SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
MAYBIN PROPERTY SUPPORT SERVICES LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Application for redress under Section 77(2) of the Employment Equality Act, 1998.
2. The respondent is a contract cleaning company employing approximately 600 people.The claimant was recruited as a cleaner through a recruitment agency in Romania. The claimant commenced work with the respondent on the 17th February, 2003 and was dismissed on the 1st April, 2003. The claimant alleges that she was dismissed from her employment because of her disability.
Management rejects the claim and states that the worker was dismissed because she was unable to perform the duties for which she had been recruited for.
The worker referred a complaint to the Court on the 8th May, 2003 pursuant to Section 77 of the Act. A Labour Court hearing took place on the 7th October, 2003. The following is the Court's Determination:-
The complainant was employed as a cleaner by the respondent. She commenced her employment on 17th February 2003, which continued until 1st April 2003 when she was dismissed. The complainant suffers from a disease called Charcot Marie Tooth – a congenital neuro muscular disease, which manifests itself in deformities of the legs, which is a disability within the meaning of Section 2 of the Employment Equality Act, 1998. She contends that her dismissal was on grounds of this disability and amounted to unlawful discrimination. The respondent denies that the dismissal was unfair under the terms of the Act as she was not fully capable of undertaking the duties of the job.
The Complainant's Case
In or about the month December 2001 a manager employed by the respondent interviewed the complainant in Romania for the purposes of employing her as a cleaner with the respondent company in Ireland. The complainant suffers from a disease called Charcot Marie Tooth - a congenital neuro muscular disease that manifests itself in deformities of the legs and causes difficulties for the Plaintiff in balancing and in prolonged physical work. The complainant had previously worked as a cleaner in Romania. In or about the month of May 2002 the complainant signed a work contract with the respondents, as did her husband. She again met the manager in August 2002 who indicated to them that as a work permit was about to be issued she would be coming to Ireland at the beginning of September. He also requested the sum of $1500 from both the complainant and her husband, which she says, was paid to him. They were not issued with a visa by the Romanian government until February 2003 when they promptly flew to Ireland.
The complainant originally commenced full-time work in Blanchardstown. Shortly afterwards she states she was reduced to working four hours per day and was told by the respondent that complaints had been made about her work and her gait and that she was slower than others. When she was asked did she have a disability, the complainant, fearing that she might be dismissed because she suffered from a disability, told the respondent company that she had a skiing accident and that her difficulties would be resolved in due course.
The complainant accepts that her difficulties did not resolve and on the 4th March 2003 she ceased working. Three weeks later the company sent her to an occupational physician for assessment.
On the first of April 2003 she reported to the company’s office. There her employment was terminated following the occupational physician's assessment that she was incapable of carrying out her duties due to her disability. The company indicated that no alternative positions were available.
The complainant maintains that she was capable of carrying out her duties. She maintains that a Romanian Doctor had recommended that she undertake a lot of movement and gymnastics, including climbing stairs so as to maintain her muscles in good condition. The complainant stated that she had previous experience in working in a similar capacity in Romania. She maintains that the respondent did not give her a chance to prove herself.
The complainant's husband represented her, as her knowledge of English was inadequate. He produced for the Court a Romanian certificate indicating that the complainant had a 50% capacity for employment and was accordingly eligible for special Social Security status in Romania. He also indicated that a doctor in Ireland examined the complainant and assessed her as eligible for employment but not for vacuuming, buffing floors or carrying weights.
The Respondent's Case
The respondents explained that the manager who was involved in the recruitment process in Romania was no longer employed by the respondent and was not employed with them when the contract between the Romanian employment agency and the respondent was terminated in November 2002. The respondent said that it was not expecting any further staff to arrive after the termination of the contract with the agency.
The complainant and her husband arrived without notice at the company’s headquarters on the 14th February 2003 and work was provided for both of them.
When the complainant commenced working a co-worker complained to the supervisor that she was very slow and did not appear to be able to bend down or reach up to clean walls. She was unsteady on her feet and on one occasion fell over. The supervisor and manager observed the complainant at work and agreed with the co-worker. The manager requested that she be removed from the location, as she was unable to carry out the duties assigned to her.
