SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
A COMPUTER COMPONENT COMPANY
- AND -
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998.
2. The complainant was employed by the respondent as a packer from the 13th of October, 1999 until the 2nd of December, 1999 when she was dismissed. She claims she was discriminated against on the grounds of disability. She referred a complaint to the Labour Court in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 27th of June, 2001.
The complainant contends that she suffered discrimination in being dismissed from her employment with the respondent herein on grounds of disability.
The material facts as admitted or as found by the Court are as follows:
- The respondent manufactures optical discs for use in computers at its plant in Limerick. The complainant was recruited by an employment agency and commenced employment with the respondent as a packer in October 1999. Her initial employment was in a temporary capacity.
The claimant suffers from epilepsy but her condition is well controlled by medication. She had not experienced a seizure for over two years. She also told the Court that prior to the onset of an attack she would experience symptoms up to 24 hours beforehand. She had worked in the respondent’s plant for 5/6 weeks without difficulty, and considered herself fully capable of undertaking any of the tasks associated with the employment. At the time of her initial employment, the claimant informed the employment agency of her medical condition.
In November, 1999, the complainant was informed by her supervisor that her work performance was very satisfactory and that the respondent would like to take her on in the permanent position of Team Member. The complainant was given an application form which she completed and on which she declared her epilepsy. The claimant was informed that she would not be required to attend for interview but that she would be required to undergo a medical examination by a Doctor nominated by the respondent.
The complainant attended for a medical examination on 2nd December, 1999. Immediately following the examination, the Doctor spoke with the respondent's personnel officer by telephone and told her that the complainant suffered from epilepsy. As a result of this conversation, the respondent’s personnel officer decided not to offer the complainant a permanent post and to terminate her temporary appointment with immediate effect. The Doctor subsequently submitted a written report to the respondent but this report had not been received at the time the complainant was dismissed.
The respondent admits that it dismissed the complainant because she suffered from epilepsy. It says that it did so on medical advice. The Doctor who examined the complainant was not called in evidence but her written report was furnished to the Court. The advice contained in this report is far less definitive than that recounted by the respondent’s personnel officer from her recollection of the telephone conversation with the Doctor.
While advising that the complainant was not fit to operate heavy machinery, the written report goes on to advise that the complainant's condition is well controlled with no seizures for the previous two years. The Doctor advised that the complainant's condition would present no problem for the type of work in which she was engaged. Finally, the Doctor suggested that the complainant might consult a neurologist for a second opinion, and the respondent could consult with her again if the second opinion differed from that contained in the report.
The relevant statutory provisions are contained in Sections 2, 6, 8 and 16 of the Employment Equality Act, 1998 (the Act).
Section 2 defines disability in broad terms and, in the Court's view, epilepsy is covered by the definition contained at Section 2(c).
Section 6 (1) provides that discrimination shall be taken to have occurred where a person is treated less favourably than another is, has or would be treated on any of the discriminatory grounds set out in subsection (2). Section 6(2) lists the discriminatory grounds which include, inter-alia, that of disability.
Section 8(1) prohibits an employer from discriminating against an employee or a prospective employee, inter-alia, in relation to access to employment and conditions of employment.
Section 16(1) provides, in effect, that nothing in the Act shall be construed as requiring any person to recruit or promote or to retain in a position a person who is not fully capable and fully competent of undertaking the duties attached to the position, having regard to the conditions under which those duties are, or may be required to be, performed.
Section 16(3) provides, in effect, that a person with a disability shall not be regarded as other than fully competent and fully capable of undertaking any duties if, with the assistance of special treatment or facilities, such person would be fully competent and capable of undertaking those duties. The subsection then goes on to oblige an employer to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities which would render that person fully capable of undertaking the duties of their employment.
For the purposes of this subsection, a refusal by an employer to provide special treatment or facilities is not to be deemed reasonable unless such provision gives rise to costs, other than nominal costs, to the employer. Thus, the only basis on which an employer can refuse to provide special facilities is that of cost, other than nominal cost.
Having applied the statutory provisions to the facts of this case, the Court has reached the following conclusions:
- The respondent terminated the complainant’s employment because she suffered from epilepsy. This, prima facie, constituted an act of discrimination on the disability ground. The respondent can only be relieved of liability if it can be shown that, by reason of her disability, the complainant was not fully competent and fully capable of performing the duties of her employment, having regard to the conditions under which those duties were to be performed and could not have had her needs reasonably accommodated.
The respondent told the Court that it is Company policy that employees should be competent to undertake all tasks associated with the production function in which they are employed. It said that in the case of the complainant this would involve the operation of machinery. It told the Court that the decision to terminate the complainant’s employment was taken because, on medical advice, it believed that this working environment posed a danger to a person with epilepsy.
Whilst the respondent does have some machinery which could be classified as heavy, its use is a minor part of the production system and it is clear that not all production employees are required to use this machinery all of the time. It appears to the Court that if a problem existed in relation to the complainant, arrangements could have been put in place whereby she would not be required to use this machinery.
If the respondent did conclude that the complainant lacked full capacity to safely undertake the duties of her employment, it appeared to have done so precipitously. The decision was taken and implemented before the Doctor’s written report was received. As already observed, this written report does not definitively point to an insurmountable medical or safety impediment to the complainant’s continued employment and could be read as leaning to the opposite conclusion.
The respondent did not consider undertaking any form of safety assessment which could have identified the extent, if any, to which the working environment presented a danger to the complainant, and how any such danger could be ameliorated. Further, the respondent did not discuss its concerns with the complainant and did not advise her to obtain a second opinion from a neurologist as had been suggested by the Doctor.
On the evidence, the Court does not accept that the respondent could reasonably and objectively have come to the conclusion that the complainant was not fully competent or capable of performing the duties of her employment. Even if the respondent did reach such a conclusion, it is abundantly clear that it did not give the slightest consideration to providing the complainant with reasonable special facilities which would accommodate her needs and so overcome any difficulty which she or the respondent might otherwise experience.
In all of these circumstances, the Court does not accept that the respondent can avail of the provisions of Section 16 (1) so as to avoid liability under the Act.
For the reasons set out above, the Court finds that the complainant herein was dismissed by the respondent by reason of her disability, and that this dismissal constituted an act of discrimination within the meaning of Section 6(1)(g) of the Act.
Having been told that the complainant is not seeking reinstatement, the Court determines that the appropriate form of redress is an award of compensation pursuant to Section 82(1)(c). The Court has taken account of the complainant’s loss of earnings together with the distress which she suffered arising from her dismissal and, in bringing this case, awards compensation in the amount of £15,000 (19,046.07 Euro). An order will be made against the respondent in that amount.
Signed on behalf of the Labour Court
18th July, 2001______________________
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.