EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-109
PARTIES
Martin Doocey
Represented by Brendan Kelly, B.L
(Instructed by Thomas Coughlan and Company)
AND
Colso Fruit Enterprises ltd.
Represented by Mc Nulty, Boylan Solicitors
File reference: EE/2014/437
Date of issue: 22nd July 2016
1. DISPUTE
1.1 This dispute concerns a claim by the Complainant that he was discriminated against by the Respondent in relation to his 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 him with reasonable accommodation contrary to Section 16(3) of the Acts.
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11 August, 2014. On 29 February, 2016, in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations commission delegated the case to me, Patsy Doyle, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a hearing on 29th March, 2016, where both parties were represented.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer
who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015
2 Submission on behalf of the Complainant:
2.1 The complainant commenced work as a fork lift driver at the respondent company in September 1997. He had a short history of back issues in early 2008 before he sustained a back injury in the course of his work on 25th August 2008. This involved a collision with a pallet of frozen fish and caused the complainant to commence certified sick leave 2 days later on August 27th. The complainant remained on sick leave throughout the remainder of 2008 and 2009. These events were subsequently the subject of personal injuries proceedings which concluded between the parties in early 2014
2.2 The complainant attended the company doctor at the request of the company on two occasions during the course of 2009.
The General Manager of the company wrote to the complainant on 14 October 2009. He informed the complainant that the company was not in a position to have him return to work.
“ …… Unfortunately, you will see that Dr. H states that there is a higher risk of you suffering further back problems, and therefore a very increased risk of further injury to you at work. In the circumstances and in view of the nature of your work here we cannot at present take you back. Otherwise there would be issues with our insurance company etc. Unfortunately, as you are aware there is no light work available. We can assess the situation if circumstances change. In the meantime, please feel free to contact me at any time if I can be of assistance to you.”
The complainant submitted that he had sought to return to work with the company after this but was not permitted.
2.3 In July 2012, the complainant sustained a head injury in the course of a fall and subsequently recovered from the consequential brain injury. On 25 March 2013, the complainant’s solicitors wrote to the respondent’s solicitors seeking a return to work for the complainant. The letter contained an extract from a Consultant’s Report on behalf of the complainant:
“The traumatic brain injury should not be prejudicial against his ability to be assessed for this form of employment. However, this particular form of employment involving driving forklift would include a specific task and site base assessments. He would need clearance from the company’s Occupational Health advisors”
This letter was qualified by a request to the company to permit the complainant a return to work. This request was repeated on 21 March 2014. This time the request was directed at the Company:
“We have been instructed to write to you reiterating that our client is ready, willing and able to return to work and hereby call upon you to make the necessary arrangements to accommodate him “
2.4 The company responded to this approach on April 3rd 2014, by refusing to reactivate the employment relationship. The reasons given were that the complainant had not worked at the company since 2008 and the contract was now frustrated. The settled personal injuries case had heard that the complainant was not well enough to return to work. The complainant had worked for another employer.
The complainant was disappointed at this response and his solicitors approached the respondent solicitors again on 17 April 2014. This time, they sought “one final opportunity to have our client assessed and make provision for him to return to work” A letter from the complainants GP was attached and confirmed a fitness to return to work. This was rejected by the company on the basis of the “double jobbing “assertion. He sought his P45 from the company on May 2 2014.
2.5 The complainant submitted that he had made every reasonable effort to return to work from when he was cleared by the Occupational Health Doctor in 2009. He confirmed that he had completed some temporary work at a large employer at the outskirts of Cork but that it was his stated wish to return to his job given that he was “100% fit now”. He did not at any time resign from the respondent company.
In response to the respondent’s questions, the complainant submitted that he had some deficits in his memory but was clear that he was medically cleared to return to work in 2009, 2013 and 2014. He submitted that he could undertake supervising duties or checking loads in. He was capable of doing the job for the respondent. He submitted that he had tried to return to work in the intervening period and rejected the assertion that he had attended social gatherings in the company without mentioning this desire to return to work He denied that he had contributed to the confusion by working in a Bingo Hall or during his 6-month contract with the large employer in Cork.
The complainant submitted that he had to get work as social welfare payments were small. He had attended “Headway” and completed an 11-month course and was entitled to work. He was not aware of the social welfare measurement of his disability.
The complainants counsel submitted reliance on:
Fergal Reilly v United Parcels Service CSTC Irl Ltd Dec -E2013-077
A Government Department v A Worker [ADE 0516]
The complainant case is that the employer discriminated against the complainant in relation to his disability by not providing him with reasonable accommodation pursuant to Sec 16 of the Act and that they were not in any way proactive in providing special treatment or facilities and did not carry out any or any adequate assessment of the needs of the claimant with his disability in order to reasonably accommodate same. They contended that the respondent had not engaged with the complainant in accordance with the requirements of the Equality Legislation.