A meeting was arranged for February the 24th, at which the complainant was represented by her husband, and the situation was discussed. He explained that the complainant had broken her ankles in a skiing accident in August 2002 and therefore her legs were still quite weak as a result. He stated that he had a medical certificate from Romania certifying her as fit to work. When this certificate was requested he promised he would produce it as soon as possible but never did so. The respondent offered the complainant part-time work until such time as she recovered fully from the accident. Accordingly, she was placed in two different locations working a total of four hours per day.
Further complaints were made by a co-worker that the complainant was not doing her work but leaving it all to her and that the complainant had again fallen over on one occasion. At one of the locations, the husband was assisting his wife to carry out her duties during his off duty hours.
As a result of these incidents the company removed the complainant from her duties and again held a meeting at which the respondent expressed concern regarding her health and safety and suggested that she should be sent for assessment. This assessment indicated that the complainant had a congenital disease of the lower legs, that she could not remain on her feet for long periods, could not stand on her toes or walk on her heels, could not bend down or stand independently on one leg. The occupational physician concluded that she was not capable of performing the duties of a cleaning operative as set out in the company's job description.
A meeting was arranged for the 1st April 2003 at which the result of the assessment was put to the complainant's husband who continued to uphold the story about the skiing accident. It was also pointed out that despite several requests the Romanian certificate showing the complainant fit for work had not been produced. The complainant was informed that the respondent had no option but to terminate her employment.
The complainant asked the respondent company if there was alternative employment available but was told there was not.
Section 6 of the Act provides in effect that discrimination will be taken to occur where on any one 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 should be taken to discriminate 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 not contested that the complainant's dismissal arose from the respondent's belief that the disability from which she suffered impaired her ability to carry out duties for which she was employed. Since because of her disability she was treated less favourably than a person, who did not suffer from a similar disability, it follows that the dismissal was prima facie discriminatory and unlawful.
Section 16 of the Act outlines the nature and extent of the employer’s obligation where circumstances such as those in this case arise.
Section 16 (1) states in effect that nothing in the Act should be construed as requiring any person to recruit or to retain an individual in a position if the individual is not fully competent and available to undertake and fully capable of undertaking the duties attached to that position.
Section 16 (3) states however that a person who has a disability should not be regarded as other than fully competent to undertake any duties, if, with the assistance of special treatment or facilities, such a person would be fully competent to undertake those duties.
The subsection goes on to state that 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, and a refusal or failure to provide for special treatment facilities shall not be deemed reasonable unless such provision would give rise to a cost other then a nominal cost to the employer.
It is the view of this Court that in this particular case, the employer/ respondent did not fulfil its obligations under Section 16 (3) of the Act. The employer did not make any enquiries as to whether the employee might be capable of fulfilling her duties with the assistance of special treatment or facilities. It could have contacted the Rehabilitation Institute or the Central Remedial Clinic to see whether such special facilities were available. It could have made enquiries as to whether there were any specific tools available, which would have made it easier for the complainant to do her job. The respondent did none of these things. The onus on the respondent to make such enquiries in this case was particularly strong in view of the fact that they had made no enquiries as to the complainant's state of health during the interview process and their manager had obtained the payment of the sum of $3,000 from the complainant and her husband prior to their entering into the contract.
The complainant did not aid her case by adopting the subterfuge of a skiing accident to explain her disability, but, given her circumstances, such a subterfuge was perhaps in this case understandable. The Court has however taken the complainant's actions into account in assessing compensation.
The respondent company was in breach of the onus placed on it under Section 16 (3) of the Employment Equality Act 1998 in failing to do all that was reasonable to seek to accommodate the needs of the complainant by providing special treatment and or facilities and thus discriminated against the complainant on the grounds of her disability within the meaning of Section 8 when it dismissed her. The complainant is awarded the sum of €2,500 compensation in respect of the said discrimination.
Signed on behalf of the Labour Court
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.