INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
CONNACHT GOLD CO-OPERATIVE SOCIETY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY ROSCOMMON ADVOCASY NETWORK)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal under Section 83 of the Employment Equality Act, 1998
2. A Labour Court hearing took place on 28th November, 2008. The following is the Court's Determination:
This is an appeal by the Company against the decision of an Equality Officer in a claim alleging discrimination on the disability ground brought by a worker. The Equality Officer found that the Respondent had discriminated against the Complainant on the ground of disability and awarded him the sum of €17,500 in compensation for the effects of discrimination. It is against that decision that the Company appealed to the Court.
The Complainant complained that he was dismissed on the disability grounds, in breach of the terms of Section 6(2) (g) of the Employment Equality Acts, 1998 and 2004 (The Acts) and in contravention of Section 8 of the Acts.
The Complainant contended that he was discriminated against on the disability grounds when he received a letter on 18th October 2004 stating that he was no longer required as an employee of the Respondent, after it had been informed that he suffered from Depression.
He also claimed that the Respondent did not make sufficient efforts to accommodate his disability.
For ease of reference the parties are referred to in this Determination using the designations prescribed at S77 (4) of the Act. Hence, the Company is referred to as the "Respondent" and the worker is referred to as the "Complainant".
The Complainant’ case
The Complainant commenced employment with the Respondent on 8th June 2004 as a general assistant in the Company’s stores area.
Following a particularly stressful period at work while the Complainant’s manager was away on leave, the Complainant commenced sick leave on 27th September 2004. His psychiatrist gave him a certificate for his GP, who in turn gave him a certificate for his employer. The Certificate did not state that the Complainant suffered from depression, rather that he suffered from "illness" / "medical illness". He continued out on sick leave and continued to hand in medical certificates from his GP.
On 11th October 2004, the Complainant’s wife handed in his 3rd certificate to the store manager (Mr. W.) and told him that he was suffering from “stomach trouble”. Later when asked when he would be returning to work, she explained that he would not be in a position to return to work for another two weeks. As the Complainant was worried about his job and was anxious to assure the Respondent that he was genuinely ill, his wife telephoned the Area Manager (Mr. F.) later that day to explain. When Mr. F. enquired as to the nature of his absence, she at first stated that it was “a private matter” but later in the call informed him that the Complainant was suffering from “Depression”. She told him that the Complainant had been coming home from work stressed every evening while his manager was on leave.
The Complainant’s Advocate, Ms. Carmel Donovan submitted that the Respondent’s attitude changed at this news and that Mr. F then said to his wife“Does this mean that he will be back at work and then be out sick all the time”.
On 20th October 2004, he received a letter dated 18th October 2008 terminating his employment; this letter was from Mr. F. Area Manager.
On 8th November 2004, the Complainant and his wife met with Mr. F. to discuss his dismissal. Mr. F. gave him his P45 and said that had he been given a date when he was likely to return to work he would not have had to let him go.
When the Complainant sought a reference from Mr. F. his response was“I could give you one but what can I say. We have to cover our end in case a future employer comes back to us”.
Ms. Donovan told the Court that the Complainant’s doctor advised against putting “Depression” on the certificate as he would only be out of work for a short period of time and he did not want his colleagues knowing that he suffered from a mental illness.
The Respondent’s case
Mr. Peter Flood, on behalf of the Respondent denied that it was aware that the Complainant was suffering from Depression at the time of the decision to dismiss and thus this fact could not have influenced its decision.
The Respondent stated that the Complainant was on probation when he went on sick leave on 28th September 2004. During his period of sick leave there was no reference on the three medical certificates furnished to “Depression”, rather it was stated that he was suffering from an "illness"/ "medical illness". When Mr. W, the store manager enquired of his condition, the Complainant’s wife informed that he was suffering from “stomach trouble”. When she spoke to Mr. F, the Area Manager, on the telephone, she described his condition as a “private matter” and he enquired no further.
The following day, given his level of absenteeism, Mr. F. decided to contact his previous employer to check his reference. The previous employer told him that the Complainant “broke his heart”. He referred to the fact the Complainant had been absent for six months with a sore thumb and that he had also tried to lead workers out on strike.
When the Complainant did not return to work the following Monday, 18th October 2004 Mr. F. decided to dismiss him.
Three weeks later, on 8th November 2004 the Complainant and his wife arrived unannounced at the Company’s offices to discuss return of social welfare cheques to the Company paid during his sick leave. He also sought a reference. Again there was no mention of his Depression.
The first the Respondent became aware that the Complainant suffered from Depression was when his representative wrote a letter of complaint on 3rd December 2004.
The Respondent maintained that there is no obligation on an employer to seek a medical prognosis of an individual’s condition where the individual does not disclose that condition to the employer.
Area Manager’s Evidence
Mr. F told the Court that on 11th October 2004 he received a telephone call from the Complainant’s wife, the main purpose of which was to complain about the attitude of Mr. W (Store Manager). She said that the Store Manager was not happy with the Complainant’s absence and he wanted him back at work the following week as he (Mr. W.) was going on annual leave. She told Mr F that her husband had been coming home every night for a week very stressed when the stores were short staffed. Mr. F. said he told her that no job was worth getting stressed about and that when he asked what was wrong with her husband she responded by saying it was a private matter. He explained to the Court that on hearing this he decided to ask nothing further. He described the conversation as friendly.
The next day, he decided to telephone the Complainant’s previous employer (Mr. X) to check his reference and ascertain his previous absenteeism levels. Mr. X had nothing good to say about him. Mr. F. said he was shocked and disappointed at Mr. X’s report on the Complainant. A week later Mr. F. checked to see if the Complainant had turned up for work and as he had not he decided to terminate his employment and duly wrote the letter. He said that Mr. W had told him the Complainant was suffering from stomach problems. While he accepted that he was genuinely ill and had been an excellent employee, it was the uncertainty of knowing how long he was going to be out coupled with the negative reference he had received from his previous employer which influenced his decision to terminate his employment.