3 Submission on behalf of the Respondent:
3.1 The respondent disputed all claims against the company. The respondent addressed a preliminary point where they submitted that the complainant also had a live claim for Unfair Dismissal against the company and that progression under both Acts must be prohibited. In addition, the respondent disputed the relevance of the recorded date of dismissal as July 10th 2014. The respondent submitted that the claim must also be statute barred as the limitation period for submitting a claim had well passed.
3.2 It was common case that the complainant had had a long career as a forklift driver. He had worked as a forklift driver prior to joining the respondent company. The present company runs a cold storage facility where temperatures of up to -20 degree Celsius are the norm. It was submitted that the complainant had a full working knowledge of the parameters of roles within the company and he knew that there were no light duties available in this “heavy work” environment.
3.3 The complainants back problems dated from 1993 when he suffered a whiplash injury prior to joining the company. The complainant had some extended periods of sick leave after joining the company. At the hearing, we were referred to a medical report from the Occupational Health Physician dated 2 April 2003 which contained a reference to the then unwillingness of the complainant to discuss the nature of the illness contributing to the sick leave at that time.
3.4 The respondent submitted a request from the complainants treating Dr, for lighter duties on 12 March 2008 .The complainant had returned to work on 7th March of that year and worked up until he was involved in the workplace accident which contributed to his long term absence from work .The respondent presented as being extremely aggrieved that the complainant was now directing a claim for discrimination against the company when his personal injuries case had concluded positively in 2014 at the High Court. These proceedings postdated the High Court proceedings.
3.5 The respondent submitted a series of letters and Medical reports which emanated from the complainants treating team of GP and Consultant over the course of 2010. In addition, they submitted the communication between the company Dr., the complainant and the company during 2009. In particular, the respondent emphasised the letter of 14 October 2009 also referred to in the complainant’s submission, where the complainant was identified as a high risk of repeat back problems and confirming that there was no light work available in the cold storage company. The respondent referenced a report from the complainants GP in May 2009 where he anticipated that that the complainant was unlikely to make a full recovery due to low back pain and some disc damage.
3.6 The respondent then drew attention to the medical report of the complainants Neuro surgeon in terms of severity of the complainant’s physical health during March 2012.
· Variable pain in lower back in 2009
· Persistent severe lower back pain in 2011
· Spasms in 2012 while working with another employer
The respondent contended that this report reaffirmed that the complainant was not fit for work at this time.
3.7 The respondent summarised the case as there was simply no light duties available for the company to allocate to the complainant. In addition, there were identified Insurance issues given the identified risk of repeat back related ailments. The company had trialed a period of accommodation for the complainant when he returned to work in 2008 but he had only lasted 5 months prior to the antecedent workplace accident in August 2008 which caused him to resort to sick leave from 2008.
The respondent apologised for the nonattendance of the General Manager, who was on sick leave following an accident. The central argument relied on by the respondent was that they would have taken the complainant back to work if it was “sensible, viable and allowed by Doctors and Insurance Company”. The sole constant impediment was that he was not fit for forklift duties and there was no light work in the company. The complainant was not at any time certified fit for his usual heavy duties prior to coming back to work. In the wake of the personal injuries case, he was uninsurable. The complainant had gone to work for another company thus negating his contract with the respondent.
3.8 During the course of the hearing, clarification was sought on some supplementary points. Clarification was gratefully received from the respondent on April 1, 2016
· P45 was issued in May 2016 with a finishing date of July 15 2013, consistent with the complainant’s commencement on the 6-month contract. This was at the respondent request.
· The complainants pension finished in May 2014.
· 2009 was the last P60 issued by the respondent.
4 Evidence of Ms. C, Managing Director:
4.1 The business is a fast moving, physically demanding business which employs c. 18 full time workers, twelve of whom are based in the yard area. It involves a certain amount of multi-tasking where supervisors drive forklifts and during the past recession there was little demarcation in the jobs to be done. Containers encompass up to 60 boxes a there is a continuing need for heavy lifting of 10kg to 25kg Pallets. The company did not have an axe to grind against the complainant but while the medical advice was considered in relation to the complainant, there was simply no light duties available between 2008 and 2014. The work environment was onerous and challenging in upwards on -18 degrees Celsius. The company was unable to identify a suitable position for the complainant within that environment. In cross examination, Ms. C confirmed that she had not sighted the GP letter dated 15 April 2014 which had been referred to in the complainant’s submission.
