EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017- 082
A Community Facilitator
A Community based Disability Support service
File reference: et-159010-ee-15
Date of issue: 23 November, 2017
This dispute involves a claim by a complainant that he was discriminated against by the respondent on the grounds of disability, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 when they failed to provide him with reasonable accommodation for his disability.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 23rd of August, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 9th of June, 2017 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 29th of September, 2017. Final correspondence in relation to this complaint was received on the 6th of November, 2017.
2.3 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.
3. Summary of complainant’s case
3.1 The complainant submits that
he was employed by respondent in the role of Community Facilitator from 16th of June, 2014 to 25th of February, 2015,
he has been diagnosed with Adult Attention Deficit Disorder (ADD) and he disclosed this to the respondent on the 11th of December, 2014,
he was discriminated against, on grounds of disability when the respondent failed to provide him with reasonable accommodation for his disability,
he was dismissed by the respondent on the 25th of February, 2015,
following his dismissal, the respondent refused to provide the complainant with references when requested by prospective employers.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant was employed by them in the role of Community Facilitator from 16th of June, 2014 to 25th of February, 2015,
the complainant did not notify them of his disability prior to taking up employment and omitted to mention it in a declaration which asked whether he had any diseases or illnesses that could be of any risk to the service users of the respondent,
the complainant had his first Performance Review meeting on the 9th of December, 2014 where a number of shortcomings were raised with him in respect of his performance in the job,
on 11th of December, 2014 the complainant notified the respondent that he had been diagnosed with Adult ADD and submitted that this could be responsible for some of his difficulties in performing his role,
the respondent made a number of inquiries in to the complainant’s disability and its implications for the job including requesting a medical report from his consultant and referring him to the company doctor and thereafter to a Specialist Occupational Health physician,
the medical reports concluded that the complainant would need a number of accommodations to enable him to carry out his role including a having a supervisor stay over on the premises when he was required to stay overnight with the service users as well as additional support to learn new procedures and close supervision and mentoring during any training or re training,
the respondent following consultation with the complainant concluded that the required accommodations could not be provided as it would place a disproportionate burden on the respondent and so the complainant’s employment was terminated as he was not fully capable of carrying out his role,
the respondent did receive two requests for references in respect of the complainant following his employment and provided such references as requested (copies of references submitted) in its standard format of a statement of employment.
5 Preliminary Issue of Discriminatory Dismissal
5.1 The complainant wrote to the Commission in advance of the hearing seeking clarification as to whether he would be precluded from pursuing a claim of discriminatory dismissal at the hearing given that he had omitted to tick the ‘discriminatory dismissal’ box on the complaint form. On examination of the complaint form and the accompanying submission, it is clear that the complainant in his narrative, raised the allegation of discriminatory dismissal and referred specifically to the fact that he was dismissed after disclosing his disability on grounds that reasonable accommodation would cause undue hardship on the respondent.
5.2 The complainant in his submission to the Commission on 21st of December, 2015 provided further information in respect of his allegation of discriminatory dismissal and of the alleged failure on the respondent’s part to provide him with reasonable accommodation for his disability. Further and later submissions also referred to the allegation of discriminatory dismissal. The respondent was kept informed of these developments in advance of the hearing and copies of correspondence and submissions were sent to the respondent. The respondent at the hearing objected to what it referred to as the “late introduction of a claim of discriminatory dismissal”.
5.3 In considering the complainant’s request to pursue the claim of discriminatory dismissal, despite the fact that he had not ticked the box on the complaint form, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan IEHC 370 . In that case McGovern J. held that it was permissible to amend a claim set out in form EE.1 where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation)remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".
