SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
A HEALTH AND FITNESS CLUB
- AND -
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Mr. Somers
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act,1998
2. The complainant was employed by the respondent as a Child-Care Assistant from 15th October, 2000 until 6th June 2002, when she was dismissed. She claimed that her dismissal was wholly or mainly on grounds of her disability and constitutes discrimination within the meaning of Section 8 and contrary to Section 6 of the Employment Equality Act,1998 (the Act).
The facts as found by the Court or as admitted can be summarised as follows:
The complainant worked as a Child-Care Assistant in a cr�che facility operated by the respondent. Her duties involved the care of young children.
The complainant suffered from anorexia, which later developed into bulimia. She suffered from this condition throughout the period of her employment with the respondent. It is accepted that this disorder constitutes a disability for the purposes of the Act.
- During the course of her employment the complainant was hospitalised on a number of occasions. In March, 2001 the respondent gave the complainant three months sick leave in order to allow her to undergo treatment. She was admitted to hospital and was later treated as an outpatient. By 1st June 2001 the complainant was certified as fit to return to work. However, within three weeks she suffered a recurrence of the symptoms of the disorder and was again forced to take sick leave.
The complainant was not paid during her absence on sick leave.
The complainant remained on sick leave until late September, 2001 when she was certified as fit for work. She continued to receive counselling and other outpatient treatment for the disorder. She kept the respondent informed in this regard. It appeared that by December, 2001 the complainant’s condition had stabilised.
- From January, 2002 onwards a number of incidents occurred which caused the respondent some concern as to the manner in which the complainant was performing her duties. These matters related to the wearing of jewellery at work (which was not permitted on safety grounds) and alleged erratic behaviour. The complainant was issued with two verbal warnings in respect of these matters.
- On or about the month of May, 2002 the complainant became depressed and, it was suggested that she had developed suicidal tendencies. She requested more time off as she wished to be readmitted to hospital. At this stage the respondent had formed the view that the complainant was a danger to herself and the children in her care. The manager of the respondent resolved to dismiss the complainant.
The complainant was asked to attend a meeting with the manager and assistant manager of the respondent on 27th May, 2002. At this meeting she was informed that it had been decided to terminate her employment. She was subsequently dismissed by letter dated 6th June, 2002. The letter of dismissal stated in the relevant part as follows:
- “With reference to our meeting, I would like to reiterate that we are terminating your employment here at [the respondent’s premises]. You were given personal leave on two occasions in the last year as requested by yourself. As discussed, we believe you need an extended period of time to complete the treatment you are receiving for the condition that you have. It is also unsuitable that you would be working in a childcare facility under the present conditions as confirmed by your doctor”
The respondent did not obtain any medical or psychiatric advice in relation to the complainant’s disorder nor did they undertake any form of risk assessment in relation to her condition.
The respondent told the Court that they had taken the conduct of the complainant, in relation to which the verbal warnings had been issued, into account in deciding to terminate her employment. They had also decided that her disorder rendered her unfit for the duties for which she was employed.
Section 6 of the Act provides, in effect, that discrimination shall be taken to occur where, on any of the discriminatory grounds, one person is treated less favourably than another is, has been or would be treated.
Section 8(6)(c) of the Act provides, in effect, that an employer shall be taken to have discriminated against an employee in relation to conditions of employment, if the employee is afforded less favourable terms, on any of the discriminatory grounds, in respect of, inter alia, dismissal and disciplinary measures.
In the present case it is clear from the letter sent to the complainant dated 6th June 2002, that her dismissal arose wholly or mainly from the respondents belief that the disorder from which she suffered impaired her ability to carry out the duties for which she was employed. Thus she was treated less favourably than a person who did not suffer from a similar disability, resulting in the same perceived impairment, would have been treated. It follows that the dismissal was prima facie discriminatory and unlawful.
However a dismissal which appears to be discriminatory within the meaning of Section 8 of the Act may be saved by Section 16. This section provides, as follows:
16.—(1) 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.
(2) [Not relevant]
- (3)(a) For the purposes of this Act, 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.
(c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.(d) 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.
This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.
Conclusions of the Court.
In this case the respondent was faced with an employee who was suffering from a disorder which had both psychiatric and physical manifestations. The respondent became concerned that she might not be suitable to remain in charge of young children. The Court accepts that an employer is entitled to take account of possible dangers occasioned by a disability from which an employee suffers (and may be obliged to do so in certain circumstances).
However, in the instant case the respondent made no effort to obtain a prognosis of the complainant’s condition. They did not discuss the situation with her before taking a decision on her future. They came to the conclusion that she could not be retained because of her disability without the benefit of any form of professional advice or assessment of the risks associated with her condition.
There were a number of courses of action open to the respondent. They could have had the situation assessed professionally and considered the most appropriate approach to adopt in consultation with the complainant and her medical advisor. Further, the complainant intimated her desire to re-enter hospital for further treatment. A decision on her future could have been deferred and she could have been given a further period of sick leave to undergo this treatment.
Had the complainant been given further leave her progress could have been monitored and her return to work made conditional upon medical certification that she was fully fit to resume her duties. Such evidence could have been required from either her own doctors or nominees of the respondent. The complainant was not paid during absences on sick leave and the respondent accepted that they could have employed a temporary replacement without additional costs.
The Court is satisfied that the complainant was dismissed wholly or mainly because of her disability. Further it has not been shown to the satisfaction of the Court that the complainant was not fully capable of continuing to perform the duties for which she was employed within the meaning of Section 16(3) of the Act.
Accordingly, the complainant is entitled to succeed.
The Court is satisfied that the appropriate redress is an award of compensation for the effects of the discrimination suffered by the complainant.
Having regard to all the circumstances of the case the Court measures the amount of compensation which it considers appropriate at €13,000. An order against the respondent in that amount will be made.
Signed on behalf of the Labour Court
18th of February, 2003______________________
Enquiries concerning this Determination should be addressed to Carmel McManus, Court Secretary.