5 Findings and Conclusions of the Equality Officer:
5.1 My objective in this case is to decide whether or not the respondent discriminated against the complainant on the ground of disability in terms of section 6(2)(g) of the Acts by failing to provide the complainant with reasonable accommodation as provided for in Section 16(3) of the Act. In reaching my decision, I have reviewed and listened carefully to both parties oral and written submissions in the case. I propose to address the preliminary issues raised by the respondent in the first instance.
5.2 The respondent has objected to this complaint on the grounds of parallel proceedings for Unfair Dismissal under Section 101(4) of the Acts. On April 23, 2015, in advance of the hearing, the Equality Tribunal wrote to the respondent and distinguished the instant claim as one of reasonable accommodation rather than dismissal. Notwithstanding that the EAT was due to hear the Unfair Dismissals case shortly after this hearing, my investigation was confined to the claim for reasonable accommodation under Section 16 of the Acts.
The respondent has objected to the claim on the grounds that it does not meet the requirements of the limitation period and is therefore statute barred. Section 77(5) of the Acts sets out the limitation period associated with complaints submitted to the Director of the Workplace relations commission:
(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
" In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.”
Throughout the course of my investigation, I was struck by the primacy apparently given by
both parties to pursuance of the personal injuries case. I am surprised that the prospect of the
complainants return to work did not arise during these discussions. It is clear that the complainant did seek to return to work from 2009 onwards but this seems to have taken on a purposeful vigour from 2013 onwards when his solicitor advanced the case on his behalf. This was then followed by the GP letter dated 15 April 2014. I find that the Complainant has established the required link between the separate manifestations as outlined in the above case and that his complaint is ongoing and within the statutory timeframes permitted under the Acts.
5.3 Disability: For the purposes of the Acts Section 2 provides 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;
Based on the evidence given at the hearing, in addition to submissions received, I find that the complainant had a disability in this case.
5.4 There were a large number of medical reports on the complainants back and subsequent head injury relied on by both parties in this case. I would like to focus in particular on an early letter from the company Occupational Health Physician dated February 22, 2009, where the complainant was deemed fit to return to work in general terms. Dr H did state that a risk existed in relation to a proposed return to work and declared that the risk management responsibility rested between the respondent and the complainant. This letter referred to a letter from the General manager to the Occupational Health Physician, this letter was omitted from the submission and I was unable to seek clarification from Mr O S given his long term absence from the workplace.
This letter was followed up by a shorter version of the same advice to the respondent on 6 October 2009, where the complainant was deemed fit to return to work “today “but again deferred to the caveat of resolving the return to work issue between employer and employee. From that day forward, I did not find any con joint evaluation of the issues by the respondent/complainant outside the “snap judgement “of the complete absence of readily available light duties.
It appears to me, from my investigation, that that the lodging of the personal injury claims in February 2010 followed by the complainant’s head injury in July 2012 and the commercial impact of the recession resulted in a period of time where the prospect of having the complainant back at work was not uppermost in the respondent’s mind. It was a case of out of sight out of mind in employment terms.
The complainant stated at the hearing that he made a number of attempts to return to work with Mr S, General Manager but did not have any documentary evidence of this and admitted that he had some residual short term memory impairment. I accept that he stopped sending sick certs to the company in the wake of lodging his personal injuries case and that he was compelled to find some work to support his family given his stated inability to return to his fork lifting job. I cannot accept the assertion as articulated by the respondent that by working for another employer, he de facto resigned his position in July 2013. I find that this assertion amounts to an avoidance mechanism of dealing with the claim. It is of particular note that the complainant did not tender his intention on resignation until the letter of May 2nd 2014 written by his Solicitor
5.5 Frustration of employment has been described by Jeffrey Greene in IELJ 2016 13(2) as a
“Contract deemed to have been discharged where an event has occurred which renders further performance impossible or radically different from the contemplation of the parties at commencement”
In Gallagher V Eircom (UD955/2004) Imprisonment was regarded as such an instance. However, in a UK EAT case of Warner Armfield and Retail leisure ltd (UK EAT 0376/12), the Tribunal remarked that:
“As a matter of everyday practical reality employer and employees are expected to deal with issues of disability, sickness within the framework of the employment relationship “
This was echoed in an Irish EAT Unfair Dismissal case, Kearney v Tesco UD86/2010, where the Tribunal remarked that it was not always helpful to deal with cases of incapacity through frustration of contract when statutory provision exists for dealing with particular issues.
The statutory provision relevant to this case is that of Section 16 of the Acts on reasonable accommodation.
5.6 Section 16 of the Employment Equality Act 1998, as amended, provides as follows:
(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.
…..
Section 16 (3) provides
(a) For the purposes of this section, 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) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -
I. To have access to employmentii. To participate and advance in employment,
iii. To undergo training,
Unless the measures would impose a disproportionate burden on the employer.(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.