Mr. F. told the Court that the meeting on 8th November 2004 when the Complainant and his wife arrived unannounced at his office in Carrick-on-Shannon was a friendly meeting, there was no mention of his disability and it was purely to sort out outstanding monies.
Mr. F. categorically denied that the Complainant’s wife told him that the Complainant suffered from “Depression”. Since he was not aware of the complainants disability the decision to terminate the employment could not be discriminatory.
Complainant’s Wife Evidence
The Complainant’s wife, Ms Y. told the Court that when she handed the third medical certificate to the Store Manager, on 11th October 2004, which stated that her husband would be out for another two weeks, he became somewhat annoyed and told her that he needed him back at work next week. When she returned home she told her husband that she got the impression that Mr. W. was dubious about the genuineness of his illness and therefore she decided to ring Mr. F.
Ms Y. said that Mr. F was very nice and understanding and praised her husband’s work. He said that he should not be stressed due to his job, that “no job was worth that”. She explained to the Court that first she had told Mr. F. that her husband,s illness was a private matter but that later in the conversation as he was so understanding ,she decided to tell him that her husband had Depression, On hearing this his voice and attitude changed.
The Law Applicable
Section 6(1)(g) of the Act provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability.
Section 77(2) of the Act provides that if a person claims to have been dismissed in circumstances amounting to discrimination by another in contravention of the Act then a claim for redress for the dismissal may be made.
The Complainant’s case is based on the assertion that the Respondent discriminated against him due to his disability when he was dismissed while out on certified sick leave.
Section 2 of the Acts defines disability as follows:
- "disability" means—
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
The Respondent accepts that “Depression” comes within the definition of “disability” under the Act. However, it maintains that while the decision to terminate his employment was directly influenced by his absence from work for medical reasons, it does not accept that he was discriminated on the disability ground.
Mr. Flood submitted that there was a clear distinction between “disability” and “sickness”. He cited the European Court of Justice caseNavas v Eurest Colectividades SA, where the ECJ held:
1. A person who has been dismissed by his employer solely on account of sickness does not fall within the general framework laid down for combating discrimination on grounds of disability by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, and
2. Sickness cannot be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibiting discrimination.
Findings Of The Court
The question the Court must consider is whether the Respondent was aware that the Complainant was suffering from Depression and if so whether that was a causative factor in the decision to dismiss him.
It is for the Complainant to prove, as a matter of probability, the primary facts upon which he relies in asserting that the decision to terminate his employment was tainted by discrimination on grounds of his disability.
There is total conflict between the parties as to whether or not, at the time of the events complained of, the Respondents knew of his disability.
The Court has considered this conflict of evidence and notes that in his evidence Mr. F. spoke about the telephone call with Ms. Y. He said that had she mentioned the fact that her husband was suffering from Depression it would have rung alarm bells with him, as he was well aware of his statutory obligations. He was quite satisfied that she had told him that her husband was stressed due to the volume of work in the stores and that when he asked what was wrong with him Ms. Y said it was a private matter and therefore he felt obliged not to ask any further questions as he felt if would have been inappropriate to do so.
The Court has considered Ms. Y’s evidence. It is clear that she made reference to the fact that her husband was stressed at the time due to the shortage of staff and it accepts that she may have referred to him being depressed but there is no evidence to suggest that she told Mr. F that her husband had been diagnosed with Depression, was attending a psychiatrist and on medication for his condition.
A certificate from a Consultant Psychiatrist was provided to the Court indicating that the Complainant had been under his care since November 2003 and stated that he suffered from Depression intermittently and had been on antidepressant treatment. However, this certificate was dated 6th January 2005, i.e. after his date of dismissal.
The Court notes that his condition was diagnosed sometime around December 2003, at which stage he had already left his previous employer, so it is conceivable that Mr. X,
his previous employer was not aware of his condition and accordingly could not have alerted Mr. F.
The Court further notes that all the medical certificates submitted to the Respondent were from a General Practitioner and not from a psychiatrist, and none of them referred to the fact that he was suffering from Depression. It would appear that the Complainant and his wife and indeed the medical people went to some lengths to conceal this. Having gone to such lengths the Court finds it inexplicable why Ms. Y should suddenly announce to her husband’s manager that he was suffering from a mental illness.
Moreover, the Court is supported in this conclusion by lack of any symptoms or indications that he was suffering from Depression. It was agreed by all that his work was very satisfactory and based on the reference given from his previous employer, while he was clearly not satisfied with his capabilities there was no reference to anything which could lead one to believe he was suffering from Depression.
On balance the Court believes that the Respondent was not aware of the Complainant’s disability and furthermore, there were no indications/signs to alert it to enquire about his need for “reasonable accommodation” within the provisions of section 16 (3) of the Act.
Therefore, the Court finds that the Complainant has not established facts from which it might be inferred that he was discriminated against on the grounds of his disability. The Complainant’s case must therefore fail.
The Court is not required to decide if the Complainant was unfairly dismissed. If required to do so, by the application of normal standards of reasonableness, the Respondent might have some difficulty in justifying the manner in which he came to the decision to terminate the Complainant’s employment.
The Court is not satisfied that the Complainant has demonstrated that the reason he was dismissed was as a result of his disability.
Based on this lack of evidence, the Court is satisfied that there is no case of discrimination within the meaning of section 6 (2) (g) and in contravention of section 8 of the Act.
Accordingly, the Court allows the Respondent’s appeal and overturns the Equality Officer’s decision.
The Court so determines.
Signed on behalf of the Labour Court
23rd December 2008______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.