(REPRESENTED BY PURDY FITZGERALD - SOLICITORS)
SEPAM SPECIALISTS LTD.
(REPRESENTED BY MR. DARAGH BREEN BL
INSTRUCTED BY NOEL SMYTH & PARTNERS - SOLICITORS)
File No: EE/2009/472
Date of issue: 4 September, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 and 16 - disability - discriminatory dismissal - reasonable accommodation - waiver of right to maintain complaint
This dispute involves a claim by Ms Amy Quirke (hereafter "the complainant") that (i) she was dismissed by Sepam Specialists Ltd. (hereafter "the respondent") in May, 2009 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 (ii) the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the complainant is prevented from pursuing her complaint by virtue of a written agreement executed on 12 May, 2009 wherein she compromises her entitlement to pursue claims relating to her employment under, inter alia, employment equality legislation.
2.1 The complainant commenced employment with the respondent as a Human Resource Administrator in May, 2008. She states that she was diagnosed with Narcolepsy in mid-October, 2008 and informed the respondent of this fact. The complainant adds that in late April, 2009 the respondent advised her it intended to relocate her to a project in Holland. She states she informed the respondent that due to her condition she would be unable to work the long hours involved with the project in Holland but despite her protestations the respondent proceeded to relocate her, threatening to dismiss her if she refused to move. The complainant states that she considered she had no alternative but to resign from her employment with the respondent and submits that this amounts to constructive discriminatory dismissal on grounds of disability contrary to the Employment Equality Acts, 1998-2008. She further states that the respondent failed in its obligation to examine what it could do to provide her with reasonable accommodation in terms of section 16(3) of the Acts. The respondent rejects the assertion that the complainant advised it she suffered from Narcolepsy prior to her resignation and states that it was never apprised of the fact that she required assistance or accommodation in connection with her condition. It further rejects the complainant's assertion that she was dismissed, stating that the she resigned for lifestyle reasons. It adds that she raised no formal grievance with it about her condition and relocation prior to her resignation and submits that it is incumbent on the complainant to do so for a claim of constructive discriminatory dismissal to be made out. The respondent further submits, without prejudice to the foregoing, that the complainant is prevented from pursuing her complaint on foot of the terms of a Compromise Agreement executed between the parties on cessation of the complainant's employment on 12 May, 2009.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 13 July, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 31 January, 2012 - the date it was delegated to me. A Hearing on the complaint took place on 9 May, 2012. A small number of issues arose at the Hearing which gave rise to further correspondence between the parties and the Equality Officer. This process concluded in mid June, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant submits that her complaint is validly before the Tribunal for investigation. She accepts that the document she signed was entitled "Final Settlement Agreement" but argues that regardless of what the document is called it arose because of the cessation of her employment with the respondent. It is submitted on her behalf that no matter what the document is called its import (insofar as the respondent contends) is to prevent the complainant from exercising her statutory right to pursue her complaint under employment equality legislation. The complainant states that when she signed this document she was not informed by the respondent that she should seek legal advice before signing same and she signed it when it was presented to her. She adds that no meaningful discussion took place between the parties and no reference is made in the document to any Irish employment legislation at all, not least the Employment Equality Acts. It is submitted on behalf of the complainant that in those circumstances the agreement is not valid. In this regard the complainant seeks to rely on the Circuit Court judgement in Hurley v Royal Yacht Club1 and the High Court judgements in Sunday Newspapers Ltd. v Kinsella and Bradley2 and PMPA v Keenan and Others3.
3.2 The complainant commenced employment with the respondent as a Human Resource Administrator on 6 May, 2008. She states that in July, 2008 she was suspected of suffering from Narcolepsy and following a series of tests was placed on medication for this condition under the care of a Specialist (Professor C), the following September. She adds that her condition required her hospitalisation overnight on 17 October, 2008 and that after this incident she advised the HR Manager (Ms. S) - who was also her immediate Line Manager - that she suffered from Narcolepsy. The complainant further states that she told Ms. K (the respondent CEO) of her condition about a week later. The complainant states that her employment was generally uneventful between May, 2008 and April, 2009 insofar as her condition was concerned - she worked at the respondent's premises in Clonmel, Co. Tipperary on a thirty-nine hour week. She adds that during this period she required no special treatment or facilities in terms of her disability. In the course of the Hearing the complainant accepted she was aware from her interview that the role she was recruited for would involve her having to travel abroad, sometimes at short notice. She also accepted she had been advised by Ms. S in November, 2008 (as part of the complainant's probationary assessment) that she was likely to relocate after completion of her studies the next year, although there was no indication of the location or length of time involved.
