SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
A MOTOR COMPANY
(REPRESENTED BY REIDY STAFFORD SOLICITORS)
- AND -
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998.
2. The worker referred his case to the Labour Court on the 24th of October, 2001, under Section 77 of the Employment Equality Act, 1998. The following is the Court's Determination:
The complainant was employed by the Company from the 2nd of January, 2001, until the 27th of April, 2001, when he was dismissed. The complainant alleges that he was discriminated against in terms of section 6, and contrary to section 8 and section 16, of the Employment Equality Act, 1998 in that he was dismissed from his job by the Respondent on account of his hearing disability.
The Equality Authority, on behalf of the complainant, referred a complaint to the Court under section 6, section 8, and section 16 of the Employment Equality Act, 1998. It is alleged that the worker's dismissal from his employment constituted discrimination on the grounds of disability within the meaning of the legislation.
The worker alleges that he has been discriminated against on the grounds of his disability as set out in section 2 (c) of the Act, which cites disabilityinter aliaas "the malfunction, malformation, or disfigurement of a part of persons body.” He submits that his impaired hearing falls within this definition.
- The following are the undisputed facts: -
The complainant was interviewed on the 9th of December, 2000, by the Service manager and the service receptionist for a position as service receptionist with the respondents.
The complainant was advised that the job in the main involved the following:
- booking in work and opening repair orders;
- operating control planner;
- handling calls in relation to booking in vehicles for Department of Environment testing;
- liaising with the workshop manager regarding repairs and service of vehicles.
During the interview, the complainant stated by way of reference that he had worked for a motor distributor previously and, in addition to other tasks, part of his duties involved continuous phone dealings with the other motor sales companies and suppliers, both nationally and internationally.
It was noted at interview by the respondents that the complainant was wearing a hearing aid.
On December the 14th, 2000, the complainant was offered the job of service receptionist at a starting salary of £15,000 (€19,046) per annum. This offer was made to the complainant on his mobile phone, and at the time of taking this particular call the complainant stated he was on a bus.
The complainant’s employment commenced on the 2nd of January, 2001. Shortly afterwards, building work began in an area adjoining his office.
On the 24th January, the service manager called the complainant to his office and advised that although the Complainant's work was acceptable, there appeared to be a problem with communicating on the telephone. It was suggested to the complainant that he had hearing difficulties. The complainant confirmed that he wore the hearing aid because he had a hearing difficulty, but advised that he had never before had any complaints or difficulties with his hearing. The complainant suggested that the noise from the building works might be causing some difficulties with telephone communication.
The Service Manager suggested that the complainant should get a head set. The complainant agreed that this might be a solution and advised that he would contact the National Association for Deaf People (NADP) for advice.
However, before any contact was made with the NADP, the Company's own telephone suppliers - Alcatel - delivered a headset to the offices of the respondent.
No further complaints were made about the complainant's work performance until the 9th of March, 2001, when the previous service receptionist spoke to the complainant regarding his work performance. He was advised that there were difficulties and that when the service manager returned, after the 19th of March, a final decision would be made regarding the complainant's future with the Company. He was further advised that he was on a three-months' trial which would terminate at the end of March.
The complainant wrote to his superiors on the 12th of March requesting specific details of his alleged shortcomings.
The respondents answered the complainant's letter of the 12th of March and advised that the three months' trial period was Company policy. In correspondence, they also detailed a number of problems alleged to have risen with the complainant's work.
On the 29th March, 2000, the service manager returned to work and met with the complainant. He advised that the three-month trial had expired and, in the Company's opinion, he was not suitable for the job. The complainant was advised, however, that the Company would allow him two weeks to find another job.
The complainant asked the service manager to put this in writing. The service manager complied with this request and wrote to the complainant on the 29th March, confirming the termination of the complainant’s employment at the expiry of four weeks' notice.
The complainant’s case
During his interview, he referred to his hearing aid and stated that it had never caused any difficulties in telephone work. On the 24th January, when he was called to the Service Manager’s office and advised that there was a problem with communication on the phone, he did not accept that that was in fact the case. However, he suggested that perhaps the building work, which was quite substantial, was causing difficulties and, therefore, agreed to get a head set. He claims, however, that no advice was taken in relation to the proper type of headset to be used and that furthermore, he was not aware that the complaints continued after he had been provided with the headset. He claims that at all times he fulfilled his duties on the telephone satisfactorily. He claims that if the management was aware of difficulties when he was communicating on the telephone, they were under a duty within the meaning of Section 16(3)(b) of the Act "to do all that was reasonable to accommodate the needs of a person who has a disability by providing a special treatment or facilities to which (a) relates".
