THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-025
(Represented by Claire Bruton BL instructed by Hennessy & Perrozzi, Solicitors)
Euro Route Logistics Limited
(Represented by Oliver Costello BL instructed by Oliver Burke, Solicitor)
File Reference: EE/2007/066
Date of Issue: 10th March 2010
Employment Equality Acts 1998-2008, Disability - 6(2)(g), Dismissal - Section 2(1), Section 6(1) - less favourable treatment, dismissal in dispute, discriminatory dismissal, Section 16(3) - failure to provide reasonable accommodation, Section 74(2)- victimisation, Section 85A - prima facie case.
This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the disability ground, in terms of Sections 6(1) and 6(2)(g)of the Employment Equality Acts 1998-2008 and contrary to section 8 and section 16(3) of these Acts in relation to his conditions of employment. The complainant alleges that the respondent has discriminated against him in that they failed to provide him with reasonable accommodation to take account of his disability and as a consequence he was dismissed. The complainant also claims he victimised under Section 74(2) contrary to the terms of the Acts after he informed the respondent of his disability.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal 8th February 2007 alleging that the respondent discriminated against him contrary to the Acts. In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 12th August, 2009 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant and the respondent. As required by Section 78(1) of the Acts and as part of my investigation, I proceeded to hearing on the 10th December 2009.
3. Summary of the Complainant's Case
3.1 The complainant commenced work as a fork lift driver/general operative in the respondent's warehouse in or about February 2005. His duties included picking and packing products, driving the forklift to get goods down from the shelves and transferring them to the dispatch area. He said that he also did some dispatch work which involved using the computer. He said that he had no problem with the work up until September 2006 when he was asked by his supervisor to dust shelves. The complainant submitted that he has asthma for about three to four years before he joined the respondent company. He said that it had not caused him any problem in this employment up until he was asked to dust shelves with a feather duster. He asked for a mask and it was supplied but the mask was only a paper mask and it was not sufficient as the dusting created clouds of dust which was too excessive for his condition. He told his supervisor that he could not continue dusting. His supervisor said that he would relate his grievance to the managing director Mr. Gerry Kierce.
3.2 Shortly afterwards and on the same day Mr. Kierce called him to a meeting in the boardroom and asked him about the problem. The complainant told him that he had a respiratory problem and could not breathe in dust and that he did not find the mask supplied helpful. He maintains that Mr. Kierce said to him that he was required to do all the work in his contract and if he did not do it he was in breach of his contract of employment and he could no longer work in the warehouse. The complainant said that the he told him he had no problem doing any other job in the warehouse except dusting. The complainant said that Mr. Kierce was not sympathetic to his problem with dusting and was very dismissive. He said that it was made very clear to him that his job was at risk and in order to save his job he offered to get a certificate from his doctor. The complainant said that during this meeting he believed that the respondent wanted to dismiss him.
3.3 On 13th of September 2006, the complainant was out sick because he had a chest infection. He attended his doctor and got a certificate for the day and also a report which stated that he had asthma and that he was fit for work, but he could not work in a dusty environment. The complainant returned to work the following day and he gave this certificate to Mr. Kierce. He was again warned by Mr. Kierce and told that if he could not fulfill all the duties in his contract there was no other work for him. He believed he was dismissed. The complainant said that he was offered no other work and submitted that he was forced out of the employment because he could not dust due to asthma. He said that Mr. Kierce was very dismissive and he did not appear happy with the certificate. Mr. Kierce then mentioned notice and told the complainant that he could work out his notice. The complainant said that he worked a further week and finished work on the Friday 22nd September 2006 and he was paid for a further week. The complainant said that he could have done all the other work in the warehouse except dusting and there were four other employees in the warehouse who had no problem with dusting.
3.4 In a legal submission, his representative said that there was no contract of employment. She submitted that suffered discrimination in that the respondent did not provide special treatment or facilities, he was dismissed and denied access to his own employment contrary to section 8 and he was victimised contrary to Section 74(2) of the Act.
