave rise to recommendations on manual handling restrictions in carrying out her role with the respondent.  The complainant was assessed as medically fit to continue in her current role but with manual handling restrictions.  It was recommended that the complainant be facilitated with extension of the 3kg manual handling restriction for at least a further 6-month period.  Following this assessment, the respondent informed the complainant on 20 June 2023 that, with the final occupational health report and the 3kg manual handling restriction, the complainant undertaking the role of educational sales representative was no longer viable.   The complainant did not express an interest in an alternative role that was offered.  The complainant asked about accommodation in her role as educational sales representative.  The respondent terminated the complainant’s employment on 22 August 2023 on the grounds that the complainant was unable to fulfil the essential duties of the role and there was no reasonable accommodation to allow her to retain her role. 

Based on the foregoing, I find that a prima facie case of discrimination has been established.

Discriminatory Dismissal

The complainant was informed in June 2023 of the respondent’s decision that she could not safely continue in the sales representative role.  The complainant appealed this decision.  Following a paper-based review, the respondent terminated the complainant’s employment on 22 August 2023 on the basis that the complainant was not capable of carrying out an essential aspect of her role, namely lifting and carrying sufficient quantity of books to schools, there was no reasonable accommodation that could be provided to allow her to retain her role, and the complainant had declined an alternative role offered.

I have made findings in ADJ-00046740 in relation to the respondent’s categorisation of lifting and carrying as being as essential aspect of the complainant’s role and the respondent’s non-compliance with the requirements of section 16 of the Acts in and around assessment and provision of reasonable accommodation. 

The respondent’s CEO, Ms Martina Harford, considered it appropriate to deal with correspondence further to the meeting of 20 June as an appeal of Mr MacCurtain’s decision to terminate the complainant’s employment with the respondent.  The evidence confirmed that the appeal was concerned with the decision to terminate the complainant’s employment because she was unable to carry out the educational sales representative role. 

Ms Harford’s evidence was that she considered the appeal by reference to the medical evidence, the role itself, accommodations or considerations put in place over the preceding months and years, and whether accommodations could be revisited or anything else done.  Ms Harford felt that the offer of the alternative role was one of the biggest accommodations the respondent could make.  Ms Harford’s evidence under cross-examination was that she supported Mr MacCurtain’s decision when informed of it because she felt it was the responsible thing to do for the complainant and because she knew there would be an offer on the table for the complainant.  I further note Ms Harford’s evidence that she thought the meeting of 20 June would be about moving from one role to the next and that she could not understand why the complainant did not snap up the alternative role offered.

Ms Harford’s evidence illustrates the same approach to the matter of reasonable accommodation for the complainant’s disability as that taken by the original decision maker.  Ms Harford’s decision came back to the respondent not being willing to take any risk whatsoever on the complainant’s health however this was based on comments made by the complainant in a meeting in April 2023, without the benefit of a work site assessment and without proper evaluation of appropriate measures.  Ms Harford’s evidence was that she did not see the point in contacting the occupational therapist as part of her appeals process because the position with the complainant’s ability to lift/carry had gone beyond the occupational therapist’s report which was still about facilitating lifting.  This is in fact inaccurate because the no lifting whatsoever does not have a basis in the medical reports, and it was the occupational therapist’s report of May 2023 with a manual handling restriction that provided contact details for a work site assessment.

On the evidence, I find that the respondent’s appeals process was an exercise in endorsing the original decision to terminate the complainant’s employment as educational sales representative and that its conclusions on reasonable accommodation were flawed for the same reasons as set out in ADJ-00046740.   In coming to this finding, I have had regard in particular to the construct put on the April 2023 meeting as a first hearing under the complainant’s contract of employment and the reliance by the respondent on what it described as a finding from that meeting that the complainant continuing to lift would cause her condition to flare up and that the complainant didn’t think she could go back to lifting. The April 2023 meeting was a meeting held at the complainant’s request to discuss long-term management of her disability; it was not a grievance or disciplinary or any other type of meeting expressly referred to under the complainant’s contract of employment. Mr MacCurtain based his decision that the role was no longer viable for the complainant on medical reports from May and June 2023. The complainant’s comments at the April 2023 meeting did not constitute medical evidence.  The respondent had the relevant medical evidence in the form of the occupational health and therapy reports.  The review by Ms Harford of appropriate measures was based on the papers and was considered from the perspective of alleviating all lifting for the complainant.  

