ADJUDICATION OFFICER DECISION
A Meat Factory Worker (Represented by Mr Cathal McGreal BL, Monahan Solicitors)
-V-
A Meat Processor (Represented by Ms Ciara Carty BL, Peninsula)
Adjudication Decision Reference: ADJ-00001504
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00002116-001 |
22/01/2016 |
Date of Adjudication Hearing: 15/04/2016
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Procedure:
This case refers to a General Operative in an abattoir and meat production facility (the Complainant) who has alleged that following an accident at work, which has led to a disability, that she has not been reasonably accommodated and where the treatment by her employer amounts to discriminatory dismissal.
The dispute concerns a claim by the Complainant that she was discriminated against by the Respondent in relation to her employment on the grounds of disability contrary to Sections 6(2)(g) of the Employment Equality Acts (hereinafter also referred to as ‘The Acts’), owing to the Respondent’s failure to provide her with reasonable accommodation contrary to Section 16(3) of the Acts.
The Complainant commenced employment on 3rd September 2012 where she is paid €9.50 per hour and where her work varies depending on demand. She is contracted to work a 37 hour week.
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
The Complainant, a Brazilian national, worked for the Respondent in a meat factory where she was required to work with meat and with knives. The Complainant has poor English.
The Complainant alleged that she suffered an injury in June 2014 at work when she was trimming meat and where a knife being used by a work colleague fell on her cutting her nose and upper lip which required medical treatment including five stitches.
The Complainant returned to work on 7thJuly 2014. It was recommended by her GP that due to the seriousness of the injury she received that the Complainant be moved from the area of work where the accident happened and that alternative suitable duties be assigned to her.
The Complainant experienced a setback during 2015. She attended counselling from May 2015 where she was required to attend for weekly sessions each Thursday morning. However she advised that she took further sick leave related to her disability from 17th August 2015, where she was also undergoing treatment.
The Complainant contended at the hearing that she was diagnosed in 2015 as suffering from post-traumatic stress disorder as a result of the accident and as such she had a disability as defined in the Employment Equality Act.
The Complainant submitted a medical letter to the Respondent dated the 7thOctober 2015 stating that she was unable to work due to psychological difficulties and flashbacks from the accident. She sought to return to work on the 2nd November 2015.
On the 2ndNovember 2015 the Complainant provided the Respondent with a letter from her doctor referring to flashbacks arising from her accident at work and an inability to work with knives. Her doctor referred to the fact that this medical condition was confirmed by the Complainant’s psychiatrist.
The Complaint contended that the Respondent was not satisfied with this where it immediately rejected the suggestion that she could work in a meat factory and not work with knives. The Complainant maintained that there was work she could do, for example making boxes, cleaning, or packaging and suggested this to the Respondent but that no reasonable consideration was given to her suggestions. Instead she maintains that she was asked to get further letters from her doctor where she understood that she was in fact being asked to get a letter saying she could work with knives or else she could not return to work.
The Complainant was upset at the way she was being treated and maintained that the Respondent’s refusal to accommodate her contributed to her poor financial situation due to not being able to return to work. She went back to her doctor and obtained a further letter, dated the 6thNovember 2015, again referring to her disability regarding the psychological effects of her accident at work. It is stated in this letter that she was suffering from post-traumatic stress from the accident and where she suffered flashbacks.
On the 11th November 2015 the Complainant met with the Respondent again concerning her wish to return to work. She contended that she was told that the cleaning and packaging jobs were all taken.
On the 20thNovember 2015 the Complainant’s psychiatrist wrote a recommendation that the Complainant should be moved to another department as working with knives exacerbated her anxiety and flashbacks arising from her accident at work.
On the 1stDecember 2015 the Complainant met with the Respondent and spoke about her difficulties with returning to work and where she was again seeking reasonable accommodation. On 2ndDecember 2015 the HR/Payroll Administrator wrote a letter to the Complainant where the Complainant concluded from this letter that the Respondent saw the matter very simply as one in which it did not have any alternative work (without providing any details – or seeking to consult with the Complainant on options) and the Complainant would have to be able to work with knives, or not at all.
