THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2013-078
(Represented by SIPTU)
Pat McDonnell Paint Sales Limited
(Represented by Stephen O'Donoghue BL instructed by Eamon Murray & Co Solicitors)
File Reference: EE//2010/382
Date of Issue: 23 July 2013.
Headnotes: Discriminatory dismissal - Discrimination on the grounds of disability - Procedures for dismissal while on sick leave - Reasonable accommodation - Victimisation - Employment Equality Acts, 1998 to 2008 s 6, s 8(6)(c), s 16(3), s74(2)
This dispute involves a claim by Mr Denis O'Flynn (hereinafter "the complainant") that
(i) he was discriminated against by Pat McDonnell Paint Sales Limited (hereinafter "the respondent") on grounds of disability within the meaning of sections 6 (2) (g) and of the Employment Equality Act, 1998 as amended (hereinafter "the Acts") and contrary to section 8 of the Acts by not offering him the same treatment in relation to conditions of employment as the respondent afforded to other persons where the employment circumstances of the complainant and the comparators were not materially different;
(ii) he was dismissed on account of his disability contrary to section 8 of the Acts;
(iii) the respondent failed to comply with its obligation to take appropriate measures needed in this case to enable the complainant who had a disability to participate in employment, contrary to section 16 of the Acts; and
(iv) he was victimised within the meaning of section 74 (2) of the Acts.
The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 18 May 2010. A written submission was received from the complainant on 28 October 2010. A written submission was received from the respondent on 13 December 2010. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 18 September 2012. Both parties attended the hearing.
3. Summary of the Complainant's case
3.1 The complainant worked for the respondent company from September 1997, initially as a Driver and later as a sales assistant. In 2004 his hours were reduced to 4 days a week to facilitate his duties as a public representative. In 2006 his hours were reduced further to 3 days a week. The job of sales assistant requires a lot of standing. The complainant suffered from varicose veins and had to go on sick leave from the respondent in September 2008. The complainant had three operations to try to correct the problem but due to complications with thrombophlebitis, he has not made a full recovery. After three operations his surgeon was reluctant to operate again. On 20 April 2009 the complainant's GP certified the complainant's condition "would be exacerbated by prolonged periods of standing and that, at present, he was unfit to return to work."
3.2 The respondent wrote to the complainant on 26 May 2009 acknowledging receipt of the Doctor's certificate of 20 April 2009 and a subsequent certificate of 4 May 2009. In the letter dated 26 May 2009, the respondent's HR manager:-
1. Expressed concern that the complainant has not been able to give them a date upon which he would return to work, as previously requested. Because of this they had not been able to plan temporary cover. This absence has had a negative impact on the running of the business and on the service to customers. She also expressed anxiety about the burden being placed on other staff.
2. Stated that they were anxious to facilitate the complainant's return to work at the earliest opportunity. They needed an indication of a return to work date.
3. Stated that they were arranging a medical examination with an Occupational Health specialist.
4. Advised the complainant that unless they were able to obtain an indication of the date upon which he would be in a position to return to work in the near future they would have to give consideration to the possibility of terminating his employment as the business could not afford for him to be absent from work indefinitely.
3.3 The complainant responded on 2 June 2009 stating his willingness to attend medical examination and pointing out that:
1. (Referring to the respondent's reference that the business not being able to afford his absence indefinitely) he was not being paid by the respondent while on certified sick leave.
2. He was anxious to return to work at the earliest opportunity but that he must have regard to the medical advice of his doctor regarding his welfare.
3.4 The complainant's surgeon examined him on 3 June 2009 and reported to his GP that there was nothing he would recommend doing in terms of further surgery. The surgeon felt that the job he was doing which requires prolonged standing was unsuitable. He recommended that the complainant not continue with any work which requires prolonged standing. The complainant stated that he forwarded his surgeon's letter to the HR manager. (This is denied by the respondent).
3.5 On 15 June 2009 the Occupational Health Specialist nominated by the respondent examined the complainant. The specialist diagnosed that the complainant suffered from a non work related condition that is exacerbated by prolonged standing. He recommended that the complainant was unfit for duty that involves standing for prolonged periods of time. The complainant had surgical treatment on 3 occasions, and his surgeon was reluctant to operate again. The complainant would remain unfit to stand for a prolonged period indefinitely. The specialist was of the opinion that his condition may be covered by the Employment Equality Act 1998 and advised the respondent to get separate legal advice on this. He stated without equivocation that the complainant would be fit to carry out duties in a seated position.