5.4 In the present case the complainant had failed to tick the ‘Discriminatory dismissal’ box in the complaint form but had still referred to the allegation of discriminatory dismissal on the ground of disability in the narrative of the form and had clearly stated that he had been dismissed following the disclosure of his ADD. In addition, all subsequent submissions by the complainant, the first of which dates back to December 2015, refer to the fact that he was dismissed after disclosing that he had ADD and refer to the details and circumstances surrounding his dismissal. The respondent in its submissions state that the claimant was dismissed following a decision that the accommodations necessary to accommodate his disability would place a “disproportionate burden on the respondent”, it is thus clear that the allegation of failure to provide reasonable accommodation and the allegation of discriminatory dismissal are inextricably linked in this case.
5.5 I am thus satisfied that the respondent was on notice of the allegation of discriminatory dismissal on grounds of disability from the initiation of the complaint, given that it was set out in the narrative of the complaint form and later detailed in the complainant’s submissions. In addition, the respondent was notified two weeks in advance of the hearing that complainant was seeking to pursue a claim of discriminatory dismissal at the hearing. I am thus satisfied that the respondent has been on notice of the claim of discriminatory dismissal on the same ground and is in no way prejudiced by the complainant pursuing a claim of discriminatory dismissal despite the fact that the box was not ticked in the complaint form.
5.6 I am satisfied given all of the circumstances of the present case, that it would not be contrary to fair procedures and natural justice for me to consider the complainant’s allegation of discriminatory dismissal. Accordingly I am satisfied that I do have jurisdiction to permit the complainant to proceed with the allegation of discriminatory dismissal on the ground of disability, the same ground selected in the complaint form.
6. Disability Ground and Notification of Disability
6.1. It is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability” is defined in Section 2 of the Acts as meaning –
“(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”.
6.2 The complainant advised the hearing that he suffers from Adult Attention Deficit Disorder (ADD) and that he had been diagnosed with this condition by the Dean Clinic of St Patrick's Hospital in October 2012. Medical evidence in support of this diagnosis was submitted in evidence including the initial diagnosis from the Dean Clinic and reports from the complainant’s doctor and the company doctor. The respondent accepts that the complainant suffers from a disability and that he notified them of his Adult ADD on the 11th of December, 2014. Both parties agree that the complainant did not notify the respondent of his disability at the commencement of his employment in June 2014.
6.3 The complainant advised the hearing that he commenced his employment with the respondent organisation on 16th of June 2014 in the role of part-time Community Facilitator (approximately 30 hours per week). The role involved working a shift pattern which included sleepover shifts on a rostered basis. The respondent submits that that the complainant at the time he was appointed, signed a declaration stating that "l confirm that to my knowledge, I have and have had no known diseases or illnesses that I am aware of', that could be of any risk to the service users of (the respondent)." This declaration went on to state “I declare that I am currently in good health and will notify the Management of (the respondent) as soon as possible if I find myself with any health difficulties that may compromise the service users of (the respondent) during my employment”.
6.4 The respondent submits that the complainant’s role required, extensive direct contact with vulnerable adults, many of whom also have a mental health disorder, safeguarding service users from abuse, risk assessments, auditing, dispensing and administering medication, support with everyday tasks (personal care, money management, community activities etc.), emotional and psychological support, and paperwork tasks (daily care notes, care plan updates, personal evacuation plans, risk assessments, respite bed allocations etc.). lt also involves lone working, driving, and being part of the 24 hour on-call, emergency support service.
6.5 The complainant in response to this submits that he stands over the fact that has or has had no known disease or illness that could be of risk to the service users of the respondent. He submits that he is a highly competent, intelligent and well educated man, with a very good career record, who has an officially diagnosed mild form of Adult ADD. He submit s
that this is a medically verified genetic condition which is usually treated by medication and other strategies. The complainant submits that in his opinion, it does not constitute having ‘a known disease or illness that could be of risk to service users’. Both parties agree that the complainant did not disclose the fact that he had been diagnosed with Adult ADD at the commencement of his employments but that he did advise the respondent of this diagnosis on the 11th of December, 2014.
6.6 I am thus satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015 and that the respondent was aware of the complainant’s disability as and from the 11th of December, 2014.
