EMPLOYMENT EQUALITY ACTS
DECISION NO DEC-E2017-049
(Represented by L. Asmussin BL
Instructed by Sean Ormond and Co Solicitors)
A Logistics & Outsourcing Company
(Represented by T Lowey BL
instructed by DWF Solicitors)
File reference: et -155609-ee-15)
Date of issue: 15th June 2017
HEADNOTES: Employment Equality Acts Sections 6 & 8, - Disability, Conditions of Employment, Discriminatory Dismissal, Dismissal for Opposing Discrimination, Failure to provide “reasonable accommodation”.
This dispute concerns a claim by Mr X that he was discriminated against on the grounds of Disability resulting in discrimination in Conditions of Employment, Discriminatory Dismissal, Dismissal for Opposing Discrimination and Failure to provide “Reasonable Accommodation” by employer Respondent A in their Logistics and Outsourcing business.
The Complainant referred a claim to the Director of the Equality Tribunal on the 18th March 2015 under the Employment Equality Acts.
On the 10 April 2017, in accordance with the powers under section 75 of the Employment Equality Acts, the Director General delegated the claim to me, Michael McEntee, Adjudication / Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced.
Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to an initial hearing on the 12th April 2017.
2: Summary of the Complainant’s Submission
2:1 The Complainant was employed from the 2nd of September 2011 to the 9th of January 2015 as a Supervisor in the Respondent’s Logistics and Outsourcing business.
As background the Complainant suffered an occupational injury on the 2nd of July 2012.
The Complainant was absent on Sick Leave for some time following this accident and latterly from 10/02/2013 to the 15/04/2013, from 04/06/2013 to 11/06/2013, from 13/07/2013 to 11/06/2013 , from 13/07/2013 to 27/08/2013 and from 20/10/2013 to 11/11/2014.
2:2 The Complainant asserted that he was discriminated against because of his disability, he was discriminatorily dismissed and that the Respondent failed to take appropriate measures to accommodate his disability. This culminated in the Complainant being left with no other option but to resign from his position due to the discriminatory treatment he had received.
Detailed notes of Medical reports were supplied as was a lengthy Legal submission citing extensive case law regarding Disability, Reasonable Accommodation, and Delays in Retuning to Work, Duty to consider Alternative roles and Constructive Dismissal.
3: Summary of the Respondent’s Submission.
3:1 The Respondent operates an Outsourcing and Facilities company in Ireland. The Complainant was employed at the distribution depot of a very large Supermarket chain in North Dublin. The work involved “De Kitting” large HGV trailers i.e. loading and unloading goods cages into and out of HGV trailers trucks when they are at the Distribution Depot. It is a physically demanding role.
3:2 The Respondent, from the start, pointed to the fact that at the time of the Complainant’s resignation he was deemed to have been fully fit for work and could not have been suffering from a disability at that time.
3:3 It was accepted that there had been an alleged back injury in July 2012 and that most of the subsequent absences from that date had been attributed to this event. The Complainant had been the subject of numerous Medical examinations by MedWise, Occupational Health Experts. At all times the Respondent had made strenuous efforts to establish if “Light Work” was available for the Complainant, had examined carefully his suggestions about a “Hygiene Role” in Ballymun or Donabate but unfortunately no light or sedentary duties were available.
3:4 In late 2014 the Complainant was deemed by his medical advisors to have made a full recovery and returned to work. Dr. Gleeson of MedWise confirmed this. On or about the 11th November 2014 the Complainant returned to work “without restrictions.”
3:5 An incident, the details of which were contested by the Complainant, took place on the 18th December 2014. The Complainant was absent from work. The Respondent maintained that the Complainant had phoned his Supervisor and complained of “Back Pain”. In view of the history of the case this alarmed the Respondent and a Medical examination of the Complainant was requested. The incidents were the subject of a Back to Work Interview on the 23rd of December 2014.