3.6 The respondent, on receipt of the report of the specialist wrote to the complainant enclosing a copy of the report of the Occupational Health Specialist for his attention. The letter (dated 27 July 2009) from the HR manager stated:
1. Having considered the reports of the Occupational Health Specialist and the complainant's own GP they would like to arrange a meeting to discuss his employment with the company.
2. If he wished to discuss any aspect of the above with the HR manager, not to hesitate to contact her.
3. He should feel free if he wished to bring a colleague with him to the meeting.
The complainant claims that the HR manager told him by phone to bring a friend "as you may not like what you will hear." (The respondent denies that this was said).
3.7 The meeting eventually took place on 2 October 2009 and was attended by the complainant, his union representative, a director of the respondent company and the HR manager. The union representative outlined the complainant's ongoing medical difficulties and that a definite return to work date could not be given. The union requested the company to make some "accommodations" notwithstanding the difficulties in the workplace, and as required by the Acts. The company undertook to consider the matter and to revert to the union, though this did not happen. They made a decision to terminate the complainant's employment and notified him accordingly in a letter dated 16 October 2009, the termination to take effect on 3 December 2009. In the letter dated 16 October 2009, the respondent gave the grounds for dismissal as follows:
a. The complainant confirmed at the meeting that his GP was unable to provide him with an indication as to when he might be in a position to return to work.
b. The options to facilitate his return were discussed at the meeting. It was clear the only circumstances in which he could currently return to work in accordance with the started medical advice was if he was given a suitable seated position. Unfortunately, the company did not have such a position available and this was accepted by both the complainant and his union representative.
c. The respondent could not accept his absence indefinitely and decided to terminate his employment. He was entitled to 6 weeks' notice.
3.8 The union then wrote to the respondent on 27 October 2009 expressing disappointment with the dismissive action of the respondent in not reverting to the union as promised, thereby causing disappointment to the complainant who had given 12 years' loyal service to the respondent. The union repeated that the respondent made no effort to make an accommodation within the workplace, so as to facilitate the complainant being able to continue working with the respondent as required under the Acts.
3.9 The respondent replied that they could not accommodate the complainant in his capacity as a Sales Assistant in a suitable seated position. They said that there was no suitable alternative available in the company. The respondent made absolutely no effort to engage with the union or with the complainant himself to consider any alternatives, given that the complainant had previously worked as a driver and later moved into sales at the request of the management. They did not even consider a trial period. Their only consideration was to dismiss the complainant.
3.10 The complainant sought compensation for the effects of discrimination and victimisation.
4. Summary of the Respondent's case
4.1 The complainant was dismissed on the grounds that after a lengthy absence from work he was asked to provide confirmation of the date upon which he would be able to return to work. Both the complainant and his GP were unable to provide a return date. The complainant admitted that he was unfit for work involving prolonged periods of standing and that it was not possible to adapt his job so that it could be performed in a seated position.
4.2 The complainant had not worked full-time for 10 years. The company facilitated him with 4 day and 3 day working because of his duties as a public representative. He was initially employed as a driver but he was subsequently employed as a sales assistant at his own request. The job of sales assistant requires a lot of standing. The respondent does not accept that this was the cause of the complainant having to take sick leave.
4.3 The respondent supported the complainant during his period of sick leave. His operations were, at the complainant's admission, unsuccessful and his condition was complicated by thrombophlebitis making him unfit for work involving long periods of standing.
4.4 The employer was entitled to request the complainant to provide confirmation of a date upon which he is expected to be able to return to work and when neither the complainant nor his medical advisors were able to confirm an expected return to work date the respondent was obliged to terminate the complainant's employment which was done in a fair and reasonable manner.
4.5 The complainant had at no time ever requested his employer to consider adapting his job to enable him to carry out his duties as a sales assistant. He never suggested possible adaptations. He never asked the respondent to consider returning him to his previous position as a driver.
4.6 The respondent rejects the complainant's account of the meeting of 2 October 2009. According to the respondent the complainant was made aware prior to the meeting that the discussion would have a bearing on his continued employment with the respondent. The respondent denies absolutely that the complainant's representative requested the respondent to make "accommodations" notwithstanding the difficulties in the workplace and as required by the Employment Equality Acts. The respondent maintains that at the meeting the complainant:
1. Confirmed that his GP that morning had been unable to give him any hope of being able to return to work in the coming weeks or months.
2. Agreed that the Occupational Health Specialist stated that the complainant was not fit to do the job with its current requirements and that he was only fit to work in a capacity where he could remain seated for long periods of time.
3. Agreed with the respondent's opinion that it was not possible to change his sales position to a seated one given the nature of the work.
