SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
CREGG LABOUR SOLUTIONS LTD T/A CREGG GROUP
(REPRESENTED BY MR RODERICK MAGUIRE BL INSTRUCTED BY FG MACCARTHY SOLICITORS)
- AND -
(REPRESENTED BY MACSWEENEY & COMPANY SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Appeal under Section 83 of the Employment Equality Acts 1998 to 2011.
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 17 May 2016. A Labour Court hearing took place on 3 November 2016. The following is the Court's Determination:
This is an appeal by Mr Gerard Cahill against a decision of an Adjudication Officer DECADJ-00000029 issued on the 29thApril 2016. The Adjudication Officer decided that he was not discriminated against by Cregg Labour Solutions Limited.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Gerard Cahill will be referred to as “the Complainant” and Cregg Labour Solutions Limited will be referred to as “the Respondent”.
The Complainant referred a complaint to the Workplace Relations Commission on 5thNovember 2015, alleging that he was dismissed on account of his disability contrary to Section 8 of the Employment Equality Acts 1998-2015 (the Acts) and that the Respondent had failed to comply with its obligation to take appropriate measures to enable him to return to work after he suffered a heart attack on 17thJuly 2015.
The Complainant clarified for the Court that claims alleging discrimination on the ground of disability in failing to employ him and to promote him which were originally referred to the Workplace Relations Commission and for which no decisions were given, were not on appeal to this Court.
The material factual background to the case can be summarised as follows:-
The Respondent is a specialist outsourced recruitment and payroll services provider, it provides agency workers to end user companies, in the manufacturing sector and elsewhere. It is an employment agency within the meaning of the Employment Agency Act 1971.In late 2014, the Agency had been contracted to employ staff to work for Arravasc Limited, a company involved in the design, manufacture, distribution and marketing of medical devices. The Complainant applied through the Agency for a position with Arravasc Limited and he commenced work at the Galway plant on 29thOctober 2014 as a Manufacturing Team Member and was paid €10.25 per hour.
On Friday 17thJuly 2015 while at home the Complainant suffered a heart attack (described as a myocardial infarction), he was hospitalised and underwent a stenting procedure under the care of a Consultant Cardiologist. He spent four nights in hospital and following his discharge he was required to attend intermittently at the outpatients department and at a Cardiology Clinic for rehabilitation purposes.
He had no contact from the Respondent during his hospitalisation for some weeks afterwards. On 27thJuly 2015, he was contacted by the Respondent who sought a medical certificate, this was emailed on 31stJuly 2015. On 7thAugust 2015, he was contacted again by the Respondent, who enquired about his health, he informed her that he was scheduled to be reviewed by his GP the following day. On 8thAugust 2015, the Respondent enquired when he might be in a position to return to work. He informed the Respondent that his GP said he would not certify him as fit to return until after he had undergone an outpatient review and assessed by the Cardiology Clinic. He certified him as unfit for work until 28thSeptember 2015. He had an appointment with his Consultant Cardiologist for 16thSeptember 2015.
The following day, 9thAugust 2015, the Respondent contacted him to set up a meeting for 11thSeptember 2015. When he attended that meeting he was informed by the Respondent that Arravasc Limited was not prepared to await his recovery any further and in consequence, his employment was terminated with immediate effect. The Complainant requested that the Respondent at least await the outcome of his appointment with his consultant before making such a decision. He was dismissed on that day.
The Respondent raised a preliminary issue whether or not the Complainant had a “disability” within the meaning of Section 2 of the Acts. It relied upon four authorities in support of its contention -Fag og Arbejde (FOA) v Kommunernes Landsforening C-354/13;
HK Danmark v Dansk Almennyttigt C-335/J3&C337/1; Department of Justice, Equality & Law Reform v. William Kavanagh[ADE/10/36] andStobart (Ireland) Limited v. Richard Beashel[ADE/13/35].
Both parties were given the opportunity to address the Court on the issue raised and to submit further submissions and/or authorities on the point.
