THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 048
A Worker (represented by Mr Brendan Archbold)
A Department Store
(represented by IBEC)
File References: EE/2008/241
Date of Issue: 10th March 2011
1.1. The case concerns a claim by Mr A., a worker, that a department store 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 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 18 April 2008. A submission was received from the complainant on 9 March 2009. A submission was received from the respondent on 15 May 2009. On 14 September 2010, in accordance with his 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. 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 1 March 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he commenced working for the respondent in July 1996. He was dismissed from his employment on 3 January 2008. On 21 December 2007, the complainant had finished work at 1:30pm and went to a pub in the Dublin city centre for pre-Christmas drinks. After some eight hours of drinking, he recalls getting a taxi home and arriving there at 11pm that night.
2.2. The complainant contends that since he was very intoxicated, he has no recollection of events which both his colleagues and the respondent say took place at around 10pm the same day. Apparently, the complainant returned to the respondent's premises, verbally abused two employees, urinated in the loading bay and threw a glass at a company truck.
2.3. Subsequently, the complainant's employment with the respondent was terminated for gross misconduct. The complainant contends that this amounts to a discriminatory dismissal within the meaning of the Acts on the ground that he suffers from alcoholism.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant in dismissing him. In particular, the respondent disputes ever being aware that the complainant was an alcoholic, and asserts that on the contrary, the complainant was a reliable employee who did not exhibit any of the disciplinary problems commonly associated with alcohol addiction, or at all, until his conduct on the night in question. The respondent further notes that when the complainant was initially questioned about the events, he alleged that his drink had been spiked, and made no reference to disability.
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.
4.3. Ever since the Labour Court decision in A Government Department v. An Employee [EDA062], where the Court stated that it had "no hesitation in accepting that alcoholism is a condition illness, or disease coming within the intendment of paragraph (e) of the definition of disability at Section 2 of the Act" it has been settled law that alcoholism constitutes a disability within the meaning of the Acts.
4.4. That said, the onus is still on the complainant to adduce evidence that he is indeed an alcoholic, or was at the time of his alleged misconduct and dismissal. In this regard, I also take account of the decision of the Labour Court in Melbury Developments v. Valpeters [EDA0917], in which the Court, asked to interpret S. 85A of Acts which addresses the shift in the burden of proof, held unequivocally that the onus of establishing a prima facie case is on the complainant. The Court stated:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. [Emphasis added]
4.5. In my opinion, the findings of the Court certainly apply in cases of alleged disability, where the relevant evidence is virtually exclusively in the possession of the complainant.
4.6. At the hearing of the complaint, the complainant adduced no evidence that he suffered from alcoholism, and was therefore disabled within the meaning of the Acts, either at the time of his dismissal or at all. His representative stated that he had never been assessed for alcohol addition by a qualified professional.
4.7. I therefore find that the complainant has not discharged the probative burden that he suffered from a disability within the meaning of the Acts and that his claim of discriminatory dismissal on the ground of disability must fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminatorily dismiss the complainant contrary to Sections 8(1) and 8(6) of the Acts on the ground of disability.
10 March 2011