ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022892
Jv Hutton Limited
JV Hutton Limited
Anthony Layng McEneaney Tighe Solicitors
MP Guinness BL instructed by Lavelle Partners
Complaint/Dispute 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: 13/12/2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
In accordance 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 was employed as a business development manager from 9th July 2018. He claimed that he was discriminated against in his conditions of employment and was harassed and dismissed because of his disability.
Summary of Complainant’s Case:
In his submission, the complainant outlined the history of Huntingdon’s disease in his family and stated that the respondent was well aware of this, having known him for a number of years. While he claimed that his first indication of a possible illness was in May or June 2018 when he felt unfocused, easily distracted and had mood swings, he pointed out that he was not consciously aware that he was suffering from the early stages of Huntingdon’s. He also added that he felt stressed, depressed and overburdened but put this down to the fact that his home life was very busy. He claimed that in the latter part of the year, he became aware that something did not seem quite right but did not want to contemplate that he had Huntingdon’s disease. He further stated that in December 2018, he was not ready to accept that he might have serious health difficulties and had not confronted the possibility of Huntingdon’s in his mind or indeed discussed his health anxieties with his wife. He asserted that, in the days prior to meeting with the Respondent’s MD on January 15th 2019, he believed that he had Huntingdon’s disease on the basis that he was overlooking things and failing to complete simple tasks. He also claimed that in the meeting on January 15th 2019, he explained to the MD that the reason for the mistakes he was making was due to the fact that he had Huntingdon’s disease. The complainant further stated that he was dismissed at a subsequent meeting on 21st January and alleges that the dismissal was due to him having informed the respondent on 15th January that he had Huntingdon’s Disease.
It was also alleged that the respondent failed to provide reasonable accommodation, having been informed of the complainant’s disability and his willingness to work in an alternative or part time role, and that no medical evidence was obtained to assess whether or not retaining the complainant in employment would have involved a disproportionate burden.
Summary of Respondent’s Case:
The respondent claimed that issues arose with the complainant’s work very soon after he started his employment and highlighted that the MD met with him on 1st November 2018 to discuss two serious issues caused by him that had exposed the company to potential professional negligence claims. On 3rd January 2019, a further meeting was held and it was explained to the complainant that his probationary period would be extended as a result of his ongoing poor performance. He was also informed at this meeting that the respondent would be engaging a sales coach to assist him in the achievement of his business goals. The first engagement with the sales coach took place on 9th January and was not successful due to the complainant’s lack of engagement. As a result of this and his overall poor performance in the role, the respondent made the decision to terminate the complainant’s employment. This decision was communicated to him in a meeting held on 15th January. Having been informed of the decision to dismiss him, the complainant requested that he be considered for a lesser role. The respondent stated that this was refused because there was no room for any other position, given the size of the company. It was claimed that the complainant then informed the respondent his head was “not in the game” because he believed that he had Huntingdon’s disease. Having been made aware of this, the company’s MD asked for some time to process this information and arranged for another meeting on 18th January. At the reconvened meeting, the MD informed the complainant that notwithstanding the information about his disability, the decision to dismiss him stood. The respondent stated that he was not and could not have been aware of the complainant’s disability prior to his dismissal and that the decision to dismiss him had been made and communicated before the complainant had informed him of his belief that he had Huntington’s disease.
Findings and Conclusions:
Prior to the start of the hearing, I made the complainant’s representative aware that I previously had a working relationship with the respondent’s representative. The complainant’s representative did not object to me hearing the case.
In every case under the Acts, I must firstly consider the allocation of the burden of proof as between the parties. Where a prima facie case is made out, the onus shifts to the respondent to prove the absence of discrimination and it is for the complainant in the first instance to establish the primary facts upon which the complaint is based. If the primary facts are proved, I must determine if they are of sufficient significance to raise an inference of discrimination on the grounds relied upon. If having thus established a prima facie case of discrimination, the burden of proof rests with the Respondent to demonstrate that the dismissal was not on the grounds of disability.
While both sides agree that the complainant made the respondent’s MD aware of his belief that he had Huntingdon’s disease in the meeting of 15th January 2019, the two parties disagreed on whether or not the intention to dismiss had been raised at this meeting. I must therefore decide if, in my view, the respondent’s MD made the complainant aware of his intention at the meeting on 15th January, prior to him being informed that the complainant had Huntingdon’s disease, or, if the dismissal was not raised until a further meeting, a few days after the complainant alleges he had made the respondent aware of his disability. While the complainant stated in his submission that this meeting took place on 21st January, and the respondent stated that it happened on 18th January, it was agreed at the hearing that the meeting most likely took place on the 18th.
In deciding which party’s evidence I prefer surrounding the key meeting on 15th January, I note firstly that there were ongoing issues with the complainant’s performance and that these were highlighted to him on 1st November 2018 when he was made aware of 2 significant errors and that he was behind on projected new business figures. I also note that, while the respondent’s MD extended the complainant’s probation on January 3rd due to his poor performance, he claimed that the final straw, which resulted in his decision to dismiss the complainant, was his lack of interest and engagement in a coaching session that had been arranged on January 9th in an attempt to improve his sales performance.
In the absence of any plausible reason from the complainant for the January 15th meeting to be called, given that a meeting about his poor performance had only been held 12 days previously, I therefore consider it more likely than not that the purpose of the meeting was to inform the complainant of his dismissal. I also consider it credible that the MD waited for a few days after the meeting of the 15th January 2019 to reconsider his decision to dismiss in light of the complainant having informed him of his belief that he had Huntingdon’s disease. Accordingly, I am of the view that the decision to dismiss had been made and communicated verbally, prior to the respondent having been informed of the complainant’s disability, during the course of the 15th January meeting, notwithstanding the fact that it was not formally effected until 18th January.
While I am of the opinion that the complainant did not inform the respondent of his belief that he had Huntingon’s disease until after he was notified of the intention to dismiss him, I must also address the question of constructive notice and whether the respondent should have been aware that the complainant had the disease given his undisputed knowledge of the complainant’s family history as well as his untypical behaviour over the course of his employment.
Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that he claims not to have had. In Somers v W IR 94 Henchy J described the concept as follows: -
When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.
The applicability of this doctrine in an employment context was confirmed by the High Court of England and Wales in Sayers v Cambridgeshire County Council EWHC 2029.
Notwithstanding his awareness of the complainant’s family history, I do not believe it is reasonable to have expected the Respondent to explore the question as to whether the Complainant had Huntingdon’s disease without there being good grounds to do so in the absence of any medical evidence and bearing in mind that the complainant took a number of months to acknowledge to himself that he had the disease.
Given my view that the respondent made his decision to dismiss the complainant prior to him becoming aware of his disability and that he cannot reasonably have been expected to be aware of it, I believe that the complainant has failed to establish facts from which discrimination on the disability ground could be inferred and that, as a result, there is not a prima facie case of discrimination. Accordingly, the complaint cannot succeed.
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.
The claim does not succeed for the reasons outlined above.
Dated: July 17th 2020
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill