ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016529
A Vehicle Inspector
A Vehicle Testing facility
Ms. April Duff B.L., instructed by Sean Ormonde & Co. Solicitors
Mr. Paul Twomey B.L., instructed by Kate McMahon & Associates Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 15/11/2019
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The following is a summary of the Complainant’s case.
The Complainant said that he commenced employment with the Respondent in or about July 2003 as a vehicle inspector, working usually 30 to 40 hours per week. In and around July 2017 he was diagnosed with heart difficulties in the form of atrial fibrillation and dislipidemia. The Complainant was certified as unfit for work while these conditions were being investigated. While he was being medically assessed it uncovered lungs difficulties, and a chest respiratory condition. He claims this was on account of the exhaust fumes he was exposed to in his workplace, which was problematic with his chest and his asthma.
The Complainant claims that he remained on certified sick leave for a year. During that time, he attended meetings with the Respondent and medical appointments as was requested by the Respondent to discuss his medical conditions. The Complainant points to Dr. A, the company doctor’s, reports which indicates that further exposure to exhaust fumes would risk irritation of his condition, that he could not safely return to his pre-existing role and to explore alternative positions where he would not be exposed to such exhaust fumes. The Complainant said that he had a meeting with the Respondent on 2 July 2018 to discuss the report. At this meeting the Respondent said that it had considered alternative positions, but since all its roles were within the test centre environment, and the medical advice was not to allow him to return into that environment, he would be dismissed as of 13 July 2018 with 8 weeks’ notice.
The Complainant takes issue with the Respondent’s failure to provide reasonable accommodation to him because of his disability. The Complainant was critical that the Respondent made no real effort to enquire into and identify factors which amount to reasonable accommodation. The Complainant said that following a data subject access request, by his solicitor, it uncovered no evidence of any steps taken by the Respondent to ascertain what might be possible by way of reasonable accommodation. The Complainant said that the lack of such consideration is a clear breach of the employment equality legislation.
The Complainant was critical that the Respondent simply took the medical advice that he could not return to the car testing environment, that no alternatives were considered, and he was to be dismissed. The Complainant is critical that there was little engagement with him as to alternatives and in his legal submission he cites the principles in the case Humpherys v Westwood Fitness club  ELR 296 and Mr A v A Government Department EDA061 in regard to the obligations on the employers to be in possession of the relevant information prior to making any decision, which might be a detriment to the employee and, that positive proactive engagement by the employer is an obligation.
The Complainant said that Dr. A’s reports of 3 August 2017 and 30 April 2018 were used by the Respondent as a basis to terminate his employment contract rather than as a basis to assist in the consideration for reasonable accommodation. The Complainant, citing the reports, points to the recommendations of avoiding a role with exhaust fumes exposure and looking for an alternative role. The Complainant said that this was effectively ignored, and there was no consideration of the possibility of returning for modified duty. The Complainant said that there was no evidence that anything was considered, be it alternative roles or reasonable accommodation. The Complainant said at the very bare minimum there is an obligation on the Respondent to consider the roles. The Complainant said that he should have been consulted on what option they were looking into and the possibility of his input and offer of observations. He felt that the Respondent should have kept records of what steps that it took, but none exist which would suggest that nothing was done.
The Complainant said that once Dr. A had linked his medical conditions and disability to his work environment it behoves the Respondent to take steps that address that environment. He said it is clear that the Respondent failed to do anything to alleviate such conditions. He said that it was not his role to set out the steps the Respondent should have taken, it should have at a minimum enquired into how to reduce the amount of fumes in the workplace. The Complainant said that there was no evidence of ventilation, extractor fans or any other personal protective equipment considered.
The Complainant in his legal submissions cited the test defined in Dublin Corporation v Gibney EE5/1986 and said it should apply in this case. He said that he has met that required standard. Therefore, he deemed that it is for the Respondent to justify its actions in terms of his disability and to provide him with reasonable accommodation. The Complainant points to the steps as set out in Section 16(3) and the assessment required before the defence in Section 16(1) can be relied upon by the Respondent. This was the point and principle outlined in the McRory Scaffolding (NI) Limited v A Worker EED055, where such an assessment did not occur.
Summary of Respondent’s Case:
The following is a summary of the Respondent’s case.
