Complainant

Respondent

Anonymised Parties

Checker

Transport Company

Representatives

Ms. Áine Feeney, SIPTU

Mr. John Connellan, BC Law

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055068-001

14/02/2023

The Complainant commenced employment with the Respondent on 30th March 2009. The Complainant was a full-time, permanent member of staff, in receipt of an average weekly payment of €422.76. The Complainant’s employment terminated by way of resignation on 26th August 2022.

On 14th February 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had discriminated against him on the grounds of “disability”. In particular, the Complainant alleged that the conduct of the Respondent, in response to his disability was such that he was entitled to resign his employment and consider himself to be constructively dismissed on discriminatory grounds. In denying this allegation, the Respondent submitted that the Complainant simply repudiated his employment by securing a role elsewhere, that he did not inform the Respondent of the rationale for his termination, and he did not engage with the Respondent’s internal procedures in any meaningful manner prior to leaving his employment.    

Following a series of adjournments, requested by both parties for the variety of reasons, a hearing in relation to this matter was convened for, and finalised on, 29th July 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party during the hearing. This hearing was listed alongside that bearing reference number ADJ-00044302, and this decision should be read in conjunction with the same.

Both parties issued substantial submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his compliant, while a HR representative gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, the Respondent raised two preliminary issues as to jurisdiction, namely that no allegation of discrimination occurred within the cognisant period for the purposes of the present complaint, and that the Complainant did not suffer from a disability as defined by the Acts. Given the nature of these submissions, they will be considered following a summary of the substantive matter.

Given that the decision below will involve an examination of the Complainant’s medical history, I have utilised my discretion to anonymise the decision in its published form.

The Complainant commenced employment with the Respondent on 20th March 2009. While the Complainant was initially employed as a “warehouse operative”, he changed role to that of “checker” on or about 17th May 2016.

On 6th May 2021, the Complainant suffered a back injury was thereafter certified as unfit for work. During this initial period of absence, the Complainant met representatives of the Respondent and indicated that he would be willing to return to light duties. Thereafter, on 28th July, the Complainant’s medical attendant confirmed that he would be fit to return to work on light duties. On that same date a representative from the Respondent advised that no light duties would be available. The Complainant was further informed that he could only return to work once he is certified as fully fit.

By correspondence dated 16th August 2021, the Complainant’s doctor again confirmed that he would be fit to return to work for light duties only. In this regard, the Complainant submitted that the role of checker, which he had carried out for some time prior to his absence, could easily be adjusted so as to allow for his return. Again, on 20th August 2021, the Respondent corresponded with the Complainant advising that they had no roles that would involve light duties and could not facilitate any “light duties position”.

As matters had apparently reached an impasse, the Complainant’s representative corresponded with the Respondent on 5th October 2021, specifically requesting that the Complainant be referred for an occupational health assessment and that matter be otherwise progressed. No contemporaneous response was received to this correspondence. On 5th October, the Respondent again issue correspondence restating the previous position that the Complainant could only return to work when deemed fully fit to do so.

On 8th November 2021 the Complainant’s representative again corresponded with the Respondent setting out, as some length, the Respondent’s obligations regarding reasonable accommodation in accordance with the impleaded Act. Again, no response was received to this communication.

On 6th & 17th January 2022, the Complainant’s representative wrote to the Respondent seeking some progression in relation to this matter. On 20th January 2022, the Respondent’s HR function responded stating that the Complainant had not issued a medical certificate for some time. Thereafter, on 12th April 2022, the Respondent requested that the Complainant attend their own “company doctor”. While the Complainant attended this consultation on 14th April 2022, to date no report issued from this appointment and the Complainant received no correspondence or update of any description in relation to the same. On foot of the foregoing, the present complaint was referred on 25th July 2022.

Thereafter, given that no substantive response had been received from the Respondent on foot of the foregoing, and in circumstances whereby the Complainant was not permitted to return to work, he resigned his employment on 26th August 2022, and referred a complaint in this regard on 14th February 2022.

By submission, the Complainant stated that the Respondent routinely failed to engaged with him in relation to the issues that  serve to prevent him from returning to work. In this respect, he submitted that he provided the Respondent with ample opportunities to address these concerns, however the Respondent demonstrated no wiliness to engage with the Complainant, much less seek to have him return to his employment. In these circumstances, the Complainant submitted that he was entitled to resign his employment and consider himself to be constructively dismissed on discriminatory grounds.

By response, the Respondent denied that they had discriminated against the Complainant at any stage of his employment.

In this regard, the Respondent agreed with much of the factual matrix presented by the Complainant. They agreed that the Complainant was certified as unfit for work due to “tennis elbow” between 11th and 28th July 2021. Thereafter, the Complainant issued certification stating that he suffered from “back pain” on from 29th July until 3rd August 2021. No further certificates were received from the Complainant in the course of his employment.