On the 7thDecember 2015 the Complainant again spoke with the HR/Payroll Administrator. The Complainant maintained that at this meeting she referred to the Respondent’s letter of the 2ndDecember 2014 where the Respondent had concluded that she could only return to work if she was fully fit and when she was able to work with knives. When she asked the Respondent to confirm this conclusion the Complainant maintains that the Respondent confirmed she could come back to work when she was fully fit to work with knives. When the Complainant advised that she would do other jobs at the plant she was told that these other jobs including cleaning and packaging would involve working with knives, even if it was only for ‘5 minutes’. The Complainant said she would therefore need to look for another job and she contended that the Respondent instructed her to write a letter to this effect and that her P45 would issue to her. The Complainant wrote a letter to that effect on 7th December 2015 and gave it to the Respondent.
In another note to the Respondent on the same day the Complainant stated that she was grateful for her 3 years work with the company but that she didn’t know when she would be ‘fine’, meaning her difficulty with working with knives. The Complainant maintains that she did not say or write to the Respondent that she would never be able to work with knives.
The Complainant contended that her notes stated that she couldn’t work with knives and didn’t know when she would be able to, and with reference to her financial circumstances and responsibilities to her family she asked for an alternative role without having to work with knives.
The Complainant advised that the Respondent wrote to her on the 7th December 2015 and maintains that this letter effectively ignored the Complainant’s situation as it stated “as it stands, based on the two medical reports you are unable to carry out work with knifes (sic) and we have been unable to find alternative work that would not put you in contact with knifes (sic)”. The Complainant further argued that this letter to her, which was received on the 14thDecember 2015, only left a single day for her to appeal the Respondent’s decision. The Complainant maintained that this approach was contrary to the Respondent’s Sickness/Injury Payments and Conditions policy, and in particular the Respondent ignored a requirement for an independent medical examination as set out in the policy. The Complainant further argued that that if matters remained as they were, and that no alternative to a job working with knives was considered, that this was a discriminatory dismissal. As such the Complainant contended that no reasonable effort was made by the Respondent to seek alternatives to working with knives.
The Complainant therefore argued that the Respondent failed to afford her the protections afforded to workers with disabilities and referred to the case of A School v A Worker EDA1430 which was recently upheld on appeal to the High Court regarding reasonable accommodation.
Respondent’s Submission and Presentation
The Respondent refutes the allegation that it has discriminated the Complainant by reason of her disability and that it has failed to reasonably accommodate her.
The Respondent raised two preliminary points as follows:
The Respondent maintains that as the Claimant has also lodged a claim for Personal Injury before the High Court she is not entitled to obtain redress in both forums and referred to the rule in the Henderson v Henderson (1842) case as cited with approval in Parson v Iarnród Éireann (1997) 2 IR 523 and in Cunningham v Intel Ireland Ltd (2013) IEHC 207 where it was stated ““[A]ll matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances.”
The Respondent also argued that the Complainant has failed to put forward a prima facia case to show that firstly she suffered from a recognised disability and that the reasons for her failure to return to work were for discriminatory reasons in relation to this disability. The Respondent maintained that it is only if the initial burden is discharged and the Court is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes tothe Respondent. If the claimant does not discharge the initial probative burden required of [her], her case cannot succeed. The Respondent referred to Melbury Developments v Arthur Velpetters where the Labour Court set out the circumstances in which the probative burden of proof operates: "Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
The Respondent also contended under this preliminary point that the Complainant has not supplied any evidence of her allegations against the Respondent. Referring to Giblin v Bank of Ireland Asset Management Ltd (DEC E/2011/161) the Respondent argued that where a claimant had lacked any sound evidentiary basis the complaint should be regarded to be frivolous and vexatious and as such be dismissed.