3.3 The complainant states that on 24 April, 2009 she was informed by the respondent that it planned to relocate her to a site in Holland in the near future. She adds that she had concerns about the hours she would be expected to work - she believed they could be up to seventy hours per week - and also had issues with the location and nature of the accommodation that she understood would be available. The complainant states that she asked Ms. S for clarification of these issues - stating that due to her disability she required routine - and she failed to address her concerns. She adds that she met with Ms. S on or around 2 May, 2009 to discuss the matter. The complainant states that in the course of this meeting Ms. S informed her that if she refused to relocate to Holland she would be dismissed. She further states that Ms. S suggested that she might consider resigning.
3.4 The complainant states that following on from this meeting she believed it was no longer feasible for her to continue working with the respondent and she e-mailed Ms. S on 7 May, 2009 setting out her concerns and objections to the relocation in light of her medical condition and giving notice of her intention to resign. She adds that the following morning she was called to a meeting with Ms. K. The complainant states that in the course of this meeting Mr. K told her that the content of her (the complainant's) e-mail was very unfair and suggested that if the complainant trusted her she (Ms. K) would look after her. The complainant states that nothing happened during this meeting to allay her concerns in terms of the proposed new post and her condition, that she informed Ms. K of that and she (Ms. K) asked her to resubmit her resignation, which she did later that morning. The complainant states that in the circumstances she had no alternative but to resign from her position and it is submitted on her behalf that this amounts to constructive discriminatory dismissal of her on grounds of disability contrary to the Acts.
3.5 The complainant also submits that the respondent failed to afford her reasonable accommodation in terms of section 16(3) of the Employment Equality Acts, 1998-2008. She states that in order to manage her condition it is necessary for her to have certainty around her work hours and attendance pattern so she can schedule her sleep period(s) accordingly. The complainant states that this was not a problem when she worked in Ireland because of the consistent work pattern she operated. She adds that the uncertainty surrounding what her work arrangements in Holland would be posed particular difficulty for her and she sought to engage with the respondent to resolve this issue. The complainant states that the respondent made no effort whatsoever to discuss what measures might be put in place to reasonably accommodate her in terms of her disability, despite her best efforts to engage in such a discussion. She concludes by stating that the issue of obtaining independent medical advice/opinion on her condition was never raised. It is submitted on her behalf that the duty to reasonably accommodate an employee with a disability is proactive in nature and relies on the Determination of the Labour Court in A Hotel v A Worker4 in this regard.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent submits, in the first instance, that the complaint is not properly before the Tribunal for investigation. It states that the parties signed an Agreement on 12 May, 2012 wherein the complainant agreed that payment of the amount included in that Agreement would be in full and final settlement of all claims arising from her employment with the respondent arising, inter alia, under statute. The respondent submits that (i) claims pursuant to the Employment Equality Acts, 1998-2008 are covered by this Agreement and (ii) the Agreement amounts to a lawful compromise agreement between the parties and consequently the complainant had waived her entitlement to pursue her complaint. In the course of the Hearing Counsel for the respondent stated that the agreement at issue was not a compromise agreement but a "Final Settlement Agreement" as indicated on the top of the document signed by the parties (a copy of which was opened to the Tribunal). Counsel added that the document was a standard one which had been developed by the respondent and had been used for approximately ten years when employees were ceasing employment with it for any reason. Counsel submitted that the document represented an amicable and mutually agreeable parting of the ways adding that the authorities argued by the complainant were not of benefit to her because they involved circumstances where there was a disputed claim between the parties, which was not an issue at the time in the instant case. Counsel submitted that whilst the net effect of compromise agreements and settlement agreements was the same, the preconditions set out in the authorities governing the former were not applicable to the latter.
4.2 The respondent states that the complainant was made fully aware at interview that the role she had applied for was a challenging one which would necessarily involve international travel, sometimes at short notice. It adds that the complainant indicated she was prepared for that challenge. The respondent adds that as part of the complainant's probationary assessment in November, 2008 she was advised she would embark upon the previously mentioned travel once her course of study concluded the following year. The respondent accepts that Narcolepsy is a disability within the meaning of section 2 of the Employment Equality Acts, 1998-2008 but states that the complainant never made it known to it, prior to her resignation that she suffered from that condition. In the course of the Hearing Ms. K gave evidence she was aware from early 2009 that the complainant had been diagnosed with some form of sleep condition, although she was unaware of the specific details.
