DEC-E2017-084

Employment Equality Acts    

Adjudication Officer/Equality Officer’s

Decision No: DEC-E2017-084 

Maciej Czajka

(Represented by Hoban Boino Solicitors) 

-v- 

Musgrave Retail Partners Ireland Ltd.

(Represented by IBEC)            

File No: EE-2014-284                                  

Date of issue:19 December, 2017

Keywords Employment Equality Acts - discriminatory treatment - disability - reasonable accommodation - prima facie case – discriminatory dismissal    

1.  Dispute and delegation

1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment in his working conditions by the respondent on the grounds of disability in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. In this regard, he alleges that the respondent failed to provide him with reasonable accommodation in his employment. The complainant also alleges that he was discriminatorily dismissed on grounds of his disability while out on sick leave. 

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal/Workplace Relations Commission on 21 May 2014 under the Employment Equality Acts. On 7 March, 2017 in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 24 April 2017.  

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.  

2. Summary of the Complainant’s case

2.1 The complainant is a Polish national and commenced employment with the respondent as a general operative/picker in its warehouse initially via a recruitment agency between May 2012 and October 2012 and again from 11 December 2012. The complainant was offered a contract to work directly for the respondent on 25 February 2013. The complainant alleges that he had an accident at work on 16 April 2013 and since that date up to the date of dismissal, he was on sick leave. The complainant submits that he was reviewed on a regular basis by the company’s medical management service, AIG who were in ongoing contact with the respondent. The complainant states that in late October 2013, the complainant being very disappointed with very little progress he was making in relation to his recovery decided to go to Poland to seek alternative medical opinion and to avail of more extensive physiotherapy which is far cheaper when compared to prices in Ireland. The complainant states that he left Ireland for a period of two weeks with the consent and approval of his GP, Dr. K. The complainant returned to Ireland from treatment in Poland in early December 2013. The complainant states that on 20 November 2013, the respondent decided to extend the complainant’s probation period to 17 February 2014. The reason the company gave was that due to absence, it was not possible for the company to carry out the complainant’s probation appraisals. The complainant asserts that the period of probation was extended despite the fact that the complainant was working for the respondent since May 2012. 

2.2 The complainant states that the respondent’s agents were notified on 1 October 2013 and again on 17 December 2013 by the physiotherapy department of the hospital that the complainant remained unfit to work following an accident at work in April 2013 and his return to work was assessed as being 3-4 month’s time. The complainant states that despite the fact that the complainant’s probationary period was extended, he was dismissed from his employment by a decision dated 24 January 2014 with effect on 31 January 2014. The complainant appealed the dismissal decision on 1 February 2014 on the basis of the following issues;

-  questioned the period of his probation considering his employment from May 2012

-  informed the respondent that he did not travel to Poland for pleasure but to receive treatment which was done in conjunction with his GP and with his GP’s full approval

-  advised the respondent that AIG were fully aware of his visit to Poland and were fully aware of his condition and his slow recovery

-  advised the respondent that the meetings were scheduled by the respondent purposely while they were aware he was in Poland

-  advised that while in Poland, he attended physiotherapy in the form of extensive hydrotherapy

-  that medical certificates were produced by his GP who approved the travel to Poland and certified the complainant for that period

-  the complainant never refused any prescribed treatment, he did not avail of steroid injections after consultation with doctors and his physiotherapist and arriving at the conclusion it is only temporary pain relief medication not a cure and the complainant outlined that he was determined to recover in full 

2.3 The complainant states that following his appeal, the respondent upheld its decision to terminate his employment. The complainant asserts that he was not allowed complete his probationary period which was only extended shortly before his dismissal and was not allowed, factoring in his disability, a further period of probation. The complainant asserts that he was dismissed due to his absence and his failure to return to work. The complainant submits that not only did the respondent fail to provide reasonable accommodation but also dismissed him before the end of his probationary period which was only extended previously by the unilateral decision of the respondent. The complainant also states that the respondent failed to assess the complainant’s medical condition before dismissing him and failed to take into consideration the information provided by the hospital’s physiotherapy department that the complainant would be fit to return to work in 3-4 month’s time. The complainant asserts that the respondent failed to consider accommodating a possible phased return to work on lighter duties. In addition, the complainant submits that the respondent failed to make inquiries in that regard in conjunction with complainant’s GP and the respondent’s occupational health physician to allow him remain in employment.   

