Decision No: DEC-E/2013/181
(Represented by Ms. Sinéad Dullaghan BL
Instructed by Gary Matthews – Solicitors)
The Timber Frame Company Ltd.
File No: EE/2011/420
Date of issue: 16 December, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6 and 8 – lay-off- discriminatory dismissal – disability.
This dispute involves a claim by Mr. Brian Furlong (“the complainant”) that he (i) was dismissed in circumstances amounting to discrimination on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts and (in the alternative) that he (ii) was dismissed in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008 when his employment was terminated by The Timber Frame Company Ltd (“the respondent”) in April, 2011. The respondent rejects these assertions and states that the complainant was on lay-off at that time and did not subsequently return to work due to a foot injury.
2.1 The complainant was employed by the respondent as a General Operative for a number of periods between August, 2009 and April, 2011. Each period of employment was interspersed by a period of lay-off. The complainant states that he injured his toe at work in March, 2011 which rendered him unfit for work for a number of weeks. He states that prior to this he and his colleagues had been advised they were to be placed on a period of lay-off and while the others returned to work after the period of lay-off, he was the only one not to resume work. It is submitted on his behalf that this constitutes discriminatory dismissal on him on grounds of disability. It is further submitted that this amounts, in the alternative, to victimisatory dismissal contrary to the Acts. The respondent rejects these assertions stating that the complainant’s period of lay-off was extended for business reasons and this decision was based on the fact that he was the least experienced of the employees under threat of lay-off at that time. The respondent further states that it fully intended to return the complainant to work when business improved but as this improvement did not occur his return did not arise.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 9 May, 2011. In accordance with his powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 12 September, 2013 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 16 October, 2013. A number of issues arose at the Hearing which required further clarification and gave rise to subsequent correspondence between the Equality Officer and the parties. This process concluded at the end of October, 2013. In the course of the Hearing Counsel for the complainant withdrew all issues connected with the victimisation element of the complaint. The parties had no particular comment to make on the issue of anonymising witnesses in light of the judgement in Sheehan v Director of the Equality Tribunal. It has been my practice to anonymise the identities of witnesses in Decisions and I see no reason to depart from that in the instant case.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that he was employed by the respondent as a General Operative for a number of periods between August, 2009 and April, 2011. Each period of employment was interspersed by a period of lay-off (details supplied). He adds that on four occasions prior to the final lay-off he returned to work at the same time as colleagues who had also been laid off. The complainant states that the most recent period of employment, prior to his alleged dismissal, commenced on 10 February, 2011. He adds that his Supervisor (Mr. J) verbally informed him and his colleagues (in the canteen) on 21 March, 2011 that they were to be laid off at the end of that week for 2/3 weeks but that they would return to work at the end of that period. The complainant states that he suffered a broken toe on 23 March, 2013 (whilst at work) which rendered him unfit for duty for 4/6 weeks and that he furnished the respondent with a medical certificate in this regard immediately. It is submitted that this amount to a disability in terms of section 2 of the Acts.
3.2 The complainant states that he and his colleagues were placed on lay-off as indicated. He adds that he received a text message from Mr. J on 13 April, 2011 stating “back to work Monday lads” to which he immediately replied “ok”. He adds that the following day he received a further text message from Mr. J saying “Just checking in with you to see how your foot is! Didn’t really mean to send you that text yest”. The complainant states that he immediately replied “My foot is grand just 2 keep strapped for a few more weeks”. The complainant adds that further texts between him and Mr. J that day confirmed that his colleagues were to resume work the following week. He further states that the next day he texted Mr. J stating “U not taking me back my foot is grand now” and Mr. J telephoned him later that morning. The complainant states that in the course of this telephone conversation Mr. J informed him he could not take him back for the foreseeable future. He adds that when he (the complainant) sought an explanation for this Mr. J informed him that he thought he (the complainant) would be absent for 4/6 weeks due to his toe injury. The complainant further states that Mr. J was not prepared to change his mind even when the complainant informed him that his toe was healed. In the course of the Hearing the complainant stated that Mr. J did not request that he (the complainant) get medical certification of his fitness from his own doctor or that he attend the company’s physician for a medical examination.