4.3 The respondent accepts that in April, 2009 the complainant was selected for relocation to a project in Holland. She was selected for the posting by Ms. K because it was part of the complainant's contract and she (Ms. K) believed the experience gained would be beneficial to the complainant in her career development. The respondent (Ms. K) states that it was unable to give clarity to the complainant on the terms of the posting but rejected the assertion that there were accommodation issues, adding that the respondent does all it can to provide suitable accommodation and minimise commuting issues to and from the site. In the course of the Hearing Ms. K stated that sometime after the Bank Holiday Weekend in May, 2009 Ms. S informed her that the complainant had some issues around the posting to Holland. Ms. K states she informed Ms. S that the complainant would have to trust the respondent and believed that the posting would proceed. Ms. K added that subsequently the complainant e-mailed Ms. S refusing to relocate and giving one months' notice of her resignation. She (Ms. K) adds that following receipt of this e-mail she spoke with the complainant on the matter and sought to have her reconsider but the complainant would not do so. Ms. K adds that the complainant indicated she was resigning because she did not want the type of lifestyle she believed the posting to Holland would bring. In the course of the Hearing Ms. K stated that she could not recall if the complainant's condition was mentioned in the course of these discussions. It is submitted on behalf of the respondent that the complainant failed to invoke its Grievance Procedure before tendering her resignation, a pre-requisite to claims of constructive discriminatory dismissal and that her failure to do so is fatal to her complaint. Moreover, it submits that the complainant resigned of her own volition and the reasons stated for same in her e-mail of 7 May, 2009 was for lifestyle reasons. It argues therefore that the complainant's claim of discriminatory dismissal is without basis.
4.4 The respondent rejects the assertion that it failed to provide the complainant with reasonable accommodation in terms of section 16 of the Acts. It further rejects the assertion that the complainant advised it she suffered from Narcolepsy prior to her resignation and states it was never apprised of the fact that she required assistance or accommodation in connection with her condition. It adds that at no stage did the complainant mention a sleep schedule as a mechanism to assist her manage her condition and submits that in the circumstances the complainant cannot maintain her complaint that the respondent was in breach of any duty to implement such a schedule. The respondent states that the issue of independent medical opinion was not explored because it was never explained by the complainant that her condition was at that level.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the complaint is validly before the Tribunal for investigation, (ii) if so, whether or not complainant was dismissed by the respondent 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 (iii) if so, whether or not the respondent failed to provide the complainant with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998 - 2008. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 The first issue I must address is whether or not the complaint is validly before the Tribunal for investigation. The respondent contends that the complainant signed a Final Settlement Agreement on cessation of her employment and in doing so accepted the terms of that Agreement in full and final of all claims arising from her employment with it. Consequently, she is estopped from pursuing her complaint. The complainant rejects this assertion and submits that the Agreement is invalid, relying on a number of authorities in this regard. In Hurley v Royal Yacht Club5 Judge Buckley considered under what circumstances claims can be legitimately compromised under unfair dismissals legislation and held as follows -
"I am satisfied that the applicant was entitled to be advised of his entitlement under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that this had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in his case, would have been legal advice. In the absence of any such advice I find the agreement to be void.".
I am satisfied that the principles set out by the learned Judge, although dealing with a claim of unfair dismissal, are equally applicable to claims under employment equality legislation.
5.3 In the instant case the complainant gave uncontested evidence at the Hearing that she was handed the Agreement on the day her employment ceased with the respondent, that its contents were not explained or discussed in any detail with her, that she was not advised she should seek appropriate advice and that she signed it there and then as requested. I am satisfied, having regard to the comments on Judge Buckley above, that these events of themselves would be sufficient to render the Agreement void. However, three further facts leave this conclusion in no doubt. Firstly, the text of the clause at issue in the Agreement states that it was "in full and final settlement of all claims and rights of action (whether under statute, common law or otherwise, in any jurisdiction in the world (including but not limited to the UK, Ireland, South Africa and Kazakhstan) howsoever arising (including but not limited to contractual claims, breach of contract, tort and any prospective entitlement to bring any other statutory claim) which you have or may have against Sepam Management or any company in the Sepam Group, its or their officers, employees, directors or shareholders.". This is an extensive clause which seeks to limit the complainant's rights on a global basis, which may be explained by the fact that the respondent has a "global footprint". However, in the context of this jurisdiction there is no list of relevant employment statutes which apply to the agreement - which is a pre-requisite in terms of the comments of Judge Buckley above. Secondly, as stated by Carroll J in PMPA v Keenan and Others6 "since the phrase 'in full and final settlement' emanated from the company, it must be construed against them.". In the instant case the respondent confirmed at the Hearing that this was a standard document, developed by it which is signed by employees on cessation of their employment and that it had been in operation for about ten years. Finally, the complainant received a payment on her departure which covered outstanding salary and annual leave entitlements. As no consideration, other than her statutory entitlement passed between the complainant and respondent it cannot be said that a valid waiver exists since the respondent did nothing other than what it was obliged to do by law; therefore there was no consideration to support the waiver7. In light of the foregoing I find that the complaint is validly before the Tribunal for investigation.