3. Summary of the Respondent’s case

3.1 The respondent states that the complainant was employed by the respondent on 22 February 2013. His contract stated that his employment would be probationary for the first six months and the probationary period can be extended at the company’s discretion but would not exceed 12 months. The respondent submits that on 16 April 2013, the complainant reported that he had suffered an accident in the workplace resulting from the complainant reaching for a case of cat food. As a result of the accident, the complainant presented as unfit for work in his seventh week of employment. The respondent states that following standard practice, the complainant was referred to its occupational health service (AIG Medical and Rehabilitation). The respondent asserts that AIG opened a file on the complainant on 17 May 2013. The complainant was initially diagnosed with fractured vertebrae and was given a perspective return to work date of August 2013 by his GP. Following an MRI arranged by AIG, the complainant’s diagnosis was changed to acute back strain and a “congenital abnormality” to his spine. A course of treatment was recommended including weight loss, physiotherapy and an epidural. The respondent submits that the complainant declined the epidural viewing it as unnecessary. The respondent states that as is standard practice, AIG continued to manage the case file of the complainant on a monthly basis to assist his recovery.  

3.5 The respondent submits that as is normal practice in situations of long term sick leave, the respondent invited the complainant to an absence review meeting on 4 October 2013. The respondent asserts that during the meeting, the complainant’s progress was reviewed and the respondent expressed concern that the complainant had declined the epidural which the company’s occupational health physician had recommended. The respondent states that it reminded the complainant that it was the respondent that was paying for the treatment and that he should follow medical advice to assist in a speedy recovery and return to work. The respondent submits that a further meeting was held on 6 November to review the complainant’s absence. The complainant did not attend this meeting and on 6 November, the respondent received a letter from the complainant’s solicitor stating.. “the size and frequency of the monitoring by you and AIG MMR on your behalf is largely excessive and unnecessary. Such practices are not helping the recovery process of our client. Our client feels stressed and intimidated by the amount of control imposed on him.” The respondent replied advising that it would continue to engage with their employee and his trade union official. A further meeting was scheduled for 15 November and the complainant was duly informed. The respondent states that the complainant did not attend this meeting and no explanation was given for his non-attendance. The respondent asserts that on 20 November, the complainant was informed in writing that his probation period was being extended to 12 months as it had not been possible to appraise the complainant’s performance while he was on sick leave. The respondent asserts that it sought to schedule the second absence review meeting for 2 January 2014 and in this regard, wrote to the complainant on 12 December 2013 giving him three week’s notice of the meeting. 

3.6 The respondent submits that the complainant attended the meeting on 2 January and a number of matters concerning his absence were discussed. The respondent asserts that it had come to its attention that the complainant had failed to attend several physiotherapy sessions in order to visit Poland and the respondent stated at the meeting that it noted the complainant failed to inform them that he was going to Poland. The complainant’s failure to attend two absence review meetings was also discussed. The complainant was queried in relation to his continuance to send in weekly medical certificates from his GP while he was in Poland for three weeks. The respondent asserts that the complainant explained that his GP provided the certificates and his wife sent them to the respondent. The respondent states that following a review of the complainant’s employment, it was of the view that the complainant was not in compliance with the respondent’s absence policy. The respondent states that at a meeting of 20 January, the complainant was informed in writing that a decision would be made as to whether his employment would continue. The respondent asserts that at the outset of the meeting, the complainant was reminded that he was entitled to a representative and that the meeting could result in the discontinuation of his employment, however the respondent states that the complainant chose to proceed with the meeting. The respondent states that the following issues were discussed;

-  the complainant spent three weeks in Poland during November 2013 without informing the company.