4. Summary of the Respondent's Case
4.1 The respondent accepted that the complainant has a disability. Mr. Kierce said that he interviewed the complainant for the job of general operative and the complainant made no mention of his asthma. There were no written set of duties, but his job entailed picking and packing goods for the company's multinational clients, consolidating stock, keeping the place tidy including the aisles and sweeping the floor with a brush. Dusting of the shelves was done by the general operatives three to four times per year at less busy periods and when there was a free afternoon. Once or twice per year the company brought in industrial cleaners. The complainant received on the job training. Mr Kierce said that it may well be that this was the first time that the complainant was asked to dust, but it is part of the general operatives job. The first indication that he had that the complainant had a problem doing dusting for the complainant to carry out dusting.
4.2 Mr. Kierce said that he was concerned because the dust levels were not that high and he asked that the complainant come to see him. The complainant came to see him immediately and explained that he had a respiratory condition for the last number of years and prior to taking up this employment. The complainant told him that he worked for another employer in a warehouse where he was exposed to fumes which he believes caused the asthma problem. Mr. Kierce said that he was concerned about the complainant's condition and he explored with him what conditions and levels of dust which triggered the problem. The complainant explained that he could sweep the floor but could not dust the shelves as this put dust into the atmosphere. He said that he was concerned because the complainant could not answer all his questions and he asked the complainant to get a doctor's report on his condition. He said that he excused the complainant from dusting that day. He denies he told the complainant that had to do all the tasks otherwise there would be no job for him.
4.3 The complainant came to see him again on the 19th of September 2006. He had a doctors certificate which stated he suffered from asthma and he could not work in a dusty environment. The complainant told him that the doctor said that because of his condition he could no longer work in a warehouse environment and that he would have to leave the employment. Mr. Kierce said that he could not offer the complainant work other than the warehouse because there was no vacancy in the office. He stated that the doctors report was not of any assistance and he did not consider sending the complainant to the company doctor for a further medical report. He said that there was no discussion about dusting and he did not tell the complainant that he would have to carry out all the duties in the employment. He said that he did not want the complainant to leave as it would create a vacancy. He told the complainant he was sorry to see him go. He said that he did not dismiss him and therefore he was not discriminated against on the disability ground.
4.4 The respondent's legal representative submitted that the complainant was not dismissed and the complainant left for his own reasons. He did not accept that the respondent failed to provide reasonable accommodation . He submitted that the respondent was not aware of the complainants disability until he received the medical report that he had asthma and at that stage the complainant had made up his mind to leave.
5 Conclusions of the Equality Officer
5.1 The complainant's case is that he was discriminated against and dismissed from the employment on the disability ground in terms of Section 6 (1) and 6 (2) (g) of the Employment Equality Acts, 1998 - 2008, contrary to Section 8 of and 16(3) those Acts. The complainant also states that he was victimised. The respondent submits that the complainant left the employment of his own volition. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
It is accepted by the parties that the complainant has asthma. I am satisfied therefore that the complainant has a disability within the definition of disability in Section 2(1) of the Acts.
The next matter I have to consider is whether the complainant has established a prima facie case of discriminatory treatment.
5.2 Section 85A of the Employment Equality Acts, as amended, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
The Labour Court has set out the test for establishing a prima facie case in the case of Mitchell v Southern Health Board  ELR 201. It requires the complainant to prove, in the first instance, a prima facie case of discrimination, that is, primary facts upon which a complainant relies in seeking to establish an inference of discrimination. It is only when this initial burden has been discharged that the burden shifts to the respondent to rebut the prima facie case of discrimination raised. The first issue I have to decide in this case is whether the complainant resigned of his own accord or if the termination of the employment constituted a discriminatory dismissal on the disability ground. The complainant must first establish facts from which it can be inferred that the termination of his employment was influenced by the fact that the respondent learned that he suffered from asthma and was therefore unable to carry out cleaning duties.
5.3 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
5.4 In the case of Dyflen Publications Limited and Ivana Spasic Determination No. EDA0823, the Labour Court considered the Judgment of the Court of Appeal for England and Wales in the case of Madrassy v Nomura International plc  IRLR 246 and applied the approach adopted by Mummery LJ in applying the corresponding UK legislative provisions on the burden of proof. Mummery LJ stated that: "Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inference from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; ".
The Labour Court in applying this approach stated:
"What the passage quoted indicates is that the Court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent ...".
In applying the above approach of the Labour Court, I will consider the evidence presented by both the complainant and the respondent to see if the complainant has established a prima facie case.