The Respondent acknowledged that the Complainant worked without incident from her commencement of employment on 3rd September 2012 to 9th June 2014 when she was involved in a workplace accident where another employee dropped a knife from a height cutting the Complainant on the nose and upper lip. The accident required medical care which was provided by the Respondent.
The Respondent acknowledged the Complainant submitted sick certificates for the period 16th June 2015 to 23rd June 2014 due to a facial injury, and from 23rd June 2014 to 6th July 2014 due to stress.
On 7thJuly 2014 the Complainant submitted a fitness to work certificate where the Complainant’s doctor recommended that the claimant “be removed from the area of work where the accident happened. I recommend that alternative suitable duties be assigned to her in a different area of the business.” The Respondent advised the Complainant returned to work in a different area, but continued to perform similar work (with knives).
The Respondent acknowledged that (in May 2015) the Complainant submitted a letter from the HSE stating she needed to attend weekly counselling sessions on Thursday mornings at 11am.
The Respondent received further sick certificates from 17th August 2015 to 31st August 2015 stating the Complainant was unable to attend for work due to Post Traumatic Stress Disorder. The Complainant then submitted sick certificates on 22nd September 2015 to 28th September stating she was unfit to work due to neck pain, and from 2nd October 2015 to 12th October 2015 stating the Complainant was unable to work due to continuing treatment. The Respondent advised that on 7th October 2015 the Complainant attended her doctor with low mood and flashbacks of the accident and was unable to attend for work for a while. The Complainant then provided a sick certificate for 12th October to 1st November 2015 stating she was unable to work due to a neck injury
The Respondent advised that on 2nd November 2015 the Complainant submitted a fit to work certificate which stated “However she should not work with knives as she gets flashbacks from the accident she sustained at work. The recommendation has also been made by her psychiatrist.” On 3rd November 2015 the Respondent invited the Complainant to a welfare meeting to discuss her health, and on 5th November 2015 the Complainant again attended her doctor. The Respondent further advised that her doctor’s report issued on 6th November 2015 and stated “She is ready to work in any area of the factory that does not involve working with knives as she gets flash back which distress her.” The Respondent acknowledged that at this time the Complainant submitted a further medical report from her psychiatrist which stated “I would recommend that [the Complainant] be considered for transfer to another department within your company to avoid working with knives as this exacerbates her anxiety.”
The Respondent maintained that it met with the Complainant on 01st December 2015 in order to discuss facilitating her return to work and referred to this meeting in its written submission as a medical capability hearing. This meeting was attended by the Complainant, an operations manager, and the HR/Payroll manager. Following this meeting the Respondent issued a letter to the Complainant on 2nd December 2015 stating that there was no alternative employment available and that the Complainant should return to work when she was able to work with knives again.
The Respondent maintained that the Complainant resigned her employment on 7th December 2015 and stated that the resignation was because there was no role available for her and she did not know when she would be able to return to work. The Respondent contended that it asked the Complainant to reconsider her resignation as the role would be available to her when she was fit to return to work. In this regard the Respondent acknowledged that the Complainant suggested that she could work in the roles of making boxes, packing, or cleaning until she had fully recovered. However the Respondent maintained that the box making role was not a full time role where it amounts to only a few hours a week; that there is not a vacancy in the packaging role; nor was there sufficient work in the cleaning role as the current incumbent worked only 15-16 hours per week, and when the plant was busy it would amount to 30-33 hours per week. In addition to not having the available capacity in these roles, the Respondent argued that the packaging role was similar to the Complainant’s current role and involved the use of knives. The Respondent also maintained that the cleaning role involved using knives and where the cleaner, as part of her duties, must walk through the abattoir and pick up any knives that have been left down, and where knives had to be washed. The Respondent was therefore mindful that it understood the Complainant had a certificate from her doctor stating she was unable to work with knives.
