(REPRESENTED BY THE EQUALITY AUTHORITY)
AN ELECTRONIC COMPONENT COMPANY
(REPRESENTED BY IBEC)
This dispute involves a claim by Ms. X that that she was dismissed by the respondent in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts, in February, 2005.
2.1 The complainant applied for the position of temporary process operator with the respondent in February, 2005. She attended for interview and was successful. She completed a pre-employment medical on 15 February and attended a manual handling training course the next day. She was requested to attend a meeting with the respondent's Human Resource Manager on 18 February during which she was dismissed. She contends that the respondent imputed a disability to her (back condition) and this was the basis on which it terminated her employment. She submits that this constitutes unlawful discrimination of her contrary to the provisions of the Employment Equality Acts, 1998 and 2004. The respondent rejects the complainant's assertion and contends that the complainant failed to disclose certain issues in her medical declaration and this constituted a fundamental breach of trust between the parties. It submits that its decision to terminate the complainant's employment was not based on any discriminatory factors and is not therefore contrary to the employment equality legislation.
2.2 The Equality Authority referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on behalf of Ms. X on 21 July, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 3 August 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant applied for the position of temporary process operator with the respondent in February, 2005. She attended for interview on or around 10 February and was informed she was successful. She completed a medical examination within a week of interview during which she had her vision, hearing and blood pressure checked and her weight/height recorded by an Occupational Health Nurse. She also completed a pre-placement medical questionnaire in which she disclosed her medical history. She states she was not asked any questions about back problems and indicated that she did not suffer back pain/sciatica on the questionnaire because in her view she did not/had not previously suffered from those conditions. The complainant states that she attended a Manual Handling Training Course on 16 February, 2005. This course was delivered by Ms. F, the respondent's Training Instructor and the complainant successfully completed both the practical and written elements of the course. She states that during the course of the training the Instructor told her on 2/3 occasions to sit up straight so as not to damage/strain her back. She adds that during a break she spoke with the instructor privately and informed her (i) she had difficulty sitting straight because she is heavy chested and she naturally slouches (ii) the issue was cosmetic, not medical and she was exploring options around breast reduction and (iii) she did not have a back problem.
3.2 The complainant states that she received a telephone call from the respondent's Occupational Health Nurse (OHN) on 17 February, 2005 during which she told the complainant she was annoyed she (the complainant) had not disclosed her back problem on the medical questionnaire. The complainant adds that she informed the OHN she did not suffer from a back problem and that was why she answered the questionnaire in the manner she did. She states that a meeting with the respondent HR Manager was arranged for the next day 18 February, 2005. Prior to this meeting the complainant obtained a letter from her General Practioner (GP) stating that she was fit for employment. The complainant accepts that this letter indicates she had attended her GP in about a year earlier with "mild thoracic pain" but states that it was once off, no abnormalities were found and she had forgotten she had attended. The complainant states she met with Mr. M, the respondent's HR Manager and Ms. L, another official from the HR Department on 18 February. She handed Mr. M the note from her GP and re-iterated what she had said to Ms. F a couple of days earlier. She states that after a short recess Mr. M informed her that her employment was terminated. She adds that she received confirmation of this a couple of days later in a letter dated 18 February, 2005.
3.3 The complainant states that her mother telephoned Mr. M that afternoon and he informed her that the complainant had been dismissed because she had failed to disclose a back problem in her medical questionnaire. She contends that Mr. M agreed to review the complainant's situation on the return of the respondent's OHN and he would revert to her. The complainant states that Mr. M never made any further contact with her. She submits that the respondent, when faced with conflicting information about whether or not the complainant had a back problem, should have conducted a comprehensive medical examination before deciding to dismiss her. She argues that the respondent therefore imputed a disability to her and having done so it failed to explore the concept of "reasonable accommodation" for her in order to determine whether or not she was competent and capable of performing the duties attached to post. She submits that this constitutes less favourable treatment of her on grounds of disability, contrary to the Employment Equality Acts, 1998 and 2004.
4 SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against her on grounds of disability. It states the reason it dismissed the complainant was she failed to disclose in the course of the pre-employment medical questionnaire that she had a back problem. It adds that the questionnaire, which is a signed declaration by a prospective employee of his/her medical history, clearly indicates that failure to disclose any issues could result in termination of one's employment. The respondent states that when Ms. F asked her to sit up straight in the seat in the course the manual handling training the complainant subsequently told her that she (the complainant) suffered from a curvature of her spine due to the size of her breasts and she would be having an operation to reduce them. The respondent contends that the complainant purposely withheld important information from it and that this constituted a breach of trust between the parties which warranted dismissal. It adds that the letter from her GP confirms that the complainant had a back problem.