5.4 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination in respect of the treatment of him. It is only if this initial burden is discharged and I am satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required, her case cannot succeed.
5.5 The first matter which requires attention is the question of whether or not the complainant's condition amounts to a disability in terms of the Acts. Both parties are of the opinion that it is and I concur with that view. I shall now deal with the discriminatory dismissal element of the complainant's claim. The complainant asserts that she had no option but to resign in May, 2009 because the respondent refused to address her concerns about the potential impact her relocation to a site in Holland would have on her condition - that she was constructively dismissed in circumstances 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. The respondent rejects this assertion stating (a) the complainant resigned voluntarily for her employment for lifestyle reasons and (b) the respondent was not aware until she tendered her resignation that she suffered from any disability at all. It is clear the complainant was aware from the date of interview that she would be required to work abroad and she signed her contract of employment (which contained a clause setting out such a requirement) in full knowledge that was the case. I am satisfied that at that time she fully intended to comply with that requirement. However, her circumstances changed and she was diagnosed with Narcolepsy in September, 2008. Whilst the course of treatment she undertook appears to have enabled her manage her condition she was required her to remain in hospital overnight on 17 October, 2008. It is the respondent's position that it was unaware she suffered from this particular condition prior to her resignation in May, 2009, although it is conceded it was aware prior to that date that she suffered from a sleep disorder. The complainant states that she advised Ms. S of her circumstances within days of her hospitalisation. I have carefully considered this matter and I prefer, on balance, the complainant's version of events. In reaching this decision I have had regard to the following factors (a) I found the complainant to be a credible witness who gave her evidence in a forthright and consistent manner, (b) the respondent offered no credible contradictory evidence as Ms. S did not attend the Hearing - despite the fact that the respondent had been granted an adjournment of the previously scheduled Hearing because she was unavailable to attend that Hearing and (c) Ms. K accepted at the Hearing that she was aware the complainant suffered from some form of sleep disorder - although she did not know the full details. I consider it highly unlikely that the complainant would speak with the respondent's CEO about her condition and not have spoken with Ms. S, who was her immediate Line Manager, about it. In light of the foregoing I find, on balance, that the respondent was aware of the respondent's disability from late October, 2008.
5.6 It is common case that the complainant's disability presented no problems to her whilst she worked a standard thirty-nine hour week at the respondent's premises in Clonmel. However, the scene changed when she was informed in late April, 2009 that she would shortly relocate to a site in Holland. At this juncture it should be said that when the respondent selected the complainant for relocation it was merely seeking to invoke a clause in her contract of employment which it was quite entitled to do. However, this entitlement is not an unfettered one as the respondent must have regard to the employment equality legislation in making any such decision. I am satisfied that once the complainant was informed of the proposed relocation she immediately raised her concerns with Ms. S. These concerns centred on (i) the number of hours the complainant would be expected to work each week, (ii) the nature and location of the accommodation and (iii) issues connected with commuting between the accommodation and the site where she would work. In the course of the Hearing the complainant stated that her concerns were based on her understanding of what the relocation would involve having spoken with colleagues and her knowledge of previous arrangements for other employees.
5.7 It is clear from her evidence that the most pressing of these issues was clarification of the number of hours the complainant believed she would be expected to work - which she contended could be up to seventy hours per week. It is noteworthy that at no time during my investigation did the respondent either deny or take any issue with the complainant's contention on this issue. This is in stark contrast to the responses it furnished as regards the other two issues - issues that in the normal course would arguably not fall within an employer's responsibility - although in the instant case appears to do so because the respondent organised accommodation and commuting arrangements for employees. The complainant states that the expectation she would be required to work almost double the hours she worked when based at the respondent's premises in Clonmel was to the forefront of her concerns given the nature of her disability. Having carefully examined the evidence adduced by the parties on this issue I am satisfied that the respondent, through Ms. S, made no meaningful effort to discuss the matter with the complainant so as to clarify the situation, allay her concerns and/or explore alternatives to what she believed to be the situation she would face if the relocation proceeded. Its response that it "could not" do so is barely credible given its comment in the course of my investigation that the relocation of staff was a routine part of its operations. I am further satisfied that when approached by the complainant the response of Ms. S was to suggest to her that she should "trust" the respondent - a comment which Ms. K also used in the course of the Hearing. I am also satisfied, on balance, that when the complainant declined to place her trust in the respondent Ms. S told her, in the course of the meeting they had around the Bank Holiday Weekend in May, 2009, that if she did not relocate she would be dismissed.