In its response the Respondent maintained that it has not failed to reasonably accommodate the Complainant or that they have dismissed her on discriminatory grounds. The Respondent contended that the Complainant left and that her job remained open for her, but in light of the medical advice that she could not work with knives it was not possible to safely employ her until she was fit to return to work. The Respondent also referred to legal precedent as follows:
In accordance with Humphrey’s v Westwood Fitness Club (EED037) the Respondent attempted to appraise themselves of the full facts of the medical condition through reports from the Complainant’s doctor. The claimant was unable to work with knives and as all roles within the company involved working with knives, the respondents were unable to offer an alternative. In this regard the Respondent maintained that it acted reasonably and accommodated the Complainant by letting her know her role would be available to her when she was able to return to work.
In An Employer and A Worker (2005) ELR 159, the Labour Court found that the reasonable accommodation test is an objective one. They further held that 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. However the Respondent noted that the Tribunal did not feel that this was operationally feasible in a small plant. In this regard the Respondent submitted that to remove the duties the Complainant performed which involved knives would not be operationally feasible. Furthermore the claimant in resigning her employment did not give them an opportunity to assess what adjustments could be made. During the hearing the Respondent maintained that it had no other job without the use of knives and it was not feasible for it to build a special room for the Complainant to avoid knives so she could return to work. The Respondent also submitted that the Complainant did not afford the Respondent the opportunity to follow a process to determine if a further role or any accommodations could be made for the claimant.
In Rogers v Dublin Corporations [1998] ELR 59 it was held that an employer is not under any legal obligation to provide alternative work to an employee who is no longer medically fit to perform the duties for which he was employed. Furthermore in Carroll v Dublin Bus [2005] IEHC 278 Clarke J agreed with Rogers v Dublin Corp but made it subject to the employee being reasonably fit to carry out the work for which he was employed and where an overly technical objection to an employee’s ability to carry out such duties may disentitle the employer to treat the employee as being unable to do so; and secondly while stating that no term would be implied into a contract to the effect that an employer is under a duty to provide “light duties” to an incapacitated employee, but that this rule may be displaced by an express term in the contract of employment or by custom and practice.
In light of the precedents referred to above, and the fact that the Complainant was not fit to work with knives, the Respondent submitted the Complainant was not offered alternatives as her condition prevented her from working with knives and all roles in the abattoir involved working with or near knives. The Respondent reiterated that it did not dismiss the Complainant but informed her that her role would be available when she was fit to return.
Accordingly the Respondent maintained that it did not discriminate against the complainant on the grounds of disability in accordance with section 16 of the Employment Equality Acts 1998-2011. The Respondent refuted the allegation the Complainant was dismissed arguing that she in fact resigned her employment in circumstances where the Respondent acted reasonably in allowing the claimant time to recover before returning to work.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Preliminary issues for Decision:
The Adjudication has been provisionally asked to consider whether the case can be heard in the first instance as the Complainant has also made a claim to the High Court in relation to personal injuries and where the Respondent is relying upon the Henderson v Henderson (1842) precedent.
Having reviewed this matter and considered the issues presented before me, I am satisfied that the personal injuries claim is related to the workplace accident that occurred on 6th June 2014. I am satisfied that the complaint of discrimination and complaint of failure to provide reasonable accommodation are not part of the claim being made to the High Court which refer to a specific incident and in which the Complainant notified the Respondent she was intending to issue proceedings in relation to a personal injury shortly after the accident. I am satisfied the current complaint before the WRC refers to the alleged treatment of the Complainant in her attempts to return to work during 2015 following a period of sick leave, and as such they do not arise from the same set of facts or circumstances. The issues relating to the complaint before the WRC post-date the issues related to the claim which has been made to the High Court, and yet to be heard. As such I do not find that the WRC is being asked to decide upon the same set of circumstances, or circumstances which have already been heard and decided upon. Accordingly I find that the current complaint is properly before the WRC for adjudication.
On that basis the issues for decision are whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of Section 6(2)(g) of the Employment Equality Acts and failed to provide her with reasonable accommodation in terms of Section 16(3) of the Acts.