3:6 On the 30th December 2014 the Complainant tendered his resignation. Among the grounds cited were “Undue and harsh treatment” in relation to the incidents of the 18th December 2014.
3:7 In summary the Respondent maintained that at all times the Complainant had been treated most appropriately, extensive medical evidence was considered and alternative roles had been examined. There was absolutely no basis for an allegation that the Respondent had delayed the Complainant’s return to work or failed to provide “Reasonable Accommodation”. The actions of the Respondent in relation to the 18th December were entirely proper and appropriate.
The Complainant had not availed of any Internal grievance procedures in regard to the 18th December. The resignation was completely unwarranted.
The majority of the Claims are out of time and the only claim in time is the Constructive Dismissal claim which is completely rejected.
A prima facie case has not been made to support this claim.
4: Findings and Conclusions:
4:1 This claim, as lodged in March 2015, comprises five elements
1. Discrimination on the Grounds of Disability
2. Discrimination in Conditions of Employment
3. Failure to give “Reasonable Accommodation”
4. Dismissal for opposing Discrimination
5. Other Grounds
4:2 Taking the claim as lodged and having considered the evidence the Key Questions to be considered, I felt, were
1. The Time Limits issue? Were those elements of the claim that related to the earlier 2102 alleged accident in time?
2. Was the Complainant “Disabled” at the time of the resignation on the 30th December 2014?
3. Allowing for varying answers to 1 and 2 above were reasonable efforts made to provide “Alternative Accommodation”
4. Did a Discriminatory “Constructive” Dismissal occur?
4:3 Legal issues / Burden of Proof. The factual basis required.
Considering the background factors to this case, the Burden of Proof requirements to sustain a Discrimination claim are crucial.
It is now well accepted law that the first requirement for a successful claim lies in establishing a prima facie case.
In this regard, I consider that it is appropriate for me to firstly consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.
The Labour Court continued
“Section 85A of the Act 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.”
Furthermore, the Labour Court in EDA038 of August 2003 stated that
“The mere fact the Complaint falls within one of the discriminatory grounds laid down in the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”
Accordingly, in the case in hand, the key and primary issue is for the Complainant to establish facts that clearly indicate that acts of discrimination occurred – a prima facie case has to be established.
Following the key Questions Format above and the Claims as listed as a guide line
5:1 Discrimination on Grounds of Disability
Questions 1 and Two above: Time limits and Disability at the date of the Resignation. .
The Complainant was, on the basis of the medical evidence, not physically disabled at the time of the “most recent date of discrimination” on the claim form, i.e. 09/01/2015 (Date as amended in Correspondence).
He had returned to work without restrictions in November 2014 and had been cleared to do so by Dr. Gleeson of MedWise.
Events from 2012 to January 2015 were cited as grounds of Discrimination by the Complainant.
I have decided to allow the claim and the events prior to January 2015 to be “In time” on the basis of the extensive medical evidence regarding the agreed disability of the Complainant prior to November 2014. The reaction of the Respondent in an almost immediate referral for Medical Assessment after the incident of the 18th December 2014 indicted to me that while the recovery of the Complainant was indeed fortuitous the Respondent still had him “on watch” for back issues –effectively the Disability “shadow” had not passed from the Complainant. On this basis I allowed the claim to continue as “in time”.
5:2 Discrimination of grounds of “failure to give reasonable accommodation” and Discrimination in Conditions of Employment
Question 3 above:
The first instance of the “Reasonable Accommodation” argument appeared to be at a Return to Work interview of the 11th June 2013. The Complainant stated that “he was not fit to do normal De-Kitting duty”.
However the Medical report of the 11th April 2013 had passed the Complainant as fit to return to work but had included a rider that “until a definite diagnosis is made a prognosis for relapse cannot be given”. It is important to note that prior to the Medical appointment of the 9th April 2013 the Respondent’s had furnished the Doctor with a pdf of all the roles potentially available to the Complainant.
