ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00012946
A Business Development Representative
A Software & IT Business Development Company
Des J Kavanagh, HR Consultancy Limited
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 21/06/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The case involves the alleged Discriminatory Dismissal of the Complainant on Disability Grounds and failure to provide “Reasonable Accommodation” by the Respondent Company.
1: Summary of Complainant’s Case:
1:1 Equality Act complaint – CA00017003-001
The Complainant began his employment in June 2017. On commencement or very shortly thereafter he advised the Respondent that he suffered from Crohn’s Disease and would, as a result, require reasonable accommodation. This was initially provided by his immediate Manager. On her transfer to another position his situation worsened considerably and he was subject to harassment in relation to his illness and undue supervision in relation to his ongoing daily needs in catering for his medical condition. He sought to bring this to the attention of a number of his superiors.
The atmosphere was unsympathetic and eventually lead to his being called to a meeting on the 29th August 2017 at which he was dismissed. He requested information as to the reasons for his dismissal but this was refused.
He was not at any stage required to undertake a medical /occupational health examination by the Respondent to correctly ascertain his disability and what a “reasonable accommodation” might be. He was confident that if a “Reasonable Accommodation” had been provided he would have achieved all business targets set for him.
In addition, he pointed out that the employment position he had accepted did not materialise and instead he was doing duties that actually materially inhibited his ability to cater for his disability.
1:2 Industrial Relations Act complaint – CA00017004-001
It was accepted that the Complainant had been on probation with the Respondent. However, he was denied all rights as set out in SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures. He was not advised in advance of the nature of the dismissal meeting of the 29th August and was not afforded any rights to Representation or Appeal of the decision post the meeting.
Effectively his rights under Natural Justice were denied.
Summary of Respondent’s Case:
2: 1: Equality Act complaint – CA00017003-001 and the Industrial Relations Act complaint – CA00017004-001
The Respondent pointed to the contract of Employment and the six months Probationary Clause therein. The Complainant had failed to reach an acceptable standard during his probationary period and his employment was ended strictly on this basis.
On appointment he had informed the Respondent that he had a medical condition and reasonable steps were taken to facilitate this such as altering his shift times. He made aware that the Respondent had a positive view on all disabilities and would do all in their power to facilitate him.
The reality was that he was a consistent underperformer, did not take feedback or direction easily and had made it clear that he felt the job on offer was not the job he had thought he was going into.
On overall balance the Respondent employer took the correct decision, which any reasonable employer would, to terminate his employment during the Probation Period.
There was no question of his reputed Disability or any alleged medical condition having any bearing on the termination decision.
3: Findings and Conclusions:
3:1 Equality Act complaint – CA00017003-001
Considerable written and oral evidence was presented by the parties. It was clear that the Complainant had made the Respondent aware from an early date of his medical needs. The initial Superior Ms XA had allowed a shift time change to facilitate the Complainant but his appeared to have lapsed when she moved to another Department.
It was also clear that there were considerable performance issue with the Complainant – evidence was given of his failure to meet Bonus results for June, July and August 2017.
3:2 Legal Precedents / The Law
In a case of this nature it is necessary to establish firstly whether a Disability actually existed and if so can the Complainant make a prima facie case of discrimination in relation to the Disability.
While no medical evidence was presented it was clear and accepted by all that the Complainant suffered from a medical condition which required frequent visits to the Comfort Facilities in the Office. Accordingly, I accepted that a Disability actually existed.
3:2:2 Burden of Proof /Prima Facie case.
In relation to the onus on a Complainant to establish a prima facie case, I considered that it was 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 Dylan 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.”
In the case in hand and of this nature the Court has pointed out above that what is required is facts “of sufficient significance to raise a presumption of discrimination”.
I accepted that the case put forward by the Complainant met this “sufficient significance” requirement.
3:2:3 The Handling of the Disability situation.