With regard the whether the Complainant has failed to put forward a prima facia case to show that firstly she suffered from a recognised disability, and that the reasons for her failure to return to work were for discriminatory reasons relation to this disability, Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. When investigating a complaint, the role of the Adjudicator includes undertaking an examination of any conflicts of fact in the evidence presented by the Parties to arrive at reasoned findings of fact.
Based on the evidence provided, and where it is clear that the Complainant experienced an injury due to a workplace accident, and where her sick certificate at the time indicated she was suffering from stress and should work in an alternative areas upon her return to work, it should have been obvious to the employer that the Complainant was prone to stress due to the work environment in which the injury occurred. Furthermore it is also clear that from May 2015 the Complainant was attending counselling sessions, and again due to her sick certificates during the latter part of 2015 where she is diagnosed as experiencing post-traumatic stress disorder. On that basis the Respondent should have reasonably known that that the Complainant was presenting with a disability.
The definition of disability contained in the Employment Equality Acts 1998-2008 sets out a list of broad categories of impairments within the definition as follows:
“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.
Generally the definition does not require that a disability meet a threshold of severity for the condition or impairment to meet the definition for the purposes of the legislation; nor does the case law define an exhaustive list of conditions. The definition includes temporary disabilities, imputed disabilities, past disabilities and future disabilities. Both the Labour Court and Equality Tribunal have held that disabilities which are of a temporary nature can come within the ambit of protection of the Acts.
Counsel for the complainant submitted that the Complainant’s condition (post-traumatic stress disorder) is a disability in terms of section 2(1)(e) of the Employment Equality Acts. I have carefully considered the evidence adduced by the parties on this matter and I am satisfied that the condition mentioned is encompassed by the definition of disability contained at section 2(1) of the Acts.
Accordingly I find that in light of the medical reports being provided to the Respondent at the time, and where such certificates are advising that the Complainant was experiencing post-traumatic stress disorder, a prima facia case based on credible evidence formed by medical experts existed regarding the facts relating to the Complainant’s condition. As such, and in consideration of the Respondent’s arguments, the Complainant has met is obligations under Section 85A of the Act. In this regard the Respondent also accepted the medical reports from the Complainant and did not seek an alternative opinion.
Decision Regarding reasonable Accommodation:
With regard to reasonable accommodation, Section 16(1)(b) of the Acts provides that an employer is not obliged to retain an employee in a position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is then subject to 16(3)(a) of the Acts which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of ‘appropriate measures’, more commonly referred to as ‘reasonable accommodation’. This is subject to the proviso that such measures would not impose a disproportionate burden on the employer. In practical terms, Section 16 of the Acts as interpreted in the seminal case of A Health and Fitness Club -v- A Worker EED037 upheld by the Circuit Court (Humphreys v Westwood Fitness Club [2004] E.L.R 296), requires the employer to undertake a two-stage enquiry.
Firstly, the employer has to establish the employee’s capacity to undertake their duties and secondly,
if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable.
The nature and extent of the enquiry depends upon the particular circumstances of each case but “an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision.” The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel EDA0721 as: “[T]he duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.” In An Employer -v- A Worker EDA1430, the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…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.”
In this regard having considered all of the documentation, evidence, and submissions presented I find that the Respondent has fundamentally misinterpreted and misconceived its obligations under Section 16 of the Acts in how it decided the manner in which it responded to the Complainant’s requests for reasonable accommodation. Essentially, it was the Respondent’s position that the Complainant was not fit to return to work unless she was certified as being fit to work with knives. This position is evidenced by the correspondence between the parties, and the meeting notes of the various discussions between the Complainant and the Respondent. However this decision is not supported by any objective test conducted by the Respondent before making its decision.
