THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 008
Mr Gary Colgan
(represented by Mr Wesley Farrell B.L., instructed by O'Hanrahan Lally Solicitors)
Boots Ireland Ltd.
(represented by Ms Tracy Ennis Faherty B.L., instructed by O'Sullivan Barnicle Solicitors and the respondent's in-house legal service)
File Reference: EE/2007/222
Date of Issue: 1st February 2010
1.1. The case concerns a claim by Mr Gary Colgan that Boots Ireland Ltd. discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of failure to provide reasonable accommodation and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 4 May 2007. A submission was received from the complainant on 7 January 2008. On 21 January 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. A supplementary submission was received from the complainant on 21 October 2009. A submission was received from the respondent on 25 November 2009. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 2 December 2009. Additional evidence was requested from the respondent at the hearing and received on 8 December. The complainant was given until 11 January 2010 to make comments or observations on the additional evidence, but did not avail of this option. Once it was clear that the complainant had no further observations, I proceeded with my deliberations.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he sustained an injury on his ankle on 24 November 2006, when a cage fell onto it. He was then dismissed on 8 December 2006. The complainant contends that the respondent did not afford him reasonable accommodation, and that he was dismissed because of his disability.
3. Summary of the Respondent's Written Submission
3.1. The respondent disputes that the complainant's injury constitutes a disability within the meaning of the Acts. The respondent further submits that the complainant, who was employed on a 13-week fixed term contract, had his employment terminated due to a re-organisation of work within the respondent organisation. It is the respondent's case that 13 other temporary workers had their employment terminated on the same date as the complainant, and for the same reason. The respondent denies therefore that the termination of the complainant's employment is in any way connected to the disability ground as defined by the Acts.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of disability within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In the case on hand, this includes making a finding as to whether the complainant was suffering from a disability as defined in the Acts when the alleged act of discrimination occurred.
4.3. The evidence relating to the complainant's potential disability can be summarised as follows: There is no dispute that the complaint sustained an injury when the cage fell onto his ankle and punctured the skin on 24 November 2006. These are large, light-weight cages on castors designed to transport lightweight goods of large volume - like Christmas decorations as was the case for the complainant. The day the accident occurred was a Friday. After receiving initial first aid on site (a bandage and a cold pack), the complainant attended the A&E department of Beaumont Hospital, where he was attended to by a nurse practitioner. The nurse practitioner gave the complainant pain medication and further bandages and discharged him home. There was no follow-up appointment.
4.4. The complainant then had the weekend off as rostered and reported to work again on Monday, 27 November 2006, without taking sick leave. In cross-examination, the complainant said that he needed the money from his employment. He did not request any light duties. In response to a direct question from the Tribunal, he said he did not do so because it was "easy enough work"; however, in cross-examination later in the hearing he stated that he was afraid to ask for any adjustment to his duties for fear of being fired. The complainant stated that he was in pain, that he found it difficult to put his work boots on, and that he walked with a limp. This lasted for about three weeks.
4.5. On 23 January 2007, the complainant attended Dr G., a Consultant in Emergency Medicine in Beaumont Hospital. Dr G. found on examination, according to a report furnished to the Tribunal, that the complainant "was able to walk on his tip toes, he had a normal examination of his ankle, he was noted to be minimally tender over the achilles tendon, he had a 5mm wound which was well healed on the lower part of the skin over the achilles tendon. There was no infection of the scar." Dr G. further noted that he did not expect that the complainant should have any ongoing disability arising from the accident.
4.6. Counsel for the complainant submitted that the above should be interpreted in light of paragraph (c) of the definition of disability in S. 2 of the Acts, which defines disability as "a malfunction, malformation or disfigurement of a part of a person's body". The Tribunal was asked to view the injury to the ankle as malfunction, and the scar as disfigurement. Counsel further submitted that the definition of disability in the Acts allows for a state of temporary disablement which, it was submitted, existed for the complainant at the period of time following his accident.