By email dated 21st August 2021, the Complainant representative queried the Complainant’s return to work. On receipt of this query, the HR manager of the Respondent undertook a review of the Complainant’s duties. In this regard, while the Complainant had been working as a checker for a period time prior to the commencement of his sick leave, this role and all other roles within the warehouse environment involved an element of manual handling. In this regard, it was submitted that no role existed within the Respondent that would be suitable for light duties. In order to prevent the Complainant from exacerbating his existing injury, the Respondent stated that he was welcome to return to work, once he was certified as well enough to do so.

In order to further investigate the nature of the Complainant’s ability to perform his duties, the Respondent organised an appointment with their own medical practitioner for April 2022. While the Respondent was awaiting the result of the same, the Complainant repudiated his employment by securing a role elsewhere, effectively terminating the same.

By submission, the Respondent stated that they sought to accommodate the Complainant in the course of his employment. Notwithstanding their efforts in this regard, given the nature of their activities, they were not in a position to do so. They further submitted that the Complainant terminated his employment without notice to the Respondent and without engaging with any of the Respondent’s internal procedures.

At the outset of the hearing, the Respondent submitted that the discriminatory element of the complaint had not been demonstrated, and the complaint could not succeed on these grounds. In this regard they stated that no act or allegation of discrimination occurred within the cognisable period provided for by the Act. In this respect, they stated that the Complainant commenced a period of sick leave in excess of one year prior to referring the present complaint. Shortly thereafter, the Respondent set out their response regarding their position as to the Complainant application to return on “light duties”, given that this was the alleged act of discrimination complained of by the Complainant, and in circumstances whereby it occurred in excess of six months prior to the referral of the complaint, the Respondent submitted the same could not form the grounds for an allegation of discriminatory dismissal.  

In this regard, Section 77 (5A) of the Acts provides that,

“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

In the matter of Occupantal Limited -v- Joseph Hayes EDA 184, the Labour Court examined the specific application of the Section 6(A) to a complaint involving a failure to provide reasonable accommodation. Here the Court found that,

“…the claimed failure of the Respondent to accommodate the Complainant in respect to his disability can constitute a practice within the meaning ascribed to that notion by section 77(6A) of the Act in Ann Hurley v Co Cork VEC. Consequently, the cognisable period for this aspect of the within complaint extends up to the date on which the Complainant’s employment came to an end.”

In light of the wording of Section 6(A), and having regard to the precedents quoted above, the Respondent’s alleged failure to provide reasonable accommodation constitutes an ongoing “practice” that continued to the date of the lodgement of the complaint form. As such I find that the final allegation of discrimination fell within six months of the date of lodgement with the Commission and the substantive complaint may proceed.

In addition to the foregoing, the Respondent submitted that the Complainant did not suffer from a “disability” as defined in the Act. In this regard, they submitted that the Complainant initially issued a medical certification stating that he suffered from “tennis elbow”. Thereafter, the Complainant issued medial certification stating that he suffered from “back pain”, with no mention of the previous ailment. Thereafter, and for the entirety of the relevant period for the purposes of the present complaint, the Complainant did not issue any medical certification. In this regard, the Respondent submitted that the Complainant did not establish that he suffered from a disability as defined by the Act, and consequently his application could not succeed.

In this regard, Section 2 of the Employment Equality Acts define disability in the following terms,

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”

In the matter of A Government Department v A Worker EDA 094, the Labour Court held that,

“The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

Regarding the reason for the Complainant’s absence from work, it is noted that his doctor’s note states that he suffers for “tennis elbow” and thereafter, “back pain”. In this regard, the Respondent has submitted that the two conditions reference above are symptoms or illnesses, rather than diagnosed disabilities. In addition to the foregoing, the Respondent submitted that the Complainant did not provide any medical certification relevant to the cognisable period of the present complaint. In such circumstances, the Respondent submitted that the Complainant has not discharged the burden of proof regarding the existence of a disability for the purposes of the present complaint.

In the matter of A Government Department v. A Worker EDA094, the Labour Court examined the definition of "disability" as defined by Section 2. In so doing, it held as follows,

“It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it:-

“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”

Regarding the initial point, the HSE’s website describes “tennis elbow” as being the common term for a condition known as lateral epicondylitis, a specific condition capable of formal diagnosis and clearly meeting the definition listed at subsection C listed above. Notwithstanding the same, it is accepted that “back pain” is not a condition but is instead a symptom of a potential disability. It is further apparent that the Complainant has not provided any proof of the existence of a disability during the cognisable period for the purposes of the present complaint and as such may fall foul of the de minimus rule set out in the authority cited above.