In effect the Respondent failed to conduct a proper and thorough enquiry once it became aware that the Complainant was certified as experiencing post –traumatic stress disorder (a recognised disability) and where the medical practitioners recommended alternative work should be considered. The Respondent decided unilaterally that the Complainant could not return to work so long as there were knives in the work environment, did not seek an independent medical view of the situation, nor did it conduct a proper analysis of what reasonable accommodation was required before it decided, on its own accord, that the Complainant could not return to work until she was in effect fully fit and without a disability. This decision, and action taken by the Respondent, clearly falls short of its obligations to conduct a proper enquiry as established in Humphreys v Westwood Fitness Club, a case it refers to in its defence.
Decision Regarding Discriminatory Dismissal:
With regard to discriminatory constructive dismissal, the definition of dismissal within the Employment Equality Acts covers constructive dismissal. Section 2(1) of the Employment Equality Acts provides that dismissal, includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly.
To meet the burden of proof on the Complainant, she must demonstrate that she was entitled to resign from her employment due to a fundamental breach of contract or in all of the circumstances, it was reasonable for her to resign. What is reasonable is a question of fact and the degree to be decided having regard to all the circumstances of the particular case. Except in exceptional circumstances the complainant is expected to seek to have formally invoked and worked through her employer’s procedures prior to resigning
The evidence provided supports the fact that the Complainant, upon advising the Respondent of her medical setback and condition during 2015 engaged in all meetings requested from her employer, and provided further medical evidence when requested regarding her condition. In this process the Complainant fully co-operated with the Respondent’s requests. Throughout this process she maintained that if her role was reconsidered and she was given opportunities to work elsewhere, in other words if she was reasonably accommodated, she could and was willing to return to work. She never indicated that she could not work with knives. However the evidence submitted and considered demonstrates that the Respondent was insistent that the Complainant could only return to work on the basis that she was fully fit and certified by her doctor to work with knives. This in effect ignored the nature of the Complainant’s disability. The Complainant maintained other work was suitable for her and without an objective assessment of this and whether she could be reasonably accommodated, she was left with no option but to resign in order to seek alternative employment. In this regard the Respondent failed to adhere to its own procedures which states “if we feel it necessary we will require you to be independently medically examined.”
In addition the Respondent sent a letter to the Complainant which did not appear to provide reasonable time for her to consider a response as to whether she wished to appeal the Respondent’s decision not to provide her with alternative work (i.e. she received a letter regarding her resignation on 14th December 2015 where the Respondent asked her to respond by 15th December 2015). I therefore find that this action, added to the Complainant’s previous efforts to have the Respondent give reasonable consideration to her needs, amounted to a fundamental breach in the trust between the parties. Under the circumstances I find the conduct of the Respondent towards the Complainant has entitled the Complainant to terminate the contract without giving such notice, and it would be reasonable to for her to interpret that she was in effect “dismissed”.
Conclusion and Findings:
I have concluded my investigation of the complaint herein and based on the aforementioned, I find that pursuant to Section 79(6) of the Act, the Respondent discriminated against the Complainant on grounds of disability in terms of Section 6(2)(g) of the Employment Equality Acts; failed to provide her with reasonable accommodation to enable her to return to work in terms of Section 16 of the Acts; and the actions of the Respondent led to the dismissal of the Complainant by way of the Complainant terminating her contract of employment because of the conduct of the Respondent.
In accordance with Section 82 of the Act, I order the Respondent to, within 42 days of the date herein, pay the Complainant €20,000 in compensation for breaches of the Employment Equality Acts. The Complainant clearly suffered considerable upset and distress in relation to the manner in which the Respondent responded to her diagnosis and handled her request for reasonable accommodation to enable her to return to work. This award is arrived at having regard to the nature of the discrimination where in effect, without conducting an objective assessment of the issue, the Respondent advised the Complainant that whilst her job remains open to her she can only return when she does not have a disability. In making my decision I also have regard of the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” and as such equates to just over one year’s pay. As this redress is for the infringement of the Complainant’s statutory rights, it is therefore not subject to income tax.
Dated: 8th July 2016