EQUALITY OFFICER'S DECISION NO: DEC-E/2012/166
MGK Investment Holdings Limited
FILE NO: EE/2010/636
DATE OF ISSUE: 30 November, 2012
This dispute involves a claim by An Employee that he was discriminated against by MGK Investment Holdings Limited on the grounds of his disability in terms of section 6 (2)(g) of the Employment and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his dismissal and in relation to the failure to provide him with reasonable accommodation.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 17th August, 2010.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 11th of September, 2012 to me, Orla Jones, 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 both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 18th of October, 2012.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, in its Casino, from 19th of October, 2009 to 21st of February, 2010.
3.2 The complainant submits that he was employed by the respondent as a Permanent Part Time employee on a 20 hour a week basis. It is submitted that the complainant was employed to take over the shifts of another employee who had left and who had generally worked 4pm-8pm daily with some flexibility required. It is submitted that the manager at the time was the complainant's father Mr. H and that he had been responsible for giving the complainant the job.
3.3 It is submitted that the complainant suffers from Schizophrenia and Depression a fact which the manager Mr. H, as the complainant's father was aware of from the time of the complainant's commencement of employment.
3.4 It is submitted that the complainant due to his disability could only work short shifts and could not work after 10pm at night. It is submitted that the complainant's Manager as his father was aware of this and facilitated him in this regard.
3.5 It is submitted that on 18th of January 2010 a new manager Mr. F was appointed to the Casino following Mr. H's departure. It is submitted that the complainant on 19th of January informed Mr. F that he could only work 20 hours a week as he had a disability and was in receipt of Disability Allowance. It is submitted that the complainant advised Mr. F of this matter after he had been rostered to work longer shifts than usual. The complainant also advised Mr. F that he could not work nights.
3.6 It is submitted that following Mr. F's appointment the complainant was also requested to work split shifts. The complainant informed Mr. F that he could not do split shifts as he lived outside town and often needed taxis to and from work. He informed the complainant that they would work something out but that he would be required to work nights.
3.7 It is submitted that from 14th February the complainant was rostered to work a night shift and a split shift and that he informed Mr. F that he was not in a position to work nights. Mr. F advised that all staff were now required to work nights and asked that the complainant consider his position.
3.8 On 15th of February the complainant and his mother, Ms. M met with Mr. F in order to explain to him that the complainant could not work nights due to his disability. The complainant also advised Mr. F that he was available to work from 9 am to 9 pm where shifts were reasonable i.e. not 1 hour shifts as he had been given on a recent roster. He also stated that he felt it was unfair that he be given split shifts. Ms. M indicated that a doctors letter could be provide to support the complainants reasons for not working nights, if required. Mr. F advised that he would discuss the matter with Mr. K, Company Director.
3.9 It is submitted that the complainant and his mother attended another meeting on 17th of February, at Mr. F's request where the complainant was informed that the directors had not been aware that he had a disability and thought that the reason he was working part time was due to the fact that he was a student and that his employment was being terminated due to the fact that he was unable to do the hours required by the company.
4. Summary of respondent's case
4.1 The respondent, agrees that the complainant was employed with them from 19th October 2009 and state that he was dismissed on 17th of February 2010 with one weeks pay in lieu of notice.
4.2 It is submitted that the respondent was not advised that the complainant had a disability as his father Mr. H, who had been responsible for employing him had never told the respondent that the complainant had a disability.
4.3 It is submitted that the complainant in a discussion with Mr. F had mentioned that he couldn't work more than 20 hours a week as he was claiming disability benefit. It is submitted that Mr. F did not inquire as to why he was claiming disability benefit as he didn't wish to pry and the complainant did not offer any further information in relation to this matter. It is submitted that Mr. F said he would do his best to keep the complainant at 20 hours as requested and that this was done.
4.4 It is submitted that the complainant did not advise Mr. F that he could not work nights due to his disability. It is submitted that the reason given by the complainant for not working nights was due to the fact that he lived outside town and had to get taxis. It is also submitted that the complainant often went to the pub after work and so was not precluded from going out at night. It is submitted that the work which the complainant was required to do was the same irrespective of whether it was a day or a night shift and so it appeared to Mr. F that the complainant's refusal to work nights was him trying to work hours which suited him and that this was not possible in a newly established business which was heavily reliant on its small staff.