Summary of the Complainant’s Case
Mr Philip Ryan, Solicitor, Mac Sweeney & Company Solicitors, on behalf of the Complainant, submitted that the Complainant was discriminated on the disability ground by the Respondent as it had dismissed him as a direct consequence of his disability. It had failed,inter alia, to afford the Complainant any reasonable accommodation in failing to properly ascertain the nature, extent and /or likely duration of his illness and consequent incapacity; it failed to ascertain or confirm his likely return to work date; to secure medical evidence prior to taking a decision to dismiss him; failed to establish the extent to which he could be eased back into the workplace; failed to consider alternatives, such as placing him on indefinite sick leave pending his rehabilitation and dismissed him with undue haste, within a short period of his suffering a heart attack. Mr Ryan said that all the Complainant required was a little time and understanding to allow him space to recover without the additional worry of losing his job. He was deemed fit to resume work from January 2016.
Mr Ryan stated that the consequences of his dismissal was the loss of security and the psychological/emotional blow to the Complainant however, he also maintained that it had more serious consequences as it was the practice of Arravasc Limited where it is satisfied with the performance of agency staff, to employ them as direct employees of the company after a period of one year.
In response to the Respondent’s contention that the Complainant’s medical condition did not constitute a “disability” within the meaning of the Acts, Mr Ryan submitted that a heart condition and in particular, a myocardial infarction (heart attack) meets the definition for the purposes of the Acts. He contended that it is generally accepted that the definition of “disability” in the Acts is a wide one.
In support of his contention he citedA Government Department v. A Worker [ADEI07123 and EDA094]where the Labour Court set out an analysis of the definition of "disability" as follows:-
- “It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer.
This is clear from the definition which provides that it:-
"shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person ''”
The Courtalso stated that:-
- "The Court must take the definition of disability as it finds it. Further, as the Act isa remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of IrelandvPurcellIR327).”
Mr Ryan commented on the four authorities relied upon by the Respondent:-
- (i)Fag og Arbejde (FOA) v Kommunernes Landsforening C-354/13
This case related to an individual who was suffering from obesity.
The Court stated at paragraph 53 that:-
- "the Court held that the concept of "disability" must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis.”
At paragraph 59 the CJEU stated that obesity could, in fact, constitute disability if it met that definition.
However, Mr Ryan said that it is clear that the definition specifically related to Council Decision concerning the conclusion by the EC of the United Nations Convention on the Rights of Persons with Disabilities (201 0/48/EC) which does not define "disability". In the Irish context, Section 2 of the Acts sets out a comprehensive definition of "disability" and it is submitted that "disability" can only be assessed on the basis of that detailed definition.
In addition, it is specifically stated at paragraph 28 of the decision that:
"The Directive lays down minimum requirements, thus giving Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.”
- (ii)HK Danmark v Dansk Almennyttigt C-335/J3&C337/11
- (iii)Department of Justice, Equality & Law Reform v. William Kavanagh[ADE/10/36]
In this case, the Labour Court was asked to consider whether or not benign essential hypertension (known as "BET") constituted a "disability". The Court did not make a determination on that net issue and instead determined that even if it did constitute a "disability", that section 37 of the 1998 Act applied and the employer in that case (being the Prison Service) could not provide "reasonable accommodation".
Therefore, Mr Ryan contended that there is no relevant to this authority in assisting in the definition of "disability".
- (iv)Stobart (Ireland) Limited v. Richard Beashel[ADE/13/35]
In this case, the Labour Court determined that depression was a "disability". The employer had sought to argue that depression was not long term and thus could not come within the meaning of "disability". The Court dispelled any notion that Irish law requires an impairment to be long-term in order to constitute a "disability":-
- "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 suffered a bout 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 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."
Mr Ryan contended that the instant cases falls squarely within the above reasoning. In any event, he said that in determining that the Complainant could not perform his duties as a result of a heart attack, the Respondent imputed a disability to him, as encompassed under Section 2 of the Acts.
Summary of the Respondent’s Position
Mr Roderick Maguire, B.L. instructed by F.G. McCarthy Solicitors, on behalf of the Respondent accepted that the Respondent was the Complainant’s employer for the purposes of the Acts. He accepted that the Complainant had been dismissed by the Respondent and that no reasonable accommodation had been considered for him. He stated that the Complainant was employed by the Respondent as an agency worker in Arravasc Limited and if the business needs of the latter declined he could be given one week’s notice of termination of his employment.