3.3 The complainant states that he was the only employee who had been previously laid-off who was not permitted to return to work. The complainant rejects the respondent’s assertion that he was the least experienced employee and states that during his period of employment with the respondent he had worked in many areas and his standard of performance was never raised with him. He adds that he had no further contact with the respondent and around four weeks later he received his P45 in the post. He states that the respondent made no effort to assess his capability to work before it made the decision to terminate his employment and it is submitted on his behalf that this amount to discrimination of him on grounds of disability contrary to the Employment Equality Acts. 1998-2008.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertion that he was dismissed in circumstances amounting to discrimination on grounds of disability contrary to the Acts. It accepts the complainant’s evidence as regards when he commenced employment and the periods of employment and lay-off between then and 25 March, 2011. The respondent also accepts that the complainant and his colleagues were placed on lay-off for a period of 2/3 weeks on 25 March, 2011. It confirms that the complainant was absent from work on certified sick leave from 23 March, 2011 due to a toe injury and it accepts that this amounts to a disability in terms of section 2 of the Employment Equality acts, 1998-2008.
4.2 The respondent Managing Director (Mr. M) attended at the Hearing alone and gave evidence. He accepted the sequence and contents of the text messages between the complainant and Mr. J on 13 and 14 April, 2011. He was unable to take issue with the contents of the telephone conversation between them on 15 April, 2011. He did however say that due to the economic position of the company he spoke with Mr. J about not permitting one employee to return from lay of in April, 2011and they agreed, unfortunately, that the complainant was that employee. Mr. M stated that they selected the complainant because he was the least experienced employee. He (i) was unable to provide any specific detail of what he meant by “least experienced” other than he was not flexible enough, (ii) was unable to provide any documentary evidence that any objective evaluation of the complainant as compared to other employees was undertaken at the time and (iii) confirmed the complainant had never previously been the subject of underperformance issues or disciplinary measures. As regards this last matter he stated that the complainant was well liked and respected by Management and they would have been happy to have him back had the company been in a position to do so. He rejected the complainant’s assertion that the complainant’s broken toe had anything to do with the decision not to return him to work although he later stated that Mr. J was not expecting him to return to work at that time due to the injury. He added that the poor economic and business position the company found itself in was the reason it could not permit him resume duty. He was unable to furnish any documentary evidence in support of this assertion. He was also unable to say why the respondent had not sought medical advice, either from the complainant’s own doctor or the company medical advisor, as to the complainant’s ability to resume duty.
4.3 The respondent (Mr. M) states that as far as he was aware the company made no contact with the complainant subsequently and he was unable to clarify why the complainant’s P45 issued to him. All he could offer by way of explanation is that “one of the girls in payroll must have issued it on the instructions of Mr. J and he must have been asked for it”. Mr. M stated that all employees were made redundant in October/November, 2011 and that between April, 2011and then they had been placed on fifteen weeks lay-off.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the ground specified. It is well settled in a line of decisions from both this Tribunal and the Labour Court that the type or range of facts which may be relied upon by a complainant can vary from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination has occurred. The language used indicates that where the primary facts alleged are proved it remains for this Tribunal to decide if the inference or presumption contended can be properly drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn from a fact, or range of facts, which have been proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Therefore it is not necessary for him 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 reasonably be drawn from those facts. Where such a prima facie case is established it falls to the respondent to prove the absence of discrimination. This requires the respondent to demonstrate a complete dissonance between the protected characteristic (in this case disability) and the impugned act alleged to constitute discrimination. In this regard the Tribunal should expect cogent evidence showing that the complainant’s disability was nothing more than a trivial influence on the impugned treatment of him, since the facts necessary to prove a non-discriminatory explanation would normally be in the possession of the respondent.