5.5 Dismissal in this case is in dispute, I must therefore decide on the balance of probabilities which version of events I find more consistent. I note that Section 2(1) of the Employment Equality provides a definition for dismissal:
2. -- (1) In this Act, unless the context otherwise requires --
''dismissal'' includes the termination of a contract of employment by
the employee (whether prior notice of termination was or was not
given to the employer) in circumstances in which, because of the
conduct of the employer, the employee was or would have been
entitled to terminate the contract without giving such notice, or it
was or would have been reasonable for the employee to do so, and
''dismissed'' shall be construed accordingly;
It was agreed that the complainant worked with the respondent from February 2005 up until the 12th of September 2006 without any difficulty. It was also agreed that the respondent did not know that the complainant had asthma until he was asked to dust and the complainant requested a mask. It was accepted that as soon as the managing director learned that the complainant required a mask to dust that he provided one. The complainant stated the mask was not of any help but he accepts he was not asked to dust during the remainder of his employment. The respondent initiated an investigation into the reason the mask was required and called the complainant to a meeting. The complainants evidence in relation to that meeting differs from the respondent's in that he states that the respondent was less than pleased that he could not carry out dusting duties and he was threatened with dismissal. The complainants submits that he had no contract of employment or defined written duties and he was not aware that dusting was one of his duties until he was asked to do it. The question of informing the respondent about his asthma did not arise until he encountered the dusting problem.
5.6 The respondent in his submission stated that he had no problem with the complainants work performance or any other aspect of the employment relationship. He only learned of the complainant's asthma when he refused to carry out the supervisor's instructions to dust the shelves of the warehouse. In the interest of the complainants health, and in accordance with the respondent's obligations under the Safety, Health and Welfare at Work Act, 2005, he requested the complainant to get an examination from his own doctor. He also told him that he reserved the right to send the complainant for examination by a doctor appointed by the company. The respondent also stated that he was concerned about continuing to employ the complainant and was concerned it might create an insurance liability in the future and for these reasons he needed expert advice.
5.7 I note that the complainants note from the doctor stated that he was suffering from asthma and he was fit for work but that he could not work in a dusty environment. Likewise I note that the respondent stated that he read the medical certificate, but he did not discuss it with the complainant, because the complainant said that the doctor told him he could no longer work in a warehouse environment. However, the respondent said in evidence that the doctor's note was not of assistance to him and he relied on what the complainant told him. I note that the respondent said that he required expert advice on how to handle the complainant's asthma condition, it is significant therefore, that when he received the report, which he said was not of assistance to him, that he did not seek further clarification of the medical matters which were of concern to him. Instead the complainant's employment came to an end.
5.8 I do not accept that the complainant gave the medical report a different interpretation to that which was clearly stated in that report and, if he did, I am of the view that it was incumbent on the respondent to clarify the matter before accepting a resignation which the respondent said was offered by the complainant. I note the respondent said that he never asked the complainant to reconsider his position during the course of the meeting. I also note that the complainant worked a week's notice and despite the fact that the respondent said he was anxious not to lose him because of difficulties in filling vacancies at the time, he never asked him to reconsider his decision.
5.9 Likewise I note that the respondent said that he did not discuss dusting with the complainant at the final meeting. In evidence the respondent stated that the complainant was excused from dusting and if he had continued in the employment he would no longer have to dust. If the respondent had no problem about the complainant's continuing in the employment, I find it surprising he did not give him this information about dusting at the final meeting. This leads me to believe that the respondent did not want the employment relationship to continue.
I am satisfied that the complainant's evidence is supported by the medical certificate. I am of the view that the complainant told the respondent he could no longer work in a dusty environment and his evidence is corroborated by the medical report of the complainant's doctor. It is noteworthy that in a e-mail to the complainant's supervisor following the termination of the complainant's employment, the respondent stated that: "Please note that following recent discussions with Mark Woods, he has decided on health grounds to pursue a career in non-warehousing environment." It is my opinion that the content of this e-mail supports the complainants account of the meeting in that the termination of his employment came at the end of a discussion and conflicts with the respondents account that the complainant came into the meeting stating that the was leaving because of the advice he received from his doctor. Therefore I do not accept that the complainant resigned from the employment.