It follows that the respondent’s determination that the complainant was not capable of fulfilling the duties of the role further to a breach of the complainant’s rights under the Acts, and the termination of the complainant’s employment as a result constitutes a discriminatory dismissal.  In so concluding, I have had regard to the fact that there were twelve sales representatives employed by the respondent at the relevant time and the respondent’s evidence that there was no ultimatum put to them as they weren’t in the same position as the complainant.  The ultimatum concerning termination of employment in the event of the complainant’s non-acceptance of the alternative role was on grounds of the complainant’s disability and the perception that she was less capable than a person without a disability. 

Accordingly, I find that the complainant was directly discriminated against by the respondent in relation to her dismissal from employment on 22 August 2023.

Victimisation

The complaint of victimisation, referred to the WRC on 24 October 2023 and the subject of this decision, referred to the complainant’s dismissal for having raised a complaint of discrimination and sought reasonable accommodation. 

Submissions on behalf of the complainant in relation to victimisation refer to the complainant having been subjected to a predetermined and biased internal review process after the respondent became aware of equality proceedings commenced by the complainant in July 2023.

Section 74(2) of the Acts defines victimisation as occurring 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 Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

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

I have very carefully considered the evidence relevant to the complaint that dismissal and/or a predetermined and biased internal review process occurred as a reaction to the complainant having initiated proceedings in the WRC on 13 July 2023. 

The dismissal of the complainant from employment on 22 August 2023 was further to a decision taken in mid-June 2023 that the complainant’s employment in the role of educational sales representative was not viable because a manual handling weight restriction was incompatible with the requirements of the role.   This was conveyed to the complainant at a meeting on 20 June 2023 and an alternative role offered.  The respondent was aware of the proceedings lodged by the complainant with the WRC on 13 July 2023.  The initiation of WRC proceedings is clearly a protected act under section 74(2) of the Acts.  It was confirmed for me by Ms Harford that the complainant remained in employment during the appeals process.  I have already expressed my view that the respondent’s appeal process was not an independent and open review of the decision that the role was not viable.  I am not however satisfied that the way in which the appeal was conducted was a reaction to the equality proceedings.  Ms Harford’s evidence was of knowing about and supporting Mr MacCurtain’s decision in mid-June 2023.  I find that it was Ms Harford’s support of Mr MacCurtain’s decision, the conclusions she drew from the medical reports and her position on the respondent’s sales model and accommodations that determined how she conducted the appeal process. 

On balance, I am not satisfied that the way in which the appeal process was conducted was in reaction to the equality proceedings.

I find that this complaint of victimisation is not well founded.

Redress

I consider an award of compensation for my finding that the complainant was the subject of a discriminatory dismissal to be appropriate in the circumstances of this case.

It was agreed between the parties that the complainant’s annual salary at the material time in employment was €58,000 gross per annum.  The complainant obtained different employment in the first week of November 2023.  This employment carries a gross annual salary of €42,000 and a less beneficial bonus structure than that which she had with the respondent. 

In accordance with section 82(1)(c) of the Acts, I assess the effects of discriminatory dismissal, which involved loss of occupational integration, financial loss, upset and upheaval for the complainant, as meriting an award compensation of €35,000.  The complainant described the impact of her dismissal by the respondent as very difficult, stressful and upsetting.  She further described how she felt pretty worthless notwithstanding the respondent’s position that she was a valuable asset to the company.  I have had regard to and accept the complainant’s evidence that she had felt secure in employment with the respondent company and had hoped it was a job she could retire from.  It was clear from the complainant’s evidence that she was passionate about her job as sales representative with the respondent and was devastated by the respondent’s decision that she was unable to fulfil the essential duties of the role.  It was also clear to me that the complainant found it extremely difficult and distressing giving evidence in these proceedings in the WRC.

The award of compensation is not in respect of remuneration, including arrears of remuneration.  It is an award for the effects of disability discrimination.

Disability - Discriminatory dismissal – Victimisation