Notwithstanding the foregoing, in the matter of St Margaret’s Recycling -v- Ryszard Smektunowicz EDA 1822, the Labour Court examined that concept of “constructive notice”, and quoted with approval the following passage from Somers v W [1979] IR 94. This authority describes the concept in the following terms,

“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.”

In St Margaret’s Recycling, cited above, the Court found that placing an employer on notice of a condition such as back pain, and demonstrating that an employee was no longer in a position to fulfil their role as a consequence of such a condition, places them on constructive notice of the existence of a disability as defined by Section 2.

In the normal course, once an employee indicates that they cannot complete the work for which they were hired, an Employer would arrange for the employee is question to attend an occupational health specialist to determine the nature of the injury or illness. This instruction would normally be accompanied by information outlining the nature of the duties associated with the role. The purpose of such a referral is to secure an expert medical opinion as to a specific employee’s ability to perform their duties in light of their present and ongoing capacity. In the present case, no such referral was made or attempted. While the Complainant was, after a lengthy period of absence, referred to the Respondent’s “company doctor”, it is noted that no report issued on foot of this appointment and no relevant information was communicated on foot of the same.

Having regard to the foregoing sequence of events, I find that the Respondent did not pursue “the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.” In such circumstances, I find that they were fixed with constructive notice of the existence of the disability within the meaning of the Act.

As a consequence of the findings listed above, I assume jurisdiction to consider the substantive complaint. 

 Regarding the present case, the Complainant has alleged that he was constructively dismissed on discriminatory grounds. In this regard, he submitted that the Respondent persistently failed to allow him to return to work or facilitate, by means of reasonable accommodation, his disability. By response, the Respondent denied the Complainant’s allegations regarding their failure to provide reasonable accommodation. They further submitted that the Complainant resigned his employment without notice to the Respondent and without engaging in the Respondent’s internal grievance procedures.

In this regard, Section 2(1) of the Act defines a dismissal as including,

“…the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so….”

In the matter of Supermacs Ireland Limited -v- Sarah Ryan EDA2131, the Labour Court observed that the definition referenced above, “is practically the same as that contained at section 1 of the Unfair Dismissals Act, 1977”. On foot of the same, the Court applied the tests and authorities relevant to a complaint of constructive dismissal under the Unfair Dismissals Acts to the complaint of discriminatory constructive dismissal under the present Act.

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

While it is an express or implied condition of every contract of employment that a employer provide work for an employee, in the present case the Respondent has submitted that they were not in a position to do so as, in their view, the Complainant was not capable of fulfilling his duties. While the Complainant strongly disputed this version of events, such a position does not serve to repudiate a contract of employment of itself. Rather, the reasonableness of the Respondent’s position must be examined to determine whether the same serve to breach the implied term of trust and confidence present in all contracts of employment.

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures.

In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Regarding the present case, the Respondent submitted that the Complainant resigned his employment without any form of notice to the Respondent, and without engaging with their internal policies in this respect. While this is clearly the case, it is also apparent that the Complainant raised the issue of the Respondent’s alleged failure to make a reasonable accommodation numerous times in correspondence, and referred a complaint to this forum in respect of the same. In such circumstances, the Complainant stated that the Respondent was well aware of the difficulties being experienced by the Complainant, and his failure to engage with the internal procedure should not prove fatal to his case.

While it is clearly the case that the Respondent was aware of the issues that led to the Complainant’s resignation, it is further apparent that the Complainant did not engage with the Respondent’s grievance procedures prior to terminating his employment. In this respect, a distinction can be drawn between issues that arise in the course of employment and a formal grievance reported through the relevant internal policies. While the Respondent was on notice that the Complainant had significant concerns regarding their alleged failure to make reasonable accommodation, at no point where they made aware that the Complainant was considering terminating his employment on foot of the same.

In addition to the foregoing, it is noted that the Complainant terminated his employment in the weeks following the referral of the initial complaint in this regard. While the same is not an internal procedure as referenced in the authorities listed above, it did represent a manner by which the issues complaint of by the Complainant were to be ventilated and would have provided an outcome in relation to the same. By resigning his employment prior to the completion of that process, and in contemplation of his failure to engage with the Respondent’s relevant internal procedures, I find that the Complainant has not discharged the burden of proof present in all complaints of constructive dismissal, be they relevant to discriminatory grounds or not.

In such circumstances, I find that the Complainant was not constructively dismissed on discriminatory grounds, and his complaint is deemed to be not well-founded.

I find that the Complainant was not discriminated against within the meaning of the Act.

Discrimination, Disability, Reasonable Accommodation, Constructive Dismissal