ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014131
Call centre worker
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 22/08/2018
Workplace Relations Commission Adjudication Officer: Marie Flynn
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced employment with the Respondent on 6 November 2017. He was required to undertake a training and mentoring course for the first two months of his employment on the understanding that his continued employment with the Respondent was contingent on him passing the final exam.
The Complainant suffers from epilepsy. He claims that he did not pass the final exam due to the Respondent’s failure to provide reasonable accommodation in relation to the difficulties caused by his disability.
The Complainant’s employment with the Respondent was terminated on 11 January 2018.
The Respondent did not attend the hearing.
The WRC wrote to the representative of the Respondent named on the complaint referral form, informing him of the date, time and location of the Adjudication Hearing. The named representative sent a response by email to the WRC to say that, while he was happy to attend the hearing, he would point out that he was not familiar with the Complainant or what the complaint pertains to.
He suggested that another named individual within the Respondent organisation would be the appropriate person for the WRC to contact in relation to the complaint as that individual had been the Complainant’s trainer.
The WRC responded by email to say that the WRC issues correspondence to the Respondent in accordance with the information provided on the complaint referral form and pointing out that in relation to the herein case, the correspondent was named on the complaint referral form.
The WRC asked the correspondent to consult with individual who he had named as the appropriate point of contact within the Respondent organisation and to notify the WRC if that individual was indeed the correct representative of the Respondent for the purposes of the herein referral.
The correspondent did not communicate further with the WRC in relation to this matter.
Following the Adjudication Hearing, the Complainant submitted a copy of an email dated 23 January 2018 which he had received from the Respondent representative named on the complaint referral form entitled “Email to confirm employment termination.”
In that email the Respondent representative wrote:
“The Complainant is no longer employed by the Respondent and any queries regarding same should be directed to myself.”
In light of this email, I am of the view that the Respondent was properly on notice of the complaint and was fully aware of the time, date and location of the adjudication hearing.
I have decided to anonymise the parties to this complaint based on the sensitivities of the issues involved.
Summary of Complainant’s Case:
The Complainant submits that he commenced employment with the Respondent on 6 November 2017.
The Complainant contends that prior to his appointment, he was required to undergo a comprehensive medical assessment as a result of which the Respondent was fully aware that he suffered from epilepsy.
According to the Complainant, the first two months of employment consisted of training and mentoring which was split into one month classroom based learning followed by one month on the job mentoring.
The Complainant submits that he did not pass the first exam which was held after the first week of learning. The Complainant says that he was reassured that this did not carry weight towards the final exam.
The Complainant contends that after failing the first exam he advised the course trainer that he was on medication for about 18 months following an epileptic seizure in 2016 and that this may have impacted on his results.
It is the Complainant’s position that while his medication can affect him during exams, if he is allowed sufficient time to prepare and perhaps a little extra time in the classroom and during the examination he would not struggle to fulfil the role for which he had been recruited.
The Complainant submits that he was not offered any assistance for further examinations. He maintains that the environment and lack of time to prepare for each exam (one exam a week) was not very understanding of his condition.
The Complainant says that he passed the important exam at the end of the classroom sessions which allowed him to start the mentoring phase.
The Complainant believes that he made good progress during the mentoring sessions and he felt confident about doing the job.
The Complainant submits that he did not pass the final exams which consisted of three live calls and a final written exam. He maintains that he was dismissed on that basis.
The Complainant maintains that if the Respondent had been more accommodating of his need he would not have failed the final exam.
Furthermore, he contends that he was not offered any further opportunities to study or to re-sit the examinations.
The Complainant is of the view the if he had a more widely understood condition such as dyslexia, he would have been given more time and help for the exams.
Summary of Respondent’s Case:
There was no submission or appearance by the Respondent. The Respondent gave no notice to the WRC in advance of the hearing that they would not be attending.
Findings and Conclusions:
The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts and whether the Respondent failed to provide reasonable accommodation to the Complainant in order to enable him to continue to work with the Respondent. The discriminatory ground in this case is disability. In reaching my decision, I have taken into account the uncontested submissions, written and oral, made by the Complainant in the absence of the Respondent.
In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:
“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is 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.
Disability is defined in Section 2 of the Acts as :
“( 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 epilepsy is a disability within the meaning of the Acts. I accept the Complainant’s uncontested evidence that he was required to undergo a comprehensive medical examination prior to his appointment and, therefore, that the Respondent was aware at all stages of the Complainant’s employment that he had epilepsy. I am also satisfied that the Complainant made the Respondent aware, after the first exam, that he felt that his epilepsy medication was a factor in him failing that exam.
Unlike other grounds like 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 provided:
“( 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 fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) 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.”
The seminal case on reasonable accommodation was determined by the Labour Court - A Health Club and A Worker (EED037 ED/02/59). It is worthwhile quoting 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. [my emphasis]”
It follows, therefore, that when the Complainant made the Respondent aware that his ability to complete the mandatory training period was affected by his disability, it was incumbent on the Respondent to make adequate enquires so as to determine the Complainant’s ability to complete the training and to ascertain if the provision of reasonable accommodation would enable the Complaint to continue in his employment.
Based on the uncontested evidence of the Complainant, I find that the Respondent did not make any enquires whatsoever as to establish the factual position of the Complainant’s disability and did not consider if reasonable accommodation could be put in place which would have enabled the Complainant to continue in his employment with the Respondent.
I find, therefore, that the Respondent cannot avail of the statutory defence and the Complainant is entitled to succeed in his claim that the Respondent failed to provide appropriate measures.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
In reaching my decision, I have taken into account the uncontested submissions, written and oral that were made to me by the Complainant in the absence of the Respondent.
Based on all of the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the Complainant was the subject of discriminatory treatment on grounds of disability.
I am conscious that Directive 2000/87/EC requires sanctions for infringement of the principle of equal treatment to be effective, proportionate and dissuasive. Taking all the circumstances of the herein complaint into account, in accordance with my powers under Section 82 of the Acts, I hereby order that the Respondent pay the Complainant €15,000 [fifteen thousand euro] by way of compensation for the distress suffered by him as a result of the discrimination.
Dated: 30th November 2018
Workplace Relations Commission Adjudication Officer: Marie Flynn
Discrimination on the disability ground