-  the complainant had failed to attend a meeting and did not give any explanation for his non-attendance.

-  the complainant had continued to go against AIG’s medical advice on his recovery and had failed to comply with treatment to aid his recovery.

-  the complainant had submitted medical certificates that did not result from attending his GP’s surgery.  

3.7 The respondent submits that after due consideration, a decision was taken to terminate the complainant’s employment with the company during his probation in accordance with the contract of employment. The complainant was given the right to appeal this decision. The respondent states that at the appeal meeting, the complainant was invited on three occasions to adjourn the meeting to allow him a representative to accompany him, however the complainant declined. The respondent states that the letter of appeal of the dismissal was discussed and the complainant confirmed once again that he had travelled to Poland for medical treatment. The discussions also related to the complainant missing three physiotherapy sessions due to this travel. It was stated at the meeting that he had been given the attendance policy when he joined the company and that he had submitted certificates which did not result from visits to his GP. At this meeting, the complainant stated that he found being requested to attend meetings very stressful and upsetting. The respondent states that following the appeal, a decision was taken to uphold the termination. The manager stated that he took that decision on the following basis;

-  absence review meetings are standard practice across the company

-  the complainant missed two meetings due to being out of the country without informing the respondent

-  on two occasions, the complainant had been instructed to follow medical advice and treatment and had failed to do so

-  the respondent found it totally unacceptable to have a GP post sick certificates to the complainant’s wife who then posted them to the company

-  the respondent does not accept that normal absence review meetings were causing undue distress to the complainant

-  the letter of 20 January 2014 advised the complainant that his employment may be discontinued as a result of the meeting  

3.8 The respondent refutes the allegation that the dismissal was as a result of the complainant’s disability. However, it states that it is evidenced by the correspondence that the issues under consideration at the meeting of 20 January 2014 concerned the complainant’s failure to follow company procedures. The respondent states that at no time was the complainant’s injury discussed or considered and the respondent states that this is supported by the fact that the complainant did not raise this issue in either his letter of appeal or in his appeal meeting. The respondent submits that section 16(3) of the Acts is irrelevant in the instant matter as the complainant confirmed that he was unfit for work from the day of his injury to the date his probation ended and therefore no issue of reasonable accommodation arose as he was certified unfit to work in any capacity. The respondent maintains that the contract of employment is agreed between the parties and the clause on probation is clear and unambiguous.. “your employment will be probationary for the first six months. The probationary period may be extended at the Company’s discretion, but will not, in any case, exceed 12 months. Termination of this agreement within the probationary period shall be at the discretion of the Company.” The respondent states that it exercised the discretion agreed in the contract to terminate the complainant’s probation for failure to abide by the Company’s policies and procedures.    

4. Conclusions of Equality Officer

4.1I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"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.”  

4..2 Disability is defined in Section 2 of the Acts:  

‘‘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;  

I am satisfied that the complainant’s disability (acute back strain) comes with the definition outlined above. Unlike other grounds such as race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee.   Regarding this Section 16 (1) of the Acts states:

Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….                

(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.

However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

(3) (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 fullycompetent and capable on reasonable accommodation(in this subsection referred to as ‘‘appropriatemeasures’’) 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, unless the measures would impose a disproportionate burden on the employer.  

Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose a disproportionate burden:

(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.  

4.3 The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court in the case of A Health Club and A Worker. It is worthwhile to quote the relevant paragraphs:

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 complainant 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 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, Section 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.[2]  

The complainant submits that he was not provided with reasonable accommodation in his employment and further submits that he was discriminatorily dismissed on grounds of his disability. Therefore, I must consider whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts. Having carefully examined the evidence on this matter, I find that the issue of reasonable accommodation did not arise as the complainant was deemed unfit for work in any capacity from the date he went out on sick leave to the date he was dismissed by both his GP and the respondent’s occupational health company AIG.  