He said that at the material time the Complainant knew that whilst he was in the employment of the Respondent it was solely for the purposes of carrying out work for an on behalf and at the premises of its client, Arravasc Limited.
In any event Mr Maguire contended that the fact that the Complainant had a heart attack does not mean that he suffered from a “disability” within the meaning of the Acts. He cited a number of cases in support of his contention,viz.HK Danmark v Dansk Almennyttigt Boligselskab C-335/J3&C337/11.Mr Maguire relied on this case to demonstrate that a disability must be “long term”. InHK Danmarkthe CJEU sought to define "disability" in circumstances where EU Directive 2000/78 did not, at paragraph 25 it states:-
- "The referring court observes that in Paragraph 45 of its judgment in Case C-13/05 Chacon Navas  ECR I-6467the Court states 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".
and at paragraph 39 :-
- “In addition, it follows from the second paragraph of Article 1 of the UN Convention that the physical, mental or psychological impairments must be "long-term "".
In this regard Mr Maguire further relied upon the Labour Court case
Stobart (Ireland) Limited v. Richard BeashelDeterminationEDA1411:-
- “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.”
Mr Maguire submitted that the Court should adopt the same reasoning in this case, adopting the definition of the CJEU and that the illness of the Complainant must be established as long term before it can be considered a disability. He submitted that the failure by the Respondent to make enquiries in this case is very different to that inStobart.InStobartthe Court had decided that the illness complained of (depression) was in fact long term. In this case the evidence is that it is not long term, therefore that settles the issue as set out in the CJEU case law and as adopted inStobart.
Mr Maguire highlighted that not all medical conditions are a “disability” within the meaning of the Acts. In that regard he relied upon the Labour Court caseDepartment of Justice, Equality&Law Reform v. William KavanaghDeterminationEDA1120 where the Court considered whether or not controlled benign essential hypertension (known as "BET") constituted a "disability” within the meaning of the Acts.Mr Maguire compared this case with the Complainant’s case on the basis that the latter’s condition was a one off event and was a “controlled” condition in the same way as controlled benign essential hypertension. InDepartment of Justicecase the Court did not find it necessary to make a finding on the point. Mr Maguire submitted that a heart attack was a once off event and in that regard he argued that it does not automatically follow that a person who suffers a heart attack has a limitation which hinder their participation in professional life.
Mr Maguire submitted that the onus was on the Complainant to show he had a “disability” within the meaning of the Acts. He said that the Court was not furnished with anyevidence that the Complainant is or was "disabled". On the contrary he submitted that the only evidence available suggested that it was a temporary illness rather than a disability. In his submission, the Complainant stated that if he had asked his doctor on 16 September 2015 whether he could return to work (which he didn't do)"he is certain he would have been facilitated in returning to work (at least on a phased basis"and"all he required was a little time and understanding, to allow him the space to recover from an unfortunate heart attack"
Mr Maguire said it is clear that the Complainant had a heart attack, and that is not disputed by the Respondent. However, the Complainant was terminated from his employment as the end user no longer wished to employ him when his temporary absence was extended. Mr Maguire said that the Complainant was not terminated directly because of his myocardial infarction in that the event of the heart attack was not the reason that he was terminated, but rather the fact of his uncertain temporal absence from work.
Section 2 of the 1998 Act states that "disability" means:
(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 from a person without the condition or malfunction, or
(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,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;.
Does the Complainant have a “disability”
InHK Danmarkthe CJEU was called upon to provide guidance on how the concept of disability is to be distinguished from that of sickness. It was therefore necessary to clarify the practical application of its earlier decision inChacon NavasvEurest Colectividades SAwherethe Court ruled that Directive2000178/ECdoes not apply to sickness, with the consequence that a worker who is dismissed because of illness does not come within the protection which that Directive provides, nor is a worker who
suffers from illness (as opposed to disability) entitled to reasonable accommodation so as to ameliorate the effects of their condition.
However, the definition of “disability” in Irish law, which preceded the Directive is sufficiently broad to cover certain types of illness although clearly it would be absurd to suggest that all forms of sickness could properly be classified as a “disability".