7. Findings and Conclusions of the Equality Officer
7.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of his disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his dismissal and in relation to a failure to provide him with reasonable accommodation for his disability. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
7.2 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. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.
7.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.
7.4 Reasonable accommodation
7.4.1 Section 16(1) of the Acts states that
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….....
(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and full 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.
7.4.2 In addition Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club.
7.4.3 In the case of A Health and Fitness Club -v- A Worker the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.
7.4.4 The complainant advised the hearing that he had began working for the respondent in June 2014. He stated that he had initially applied for the job of ‘community based support worker’ but stated that following his interview he was asked by the respondent to take on the more senior role of Community Facilitator. The complainant stated that he had not initially
applied for the ‘Community Facilitator’ position as he had some concerns about the extra
responsibilities and paperwork involved in that role. The complainant stated that Ms. M advised him that the location of this role would probably be more advantageous to him. The complainant stated that upon further consideration of the role he decided to take it on.
7.4.5 The complainant advised the hearing that he worked in the job, which involved providing support for adults in the respite service who have learning difficulties and in some cases mental health disorders. He stated that part of the job was that he was required to stay overnight on occasion to supervise and support service users. He stated that it was the first time he had been in a role which involved staying overnight as his previous roles were in day services.
7.4.6 The complainant advised the hearing that the first time any performance issues were raised was at his Performance Review meeting on 9th of December 2014. He stated that he had experienced some difficulties with time management and stated that he had some issues with adapting to the new role. The complainant stated that a number of issues were raised by management with him at the review meeting and that he had acknowledged the difficulties he was experiencing but that they had agreed to work towards resolving these issues.
7.4.7 The respondent submits that a number of performance issues were raised with the complainant at his review meeting. These included
- Difficulties with time management,
- Lack of general observation/awareness of service users,
- Direct care of service users,
- Failure to know the departure/location arrangements for service users,
- Regularly on his mobile phone and not supervising service users,
- Too much time spent in the office away from service users,
- lnability to multitask, general lack of awareness of his environment, forgetting to attend
scheduled meetings and/or staff training,
- Time management,
- lnability to complete handover to other staff in a timely fashion,
- Frequently not being able to complete his shift duties/role at the appropriate time and being on the premises way in excess of the norm,
- On more than one occasion he left a service user inadequately supervised,
- One particular incident of poor supervision required the Organisation to make a
report of a Notifiable Event to the Health information and Quality Authority (HIQA)
as a result of an inappropriate abusive interaction that occurred between two
- Forgetting service users' appointments,
- Not being aware of the status/location of service users,
- Issues with on-call responsibilities,
- Difficulty with respite break allocation for service users.
7.4.8 The complainant in addressing some of the issues raised stated that he had been told he was spending too much time on his mobile phone and away from service users but stated that once this was raised he discontinued this practice and it was no longer an issue. The complainant stated that another issue raised was that he was spending too much time in the office and away from service users, he stated that his previous roles had been office based and that again once this issue was raised he stopped spending as much time in the office. The respondent at the hearing referred to the fact that during the complainant’s employment and ‘on his watch’ there was an incident of note which had to be reported to HIQA the Health Information and Quality Authority (H IQA) as a result of an inappropriate abusive interaction that occurred between two service users. The respondent stated that this abusive interaction occurred despite an additional staff member being made available to the complainant (as the person responsible for the shift), and specific verbal and written instructions being provided to him regarding supervision and safeguarding arrangements for that shift. The respondent stated that the follow up to this incident required extensive dedication of time and resources to resolve the concern, including meetings with families, HSE personnel etc., which was all carried out by the Management Team. The respondent advised the hearing that as a result of this incident one of the service users involved in the interaction was withdrawn from the respite service by their family for a significant period of time following their concerns arising out of this incident. The complainant advised the hearing that he had acknowledged that he had made a mistake in relation to this incident and that he had held his hands up in regard to same.