5.3 However, before applying the above test to the instant case, I must decide, whether or not the complainant’s condition i.e. a broken toe, amounts to a disability in terms of section 2 of the Employment Equality Acts, 1998-2008. The parties are in agreement on this matter and I concur with their view. Section 2 of the Acts defines disability as “ (a)........, (b)......, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d)....... In Customer Perception Ltd v Leydon the Labour Court held that the temporary malfunction of a part of a person’s body comes with the definition of disability in terms of the Acts. It follows, therefore that a broken toe constitutes such a disability.
5.4 Having carefully considered the evidence adduced by the parties in the course of my investigation I am satisfied, on balance, that the following facts have been established.
Ø The employment of the complainant and his colleagues was characterised by periods of work interspersed with periods of lay-off. On each occasion that the period of lay-off ceased, prior to the final one, all employees were permitted to return to work.
Ø At the meeting in the canteen on 21 March, 2011 the complainant and his colleagues were advised by Mr. J that they would all resume work in 2/3 weeks. i.e. the previous arrangements would apply.
Ø The complainant was originally included in the group text from Mr. J on 13 April, 2011 advising work would resume the following Monday and that this position subsequently changed.
Ø The only employee who was not permitted to return to work was the complainant.
Ø He had never been the subject of any previous approach by the respondent about his performance or behaviour.
Ø The respondent (Mr. J) was of the view that the complainant was unfit for work for a few more weeks due to his toe injury.
Ø The complainant advised him that his toe was fine and merely required strapping.
Ø The respondent never sought any medical advice as regards the complainant’s capacity to resume work in light of his assertion above. It therefore at the very least imputed a disability to the complainant.
Ø No further communication arose between the parties until the complainant received his P45 some weeks later. I am satisfied that the complainant did not request this documentation and that the respondent issued it without making any effort whatsoever to clarify the situation with him.
In light of the foregoing, I am satisfied that the complainant has established a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of disability contrary to the Acts and the burden shifts to the respondent to show that there was no infringement of the principle of equal treatment.
5.5 The respondent states that (i) the economic and business situation which prevailed in April, 2011meant that it was not in a position to permit all employees return to work and Mr. M made the decision that one would remain on lay-off and (ii) Mr. J and Mr. M selected the complainant to remain on lay-off because he was the least experienced employee. As regards the first matter it is clear that the business was in financial trouble given the previous (and subsequent) occasions when employees were laid-off and the fact that the enterprise ceased trading about six months later. However, the respondent did not produce any credible evidence (other than Mr. M’s assertions) that it could not sustain the complainant returning to work with his colleagues in April, 2011because of these factors. As regards the second arm of its explanation the respondent was unable to provide any specific detail of what he meant by “least experienced” other than the comment the complainant was not flexible enough. Moreover, it failed to produce any documentary evidence that any objective evaluation of the complainant, as compared to other employees, was undertaken before the decision was made. Indeed it confirmed that the complainant had never previously been the subject of underperformance issues or disciplinary measures and stated that the complainant was well liked and respected by Management and they would have been happy to have him back had he been in a position to do so. As stated at paragraph 5.2 above this Tribunal should expect cogent evidence from a respondent in terms of the rebuttal of a prima facie case of discrimination. The respondent in the instant case has failed to discharge the probative burden required of it in that regard and consequently the complainant is entitled to succeed with his complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts and his complainant must succeed.
6.2 I am satisfied that had the complainant returned to work in April, 2011 his employment would have terminated by way of redundancy in October/November, 2011. I am further satisfied that he would have been placed on further periods of lay-off between April, 2011 and October/November, 2011. Taking these factors and the circumstances into account I consider it reasonable that redress is measured at €5,000 and in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I order that the respondent pay the complainant that amount by way of compensation for the distress suffered by him as a result of the discrimination. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
16 December, 2013
 Unreported Kearns J 11 June, 2012
 See EDA 082