4.2 The respondent states that it has a policy to attempt to accommodate employees with a disability as long as it is aware of those issues. It adds that it participated in the "Supported Employment Scheme" in 2002 and has current employees with a variety of disabilities. Duties and working arrangements are modified following discussion between the various managers, the HR Department and the Occupational Health Nurse in an effort to accommodate such employees. It further states where the pre-employment medical process indicates any issues the respondent will explore them with the OHN and it Occupational Health Physician before making a final decision. It adds that this did not happen in the complainant's case because the need was not highlighted by the complainant in the questionnaire.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts, in February, 2005. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 sets out the out the procedural rules to be applied in respect of the burden of proof to be discharged by the parties in proceedings under the Acts. It requires the complainant to establish, in the first instance, facts from which it can be inferred that she was treated less favourably on the basis of the discriminatory ground cited. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 Section 2 of the Acts defines "disability" as inter alia, "the malfunction, malformation or disfigurement of a part of a person's body". In my opinion, if a person suffered from a curvature of the spine, such a condition would fall within the definition of disability for the purposes of the Acts. Section 6 of the Acts provides, inter alia, as follows:
"(1) For the purposes of this Act ........ discrimination shall be taken to have occur where -
(a) a person is treated less favourably that another person is, has or would be treated in a comparable situation on any of the grounds specified in subsection (2) ..... 'the discriminatory grounds') which -
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned ........"
The respondent states it became aware through Ms. F that the complainant suffered from a curvature of the spine and Ms. F gave evidence that the complainant had informed her of this on 16 February, 2005. If this is the case, then at that time the complainant had a disability for the purposes of the Acts. If, as the complainant contends, she did not say she suffered from this condition, then in my view the respondent, by taking the word of Ms. F over the complainant and in the absence of any medical opinion, imputed a disability to the complainant. Either way, I find that the complainant is covered by the definition of disability for the purposes of the Act.
5.4 The respondent accepted at the Hearing that the complainant successfully completed the manual handling training course and was considered competent and capable of performing the tasks associated with the post. It states that its decision to terminate her employment was because she had deliberately withheld information about her "back problem" from it. It seems unlikely to me that the complainant would (i) withhold the information at the pre-medical assessment, when she had disclosed other medical history, (ii) tell Ms. F (the next day) that she suffered from a curvature of the spine, (iii) go to her GP to obtain a letter stating the opposite to be the case, but indicating that she had presented a year earlier with mild isolated pain in the shoulder area and (iv) argue so vehemently with Mr. M in the course of the meeting on 18 February, 2005 that she did not suffer from a back problem. In addition I note the evidence of Dr. F, Occupational Health Physician, at the Hearing who stated that he examined the complainant on 26 June, 2006 and she did not have a curvature of the spine. He added that in his opinion the complainant did not suffer from such a condition in February, 2005 and he found no evidence in the course of his examination of her to suggest otherwise. Having assessed all the evidence presented on this issue I prefer, on balance, the complainant's version of events - i.e. that she informed Ms. F she slouched because of the size of her breasts but that the matter was cosmetic, not medical in nature and that she did not suffer from a back condition. On the basis of my comments above I find that the respondent imputed a disability to the complainant.
5.5 Section 16 of the Acts state that a person with a disability shall be considered fully competent and capable of undertaking the duties attached to the post, if the person would be so fully competent and capable where the employer provides reasonable accommodation (appropriate measures) which do not impose a disproportionate burden on the employer. I note the respondent stated in the course of the Hearing that it did not give any consideration whatsoever to providing reasonable accommodation to the complainant and it therefore cannot rely on the defence provided in that section of the Acts.
5.6 I must now examine whether or not the complainant's imputed disability was a factor in the respondent's decision to terminate her employment. The respondent states that the complainant deliberately withheld information about her back problem and I have dealt with this in paragraph 5.4 above. In A Government Department v An Employee (Ms. B) (1) the Labour Court took account of the decision in Nagarajan v London Regional Transport in holding "that the proscribed ground need not be the sole or even principal reason for the conduct impugned, it is enough that it is a contributing cause in the sense of being a significant factor"(2). Having evaluated the evidence presented by both parties I am satisfied that the complainant's imputed disability was a significant factor in the respondent's decision to dismiss her. When faced with conflicting information about the contents of the discussions between the complainant and Ms. F, the respondent acted in an impetuous manner and did not, in my view, make adequate enquiries as to the actual fitness of the complainant for the post, an option it could have availed of by referring the complainant to its own Occupational Physician - a process I note it states it would have applied had the complainant declared any ailment on the pre-employment medical questionnaire and a process it had used previously. In light of the foregoing I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. Before leaving this matter I feel it necessary to say that the operation of pre-employment medical examinations/ questionnaires are not per se unlawful. In some circumstances it is necessary for an employer to determine the capability of a prospective employee to perform certain duties or, as the respondent indicated, to examine what needs to be done to accommodate someone with a disability and those mechanisms facilitate those issues. However, employers should exercise caution when using the information obtained from such procedures so as not to fall foul of employment equality legislation.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. I note that the post was temporary in nature and was for a period of 6 months. I am of the view that the financial redress I can order should reflect the fact. I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998 and 2004 that the respondent pays the complainant the sum of €15,000 by way of compensation for the effects of the discriminatory treatment on her, €10,000 of which reflects the loss of income on the part of the complainant (I note she was unemployed for a period in excess of 6 months after the dismissal) and €5,000 for the distress suffered by her as a result of the discriminatory treatment.
8 September, 2006
(2)  IRLR 73