The Respondent said that the Complainant commenced employment with it as a vehicle inspector on 1 July 2003. The Respondent said that termination of his employment was notified to him on 3 July 2018 and his last day of employment was 13 July 2018.
The Respondent said that the employee had experienced a period of long-term sickness in 2012, he had recovered and then returned to work. However, he was absent from work again in 2017 for 127 days, and 44 days in 2018 for a continuous period starting from 10 July. He was certified unfit to work on the basis of “cardiac condition – atrial fibrillation” and he appeared to recover from this ailment but developed a lung related illness thereafter to remain unfit to return to work. The Respondent arranged for independent medical assessment by Dr. A who reported to him on 4 August 2017 noting two issues. “The first, which is the main issue and reason for his sickness absence, is a new diagnosis of a heart complaint, that started on Friday 7 July. This required a 4-day hospital admission on the 10th July to 14th July…” and “the other issue that [Complainant] highlighted during the assessment, which he alluded to throughout the assessment is work related stress… recently demands and targets have increased with increasing workload and this can cause stress symptoms such as feeling under pressure, and sleep disturbance”.
Dr. A said as the Complainant had identified work related stress that would need to be addressed with him before he returns to work. The Respondent said that he never in all the time working with it raised work related stress. Having considered the report, the Respondent said it was anxious to address the possible issue here and referred him to a free confidential employee assistance programme, but he never took up the offer.
The Regional Manager met with the Complainant on 13 February 2018 to explain that the Respondent would be scheduling a meeting with him in the near future to discuss his continuous absence on sick leave and wrote to him on 23 February 2018 and noted in this correspondence the Company policy for long-term absences of 12 months or more, that HR will review the Employee’s contract and evaluate the viability of the contract.
A meeting was held on 26 March 2018 and Ms. A raised the issue with regard to the reason for the original sick leave (irregular heartbeat), to which he said that its fairly settled but now confirmed that he also had degenerated lungs and the fumes affects him. The Respondent notes that this was the point where the lungs were now the issue of his ill health and that he said he was awaiting tests – CT scans. The Respondent said that it would await the results of the scans, but it put him on notice that due to the excessive sick leave and in the event that his health was not going to improve or there was no definite date of improving the company may need to review his contract and possibly consider discontinuing same. The Respondent said that in reply the Complainant said that “yeah, I understand, it’s the fumes that are my problem.”
A further medical appointment was arranged for Dr. A on 27 April 2018 and it was reported that the heart issue was now less of a concern but can be brought on by the issues with his lungs. Dr. A also reported his direct contact with the Complainant’s lung specialist, which highlighted the medical arrangement in place but also that “any exposure to fumes from motor vehicles provokes chest tightness and wheeze. Even when driving his own car in traffic, would cause it in the preceding 12 months prior to him leaving work with his heart problem.” The lung specialist also advised that “further exposure to exhaust fumes carries the risk of aggravating his chest and his asthma… on medical grounds I would encourage as far as reasonable possible avoiding a role where fumes exposure is likely ... not feel he could return to his pre-existing role … consideration of an alternative role where exhaust exposure is avoided.”
The Respondent said that Ms. A undertook to look for alternative roles available at the time. The Respondent said the Complainant had referred to various positions advertised by the company between March and August 2018, many of which were in different locations to where the Cmplainant was stationed. However, all these roles included being stationed in a “vehicle testing” environment. The Respondent said that all its testing centres were of the same design and therefore the Complainant would be working in the very environment that he was medically advised to avoid.
In relation to the claim that the work environment was the cause for the Complainant’s lung condition, the Respondent said that the centre’s equipment (including extractor fans, etc) were carefully monitored and no difficulty with the equipment was ever reported. The air quality was checked in 2015, while he was working there, and everything was well within the guidelines. There was no issues or recommendations to address.
The Respondent said that a second meeting was arranged with the Complainant on 2 July 2018, where Ms. A confirmed that they discussed the medical evidence with the Complainant. The Respondent said that it explained to him that the alternative work options that were available and were explored, unfortunately were in the same environment that was not suitable for him because of his health condition. The Respondent said that it informed the Complainant that with regret the Company made a decision in light of his inability to fulfil his work employment contract, that it would discontinue his contract of employment, and advised him of his right to appeal.
The Respondent said that it followed up the meeting with a written letter to set out its decision and advised him of his right to appeal. The Respondent said that the Complainant never appealed the decision.