4.5 It is submitted that the complainant continued to refuse to work nights when requested to cover for another employee and again when requested to work a promotional night with the aim of increasing business. He never mentioned that a disability was the reason he couldn't work nights.
4.6 The respondent submits that on 14th February, 2010 Mr. F spoke to the complainant about the need for him to be flexible regarding his hours and that the respondent was willing to work around his request for a 20 hour week. The complainant again refused to work nights without giving any good reason and again did not mention that it was due to his disability.
4.7 It is submitted that following this meeting Mr. F spoke to the director Mr. K regarding the complainant's refusal to work nights and certain other shifts to the detriment of the company and other employees. It was agreed that it should be explained to the complainant that the business needed to have the co-operation of all employees and the complainant was called to a meeting on 15th February, 2010.
4.8 The respondent submits that the meeting of the 15th of February was attended by the complainant's mother Ms. M who introduced herself as the complainant's legal advisor. This is the first time the complainant's disability was mentioned as a reason for his not working nights. The nature of the complainant's disability was again not mentioned.
4.9 It is submitted that it came as a shock to Mr. F that the complainant suffered from schizophrenia and depression when he received the letter from the Tribunal on 21 January, 2011.
4.10 The respondent submits that Mr. F spoke to Mr. K again following the meeting with the complainant and that Mr. K then spoke to the other directors about the matter. It was concluded that the complainant's employment was to be terminated due to his continued refusal to work the shifts that were provided to him which included night shifts and small shifts during the day also. It is submitted that the fact that the complainant had a disability was not in any way a factor in the decision to terminate his employment.
5. Preliminary Issue-Time Limits
5.1 It is submitted that the complaint is out of time as the respondent submits that the complainant was dismissed on 17th of February 2010 so the latest date for submission of his claim would have been the 16th of August 2010 however it the claim was submitted on the 17th of August 2010. It is undisputed that the complainant was advised of the decision to terminate his employment on 17th of February 2010 however he was paid one week in lieu of notice and his last pay slip from the company was dated 21st of February 2010. In addition to this the complainant's P45 states that the date of cessation of his employment was 21st of February, 2010. I am thus satisfied that the appropriate date from which the six month period runs is the 21st of February, 2010. I am also satisfied that the complaint was submitted within the 6 months time limit set out in Section 77(5) of the Acts.
5.2 Disability Ground
5.2.1 In the present case, it is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(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 judgement 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".
5.2.2 It is submitted that the complainant suffers from a Mental Health disability of Depression/Schizophrenia for which he has been on medication. The complainant submitted medical evidence in support of this. The complainant and his mother also gave evidence regarding his disability and stated that he had been receiving care in the St John of Gods, Hospital prior to his employment with the respondent and that this was his first job in a number of years due to his disability. I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to the termination of his employment. In addition, I must consider whether the respondent failed to provide the complainant with reasonable accommodation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
6.4 Discriminatory Dismissal
6.4.1 The complainant has submitted that he was hired by his father Mr. H to work for the respondent in October 2009. The complainant submits that Mr. H, as his father, was aware of his disability. Mr. H at the hearing stated that he did not advise anyone in the respondent company of his son's disability as there was no need. Mr. H went on to state that he saw no reason to inform the company of his sons disability as it didn't affect his ability to do the job and that no accommodation was needed.
6.4.2 The respondent submits that they were not aware of the complainant's disability. The respondent advised the hearing that the manager who replaced Mr. H, Mr. F, had been told by the complainant in conversation that he could only work 20 hours a week due to the fact that he was claiming disability benefit. The respondent stated that it did not become aware that the complainant had a disability until Mr. F's meeting with the complainant and his mother on 15th of February, 2010.