7.4.9 The complainant advised the hearing that two days after his review meeting on the 11th of December, 2014 he had sought a meeting with Ms. M and Mr. H of the respondent’s management team and disclosed to them that he had been diagnosed with Adult ADD and he suggested that maybe this would explain some of his issues with time management. The complainant went on to state that following disclosure of his condition on 11th of December 2014 to management, he worked as scheduled over the Christmas period without incident. He submits that he volunteered for the Christmas work rota and worked Christmas Day afternoon and evening and that he took the On-Call (24 hr contact) emergency mobile phone over the New Year weekend from the end of December to the end of the first week of January.
7.4.10 The respondent advised the hearing that the complainant while in possession of the on-call emergency mobile phone was required to be within a certain geographic range in order that he could be called upon in the event of an emergency to provide assistance to or cover for other staff members. The respondent stated that the complainant while in possession of the on-call mobile had advised them at one stage that he was driving to Limerick and had later told them that he would not be reachable as he was entering a cave in the west of Ireland. Ms. M witness for the respondent stated that this was not acceptable while in possession of the on-call emergency mobile phone as he would not be able to come to the aid of another staff member at short notice if he was down the country given that the respondent is based in a location near Dublin. She stated that there was a geographical range within which the person in possession of the on-call emergency mobile had to stay in case of being called to come in urgently and stated that the complainant clearly did not adhere to this requirement as he did not stay within the required geographical range while in possession of the on-call emergency mobile phone.
7.4.11 The complainant advised the hearing that following disclosure of his disability the respondent had asked him for a medical report in relation to his condition. It is submitted that Ms. M, Director of Services, wrote to the claimant on 15th of December, 2014 seeking a comprehensive medical report on his condition and how it would impact on his work. Following this the complainant submitted a medical evaluation from his doctor including the report of his diagnosis but the respondent submits that this report did not address the issue of the impact on the nature of the work he was performing for the respondent. The respondent advised the hearing that Ms. M wrote to the complainant on the 5th of January, 2015 seeking a more comprehensive report on the complainant's medical condition than was set out in the doctor’s report and how it might relate to the impact on the performance of his role with the respondent organisation.
7.4.12 The respondent submits that on 8th of January, 2015, the complainant replied to Ms. M and in this letter stated that it was his belief that a small element of accommodation and support was all that was required in his case. Following the request from Ms. M, the complainant contacted his Consultant Psychiatrist and on 19th of January 2015 this Consultant issued a letter to the respondent. However, the letter from the complainant's Consultant did not give any opinion on whether or not the complainant could perform his role with the Organisation. The respondent stated that this Consultant suggested that the Company Doctor may be best placed to advise on the impact on the complainant's condition on the performance of his job.
7.4.13 The respondent advised the hearing that following this an appointment was made for the complainant to attend the Company Doctor on the 26th of January, 2015 and stated that Ms. M. wrote to the Company Doctor giving a background on the nature of the complainant's role, the difficulties the complainant was encountering in performing the role, the fact that the complainant had been diagnosed with Adult ADD and attaching a copy of the Consultant Psychiatrist's report and requesting that the Company Doctor assess the complainant to assess the severity of the complainant's condition and how it would affect his performance in his role within the Organisation.
7.4.14 The respondent advised the hearing that the Company Doctor met with the complainant on 26th of January 2015 and on 28th of January 2015 the complainant came to see Ms. M about his visit to the Company Doctor and alleged that the consultation had been very informal. In response to this Ms. M informed the complainant that the Company Doctor had received a copy of all of the medical information submitted by the complainant, was a very well regarded GP and was the Organisation's Doctor for many years. Ms. M informed him that she had not yet received the report of the Company Doctor and was awaiting same.