4.4 I will now examine the discriminatory dismissal element of the complaint. Having considered the evidence, I note that the complainant received a contract of employment from the respondent commencing 25 February 2013 and had an accident on 16 April 2013 and was absent on sick leave from that date up to the date of his dismissal in late January 2014. I note that the respondent referred the complainant to its occupational health service AIG following the accident. AIG arranged for the complainant to undergo an MRI and a course of treatment for the complainant was prescribed by them. AIG continued to manage the case file of the complainant on a monthly basis. I note that the respondent argued that one of the reasons factored into the decision to terminate the complainant’s employment was due to the complainant in some instances not following the prescribed advices from AIG for example, undergoing steroid injections. However, I note from the correspondence submitted that this decision was taken by the complainant in conjunction with the advice of his GP, Dr. K. I also note that there was some conflicting opinion by the complainant’s GP with regard to the benefit of some of the medical treatment suggested by AIG. The respondent argued that the complainant went on a trip to Poland without informing his managers which it alleges is in contravention of the company’s attendance policy. In this regard, I note that the complainant returned to Poland for three weeks to seek medical advice from his former GP in Poland and attended intensive hydrotherapy sessions and physiotherapy for which he submitted documentation to substantiate this treatment. I note that this was done in conjunction with his GP Dr. K and I am also satisfied that the respondent’s occupational health service provider AIG was aware of same. In AIG’s monthly report to the respondent, on 14 November, AIG notes that the complainant “has since returned to Poland to access treatment there for three weeks” and in the following monthly report of 12 December, it states the complainant “has returned from Poland and reports his back pain in much better following treatment in Poland with hydrotherapy and assessment with his GP”.  

4.5 While the complainant’s managers stated they were unaware that the complainant was out of the country and arranged two absence meetings requesting his attendance during this time; it is clear that AIG were fully appraised of the situation and monthly reports were being sent by AIG to the respondent regarding the treatment and progress of the complainant. In my view, it is understandable that a person may wish to seek a range of medical treatments that could ameliorate and assist with their recovery and are entitled to do so. I do not accept the complainant’s managers’ testimony which indicated that the complainant was going on holidays to Poland. I have copies of the medical treatment which he received on his return to Poland and I note his wife did not attend with him and he returned to his home country on his own. While the respondent has argued that the complainant also breached company procedures, in that, he got his GP to post sick certificates to his wife who then posted them into his manager while he was away in Poland; I do not find this argument convincing. At this juncture, the respondent’s own medical service provider AIG had certified the complainant unfit for work in any capacity as had the complainant’s GP, Dr. K. The attendance policy states “medical certificates must be submitted on a weekly basis or at different intervals by agreement” but it does not state that the person has to visit the doctor on a weekly basis and be seen by him/her and this indeed may be a particularly onus requirement particularly in the case of the complainant who was certified with acute back strain.  

4.6 Having adduced all the evidence in the instant case, I do not accept the above defences argued by the respondent in that the complainant was dismissed for breaching company policies and procedures. I am satisfied that the complainant has demonstrated a nexus in relation to his dismissal on grounds of his disability based on the above evidence and therefore I find that he has demonstrated a prima facie case of discrimination in relation to his dismissal which was not rebutted by the respondent.      

5. Decision of the Equality Officer  

5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts.  

5.2 I find that  

(I)  the respondent did not discriminate against the complainant in relation to the provision of reasonable accommodation within the meaning of the Act at section 16 (3).

(ii) the respondent discriminated against the complainant on grounds of his disability in relation to his dismissal 

Therefore, I find for the complainant. 

In accordance with my powers under section 82 of the Acts, I hereby order that the respondent pay the complainant €10,000 by way of compensation for the breaches of the Employment Equality Acts which represents six month’s salary. The award is redress for the infringement of the complainant’s statutory rights and therefore, not subject to the PAYE/PRSI code.   

____________

Valerie Murtagh

Equality Officer/Adjudication Officer

19 December, 2017    

[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.  

[2] Determination No. EED037