4.7. Counsel for the complainant also drew the attention of the Tribunal to the Labour Court decision of Customer Perception Limited v. Ms Gemma Leydon [EED0317]. In that case, Ms Leydon had worked for the appellant in a business development executive role that required a substantial amount of travelling. In April 2001, she suffered a car accident, as a result of which she was hospitalised for a number of days. She sustained injuries which limited her mobility in her neck, shoulders and back for several months. Her car was written off. Upon release from the hospital, the complainant took time off to complete her college degree, and met with the appellant's managing director on 1 June 2001, and again on 19 June 2001, to discuss her return to work and her need to be facilitated with time off work to complete a course of physiotherapy treatments. Ms Leydon's contract of work was subsequently terminated, which gave rise to a complaint of discriminatory dismissal.
4.8. In its reasoning, the Court addressed the question whether Ms Leydon was suffering from a disability within the meaning of the Acts. Ms Leydon's representative relied on the definition as given in paragraph (c), quoted in paragraph 4.6 above. The Court found that
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a Court of Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter, or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
Taking the ordinary and natural meaning of the term malfunction (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.
4.9. When one compares the Leydon case to the facts of the case on hand, it becomes clear that the injuries sustained by the respective complainants are very different in severity and impact. Ms Leydon required in-patient hospital treatment and follow-up physiotherapy care. Her mobility was limited for several months. The complainant, on the other hand, was sufficiently treated by the application of first aid, and the attention of a nurse practitioner, without further follow-up, and no time missed from work. He did not request any light duties. With regard as to why he did not do so, I prefer his initial answer in response to my direct question, that this was so because it was "easy enough work". This is also borne out by the subsequent description of the complainant's work given by his immediate manager, and by the sketch of the layout of the respondent's warehouse, which clarified the fairly short distances the complainant had to walk in his work, and which was not disputed by the complainant.
4.10. In making a finding on this matter, I feel bound by the literal interpretation which the Labour Court gave to the meaning of "malfunction" in Leydon. I therefore accept that, following his accident, the complainant sustained a for a short amount of time a minor malfunction of a body part. However, I do not find that the complainant's injury is of sufficient significance for him to establish a prima facie case that, while that situation lasted, he was disabled within the meaning of the Acts. In so finding, I am guided by the finding of the European Court of Justice in Sonia Chacón Navas v. Eurest Colectividades SA [C-13/05], where the court found that "sickness cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 establishing a general framework for equal treatment in employment and occupation prohibits discrimination." While I note that the definition of disability in the Acts is wider than that in the Directive, I attach importance to the finding of the court that for a "limitation to fall within the concept of 'disability', it must ... be probable that it will last for a long time." As noted in paragraph 4.4 above, the complainant did not avail of sick leave, nor did he even request lighter duties, and there is no dispute that the minor limitations the complainant experienced following his accident did not last longer than three weeks.
4.11. With regard to counsel's argument that the 5mm scar on his client's ankle constitutes a disfigurement, I do not accept that such a small scar in a place like someone's ankle is a disfigurement that engages the protection of the Acts. To follow counsel's argument would mean, to give just one example, that anybody who has ever undergone an appendectomy would gain lifetime status as a disabled person within the meaning of the Acts on the notion that the appendectomy scar is a disfigurement. This can scarcely have been the kind of protection of disabled persons envisaged by the Oireachtas when passing the Acts. Rather, I am satisfied that the inclusion of "disfigurement" in the disability definition of the Acts is intended to protect the employment of persons with outwardly visible deformities of any kind which, while not impairing them functionally, could cause others to form prejudice against them in the course of their employment. I am therefore satisfied that the complainant has not established a prima facie case that he is disabled on the basis that this small scar on his ankle is not a disfigurement within the meaning of the Acts.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against, or discriminatorily dismiss, the complainant on the ground of disability contrary to Sections 8(1) and 8(6) of the Acts.
1 February 2010