7.4.15 On 3rd of February, 2015 the Company Doctor issued his report. In this report, the Company Doctor concluded that the complainant was not capable of performing his role with the Organisation. It is submitted that the Company Doctor had many years of experience of attending people with ADHD, was Chair of the lrish Society for Autism and had a good understanding of the nature of the role that the complainant was performing for the Organisation. This Doctor also had direct dealings with some of the Organisation's service users on an on-going basis.
7.4.16 On 4th of February, 2015 the complainant was given a copy of the Company Doctor's report which concluded that the complainant should not continue in his present job due to the difficulties associated with his ADD as already identified and acknowledged by the complainant which exceed that which he is able to bring to such a demanding role. The complainant was at this stage also given details of the Organisation's EAP. The complainant at the time advised the respondent that he was dissatisfied with the Company Doctor's report and alleged that this Doctor was not qualified to evaluate his condition and its impact on his work.
7.4.17 On 5th of February,2015 Ms. M wrote to the complainant and invited him to a meeting to take place on 9th of February, 2015, to discuss the situation and to discuss his medical reports and reasonable accommodation in terms of his role with the Organisation. The respondent advised the hearing that on 6th of February 2015 the complainant sent a text to Ms. M apologising for the difficulties his actions had created for the organisation and confirming that he would attend the meeting on 9th of February, 2015.
7.4.18 On 9th of February 9, 2015 a meeting took place attended by the complainant, Ms. M and Mr. H, Service Manager. The respondent submits that at this meeting the complainant apologised for the situation that he had created. He accepted that he had made an incorrect declaration about his health and that this was a bad decision on his part and stated that he would love to be able to continue and did not want to lose his job but that he understood that the respondent had to weigh up all of the information to make an informed decision.
7.4.19 The respondent submits that on 10th of February, 2015 the complainant phoned Ms. M and he enquired about the possibility of alterative work that did not involve direct care or direct contact with service users. He also stated that he knew it was a serious situation that he had placed himself in and that he knew he would most likely lose his position and/or be dismissed.
7.4.20 The respondent advised the hearing that following the complainant’s dissatisfaction with the Company Doctor’s report the respondent decided to refer the complainant to an Occupational Health physician due to the complainant’s dissatisfaction with the company Doctor’s report. This assessment took place on 17th of February, 2015.
7.4.21 The respondent submits that the Occupational Health Physician in the conclusions of her report stated that the complainant should not work alone including overnights until an acceptable performance is demonstrated, she stated that the respondent should to consider extending the probationary period and stated that the complainant will always require additional support to learn new work procedures and would require close supervision and mentoring during any training or re-training process. The complainant was shown a copy of this medical report.
7.4.22 The respondent at the hearing stated that the work involved in the complainant’s role is constantly changing due to the ever-changing clients entering the respite service and their ever-changing needs and service quality improvement activity. The respondent stated that every day presents new challenges and new situations given that the role involves caring for vulnerable adults with learning difficulties and mental health disorders.
7.4.23 The respondent advised the hearing that the sleepover element of the complainant’s role takes place once every shift, thus a sleepover is required 7 times in every 3-week period. The respondent went on to state that in order to provide the accommodation suggested of not permitting the complainant to sleepover alone, would mean that the respondent would have to employ another person to supervise the complainant in this aspect of his role. The respondent stated that this person would have to be at an equivalent grade to the complainant or higher in order to supervise the complainant. In addition, the respondent stated that this person would have to be provided with accommodation overnight which would reduce the accommodation in terms of the number of beds available for service users and which would in turn reduce the funding provided to the organisation by the HSE which is provided on a pro rata basis depending on the number of service users. Thus, the respondent submits that if the complainant cannot be left alone overnight he cannot perform this aspect of his role and in addition given the small number of staff of the respondent it would have to employ another person to supervise the complainant a cost which would be too burdensome on the respondent.