The next major report was the MedWise Report of the 23/07/2013 from Dr. Gleeson.
In her extensive Report she reports that the Complainant is fit for work of “a light physical demand and for sedentary work”. She accepted that modified duties were not available and the Complainant should remain on sick leave. However she did add the rider that she would like to review the Complainant’s fitness for work once the Results of a MRI scan became available.
Again on the 02 October 2013 a detailed list of duties was forwarded to the Med Wise clinic by the Respondent.
In this context the Complainant had requested by letter of the 18th September 2013 to “step down” from the Supervisory role and be transferred to “hygiene duties” in Ballymun or Donabate. This was largely confirmed in a further letter of the 11th October 2013 from the Complainant.
This issue and the question of “Reasonable Accommodation” was discussed at length during the oral hearing. It was explained that the Respondent supplied physical labour to the Supermarket Chain who operated the Depot. Oral evidence was given by Managers AX & AZ who described the business model in detail and their interactions with the Complainant on this subject.
The Respondent had a very limited if in fact any administrative or white collar roles other than staff rostering by supervisors. A Sedentary Role as requested by the Complainant simply did not exist in this business model.
In response to questioning, essentially on the “Nano Nagle Argument”- (essentially a requirement for a Respondent to have almost a complete redesign of a position - following the landmark High Court case Nano Nagle School v Daly  IEHC 785 ) the Respondent maintained that the business model did not exist for them to either reduce the working hours of the Complainant ( he would still have significant physical activity albeit on a reduced time scale) or to carry out a complete redesign of the position. The plain fact was that there simply were not sufficient “Sedentary” elements in the positions available to even marry them all together in the fashion of the Nano Nagle case arguments to create, in effect, what would have been a new supernumerary “non position”. I took it that the Respondent, while sympathetic, could not do what was physically impossible.
Furthermore it appeared that the “Hygiene” Role as suggested by the Complainant was as physically demanding as the “DeKitting” role and a transfer would not have been of any benefit to the Complainant.
From reviewing the evidence and in particular the Medical reports I was satisfied that the issue of alternative positons had been satisfactorily gone into. Dr Gleeson wrote on the 28th April 2014 that
“X is fit to return to wok of a light physical demand and may be fit to increase his work further as part of a rehabilitation programme. I recommend that you refer X for occupational health review and I will discuss” Dr Gleeson also requested at this time more details of the alternatives possible.
However by the Autumn the medical situation had changed radically and by letter of the 16th October 2014 from Beaumont Hospital
“the Complainant was in a position to return to work to full duties.”
This request was complied with by the Respondent, albeit running it by Dr Gleeson first.
I also noted that the Medical reports in 2014 (April 28th 2014 from Dr Gleeson) had begun to refer to
“psycho –social factors influencing X’s subjective complaints and concludes that he has developed a chronic pain syndrome”. --- “Chronic pain syndrome is a condition with multifactorial aetiology with biological, psychological and social factors”.
From listening to the oral evidence I was not fully convinced that during this time ( late 2013 to mid-2014) the question of “reasonable accommodation” as advanced by the Complainant in his claim post resignation and the Medical references to “Multifactorial aetiology regarding his condition during 2014” were completely compatible. Put simply I was not convinced that any efforts by the Respondent to provide “reasonable accommodation”, if any had even been possible, would have found favour with the “Multifactorial aetiology” of the Complainant at this time in 2014.
In conclusion and having read the Medical reports and heard the Oral evidence I came to the view that the Complainant had not sufficiently established a prima facie case that the Respondent had not made sufficient efforts to explore all possible avenues and to offer him “reasonable accommodation”.
Accordingly I did not accept that Discrimination had occurred here.
5:3 Discrimination on Grounds of a Discriminatory Dismissal / Constructive Discriminatory Dismissal / Resignation by the Complainant
Question 4 above.