In this case there is substantial disagreement between the parties on the question of whether or not the Complainant suffered from a disability.
In the Labour Court case ofA Government Department v. A WorkerDeterminationEDA094,the Labour Court set out an analysis of the definition of "disability". It stated as follows:
- “That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability contained at s.2 of the Act and the application of that definition to the facts as admitted or as found by the Court. …………
It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it:-
- “shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”
It is now well settled that where a term used in a statute is defined by the statute itself a Court cannot look outside that definition in construing that term. As this Court stated inGemma Leydon Customer Perceptions Ltd,Determination EED0317 and again inA Worker v A Government Department17 ELR 225: -
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a court may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. (See the decision of the Supreme Court in Mason v Levy  I.R. 40.)”
The Court also stated that:-
"The Court must take the definition of disability as it finds it. Further, as the Act isa remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of IrelandvPurcellIR327).
InGemma Leydon v Customer Perceptions Ltd,Determination EED0317, this Court considered the question raised by the respondent that because the complainant’s condition was temporary in nature and relatively minor in terms of its debilitating effect, it could not be regarded as a disability.The Court referred to the view that the disability provisions in the Irish statute appear to be modelled on the Australian Disability Discrimination Act 1992. The Court concluded as follows:-
- “Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.”
Conclusions of the Court
The approach which national courts and tribunals should adopt in dealing with an apparent conflict between national and European law contained in a Directive was set down in Case 282/10Dominguez v. Centre Informatique du Centre Ouest Atlantique IRLR 321the CJEU gave guidance on how a national court should proceed when faced with an inconsistency between its domestic law and the law of the Union. It pointed out that if the Court is unable to construe the domestic provision in harmony with the Directive it should then consider if the Directive is capable of being applied directly by the doctrine of direct effect. However, it is a general principle of European law that the implementation of a Directive should not result in a worsening of the pre-existing position of those for whose benefit the Directive was adopted (the principle of non-regression).
Hence adopting the same logic in the instant case as held inCustomer Perceptions Ltd,the Court accepts that the Complainant did suffer a malfunction at the material time and to satisfy the definition under the Acts, that malfunction does not necessarily have to be long term. Accordingly, the Court finds that the Complainant’s condition amounted to a disability within the meaning of the Acts. Therefore, the Court is of the view that the Respondent cannot now rely on an assertion that his condition was temporal in nature when it made the decision to dismiss him.
Obligation to Provide Appropriate Measures
The duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicability of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required, as held inHK Danmark.
In circumstances where an employer is considering terminating the employment of a person with a disability, there is an obligation on them to consider “reasonable accommodation”. This obligation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If, however, the employer fails to properly understand the scope of its duty or fails to adequately consider all of the options that may be available, they will have failed in their statutory duty toward the disabled person.
Section 16(1) of the Act provides: -
- (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.
- (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
- (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,
(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.]
- (i) to have access to employment,
In its decision this Court held as follows: -
- 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 claimant 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.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
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, s.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 a later determination, reported asA Worker v An Employer ELR 159, this Court expressed the statutory duty on an employer to make reasonable accommodation for a disabled employee as follows:
- “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull  I.R.L.R. 60).
The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge  I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.”
Therefore in accordance withHumphriesand inA Worker v An Employera failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.
The Court notes that prior to the decision to dismiss the Respondent made no enquires into the Complainant’s condition or his likely return to work date. It sought no medical evidence into the nature or extent of the Complainant’s condition. On 11thSeptember 2015, while in possession of a medical certificate certifying him absence until 28thSeptember 2015 and in the knowledge that he had an appointment with his Consultant on 16thSeptember 2015 the Respondent without any further enquiries terminated the Complainant’s employment. Therefore, the Court finds that the Respondent discriminated against the Complainant on the ground of his disability.
The Complainant’s appeal is allowed.The Decision of the Adjudication Officer is set aside. The Court awards the Complainant compensation in the amount of €15,000 to be paid within42 days of the date of thisDetermination.
The Court so Determines.
Signed on behalf of the Labour Court
1 December 2016______________________
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.