Section 16 (3) (a) states:
"For the purposes of this Act, a person who has a disability should not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties."
The complainant claims that the employer discriminated against him by dismissing him on the grounds that he was disabled and incapable of fulfilling his duties when, with the assistance of special treatment facilities, he would have been fully competent to undertake his duties.
The respondent’s case
When the complainant attended for interview on the 9th of December, 2000, he was interviewed for approximately one hour during which he was advised that there was a three months' probationary period.
The respondents further contend that shortly after the complainant took up his position of service receptionist, they began receiving complaints from customers in respect of the complainant’s interpretation of instructions. The respondents alleged that when they spoke to the complainant in this regard, he advised them that he had a low level of hearing in each ear. The respondents say that they were not aware of this difficulty until they were so advised by the complainant. The respondents say they asked the complainant what could be done to improve the situation and, with his agreement, it was decided that a headphone coupled with an amplifier would be of assistance.
The respondents contended that the building work referred to in the complainant’s submission and the noise arising from the building work was kept to the absolute minimum possible. They are insistent that the building work, which generated the most noise, was carried out on a Saturday when the complainant was not present.
When the complainant was supplied with the headsets and amplifier, he advised the service manager that there was a big improvement. However, the respondents say that the complaints in relation to the complainant's work not only continued but also escalated. The respondents, however, confirm that up to the 9th of March no further effort was made to assess the problem and find a solution.
The respondents further contend that section 16(3) (c) of the Act provides that a refusal or failure to provide special treatment or facilities shall not be deemed reasonable "unless such provision would give rise to a cost, other then a nominal cost" to the Respondent. The Respondents further contend that the provision of further facilities would have given rise to a cost other than a nominal cost.
The Statutory Provisions
The relevant statutory provisions are contained in Sections 2, 6, and 16 of the Employment Equality Act 1998.
Section 2 defines disability in broad terms and in the Court's view the plaintiff's lack of hearing is covered by the definition contained at section 2 (c) of the Act.
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 should 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 should 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. The subsection goes on to provide that a refusal by an employer to provide a 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 facilities is that of cost,other then nominal cost.
The Court has carefully considered the evidence and the arguments advanced by both parties. It finds as a fact that the complainant was dismissed because, in the opinion of his employer, his hearing difficulties interfered with his performance.
The Court accepts that the employer took some steps to try and deal with the problem by providing a headset, but the headset in question was not of a type which would have actually dealt with the problem. Evidence has been given to the Court that a specialized headset was available as recommended by the National Association for Deaf People at a cost of approximately €450, which could have the eased the complainant's hearing difficulties. The Respondents stated that it is a small employer and submits that, in the light of the steps that it took to provide the complainant with special treatment and facilities, for it to have done anything more would have involved it in incurring additional costs which would have been other than nominal. The Court cannot accept this. The Respondent is a substantial Company and, in the context of its turnover, a cost of €450 could not be considered as anything other than “nominal”.
The provision of special treatment or facilities is not in the Court’s view confined to the question of providing equipment. In this instance, the provision of basic induction training to familiarize the new employee with the Company would have been helpful and might have dealt with customer complaints/impatience.
The Court concludes that the respondents did not do all that was reasonable to provide the complainant with special treatment of facilities
The Court is assisted in its conclusions by the evidence given that the plaintiff did not experience these hearing difficulties in his previous employment and does not in his current employment, and in both these situations the job duties were and are similar.
The Court, therefore, finds that the complainant was dismissed because of his hearing difficulty and that the employer did not do all that was reasonable to provide special treatment or facilities for the complainant.
For the reasons set out above, the Court finds that the complainant herein was dismissed by the respondent by reason of his disability, and that this dismissal constitutes an act of discrimination within the meaning of Section 6(1)(g) of the Act.
The Court determines that the appropriate form of redress is an award of compensation pursuant to section 82(1)(c). The Court awards compensation in the amount of €3,000.
Signed on behalf of the Labour Court
2nd July, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.