SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
A GARDEN CENTRE
- AND -
Chairman: Mr Flood
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Alleged unfair dismissal under S77 of the Employment Equality Act, 1998.
2. The complainant was employed by the respondent as a trainee Horticultural Mechanic from the 12th of March, 2001, until the 4th of September, 2001, when he was dismissed. He claims he was discriminated against on the grounds of disability. He referred a complaint to the Labour Court on the 15th of February, 2002, in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 4th of October, 2002. The following is the Court's determination:-
THE COMPLAINANT'S CASE:
The complainant had been employed with the respondent for approximately six months. He stated that he had suffered from an illness which could be controlled by medication. At the time he was employed, no enquiries were made by his employer as to his state of health, and during his employment he was able to fulfil his duties to the employer's satisfaction. After approximately six months he went out for a social evening with his work mates but the drink he consumed together with the pills he was taking caused him to behave in an inappropriate manner. He stated that his employer then found out that he suffered from an illness and in a phone call shortly thereafter dismissed him, thus discriminating against him on the grounds of disability in breach of Section 6 (1), 8 (1) and 16 (3) of the Employment Equality Act, 1998 (the Act). The Complainant brought a claim for dismissal in circumstances amounting to discrimination under Section 77(2) of the Act.
THE EMPLOYER'S CASE:
The employer's case to the Court was that he had employed the complainant following representations from FÁS. He stated that the complainant’s work initially was satisfactory. However, he outlined to the Court a number of incidents that made him believe that this employee was “a serious hazard to both staff and customers”. Unfortunately, he had done nothing to bring these incidents to the attention of the employee and had not discussed his attitude problems with him. The employer further stated that if he had known that the complainant had a disability he would never have hired him and as soon as he found out the complainant's medical history he dismissed him.
The employer argued that responsibility for this matter rested with FAS as they had been extremely negligent in recommending someone with the claimant's illness to him, and that he should be exonerated from any liability.
It is accepted by both parties that the complainant is suffering from a disability as defined in Section 2(1) of the Act.
Section 16 (1) of the Act limits the obligations of employers towards persons suffering from a disability. It states, as follows:
“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…the duties attached to that position or will not accept… the conditions under which those duties are, or may be required to be, performed, or
(b) is not…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 maybe required to be, performed.”
No evidence was advanced to indicate that the complainant was not capable of fulfilling the duties of the post for which he was employed. Indeed, the employer confirmed that up to the time of the drink incident he was doing a good job.
Section 16(3) of the Ac, however, provides as follows: -
(a) a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment facilities to which paragraph (a) relates.
(c) a refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.”
While Section 16(1) of the Act, does not require an employer to employ any person who is not competent to carry out the duties attached to the position, having regard to the conditions attaching to that position, an employer must have regard to Section 16(3) of the Act. Under this Section, an employer must do all that is reasonable to accommodate a person with a disability unless such a provision would give rise to a cost, other than a nominal cost, to the employer.
In this particular case, the employer appears to have made no attempt to ascertain the exact nature of the complainant's disability. He dismissed the complainant on the phone without having any direct discussions or giving him an opportunity to present his case. Indeed, in his submission to the Court, the employer stated that if he had known the complainant had that particular disability, he would never have employed him.
The Court, having considered the written and oral submissions, finds that the employer did discriminate against the complainant under Section 77(2) of the Act, and in breach of Sections 6 (1) and 8 (1) and 16 (3) of the Act. The Court determines that the employer pay the complainant €7,500 in compensation for the said breach of the Act.
Signed on behalf of the Labour Court
12th November, 2002______________________
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.