FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : STOBART (IRELAND) LIMITED (REPRESENTED BY PURDY FITZGERALD, SOLICITORS.) - AND - RICHARD BEASHEL (REPRESENTED BY DERMOT F. MCNAMARA & CO., SOLICITORS.) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the Decision of the Equality Officer to the Labour Court on the 21st August, 2013. A Labour Court hearing took place on the 7th January, 2014. The following is the Court's Determination:-
DETERMINATION:
Mr Richard Beashel (the Complainant) worked for Stobart (Ireland) Limited (the Respondent) as a Truck Driver from 9 November 2009 until he was dismissed on 22 June 2010. The Complainant made a complaint to the Equality Tribunal on 15 August 2010. In the complaint he claimed that he was discriminatorily dismissed on the grounds of disability in terms of section 6(2)(g) of the Employment Equality Acts 1998 – 2011. The Equality Officer found that
(i) The Respondent discriminatorily dismissed the Complainant on the grounds of disability(ii) The Respondent failed to provide appropriate measures that would allow the Complainant continue to be employed by them.
The Equality Officer ordered the Respondent to pay the Complainant €22,000 compensation for the discriminatory treatment suffered.
The Respondent appealed against that Decision to this Court.
The appeal came on for hearing on 7 January 2014. Both parties attended and were legally represented at the hearing.
The Facts
The Complainant commenced work as a driver with the Respondent on 9th November 2009. During his employment he accrued 23 days absence. Of these two days were uncertified due to the Complainant sleeping in. On both occasions he informed the Company that he had slept in. On each occasion he was informed that his shift had been covered by another driver and that he was not to report for work.
The Complainant developed sinus trouble in March 2010 and was absent for two days. These days were certified by a medical practitioner.
In April 2010 he sustained a back injury which resulted in his being absent from work for 2 weeks (12 April to 26 April 2010). This absence was certified by a medical practitioner.
He says his father died in December 2008. In May 2010 he was diagnosed as suffering from depression. He required some time off work as a result. He was medically certified unfit for work from 31stMay to 14 June 2010.
The Complainant returned to work on 15th June 2010. He was interviewed by Mr Dennis Wood, who described himself as the Operations Manager and was informed that if he needed more time off the Company could arrange for him to take some holidays. He returned to work thereafter.
On 22nd June 2010 he was instructed by the Human Resources Department to attend immediately at a meeting with Mr Paul O’Donnell, (Operations Manager, Tesco, Dublin Port). He was given no or scant details of the purpose of the meeting. He attended the meeting and was summarily informed that he was dismissed with immediate effect. There is a difference between the parties as to the the reason given to him for his dismissal. He says that he was told he was dismissed because he had been absent for 23 days during his period of employment. The Respondent states that he was told that the reason for his dismissal was a combination of his level of absence and his poor performance levels.
Position of the Parties
The Complainant states that he was suffering from depression, a medically diagnosed disability, in June 2010. He states that he provided the Company with medical evidence of his disability dated 15th June 2010. He states that on his return to work his manager Mr Woods, discussed the disability with him and assured himthat he could have time off should he need it. He says that Mr Woods recorded that he was suffering from depression on an internal record of the conversation headed “ Absence/Self-Certification Form” dated 15th June 2010. That document records that he was at that time taking medication for his disability.
He submits that the Respondent was therefore on notice of his disability from that date.
He says that he felt reassured when he returned to work. He says that he was subsequently summoned to a meeting with Mr Paul O’Donnell, He says that he was summarily dismissed at that meeting. He says that the reason given to him for his dismissal was that he was absent from work for 23 days since his employment commenced. He says that no other reasons for his dismissal were outlined to him.
He says that the proximity of the declaration of his disability to the Respondent and the decision to dismiss him raises a prima facie case of discriminatory dismissal. He submits that the burden of proving compliance with the Act rests with the Respondent. He submits that the Respondent has given no objective grounds justifying the dismissal at any stage during the proceedings before the Equality Tribunal or in its submissions to this Court. He submits that no reasonable accommodation was offered to him to enable him to discharge his duties while suffering a disability. He submits that the Decision of the Equality Officer should be upheld by the Court.
In his submissions he raises a preliminary issue. He contends that though the Respondent lodged an appeal with the Court within the six week time limit set out under the Act, it did not set out in sufficient detail the grounds of it's appeal until it made submissions to this Court at which time the statutory time limit had passed. He submits that the appeal therefore is statute barred.
Respondent’s Position
Preliminary Issue
The Respondent submits that it submitted it's appeal to the Court within the statutory time limit in the format required by the Court. It submits that the appeal is not statute barred.
