THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2014 – 058
Mr Andrew O’Rourke (represented by Ms Sarah O’Mahony, B.L., instructed by Moran Ryan Solicitors )
Brennan Convenience Foods Ltd t/a Food Partners (in liquidation)
File Reference: EE/2012/156
Date of Issue: 12th August 2014
Keywords: Disability – S. 2(c) of the Acts – less favourable treatment – lack of reasonable accommodation – S. 16 – discriminatory dismissal.
1.1. The case concerns a claim by Mr Andrew O’Rourke that Brennan Convenience Foods Ltd t/a Food Partners (in liquidation) discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment, failure to provide reasonable accommodation and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 8 March 2012. A submission was received from the complainant on 15 May 2012. No submission was received from the respondent. On 11 June 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 16 July 2014. The respondent did not attend the hearing. I am satisfied that the respondent’s liquidator received timely and appropriate written notification of the hearing of the complaint.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he was employed by the respondent as a van driver and delivery and sales representative. On 30 May 2011, the complainant suffered a serious accident while loading his van, when he fell into an open manhole cover. He suffered significant soft tissue and muscular injuries to his back, shoulder and neck area, and a laceration to his right shin and abrasion to the left side of his body. He was certified unfit for work for eight weeks due to these injuries.
2.2. When the complainant sought to return to work and lighter office-based duties, on the advice of his physiotherapist, he was given two hours’ worth of office work on the first day, but was then required to pack fridges, which caused him pain in his neck, shoulder and back. The complainant was accommodated with office duties for about four weeks, but was then requested to resume his old delivery route, despite the pain in back, shoulder and neck he continued to experience. The complainant was promised an assistant, but no assistance materialised.
2.3. This pattern of requests for doing deliveries being made of the complainant, the complainant experiencing pain and needing time off work, followed by a brief period of office duties followed by another request for doing deliveries, continued throughout the summer until on 13 September 2011, the complainant was summoned to a meeting, with no warning whatsoever, and told he was dismissed. He was the only employee of the respondent who was dismissed at the time. The driver who had covered his route during his sick leave was retained.
2.4. The complainant submits that the above amounts to failure to provide reasonable accommodation, discriminatory treatment and discriminatory dismissal within the meaning of the Acts.
3. Summary of the Respondent’s Written Submission
3.1. As noted in paragraph 1.1 above, neither the respondent nor the respondent’s liquidator engaged with the Tribunal in relation to this complaint.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and discriminatorily dismissed within the meaning of the Acts by reason of his disability.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. At the hearing of the complaint, the complainant submitted medical reports which detailed his injuries, and also stated in evidence that even nowadays, three years after the accident, he is still experiencing back and neck pain when lifting things or reaching overhead. I am therefore satisfied that the injuries which the complainant sustained in his accident rendered him disabled within the meaning of S. 2(c) of the Acts.
4.5. The complainant stated that he started to work for the respondent in 2009 in a self-employed capacity, and then worked for them from 10 August 2010 to 13 September 2014 as a PAYE worker. Just two weeks prior to his accident, intimations had been made to him that he could revert to self-employed status on his route if he was interested. According to the complainant, these intimations were denied by the respondent by the time he was dismissed, even though the complainant stated that the respondent denied to him that this had anything to do with his disability. The complainant nevertheless stated that he believes that had he not experienced disablement, he would have been able to work on his route as a self-employed driver.
4.6. I found the complainant a credible witness and accept his submission that the respondent’s denial of its previous assurances is linked to his disablement and would not have occurred had the complainant retained his health. I am therefore satisfied that this action by the respondent constitutes less favourable treatment of the complainant on the ground of his disability.
4.7. With regard to the complainant’s complaint that the respondent did not provide him with reasonable accommodation after his accident, the complainant specified that the respondent company had about 10 office staff and approximately 15 drivers in two delivery centres. I am satisfied from those numbers that a considerable amount of office-based work accrued from the respondent’s operations.
4.8. After his injury, the complainant was out sick for eight weeks. He was assessed by the respondent’s doctor, who recommended further sick leave. However, on advice of his physiotherapist, he returned to work and requested light duties that did not involve any lifting. The complainant stated how his doing office work on the first day back lasted only for two hours, and how he was then asked to pack fridges, using unwieldy crates which could be up to 30 lbs in weight. He experienced back and neck pain doing this work. He was then also requested to do van deliveries again. He was promised a helper, but in fact never received help. The complainant went out sick again, and returned to office duties. However, he was again pulled out of the office and into delivery work after less than a week. The complainant stated that he was promised a light route, but stated that this involved delivering lunches for schoolchildren, with lots of juice and milk cartons, and that this route was heavier than his previous work doing Weight Watchers deliveries.
4.9. Based on the complainant’s evidence, I am satisfied that the respondent failed in its duty to provide the complainant with reasonable accommodation pursuant to its obligations set out in S. 16 of the Acts while he recovered from his accident. In particular, and as noted above, I am satisfied that with ten office staff employed by the respondent, that there was considerable office-based work in the business and that a solution to accommodate the complainant could probably have been found if the respondent had made any deliberate effort to meet its legal obligations toward the complainant. There is no evidence that this happened. I therefore find that the complainant is entitled to succeed in his complaint regarding lack of reasonable accommodation contrary to S. 16 of the Acts.
4.10. With regard to the complainant’s complaint of discriminatory dismissal, the complainant stated that after doing the delivery work set out in paragraph 4.8 above, he again experienced significant pain and on the advice of the respondent’s doctor, went on sick leave again. When he returned to the office, his manager called him on the first day back and told him he was being made redundant. However, the complainant disputes that this was a genuine redundancy and in this regard, adduced evidence that his position was immediately advertised again by the respondent. The complainant further stated that he was the only person who was let go, and the only person with a disability in the respondent company at the material time. Accordingly, it is the complainant’s position that he was dismissed because of his disability.
4.11. Again, I am finding in favour of the complainant in this matter. As already noted, at the hearing of the complaint, the complainant was a credible witness, and the case was not contested by the respondent. I am satisfied that the complainant has adduced sufficient evidence to show that his dismissal was not a redundancy, and I am further satisfied from his evidence that the respondent never met its obligations toward the complainant under the Acts in a manner which would enable it to rely on the provisions of S. 16(1) of the Acts with regard to the complainant’s dismissal. I therefore find that the complainant was discriminatorily dismissed because of his disability.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Brennan Convenience Foods t/a Food Partners (in liquidation) discriminated against, failed to provide reasonable accommodation, and discriminatorily dismissed, Mr Andrew O’Rourke because of his disability, contrary to Sections 8(1), 8(6) and 16 of the Employment Equality Acts 1998 to 2011.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant € 25,000. This sum equals approximately 9 months’ pay for the complainant and sets to balance the economic disadvantage sustained by the complainant against the fact that he did not work for the respondent for a prolonged period of time, even when self-employed periods are included in this. The award is in compensation for the distress suffered by the complainant and is not in the nature of pay and therefore not subject to tax.
12 August 2014