THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2014 – 066
A Worker (represented by SIPTU)
A company (in receivership and represented by Holmes O’Malley Sexton Solicitors)
File References: EE/2011/795
Date of Issue: 26th September 2014
Keywords: disability – brain tumour – failure to provide reasonable accommodation – S. 16 - part-time work as reasonable accommodation – medical assessment confirming ability to work part-time led directly to dismissal – discriminatory dismissal.
1.1. The case concerns a claim by Mr A that the respondent 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 failure to provide reasonable accommodation and discriminatory dismissal.
1.2. The complainant referred a complaint against the first-named respondent under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 1 December 2011. A submission was received from the complainant on 11 April 2011. No submission was received from the respondent. On 9 April 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 hearing of the case on 28 May 2014, in which I heard the facts which surrounded the complainant’s treatment and dismissal from both the complainant, and the former HR manager of the respondent, who had, in the course of a transfer of undertaking, become HR manager of the company which took over the respondent business in November 2011. These facts would not have been in the possession of the respondent’s receiver, since they no longer employed the witness. I then adjourned the hearing to 6 August 2014, and notified the respondent’s receiver of the date of the adjourned hearing. The purpose of the adjourned hearing was to clarify the respective responsibilities of the respondent and the company which succeeded it towards the complainant, with regard to the Transfer of Undertaking. On 28 July 2014, I received notification by email from the respondent’s solicitor, advising me that the respondent’s receiver would not make an appearance at this hearing. The complainant and his representative and the respondent’s successor company, their witness and their representative, were present at the adjourned hearing on 6 August 2014.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he commenced to work as a general operative for the respondent, a quarry business, in 2004. He held a variety of positions before he had to undergo surgery for a brain tumour in November 2009. The operation was successful, and the complainant made a full recovery. In October 2010, he was advised by his doctor that he would be fit to return to work for 20 hours per week.
2.2. This request was initially implemented by the respondent, but by December 2010, the complainant was informed by the Operations Manager that he would have to return to work full time or he would lose his job.
2.3. In January 2011, the complainant was absent from work on sick leave, as the respondent would no longer accommodate him with a 20-hour work week. In June 2011, the complainant attended a doctor named by the respondent for a medical assessment. The complainant was then dismissed on 5 August 2011 on the ground that the respondent was not in a position to offer him a 20 hour work week on an ongoing basis. The complainant appealed this dismissal, but the appeal was unsuccessful. The reason given for his dismissal was again that he was not in a position to work full-time for the respondent.
3. Summary of the Respondents’ Written Submission
3.1. As noted above, the respondent’s receiver did not furnish a written submission to the Tribunal in this matter.
4. Conclusions of the Equality Officer
4.1. The preliminary issue in this case is for me to determine whether the respondent named in this case is the correct respondent in this matter. The main issues are whether the complainant was first denied reasonable accommodation within the meaning of the Acts and whether he was discriminatorily dismissed.
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. From all the evidence furnished in this case, I am satisfied that the within respondent was the complainant’s employer at the time when the complainant’s accommodation was withdrawn as well as at the time of his dismissal, and therefore was his employer within the meaning of the Employment Equality Acts. The complainant’s dismissal occurred, and was then confirmed on appeal, in August 2011, and the Transfer of Undertaking to the respondent’s successor company only took place in November 2011. Therefore, there can be no doubt that the within respondent is the correct respondent to the complainant’s case. The complainant never had a contract of employment with the successor company.
4.5. With regard to the substantive case, there was no dispute about the complainant’s illness and disability. I am satisfied that a serious, lengthy illness such as a brain tumour, even if successfully treated, does constitute a disability within the meaning of the Acts.
4.6. The complainant confirmed that he asked for accommodation of a 20-hour work week from the respondent’s managing director and also the HR manager, on medical advice. He then worked on five four-hour shifts per week on packing and splitting stone, which is done with a machine. While the complainant was not medically restricted in terms of driving, he did not drive any of the respondent’s vehicles any longer. The complainant was paid by the hour for those 20 hours per week that he worked.
4.7. The complainant further stated that when Christmas came, he was called in by the managing director who told him to return to a 39 hour work week or else “forget about it”. The complainant stated that since overtime was cut for other workers, it would be in the interest of the company if he worked only 20 hours. He also stated that he offered to the company to split his job with his son, who was also employed by the respondent, so that the respondent would have full-time capacity for the complainant’s role, but that this, too, was refused.
4.8. The complainant accepted that the noise from the stone-splitting machine affected him negatively, but stated that he never complained to anyone in the company about it. He stated that he had no problem working for 20 hours per week.
4.9. When January 2011 came, the complainant had no choice but to stay at home on sick leave, since his doctor would only allow 20 hours of work per week. According to the complainant, this affected him very negatively, as he had entered the workforce in 1965, and so for him, it was a “shock to the system” not to go to work any longer. At the material time, the complainant was 62, and had only three years to go to retirement. He said that he rang the respondent regularly to see whether he could be facilitated with a return to work. Instead, he received a letter in the post in August 2011 to tell him that he was dismissed. He appealed this dismissal, but it was upheld on appeal.