In a case of this nature where Disability is an issue regard has to be had to the principles set out in the Humphries v Westwood Fitness Club  E.L.R. 296, where the Circuit Court stated:
“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 is in full possession of all of 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, s.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.”
In the case in hand it was accepted that the Complainant had a medical issue but it was also apparent that no efforts were made by the Respondent, the two-stage inquiry referred to by the Circuit Court in the extract above, to address this issue and establish the exact facts.
It was clear that there were serious work performance issues to be addressed but the medical issue had to be considered as a possible factor in any evaluation of this issue.
It may well have been the case that the Medical issues were irrelevant to the Performance issues but this was an assumption no employer could reasonably make. On questioning the Respondent stated that there had never been any consideration of referring the Complainant to an Occupational Health practitioner for an independent Medical Assessment.
In the absence of this Medical Inquiry the Respondent effectively precluded themselves on any Reliance on Section 16 of the Employment Equality Act,1998 for a “Mitigation” defence.
It was noted that no pre-Employment Medical had taken place in relation to the Complainant. It was explained that this was not the Respondent’s practice in a dynamic employment market. However, by not doing so, it gave no base line Medical report to the Respondent if any medical issues were to arise in the course of the employment.
Simply relying on the Probation Clause in a Contract of Employment does not provide a “Carte Blanche” to an Employer to disregard the provisions and requirements of the Employment Equality Act, 1998. This is particularly so when an issue of Disability arises as in the current case.
By proceeding to Dismiss, albeit on a Probation clause, without any gathering of facts on the alleged Disability situation, the Respondent’s case is fatally flawed.
3:3 Industrial Relations Act complaint – CA00017004-001
In similar vein and considering the Industrial Relations complaint the provision of SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures have also to apply.
The Complainant was not afforded sufficient advance warning of what became the Dismissal meeting and was not advised of any Representation rights that he may or may not have chosen to avail of. There was no question of the Termination Decision being subject to an Appeal by a higher Authority in the Respondent Organisation.
The Complainant’s contention that he was never advised formally and more likely informally of any deficiencies in his performance I found hard to believe seeing how poor his bonus record was.
As stated above a Probation Clause is not a “Carte Blanche” to an employer to disregard basic rights of an employee. A Dismissal may be perfectly acceptable but basic rights of Natural Justice must be observed.
Accordingly, I must find in the Complainant’s favour here.
3:4 Summary Conclusions
Section 6 of the Employment Equality Act,1998 provides, in effect, that discrimination shall be taken to occur where, on any of the discriminatory grounds, one person is treated less favourably than another is, has been or would be treated. Section 8(6)(c) of the Act provides, in effect, that an employer shall be taken to have discriminated against an employee in relation to conditions of employment, if the employee is afforded less favourable terms, on any of the discriminatory grounds, in respect of, inter alia, dismissal and disciplinary measures.
Section 16 (4) of the Act details the requirement for “Appropriate Measures” in regarding a Disability situation.
In the case in hand no attempts were made to address the Medical issues or to establish a factual basis. It may well have been the case, as stated above, that these issues were irrelevant but in the absence of any inquiries by the Respondent the claim for Discrimination by the Complainant has to stand as well founded.
Likewise, the absence of any procedures as set out in SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures have to make the Complainant’s case under the Industrial Relations Act, 1969 well founded.
4: Decision and Recommendation:
4:1 Equality Act complaint – CA00017003-001.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Accordingly, and having considered all the evidence both oral and written from the Parties I make a compensation award of four months gross pay (€ 3000 x 4) = €12,000 under the Employment Equality Act. This award to address the Discrimination and Reasonable Accommodation claims which were well founded.
4:2 Recommendation: Industrial Relations Act Complaint CA00017004-001
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Accordingly, I recommend an award of €1,000 compensation to the Complainant in relation to the Industrial Relations dispute.
The consideration of the proper taxation, if any, of these awards should be a matter for consultation with the Revenue Commissioners.
Workplace Relations Commission Adjudication Officer: Michael McEntee