(4) In subsection (3)—
‘appropriate measures’, in relation to a person with a disability—
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”
This section of the Act places an obligatory responsibility on the employer to engage with an employee seeking reasonable accommodation. In this case, it did not compel a return to work for the complainant, but it set down a road map that should have been followed to explore the possibilities if any to avail of reasonable accommodation. I cannot adduce any evidence that this road map was followed in any meaningful way by the respondent. I find, however that the complainants return to work was actively avoided from 2013- 2014 onwards. I find that the failure of the respondent to action the GP letter of April 15th into an Occupational Health Consultation in accordance with their practice in 2009 to amount to a serious error of judgement. I accept the evidence of Ms C that the letter had not been brought to her attention but the GP letter was acknowledged by the company and should have prompted an engagement with the complainant. I say this as it would have complied with the respondent’s obligations under reasonable accommodation but also, the respondent acknowledged that pension contributions were continually paid by the respondent and complainant from the antecedent sick leave in 2008. While the company admitted that it did not have a permanent ill health scheme, this fact alone demonstrated a continuum of employment and a subsequent duty of care that one could reasonably expect to follow from this.
I have reflected on the respondent case that the complainant was too high risk and became uninsurable as the justification for the refusal to return him to work. This assertion was not accompanied by proof of documentary evidence to support this, so I have to disregard it. I find that the respondent understood that they had discharged all their responsibilities to the complainant through the conclusion of the personal injuries claim in 2014 and there was no goodwill left to contemplate a return to work. I am at a loss to understand why this proposed return to work was not addressed at this time, given the overlap of the same parties, however, this omission to address the parameters of reasonable accommodation has placed the respondent on a direct collision course with their obligations under S.16(3) of the Acts.
In addition, the snap judgement of “there are no light duties available” from the respondent is in direct conflict with the growing body of jurisprudence on this issue. I appreciate that the respondent was struggling to maintain their business through the challenges of the recession. I understand that the “below zero Celsius” working environment may have been problematic but there was a strict legal onus on the respondent to try at least to explore options with the complainant given that he had placed them on formal notice of his intentions in this regard without placing a disproportionate burden on the respondent. I can find no evidence of these discussions as provided for under Section 16. There was some scope for a full assessment of measures necessary to accommodate the complainant as referred to in A Hotel V A worker EDA 0721. This did not follow.
In ECJ HK Danmark v Dansk Almennyttigt Boligselskab DAB and KK Danmark v Pro Display C-335/11and C-337/11The ECJ marked the transition from the medical to the social approach to Disability in recommending that the pattern of working hours could be adjusted as reasonable accommodation .
“If a curable or incurable illness entails a limitation which results in particular from physical, mental, or psychological impairments which in interaction with various barriers may hinder the full an effective participation of the person concerned in professional life on an equal basis with other workers and the limitation is long term one, such an illness can be covered by the concept of disability within the meaning of Directive 2000/78/EC.”
In Nano Nagle Centre v Marie Daly [2015] IEHC 785, Noonan J. held that options with regard to reasonable accommodation need to be put to the person claiming under this clause. This could involve adaptation of work patterns, distribution of tasks, inclusive of elimination of tasks. The High Court held that the respondent had to prove that it had considered adjusting the duties required of a Special Needs Assistant to permit a return to work. The High Court recognised the restrictions to this obligation when it stated:
“It may or may not be relevant to consider whether a point is reached where the appropriate measures transform the job into something entirely different from that which originally existed “.
In the instant case, the respondent identified that it could not simply accommodate the complainant on his return to work post an extremely elongated period of sick leave. It put a number of obstacles in his way involving arguments on insurability, a de facto resignation through double jobbing and the lack of consideration for the GP letter of April 15th 2014, where the complainant’s representatives had specifically requested that he be medically assessed. It is accepted in Section 16 of the Acts that there are stated limitations to reasonable accommodation based on a disproportionate burden, however, in this case, the respondent failed to action the obligations provided in section 16 in the first instance and cannot, therefore avail of the defence of the limitations. I find that the complainant, therefore has attained the burden of proof necessary in Section 85A of the Acts, that is, he has raised a prima facie case of discrimination on the grounds of a breach of Section 16(3) of the Act and the respondent has failed to rebut it.
6. Decision
6.1 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 and failed to provide him with reasonable accommodation to enable him to return to work in terms of Section 16 of the Acts.
6.2 In accordance with section 82 of the Act, I order that the respondent pay the complainant €11,520. The complainant was not in receipt of remuneration from the respondent at the time of the complaint. The entire award of €11,520 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended).
6.3 I order the respondent to incorporate a policy on reasonable accommodation in their staff handbook within 6 weeks from the date of this decision.
Patsy Doyle
Adjudicator/Equality Officer.