The Respondent said that the burden of proof was with the Complainant and in cases on incapacity it cited the decision of the Equality Tribunal in Heelan v Irish Rail UD3601994, where it was held that the employee is entitled to a fair hearing for the purpose of ascertaining if they are medically capable of performing the duties that they were employed to perform. The Respondent claims that was the same situation in this case. The Respondent also pointed out its clear rules and procedures around absenteeism, sick leave regulations and medical examination which were explained to the Complainant. The Respondent cited the authority in Bolger v Showerings (Ireland) Ltd  ELR184 and Bus Atha Cliath- Dublin Bus v Claire McKevitt  IEHC 78 in this regard and the tests that must be followed for cases involving dismissal for incapacity.
The Respondent states that in this case the Complainant was informed throughout of the policies and was well aware of the potential of his contract of employment being terminated should he remain unable to perform contract duties. It said that the Complainant never raised any grievance throughout the whole process. The Respondent said that the Complainant was given numerous opportunities to be heard and he was in communication with it and advising it of what investigations and tests he had undertaken and the added implications of new diagnoses. The Respondent points out that the Complainant himself said that he could not work in the test centre environment.
In relation to the discriminatory claim of failure to provide reasonable accommodation the Respondent cited the decision of the Equality Tribunal in Gannon v Milford Care Centre DEC-2004-048, the Labour Court decision of Department of Justice, Equality and Law Reform v Kavanagh  23 ELR 34 and the Nano Nagle v Marie Daly  IESC decision from the Supreme Court in support of its case here; where the issue of what reasonable accommodation could be provided to assist him was addressed. At the hearing the Complainant said that some breathing apparatus could have assisted in performing his tasks. The Respondent said that there was no medical evidence supporting that. The Respondent said that from its air quality assessment there is no issue or risk from the air quality, and it does not accept that there was an issue with the air quality. It said medical opinion was that he cannot work in that environment.
In relation to Nano Nagle decision, the Respondent said that in consideration of the possible redistribution of tasks and duties to facilitate the Complainant it must not be a disproportionate burden on the employer. It said that the test “is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee, as this would almost inevitably impose a disproportionate burden on an employer”. This went on to say that the Court found that reasonable accommodation “cannot result in removing all the duties which a disabled person is unable to perform. Then almost inevitably, it would become a “disproportion burden””. It claims that this was the situation in this case, all the positions were within the test centre environment and it could not facilitate a return to his job without being in that environment.
The Respondent cited the decision in Marshall V Harland & others  IRLR 90 in relation to the necessary questions for frustration of contract, it cited other authorities, inter alia, De Sousa V Kepak UD964/2011 where the contract of employment had become inoperable and was frustrated.
In relation specifically to the unfair dismissal claim the Respondent cited the decisions in Bunyan v United Dominions Trust  ILRM 404, and other cases with regard to the fairness and fair procedures which it claims was never in doubt in this situation.
Findings and Conclusions:
I have taken into account all of the evidence and submissions, both written and oral, made by the parties.
The Unfair Dismissals Act 1977 as detailed at Section 1(a) states:
“dismissal, in relation to an employee, means–
(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.”
“date of dismissal” means–
(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.
I note that Ms. A wrote to the Complainant on 3 July 2018, following a meeting held with him the day previously, to formally terminate his employment as of 13 July 2018, in light of the medical opinion, that he could not return to his pre-existing role. I note that the termination letter affords the Complainant the opportunity to appeal that decision.
Section 6(4)(a) of the Unfair Dismissal Act provides:
‘Without prejudice to the generality of subsection (1) the dismissal of an employee shall be deemed, for the purpose of the act, not to be an unfair dismissal if it results wholly or mainly from on or more of the following;
(a) The capability, competence or qualifications of the employee for performing work of the kind required which he was employed by the employer to do
The Respondent submitted that this provision rendered its termination of the Complainant as a fair dismissal.
I note the decision in Bolger v Showerings (Ireland) Limited [1990 ELR 184] where the High Court set out the key requirements to be met when an employee is being dismissed for incapacity:
1. Ill health must be the reason for the dismissal;
2. This must be a substantial reason;
3. The employee must be notified that dismissal for incapacity is being considered; and
4. The employee must be given a chance to be heard.
I note that this was further underpinned by the Labour Court in Humphries v Westwood Fitness Club (EED 037) ED/02/09.