5.8 It is the complainant's evidence that against this backdrop she decided she had no alternative but to resign and did so by e-mail to Ms. S on 7 May, 2009. The respondent argues that this e-mail indicates the complainant's intention to resign for personal lifestyle reasons. I have examined the e-mail in question and whilst it does make reference to the impact the proposed move would have on the complainant's lifestyle, it is evident that these concerns are premised on her medical condition. The respondent (Ms. K) met with her the following day "in an effort to have her reconsider" but when these discussions collapsed the respondent sought a further e-mail from the complainant unambiguously confirming her resignation, which she issued later the same day (8 May, 2009). In the course of the Hearing Ms. K stated that she could not recall if the complainant's condition was discussed at this meeting. I am satisfied on balance that it was as it was highly unlikely it would not be raised by the complainant when it had been to the forefront of her reluctance to relocate from the outset. Accordingly, I am satisfied that the respondent was undoubtedly aware by this stage that the complainant suffered from Narcolepsy. A prudent employer might well have reconsidered the proposed posting of the complainant to Holland in light of this information, or at the very least postpone it until the complainant's concerns were further explored and any alternatives considered, but instead the respondent sought unambiguous confirmation of her resignation.
5.9 The definition of dismissal at section 2 of the Employment Equality Acts, 1998-2008 provides that an employee can terminate his or her employment in circumstances where the behaviour of an employer entitles them to reasonable do so. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances 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 ...."
In An Employer v A Worker (Mr. O No.2)8 the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case".
5.10 In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of her employer was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating her employment, to give the respondent the opportunity to address her grievance or complaint. Counsel on behalf of the respondent submits that the complainant did not invoke the respondent's Grievance Procedure before resigning and this failure is fatal to her maintaining a complaint of constructive discriminatory dismissal. In the normal course I would concur with Counsel's submission on this point. However, in the instant case the complainant had sought to engage with the respondent, from the moment the proposed relocation was advised to her, regarding her concerns about the proposed posting and the possible impact it would have on her in terms of her disability. Her initial point of contact was her immediate Line Manager, who was also the respondent's Human Resources Manager. Thereafter she discussed her concerns with Ms. K, who was the respondent Chief Executive Officer, the most senior employee within the organisation. On both occasions she was faced with what might at best be described as disinterest for her situation. In the circumstances I find it perfectly reasonable that the complainant would see no merit in formally invoking the Grievance Procedure as the likelihood of a different outcome was arguably negligible. Faced with the prospect of being forced to relocate to Holland to a position which posed a potentially significant adverse impact on her health, the complainant resigned. In light of my comments in this and the preceding paragraphs I find that the complainant was dismissed in circumstances amounting to discrimination on grounds 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 this element of her complaint is entitled to succeed.
5.11 I shall now examine the second element of the complainant's claim - that the respondent failed to provide her with reasonable accommodation in accordance with section 16 of the Employment Equality Acts, 1998-2008. Since the enactment of the Equality Act, 2004 on 18 July, 2004 both this Tribunal and the Labour Court has held that section 16 (3)(b) of the Acts, when interpreted in light of Article 5 of the Framework Directive9, creates a free standing cause of action to a complainant in relation to an employer's failure to provide reasonable accommodation to an employee with a disability10. In A Company v A Worker11 the Labour Court found that "there is a clear duty on an employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment.". The Labour Court has also found that such an obligation is proactive in nature12. In the instant case the respondent made no attempt to ascertain the exact nature of the complainant's disability or to have her medically examined - the latter is all the more significant bearing in mind it had arranged for her to undergo a pre-employment medical examination. It therefore gave no consideration at all to what accommodation it might afford the complainant to enable her undertake the tasks involved with the relocated post. Consequently, I find that the respondent contravened section 16(3)of the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that -
(i) the complaint is validly before the Tribunal for investigation,
(ii) 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,
(iii) the respondent failed to provide the complainant with reasonable accommodation in terms of section 16(3) of the Employment Equality Acts, 1998-2008.
6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2011 that the respondent pay to the complainant the sum of €18,000 by way of compensation for the distress suffered and the effects of the discrimination on her. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
4 September, 2012
1  ELR 225 (Judge Buckley)
2  IEHC 324
3  IR 330
4  19 ELR 73
5  ELR 225 (Judge Buckley)
6  IR 330
7  IR 330.
9 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
10 See DEC-E2009-111 and EDA106
11 EDA 106
12 EDA 061