Disability
The Respondent submits that the Complainant was suffering an illness but not a disability and accordingly does not have locus standi under the Act. It relies on the Decision of the CJEU in Case C-13/05 Chacon Navas [2006] ERC I-6467 in which the Court stated that “ for a limitation of the capacity to participate in professional life to fall within the concept of “disability”, it must be probable that it will last for a long time.” It submits that the Complainant in this case did not attend a medical practitioner regarding his “disability” other than on and around the 15thJune 2010. It further submits that the Complainant was prescribed no further medication in respect of his “disability”. It submits that he therefore recovered from his “disability” within a very short time and accordingly could not meet the test set out in Navas.
It submits that the Complainant could more properly be described as suffering from an illness as distinct from a disability and accordingly does not come within the scope of the Act. It referred the Court to the Decision in Colgan v Boots Ireland Limited (BEC-E2010-008) and to O’Rourke v Dublin City Hotel (DEC-E2010-045) in support of it's position.
The Evidence
Mr Woods
The Respondent states that Mr Woods was not a member of Management. It notes that he describes himselfinofficial documents. However it asserts that he was in fact a member of a support team deployed to Ireland from the Company’s overseas office to assist with the adaption of systems following the transfer of a business to the Company. It argues therefore that Management was not aware of the Complainant’s medical condition.
Mr O’Donnell
Mr O’Donnell gave evidence to the Court. He said that he was employed as the “Operations Manager” at the relevant time. He said that he was supplied on a periodic basis by the Human Resources Department with absenteeism figures in his department. He said that where an employee exceeded a pre-determined benchmark figure he was notified and it was a matter for him to decide how to proceed in respect of the employee. He said he was sometimes given additional information by the Human Resources Department explaining the reasons for the Worker’s absenteeism. He said that he had access to all Workers files but normally did not have time to review them before he decided what action to take in respect of an offending employee.
In this case he said he was notified, by Human Resources, after June 15ththat the Complainant’s absenteeism levels were above the predetermined benchmark figure. He said that he decided on the basis of the numbers before him that he would dismiss the Complainant. He said that he contacted Mr Shane Doherty, Human Resources Manager at that time, to advise him of his decision and to determine if there was any reason he should not proceed. He said that he was not advised of any reason why he should not proceed to dismiss the employee in this case.
In answer to questions from the Court he said that he was not aware that the Complainant was suffering from depression. Neither was he aware that Mr Woods had told him he could take additional time off by way of holidays should he need to. He said that had he that information he would not have dismissed the Complainant. He said that he would have made an accommodation to enable him to manage his depression. He said that it was remiss of Human Resources not to alert him to the sick certificate on file or to the reports that had been submitted by Mr Woods. He said that the absence of that information affected his decision in this case.
He said that he had made up his mind to dismiss the Complainant before the meeting on the 22ndJune 2010. He said he did not ask the Complainant to explain his absences or to outline any mitigating reasons as to why he should not be dismissed. He said he had decided to dismiss him and did so summarily. He said that after he had dismissed him he asked him how he felt. He said he left the office without any substantive comment. He said the meeting was very brief.
Findings of the Court
Preliminary Issue
It is common case that the Respondent submitted notice of appeal to the Court within six weeks of the date on which the Equality Officer's Decision was communicated to the parties. In that notice it clearly indicated it's intention to appeal the Decision in the instant case. The Court does not require a detailed statement of the grounds of appeal on the notice of appeal. It requires that the details set out on the form are provided to the Court within the statutory time limit. The Respondent met this requirement in it's notice of appeal. The Court therefore determines that the appeal is properly before it.
Disability
Disability is defined in Section 2 of the Acts in the following terms:
- (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 form a person without the condition or malfunction.
(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.
- (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.
The Respondent relies on the Decision of the CJEU in the Navas case cited above and asserts that the Complainant’s illness was not long term in nature.
The Court does not accept this view. The CJEU in the joined cases C-335/11 and C-337/11 stated “the concept of disability in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where the illness entails a limitation which results in particular from physical, mental or psychological impairment which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other Workers and the limitation is a long term one.”
In this case the Complainant was medically diagnosed with depression. He notified the Company of his disability. The Company noted his disability and Mr Woods offered to accommodate him with time off should he need it to cope with his disability. Human Resources was copied with the medical certificates and Mr Wood’s reports and observations. Shortly afterwards it notified Mr O’Donnell that the Complainant had excessive absenteeism, withheld information that Mr O’Donnell told the Court would have changed his decision to dismiss the Complainant, and approved the decision to dismiss without revealing the information in it's possession.
The Respondent, while aware that the Complainant was suffering from depression, made no enquiries to determine the likely prognosis for his condition. It was unaware as to whether the prognosis was that the condition might be long or short term. In his evidence to the Court the Complainant stated that he still suffers periods of depression. His partner in evidence stated that she experienced those periods of depression and that it had an ongoing effect on their lives and relationships. Both he and she noted that they have managed to deal with the matter without recourse to further medication.