6.4.3 The complainant at the hearing stated that he had always worked day shifts and had never been asked to work nights until the new manager Mr. F commenced in January 2010. The complainant at the hearing stated that following the arrival of Mr. F as manager, the complainant was rostered to work some nights and to work split shifts during the day. The complainant advised the hearing that he told Mr. F that he didn't work nights but he was not clear whether he had given his disability as the reason he didn't work nights or whether he had said that it was not in his contract to work nights. The respondent's evidence is that the complainant did not at this point give any reason as to why he couldn't work nights other than that he didn't work nights. The respondent stated that the complainant was also rostered to work split shifts during the day to which he also had an objection to as he lived too far out of town.
6.4.4 The complainant stated that he had never refused to work split shifts and he had worked them when rostered to do so, but stated that it did not suit him to work these split shifts or 1 hour shifts as he lived outside town and sometimes had to get taxis to and from work
6.4.5 The complainant advised the hearing that he and his mother had met with Mr. F on 15th of February, 2010 and that they had advised Mr. F that the complainant could not work nights. The complainant's mother Ms. M advised the hearing that she had told Mr. F at this meeting that her son couldn't work night shifts due to the fact that he suffered from an anxiety disorder and that working until 2 am and having to lock up the premises would cause him extreme stress and anxiety. She added that it was usual for the staff working at night to work alone and to lock up alone and that staff had in the past had been subjected to physical attacks of violence when locking up alone after closing time. She added that her husband, when he was manager had on a number of occasions been called to the premises by staff who needed to be escorted home after locking up. The respondent added that a manager would usually be around or would come back at the end of the night to help lock up especially if the staff member working late was young or less experienced.
6.4.6 Ms. M advised the hearing that her son had tried to talk to Mr. F about his disability prior to this date but that he found it very hard to talk about his disability. She stated that Mr. F had been very understanding at the meeting and that she had appealed to him to be considerate of her son's disability. She advised the hearing that Mr. F had been very nice and had said they would do their best for the complainant and that he would speak with the directors on the matter. Ms. M also stated that she had told Mr. F that she could provide medical reports regarding her son's disability if required. I am thus satisfied that the respondent was aware of the complainant's disability following the meeting of the 15th of February, 2010.
6.4.7 The complainant advised the hearing that he was called to another meeting with Mr. F on 17th of February, 2010 where Mr. F told him that his employment was to be terminated due to the fact that he couldn't work the hours required by the company. The complainant stated that his mother and another staff member were also present at this meeting. It is evident from the submissions made and from the evidence adduced that the respondent was aware of the complainant's disability at least from the 15th of February, 2010, after which a decision was made to dismiss the complainant albeit due to his failure to work the hours required. It is the respondents evidence that the decision to dismiss the complainant was made after the 15th of February 2010 and was communicated to the complainant on 17th of February, 2010. It is the respondent's evidence that the decision to dismiss the complainant was solely based on the fact that he could not work the hours required by the company and refers specifically to the complainant's refusal to work nights and his reluctance to work split shifts or 1 hour shifts during the day.
6.4.8 Although the respondent is adamant that the decision to dismiss the complainant was not in any way influenced by his disability it is clear that the decision was influenced by the complainant's refusal to work night shifts. It is the complainant's evidence that he couldn't or wouldn't work night shifts due to his disability a fact of which the respondent was aware of at least after the 15th of February yet proceeded to dismiss him. It is thus clear that the complainant's disability did at least contribute to his failure to work the hours required by the company and so however unintentional on the part of the respondent the fact that the complainant had this disability did in some way contribute to his dismissal. Having said this the complainant by his reluctance to work day shifts or I hour shifts did himself contribute to the respondents decision to dismiss him and I find that he himself by his reluctance to work alternative shifts due to reasons unconnected with his disability, i.e. due to the fact that he had difficulties getting lifts to a from work, contributed to the respondents decision to dismiss him and this will be reflected in the quantum awarded. Accordingly based on the totality of the evidence adduced on this issue I am satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of disability in relation to his dismissal.
6.5 Reasonable accommodation
6.5.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability (my emphasis) - this approach was endorsed in Humphries v Westwood Fitness Club1.
6.5.2 The complainant in the present case was dismissed due to his failure to work the hours required by the respondent. I am satisfied from the evidence adduced above that the complainant was a person with a disability for the purposes of the Act and that the respondent was aware of that disability from the 15th of February, 2010. It is a fact that the complainant was notified of the decision to dismiss him on 17th of February, 2010 after he had notified the respondent of his disability. I have found that the decision to dismiss although not directly or wholly attributable to his disability was in part at least influenced by his disability due to the fact that he had given his disability as the reason he could not work at least some of the shifts allocated to him.