It is clear that the case law addresses two requirements, one that ill health be wholly or mainly the reason for the termination of the contract and secondly that the requirement for fair procedure and natural justice is necessary for processing such cases.
I understand that in practice what is required here is that the employee’s attendance record be fairly reviewed and that he has had the opportunity to participate in any review, allowed to make representations, and be given fair warnings that dismissal is a possibility where there is no likelihood of a return to work within a reasonable period. Finally, the employee must have been given the right to appeal any decision made.
I have documented in detail the factual evidence presented to me by the parties and I find that the Respondent met these obligations.
I note there was no appeal filed by the Complainant on the decision to terminate his employment although he was afforded the opportunity.
Accordingly, I am satisfied that the Respondent met the various tests set out in Bolger and Westwood Fitness, referred to above, and that the dismissal was fair.
Employment Equality Acts
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 this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
The first matter I must consider is whether the Complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:
(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;”
The definition of a disability has been interpreted in an extremely broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark v Dansk Almennyttigt Boligselskab C-335/11 and C337/11 where it was held “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”
In the instant case, it was not in dispute that the Complainant has been diagnosed with a number of medical conditions including heart fibrillation, a lungs and chest respiratory condition and stress. It was not in dispute that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to this complaint. Having regard to the evidence adduced, it is clear that the Complainant’s medical conditions have had a significant impact on his ability to work. In the circumstances, I find that the Complainant’s medical conditions clearly constitute a disability within the meaning of Section 2(1)(c) of the Acts.
Accordingly, the issue for decision is whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts.
Section 6(1) of the Employment Equality Acts 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 either is not or is a person with a different disability".
Section 16(3) of the Employment Equality Acts provides:
“(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 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.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —
(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. “
Subsection (4) provides:
“(4) In subsection (3)—
‘appropriate measures’, in relation to a person with a disability —
(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”
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. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking his duties.
The Complainant contends that the Respondent has failed to provide him with reasonable accommodation in accordance with its obligations under Section 16 of the Acts. It claims that the Respondent’s failure to provide him with reasonable accommodation, in not in any way attempting to take steps that would find a permanent solution to return him to his work or an appropriate alternative position within its workplace. The Respondent disputes the claim and contends that the Complainant is medically unfit to perform the core duties of his role, that he is advised to work away from the vehicle testing environment, which is the job he is employed to do and the only environment that it operates within.
It was not in dispute that the Complainant is contracted as a vehicle inspector and this requires him to be positioned close to vehicles while the engine is switched on and is running. The parties have explained in detail the technical processes involved and the working environment. It is clear that the situation in relation to the Complainant’s medical condition and its consequent impact on his ability to work in that environment has been evolving over the last number of years. I note that the Complainant has been assessed on numerous occasions and although he originally was diagnosed with one condition in relation to his heart, another condition in relation to his lungs was uncovered and the reference to workplace stress was never brought to the employer’s attention but rather documented in his medical reports.
The medical reports are of fundamental significance in relation to this case and also in the deliberation regarding the provision of reasonable accommodation. I am satisfied that none of the medical reports were challenged as not painting the correct picture throughout. I note that the report dated 3 August 2017 deals with the issues with his heart and work-related stress, high demands and targets feeling stressed. I note that these issues do not raise alarm bells as to the physical work environment that the Complainant is operating within and the medical recommendation here is to look at the Complainant’s workload before returning to work. In response to the medical report I am satisfied that the Respondent waited for the further diagnoses on the heart investigation and took a reasonable approach by guiding him to its services of the employment assistance programme, which it claims he did not avail of.
I note that the Respondent kept in touch with him and there were open communications. In particular the meeting of 26 March 2018, where the Complainant met with Ms. A, HR Manager, and Mr. B, Regional Manager, where they had a frank discussion of his situation. This is where the Complainant suggests that a lung issue had been identified and his heart condition has somewhat stabilised. He blames the vehicle fumes in his work environment as the issue. I note that he remains out of work throughout.
The second medical report on 27 April 2018, confirms that the heart issue is mainly resolved but there are further symptoms. Therefore, it can be taken that this is not fully resolved. However, the main category of issue now is the lungs, this could be attributed to vehicle fumes and importantly the report indicated that he could not “safely return to his pre-existing role” and “if possible, consideration of an alternative role where exhaust exposure is avoided”. I note with interest in this medical report where it said “even driving in his own car in traffic, would be enough to provoke symptoms”.