5.10 I am of the opinion that the complainant's contract of employment came to an end because he suffered from asthma. The respondent's own evidence is that he had concerns about the complainant continuing in the employment and if it would create any insurance liability in the future. The proximity of the termination of the employment to the confirmation to the respondent of the complainant's asthma is also a significant factor. The respondent's legal representative submitted that the complainant failed to notify the respondent of his asthma and for this reason he failed to establish a prima facie case. I was asked to apply the approach taken by the Equality Officer in the case of Noel Flynn v Emerald Facilities Services DEC-2009-065 where the complaint failed on the basis that the Equality Officer found that the respondent was not aware that the complainant suffered from alcoholism. I do not accept this argument in the case herein because at the time the complainant's employment came to an end the respondent was well aware that he had asthma. The totality of the evidence leads me to believe that the complainant's employment came to an end for reasons associated with his disability. I also found the evidence of the complainant more compelling than the respondent's evidence. For the foregoing reasons I find that the complainant has established a prima facie case of discriminatory dismissal. Therefore the burden of proof shifts to the respondent to rebut the inference of discrimination raised.
5.11 In considering this case I note that in A Government Department v An Employee ADE/05/19, the Labour Court noted that Article 2 of the EU Directive 2000/78 establishing a general framework for equal treatment in employment and occupations provides that the principle of equal treatment means that there shall be no discrimination whatsoever on the grounds of disability. The Labour Court went on to say it was well settled that in interpreting national law a Court or Tribunal must do so in light of the wording and purpose of a Directive so as to achieve the result envisaged by that Directive as set out in Marleasing S.A. v La Commercial Internacional de Malimentacion S.A. ECR 4135. In my opinion this means that the termination of the complainant's employment cannot have been influenced by the complainants disability, in this case asthma.
5.12 In the complainant's legal submission, I was referred to the case of Portroe Stevedores v Nevins  16 E.L.R. 282 and this approach was also followed in the above mentioned case. The Labour Court, in considering the evidence necessary to rebut the inference of discrimination followed the decision of the Employment Appeals Tribunal for England and Wales, in Barton v Investec Henderson Crostwaite Securities Ltd  IRLM 332. and stated:
"..... since the facts necessary to prove an explanation would usually be in the possession of the respondent, a tribunal should normally expect cogent evidence to discharge that burden. That decision is of persuasive authority and the Court has adopted a similar approach in the instant case".
5.13 In the above mentioned case the Labour Court also stated "that the requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they suffer from a disability per se, but they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denial of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.". In following this approach I note that there was no independent corroboration of the respondent's version of events. As stated above the respondent advanced no other reason for the termination of the complainant's employment other than to say that the complainant left on medical advice. I have rejected this for the reasons stated above. I note in evidence that the respondent stated that he had concerns about continuing to employ the complainant and also he was concerned about any insurance issues it would create in the future when he initially learned of the complainant's asthma. I am satisfied therefore, that the respondent considered the complainant's disability as an impediment to his continued employment in the company. As I have stated above I found the complainant's evidence more compelling. Consequently, I am satisfied that the respondent has failed to rebut the prima face case raised by the complainant. I find that the respondent terminated the complainant's employment because of his asthma and this amounts to a discriminatory dismissal on the disability ground under the Employment Equality Acts. Therefore the claim succeeds.
5.14 The complainant has also claimed that the respondent failed to provide him with reasonable accommodation in accordance with Section 16(3) of the Acts. Having found above that the termination of the complainant's employment constitutes a discriminatory dismissal contrary to the Acts, it is not necessary for me to examine this aspect of the complaint.
5.15 The complainant also claimed that the termination of the employment by the respondent following the notification of his difficulty with dusting because of asthma amounted to victimisation under the Acts. I am not satisfied that the circumstances of the dismissal amounts to victimisation contrary to section 74(2) of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the disability ground in terms of sections 6(1) and 6(2)(g) and dismissed him in circumstances amounting to discrimination in accordance with Section 77(1) of the Employment Equality Acts 1998-2008 contrary to sections 2(1) and 8 of the Acts.
6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is €54,360. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider that an award in the amount of €27,000 is appropriate.
6.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €27,000 in compensation for the effects of the discriminatory dismissal. This figure represents compensation for the infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
10th March 2010