The Complainant resigned by letter dated the 30th December 2013. He specifically referred to the incidents of the 18th December 2013 as being
“a fundamental breach and unreasonable breach of my employment rights and contract on the company’s part”
It is now well accepted jurisprudence that the rules governing Constructive Dismissal in Unfair Dismissals Act, 1977 case can be broadly applied in a parallel case brought under the Employment Equality Acts.
The two basic tests are
1. Breach of Contract so fundamental that it leaves the Complainant with no option but to resign.
2. Behaviour on the part of the Respondent’s that is so “Unreasonable” as to leave the Complainant with no option but to resign.
Regarding the “breach of contract” I could find no evidence of any especially egregious breaches. The Complainant remained an employee throughout and on being declared fit in November was immediately returned to work. I did not accept the Argument that the Respondent delayed in returning the Complainant to work during the period from late 2013 to November 2014 – this thereby amounting to a “Breach of Contract”. The evidence and correspondence submitted did not support this view.
Regarding the “Unreasonable Behaviour” argument and specifically the incidents of the 18th December 2014 the Complainant gave oral evidence as did a number of Respondent Managers. I felt that the recollections of the Complainant were somewhat clouded. It was not unreasonable for the Respondent, bearing in mind the history of the Complainant to request him to attend an Occupational medical. The Supervisor /Manager with the Respondent, Mr. AY, gave oral evidence, which I found credible and furnished notes of a meeting of the 18th December at 17:05. The Complainant was reported as stating “I know it’s a young man’s job, I'm physically not able for the job in the long term”.
There was no evidence that the Respondent, and bearing in mind the Christmas time of the year, in any way moved to seek a resignation. The Resignation letter was dated the 30th December and stated
“I appreciate the time and energy you have invested in me over the years”
The letter was, in my opinion, a considered piece of correspondence that had clearly been assisted in the writing of by a person of some legal knowledge.
The Respondent pointed out (letter of the 8th January 2015) that they had not been “Allowed the opportunity to try and resolve any issues or complaints in relation to breach of contract, discrimination or harsh treatment either informally with management or using the employee grievance procedure”.
Referring again to the jurisprudence of the Unfair Dismissals Act, 1977 a failure to fully utilise all available internal procedures prior to a resignation is generally fatal to a Constructive Dismissals claim. The Complainant’s legal advisor raised the case of Allen v Independent Newspapers Limited  ELR 84 here to justify the Complainant’s non engagement with the internal procedures. The factual situation in the Allen case was I felt of another league completely and not particularly useful to this case.
In final summary I came to the view, having heard the Oral evidence and the written evidence that the Resignation of the 30th December 2014 was a careful decision. I could not find prima facie grounds of unreasonable or discriminatory Respondent behaviour such as to justify the resignation.
The claim for Constructive Discriminatory Dismissal fails.
5:4 Discrimination for Opposing Discrimination.
This issue was not gone into during the hearing or in written evidence. I took it to mean that it was one of the background factors in the Constructive Dismissal claim and it is covered in that discussion above.
6: Final Decision.
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.
I have investigated the Complaints as set out in the claim and make the following decisions in accordance with section 79 of the Acts that:
6:1 Discrimination on the Grounds of Disability
This claim fails as a prima facie case as required by the Employment Equality Acts has not been established.
6:2 Discrimination on ground of failure to provide Reasonable Accommodation.
Having examined all the evidence I did not find a prima facie case here to support this contention. This element of the claim fails
6:3 Constructive Dismissal on the grounds of Disability Discrimination
The resignation was a considered act and a sufficient linkage, a prima facie case, to any disability discrimination was not established. The claim fails.
6:4 Discrimination in Conditions of Employment
This claim fails as a prima facie case as required by the Employment Equality Acts has not been established.
6:5 Discrimination on the grounds of Opposing Discrimination.
This claim fails a prima facie case as required by the Employment Equality Acts has not been established.
Equality / Adjudication Officer