4.10. Finally, with regard to the respondent’s duty of reasonable accommodation under the Acts, the complainant stated that in his opinion, letting him work 20 hours per week was no a disproportionate burden on the company. He also expressed the view that the respondent did not engage with him in a meaningful way.
4.11. Mr B., who was HR manager with the respondent at the material time and who has been retained in that role with the respondent’s successor company, gave evidence that in September 2010, the complainant approached the company about his rehabilitation into the workforce. Mr B. explained that the Department of Social Protection facilitates this by allowing workers to earn wages in their jobs without affecting their entitlement to illness benefit. According to Mr B., the respondent was willing to facilitate the complainant’s rehabilitation in accordance with the scheme from the Department of Social Protection, but this was not extended, in terms of time, after that scheme came to an end. An agreement was then reached with the complainant that he would stay out of work until he was well enough to work 39 hours again. Mr B. stated that there was no position in the company which would have allowed the complainant to work just 20 hours, and that the machine he operated needed to be worked in a full-time capacity. He did not comment on the complainant’s evidence, that the complainant had suggested sharing the work with his son. The respondent did have the complainant medically assessed by its own doctor, and the assessment confirmed the recommendations by the complainant’s doctor, namely, that the complainant was not fit to do full-time work and had a poor tolerance of sound. However, this assessment did not lead to a renewed effort to accommodate the complainant, but rather, in the space of two days on receipt, to his dismissal. I will therefore deal with it when I discuss the complainant’s dismissal.
4.12. Overall, I am satisfied that while some degree of accommodation was provided to the complainant on his initial return to work, the respondent never seriously assessed the complainant’s situation in the light of its obligations to provide reasonable accommodation under the Employment Equality Acts. These obligations exist independently of whatever financial assistance the Department of Social Protection renders to workers who have been absent from the workforce due to serious illness. As noted in the preceding paragraph, the medical examination arranged by the respondent did not lead to discussions or plans on how to accommodate the complainant, but to his dismissal. The complainant’s offer to ensure that the respondent’s machinery was worked full-time by splitting his role with his son was never seriously considered. The complainant was capable of working for 20 hours each week, and since he was paid by the hour, did not put the respondent at a financial loss. This was confirmed by Mr B., who stated that the respondent did not suffer economic loss, but production loss from this arrangement. Furthermore, it is settled law that permitting part-time work is one way in which reasonable accommodation can be provided. That is to say, the accommodation the complainant was seeking was not in any way unusual.
4.13. Accordingly, I find that the respondent failed to provide reasonable accommodation to Mr A. within the meaning of S. 16 of the Acts, and that the complainant is entitled to succeed in this part of his complaint.
4.14. With regard to the complainant’s complaint of discriminatory dismissal, I already noted the complainant’s evidence that he simply received a letter from the respondent which advised him that he was dismissed. The complainant had previously attended the respondent’s doctor on 25 July 2011. On 13 June 2011, the complainant’s doctor had furnished information about the complainant to the company doctor. Mr B. gave evidence that the assessment of the company doctor was received by the respondent company on 3 August 2011, and stated the complainant would not be able to work full time and had a poor tolerance of sound as a result of his serious illness. Mr B. further confirmed that on receipt of this report, the complainant was issued with his P45. The complainant’s letter of dismissal, which was signed by Mr B., states that:
Dr C. has advised after reviewing you and the report received from your own GP .. that you are unfit to return to work on a full-time basis and that noisy jobs are an issue as you are experiencing a poor tolerance for sound.
The company is unfortunately not in a position to offer you a role for less than 39 hours per week therefore it is with regret that we issue you with your P45.
I am satisfied from this evidence that the complainant’s dismissal was directly related to both his disability, and to the respondent’s failure to meet its obligations towards the complainant in terms of the provision of reasonable accommodation pursuant to S. 16 of the Acts. While Mr A appealed his dismissal, the appeal was heard by Mr B., and there is no evidence that the decision was ever reconsidered in the light of the respondent’s obligations towards the complainant under the Acts. Accordingly, I am satisfied that the complainant was discriminatorily dismissed on the ground of his disability, and that he is entitled to succeed in this part of his complaint, too.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent company discriminated against Mr A. by not providing him with reasonable accommodation on his return to work after he had recovered from a brain tumour, contrary to its obligations under S. 16 of the Acts, and that it subsequently discriminatorily dismissed Mr A. on the ground of his disability contrary to S. 8(6) of the Acts.
5.2. In accordance with Section 82 of the Acts, as amended by S. 25(1) of the Civil Law (Miscellaneous Provisions) Act 2011, I hereby order that the respondent pay the complainant € 40,000 for the discriminatory treatment endured, and for his discriminatory dismissal, which is the maximum award I can make in this matter. 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.
26 September 2014