Therefore, the question that I must decide is whether or not the Respondent failed to comply with its obligations under Section 16 of the Acts to provide reasonable accommodation to the Complainant in the circumstances of the facts and the nature of his disability and the medical information that was available to it.
The Complainant was upset that from the Respondent’s records there was no consideration whatsoever of a modified role or an alternative role provided for his return. In this regard I take note of the decision in Nano Nagle School -v- Daly  IESC 63 from the Supreme Court, which is now seen as the leading and most up to date authority in relation to the obligations on an employer under the provisions of Section 16 of the Acts. In this judgement MacMenamin J. held at paragraph 84 that: “… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.
In relation to an employer’s obligation to consult with the employee when considering the provision of reasonable accommodation, which the Complainant was heavily critical in the within case it was held at paragraph 105 of this judgement that: “I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act”. In essence, it was held that while there is no statutory obligation to consult with the employee it would be wise for an employer to engage in “meaningful participation” in discharging its obligations under Section 16 of the Act.
Having regard to the evidence adduced in the present case from Ms. A who claims that she was tasked with determining the options that were available at the time; I note she is from the Respondent’s HR department and she presented evidence of the options that were available and due to the nature and structure of all of its buildings, all employees are for all intensive purposes working in the same work environment, which is the vehicle testing facility. The administrative offices and other facilities are all interlinked.
I am satisfied that the Respondent assessed the difficult situation it found itself in. I note that the Complainant’s contract is for a vehicle inspector and the medical evidence is that he cannot be in that environment. Although, the Respondent presented evidence from a test of the air quality from 2015, the period in time between the Complainant’s return to work following long-term absence in 2012 and prior to him going out on sick leave on 2017, where the air quality was deemed acceptable and no other recommendation was placed upon the Respondent to address. I note the Respondent’s evidence that there was no reports of any ailments or trouble with its machinery and systems to raise any concerns subsequently. However, the Complainant stated that the fumes in the testing area were at fault, and that he was no longer in a position to work in that type of environment. I note the Respondent claims that the duty to provide reasonable accommodation does not obligate it to create a new role for the Complainant or to remove the core duties of the job as a vehicle inspector.
On reflection, I am inclined to accept the Respondent’s position in this matter. I note at the day of the hearing questions were raised with regard to technical equipment to improve the quality of air for the Complainant and there were comparisons made on what the best system would be. I note the size of the Respondent’s operation and I have been told of the systems in place. I have been informed that the system was checked when the Complainant was working there, and the air quality was of the recommended levels. I have noted and I am satisfied that the Respondent throughout had no reports of problems to its machinery/ equipment, which would raise its alarms as to the air quality and had trust in the system it had in operation.
It is clear from the judgement in Nano Nagle that the duty to provide reasonable accommodation within the meaning of Section 16 of the Acts cannot be infinite or remove all of the duties which a disabled person is unable to perform as that would almost inevitably become a disproportionate burden. Having regard to this, I am satisfied that it is reasonable to conclude from the content of medical reports that the Complainant is no longer capable of working safely in the very environment that requires him to perform the essential and necessary duties of the job in respect of which he was employed. I have heard of the physical structure of the Respondent’s workplace and how it interlinks with the testing area and therefore the air would be one in the same. I am satisfied that the Complainant was employed as a vehicle inspector, to test vehicles in a work environment, and arising from the medical advice, he is no longer allowed to return to. In applying the principles set out in Nano Nagle, I am satisfied that the Respondent’s obligation to provide reasonable accommodation in the specific circumstances of the present case does not extend so far as to compel it to create an entirely different job to facilitate the Complainant.
Having regard to the foregoing, I am satisfied that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of Section 16(3) of the Acts. Accordingly, I find that the Complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the Acts and that his complaint fails.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint of unfair dismissal is not well founded and is, therefore, rejected.
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.
I find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of Section 16(3) of the Acts and that his complaint fails.
Dated: 23rd April 2020
Workplace Relations Commission Adjudication Officer: James Kelly
Employment Equality Act – unfair dismissal – vehicle testing – fumes – not well founded.