On this basis the Court takes the view that the Respondent kept itself ignorant of the Complainant’s prognosis. Having done so it cannot seek to rely on subsequent events to excuse it's failure to establish the Complainant’s medical condition at the time it decided the issue. The obligation on the Respondent was to establish whether the Complainant’s condition was likely to be long or short term either by engaging with the Complainant directly or through his or the Company’s own medical advisors. It was not sufficient that itmadeno enquiries andsoughtto rely on subsequent events to justify it's decisions.
Moreover it is clear form evidence before the Court that the Complainant continues to suffer to some extent from the illness particularly around the time of the anniversary of his father’s death.
In that context the Court finds that the Complainant was suffering from a disability within the meaning of the Act.
The Respondent further seeks to rely on the defence set out in Section 16(1) of the Act.
Section 16(1) states
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.(2) [Not relevant]
- (3)(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
The Court addressed this at some length inA Health and Fitness Club v A WorkerEED037. It stated:-
- “This Section, on which the Respondent relies, can provide a complete defence to a claim of discrimination on the disability ground 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.
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.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions”
In the instant case the Court is of the viewthat the Respondent did not carry out the required enquiries to rely on this Section of the Act. Moreover, the Complainant at no point told the Respondent that he was not capable of carrying out his job. Indeed he had in fact resumed work and was carrying out his duties when he was summoned to the meeting with Mr O’Donnell in June 2010. Accordingly, the Court finds that the provisions of Section 16(1) do not apply in this case.
Finally, the Court must decide whether the decision to dismiss the Complainant was influenced by his disability.
The evidence before the Court discloses that the Complainant had a history of absences from the time his employment with the Respondent commenced. It was also advised that the acceptable level of absenteeism had been exceeded by the Complainant before he was diagnosed with depression. However the Human Resources Department did not flag to Mr O’Donnell the Complainant’s high level of absenteeism until after it received the medical certificate diagnosing depression and Mr Woods report on the return to work discussion he had with him. Moreover, when it did flag the high level of absenteeism to Mr O’Donnell Human Resources did not disclose to him the medical diagnosis or the return to work report completed by Mr Woods. When Mr O’Donnell contacted Human Resources to advise it of his decision it did not bring those documents to his attention. Mr O’Donnell told the Court that had it done so he would have made a different decision.
Human Resources did not give evidence to the Court or otherwise explain it's decisions.
Given the proximity of the time between the Complainant’s diagnosis and the decision to dismiss him the Court takes the view that the Complainant has established a prima facie case that his dismissal may have been influenced by his disability. The burden of proving that the decision to dismiss was not related to the Complainant’s disability therefore lies with the Respondent. The decision maker has told the Court that he would have come to a different decision had he had the information that had been submitted to Human Resources. No explanation for the decisions taken by Human Resources to withhold that information from the decision maker was presented to the Court.
Accordingly the Court finds that the Respondent has not discharged the burden of proving that the reason for dismissing the Complainant was not related to his disability.
The Court allowed the parties an opportunity to comment on the significance of the Decision of the CJEU in- HKDanmark, acting on behalf of Jette Ring v Dansk Almennyttigt Boligselskab (C-335/11) v HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, in liquidation (C-337/11) (Joined Cases C-335/11 and C-337/11) 11 April 2013
Both parties made written submissions to the Court. Both parties argued that the decision supportedthe argument they presented to the Court.
The main point in the Respondent’s submission related to the requirement set out in that decision, that in order to come within the scope of the Directive a disability must be long term in nature. It argued that the Complainant in this case sufferedabout of depression and had no further contact with the medical profession on this matter.
The Court does not accept this interpretation of the CJEU Decision. The Court takes the view that the Complainant was diagnosed as suffering from depression, a disability for the purposes of the Act. The Court accepts the Complainant’s contention that depression is a long term condition that may not be ever present but may affect a person from time to time. In this case the Respondent made no medical enquiries as to the nature of the Complainant’s depression or as to the frequency with which or extent to which it might impair his capacity to work. Nor did it engage with the Complainant to determine the reasonable accommodation he might require when suffering bouts of depression. Having failed to establish the nature or extent of the Complainant’s depression the Respondent cannot now seek to rely on an assertion that it was of a short term nature only when it has no medical evidence to this effect and more importantly had no such evidence when it took it's decision to dismiss him. Moreover, the Complainant told the Court that he continues to suffer bouts of depression but that he can manage them without recourse to medical treatment. In those circumstances the Court finds that the nature of the Complainant’s medical condition is a disability within the meaning of that term as decided by the CJEU in that case.
Determination
The Court determines that the Complainant was discriminatorily dismissed by the Respondent on the grounds of disability.
The Court further finds that the Respondent failed to provide appropriate measures that would allow the Complainant continue in employment.
The Court takes the view that, in all the circumstances of this case, the level of compensation awarded by the Equality should be varied.
The Court orders the Respondent to pay the Complainant €12,000 compensation for the discriminatory treatment he suffered.
The Decision of the Equality Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
14th March, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.