7.4.24 The respondent when questioned as to whether alternative roles were considered for the complainant replied that this issue had been brought up by the complainant previously. The respondent advised the hearing that the complainant had asked about alternative roles which do not involve direct contact with service users. The respondent stated that it has a very small number of permanent staff positions in all and that apart from the Director of Services and the Services Manager it has only 1.5 Administrative positions so there was no possibility of employing the complainant in a role which would involve no contact with service users as all other positions are frontline positions.
7.4.25 At a meeting on 25th of February 2015 between the complainant with Ms. M and Mr. H, all that had happened to date was discussed including the two reports from the two Doctors. The respondent indicated that it had considered the reasonable accommodations suggested before coming to its conclusion that it would not be possible to provide such accommodations without incurring excessive and disproportionate costs and resources. The respondent advised the complainant at this meeting that his employment would cease and that he would receive a letter confirming this in writing. This letter was issued to the complainant later that day along with details of the appeals procedure. The complainant appealed the decision and his appeal was heard by the Chairman of the Board and another Board member. It is submitted that at this meeting the complainant accepted that the Community Facilitators role was too much for him. The complainant was later informed that his appeal was unsuccessful.
7.4.26 The respondent has submitted that the accommodations recommended by the Occupation Health physician would have imposed a disproportionate burden on the respondent. The respondent submits that it took a decision to dismiss the complainant as it concluded that the complainant was not capable of performing the duties for which he had been employed as the accommodation of employing another individual to supervise the complainant during the sleepover shifts and the requirement to closely supervise and mentor the complainant during any training or retraining would place a disproportionate financial burden on the respondent.
7.4.27 As stated above Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club. In addition, in applying the Labour Court ruling in 'A Health and Fitness Club Vs a Worker' referenced above, it is clear that there was an obligation upon the respondent in this case, in the first instance, to ascertain the level and extent of the complainant’s disability.
7.4.28 In considering the evidence adduced in this case I note that the respondent in this case did make extensive inquiries into the extent of the complainant’s condition and did consult with him before taking a decision to dismiss him. I am also bearing in mind the fact that the complainant prior to taking up the post was asked a direct question in respect of whether he had any conditions or diseases which would affect his ability to do the job. The complainant knowing that he had at the time been diagnosed with Adult ADD replied ‘No’ to this question and did not disclose the fact to the respondent. The complainant at the hearing stated that he answered ‘No’ to this question as he did not consider his ADD to be a disease but that it was a condition. I am satisfied that the complainant in the circumstances could and should have made some disclosure to the respondent or sought some clarity in respect of this question given his diagnosis. I say this given that the complainant himself at the hearing stated that he considered that his ADD may have been the reason for his issues with time keeping and for some of the performance issues encountered by him in the role.
7.4.29 Having regard to the foregoing, I am satisfied that the respondent in this case did make appropriate enquiries to ascertain the extent of the employee’s condition and also engaged extensively with, consulted with and advised the complainant before coming to the conclusion that the accommodations required were too burdensome.
7.4.30 I note that the respondent has submitted that the complainant’s employment was terminated as he was not fully capable of carrying out his role and thatonly with measures that would place a disproportionate financial burden on the respondent would the complainant be fully capable and competent of performing all duties. In this regard, I am guided by Section 16(1) which states that
Nothing in this Act shall be construed as requiring any person to…. retain an individual in a position, ….if the individual ....
(b) is not fully competent and … 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.
7.4.31 In the circumstances and having regard to the totality of the evidence adduced in this case I find that the respondent did not discriminate against the complainant on the grounds of his disability in relation to the termination of his employment and that the respondent did not discriminate against the complainant in respect of a failure to provide him with reasonable accommodation for his disability within the meaning of section 16 of those Acts.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015, I issue the following decision. I find –
(i) that the respondent did not discriminate against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of a failure to provide him with reasonable accommodation for his disability within the meaning of section 16 of those Acts, and
(ii) that the respondent did not discriminate against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of the termination of his employment
23rd of November, 2017
  15 ELR 296
 Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)
  15 ELR 296