6.5.3 It is the respondent's evidence that the decision to dismiss the complainant was made due to the fact that he could not work the required hours. I am satisfied from the evidence adduced that the respondent was aware at least from the 15th of February that part of the reason for this inflexibility was being attributed by the complainant to his disability. The respondent once armed with the knowledge that a contributory factor to the complainant's inflexibility regarding working hours related to the complainant's disability was at this point obliged as per Section 16(3) of the Acts to make a proper and adequate assessment of the situation before taking the decision to dismiss the complainant.
6.5.4 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.
6.5.5 In the case of A Health and Fitness Club -v- A Worker2 the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:
"if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
6.5.6 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court where Dunne J.3 found that an employer that has failed to go through the aforementioned process orientated approach will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is serious enough to render the employee not fully capable of undertaking their duties under section 16(1) of the Acts.
6.5.7 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, it is clear that there was an obligation upon the respondent, in the first instance, to ascertain the level and extent of the complainant's disability. The respondent in this case when faced with a situation where an employee was unable to work a certain shift due to his disability, did not make enquiries to ascertain the extent of the employee's condition and failed to look at any measures which might facilitate the complainant in working the required hours.
6.5.8 I am of the view that the respondent, when it became aware that the complainant was unable to work certain shifts a matter which the complainant attributed to his disability, was then obliged upon to make further inquiries into what if any special measures could be taken to assist the complainant in working the shifts or requisite hours as necessitated by the job. The respondent was also obliged to look at suitable alternative arrangements and if it concluded that there was no suitable alternative shifts available should have advised the complainant that he was now being considered for termination. Consequently, the complainant was not afforded any opportunity to participate in or influence the decision making process that resulted in his dismissal. In doing so, the respondent, when faced with an employee with a disability failed to carry out the process orientated approach, as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case, but instead made a decision to dismiss the complainant without any enquiries or consultation. Based on the evidence adduced, I am satisfied that the complainant was not afforded any prior indication or notice by the respondent that it was contemplating the termination of his employment on the grounds of his incapacity to carry out his duties.
6.5.9 Having regard to the foregoing, I am satisfied that the respondent, did not make appropriate enquiries to ascertain the extent of the employees condition and also failed to consult with or advise the complainant before coming to the conclusion that the complainant was incapable, on the grounds of his disability, of performing the duties for which he had been employed and therefore it cannot rely upon the defence available in section 16(1)(b) of the Acts. In the circumstances, I find that the complainant's disability was a factor which contributed to the respondent's decision to dismiss him and that the respondent failed to provide him with reasonable accommodation within the meaning of section 16 of those Acts.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) 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 -2008 and contrary to section 8 of those Acts and that it failed to provide him with reasonable accommodation within the meaning of section 16 of those Acts.
7.2 Section 82 of the Employment Equality Acts, 1998 to 2008 provides that I can make an order for the effects of the discrimination. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the fact that the respondent, in this case, when faced with a situation where an employee was unable to work the shifts required for the job and who attributed a part of this inflexibility to his disability failed to make appropriate enquiries to ascertain the extent of the employees condition and made a decision to dismiss without involving the complainant who was the subject of such a decision. I am also mindful however that the complainant in this case did contribute to his own dismissal by his reluctance to work alternative shifts due to reasons unconnected with his disability, i.e. due to the fact that he had difficulties getting lifts to a from work, contributed to the respondents decision to dismiss him and this is reflected in the quantum awarded. I am also bearing in mind the fact that the complainant was employed by the respondent on a part time basis for a period of 4 months overall.
7.3 Having taken the foregoing matters into consideration, I am of the view that an award of €1,000 is appropriate in the circumstances of the present case.
7.4 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that the respondent pay the complainant €1,000 in compensation for his discriminatory dismissal. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
30 November, 2010
1  15 ELR 296
2 Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)
3 Humphreys -v- Westwood Fitness Club (2004) ELR 296