4. Understood that there were no existing or upcoming vacancies due to redundancies etc.
5. The complainant's representative sought a severance package of statutory redundancy and notice as his only alternative was to take a case under the Equality Acts and admitted that "his chances there were not great".
5. The issues
5.1 No case for the complainant's claim of victimisation was made out.
5.2 There is no dispute between the parties that the complainant has a disability within the meaning of the Acts which made it impossible for him to return to work unless he could be seated for long periods of time. There is no dispute between the parties that the complainant was dismissed because he was not fit to return to his old job. It follows that the complainant's dismissal was, prima facie, an act of discrimination on the grounds of disability. However a dismissal which appears to be discriminatory within the meaning of the Acts may be saved by section 16. Section 16 provides as follows:-
"16. -- (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual --
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as 'appropriate measures') being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3) --
'appropriate measures', in relation to a person with a disability --
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.
5.3 The Labour Court extensively considered this section in Humphries v Westwood Fitness Club1 . Both parties grounded their legal arguments on this precedent. The general principles set out in that case require an employer to make a bona fide and informed decision concerning a disabled employee's capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive.
5.4 A leading textbook on Irish Employment Equality Law neatly summarised an employer's duties under the law as follows:
"In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment)." 2
5.5 The complainant argued that the respondent in the present case did not comply with the minimum requirements set out by the Labour Court. In particular the respondent did not act proactively, having been advised by the respondent's own medical expert that the complainant could return to work if he could be accommodated in a seated position. Instead the respondent decided to terminate the complainant's employment once they received the report of their own medical expert as is evident from their letter to the complainant of 27 July 2009 enclosing their medical expert's report. In that letter the respondent said that having considered the reports of the Occupational Health Specialist and the complainant's own GP they would like to arrange a meeting to discuss his employment with the company. No reference was made in the letter to discussing the possibility, stated by the Doctor, of returning to work in a seated position. The respondent claims that they carried out an exhaustive analysis of the options for the complainant to work in a seated capacity. The complainant did not have an input to this analysis and was not made aware of it. The complainant was presented with a fait accompli.
5.6 The respondent argues that they more than met their obligations under section 16 of the Act as laid down in Humphries v Westwood Fitness Club. They looked at all the medical evidence. They had an exhaustive analysis done of the complainant's job and concluded that it could not be done seated. The possibility of reallocating the work in the sales area to create one seated position was looked at and rejected. The complainant was given a full opportunity to participate at the meeting on 2 October 2009 at which the complainant agreed with their analysis. The complainant was not shown the detailed written analysis because he didn't ask for it. The complainant himself ought to have asked at the meeting about alternative employment outside the sales area and those issues could have been thrashed out. Instead the complainant focused solely on the possibility of a severance package.
In coming to a conclusion I have taken into account all the evidence both written and oral presented by the parties. Both sides rely on what transpired at the meeting of 2 October 2009 to support their case. Both sides submitted alleged contemporaneous notes of what was said which differed significantly. Both sides challenged the veracity of the other's written and oral account of what was said. Having read both records and listened to oral evidence from all those in attendance, I can reach only tentative conclusions as to what was actually said. I conclude that for neither side was exploring the possibility of reasonable accommodation a priority at the meeting. For the respondent the aim was to get the complainant to acknowledge that he was not in a position to resume work in the foreseeable future and to terminate his employment. The complainant, clearly understanding that the respondent was intent on ending his employment, sought a severance package which was not given. Although the respondent adequately informed themselves of the medical situation of the complainant, they did not fully explore all the options open to them to facilitate the complainant returning to work in a seated position; to the extent that they did consider the options open to them to accommodate the complainant in a seated position, they did not consult with the complainant throughout this process. The discussion on 2 October 2009 did not satisfy the respondent's obligation to consult. Therefore the respondent cannot rely on the defence provided in s. 16 of the Acts and therefore cannot rebut the prima facie case of discriminatory dismissal.
Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(1) The respondent discriminated against the complainant on the race or disability grounds pursuant to section 6(2) of the Acts, in respect of dismissal contrary to section 8(6) of the Acts.
(2) The respondent failed to comply with his obligation under section 16 (3) of the Acts to take appropriate measures to enable the complainant to carry out fully the duties of the job and therefore cannot avail of the defence under s. 16 of the Acts.
(3) The respondent did not victimise the complainant within the meaning of s. 74 (2) of the Acts.
Accordingly, I direct that the complainant be paid an award of €20,000. This is in compensation for the effects of the discrimination and does not contain any element of pay and is therefore not subject to PAYE/PRSI.
23 July 2013
1  15 E.L.R. 296
2 Bolger M., Bruton C. and Kimber C. Employment Equality Law (Dublin 2012), para 7-112