Complainant

Respondent

Parties

Alan  Barton

MGM Boats (Cork) Limited

Representatives

Benjamin Shorten BL instructed by Carey Murphy & Partners, Solicitors

Liam O’Flaherty BL instructed by Conways Solicitors

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-00061223-001

22/01/2024

This case involves a Complainant who suffered an injury at work in 2017 and issued High Court personal injuries proceedings against the Respondent. It is submitted that he continued to work for the Respondent for more than six years until shortly after the High Court proceedings settled ‘on the steps of the court’ in 2023. Shortly thereafter, he was placed on sick leave by his employer, and then issued with a ‘redundancy letter’ terminating his employment. It is the Complainant’s case that the dismissal constitutes unlawful discrimination on the basis of disability in breach of the Employment Equality Act 1998 or, alternatively, that he was victimised for taking the High Court personal injuries action.

The Respondent denies the Complainant’s claims and contends that the Complainant was dismissed from his role on the ground of ‘incapacity’. The Respondent denies the Complainant’s allegation that he was the subject of a discriminatory dismissal on the basis of disability and denies that, in the alternative, he was victimised for taking the High Court personal injuries action.

It is common case that the Complainant is suffering from a disability within the meaning of the legislation.

Summary of the Complainant’s written submissions

The Complainant was employed by the Respondent since March 2011. He suffered a serious accident at work on 9th March 2017. He fell from a boat and fractured his left leg seriously. The accident was the subject of High Court personal injuries litigation against the Respondent company and another party. Proceedings were initiated in 2017 and issued in 2018. Other than initially a short period spent in hospital and some rehabilitation, the Complainant returned to work with the Respondent and continued to work for the Respondent until his injury action came to trial in 2023. The case settled pre-trial on 10th May 2023, and the Complainant received a settlement.

It is submitted that the six years between the injury and the settlement of his litigation, the Respondent was aware of the Plaintiff’s injuries and they were aware that he had difficulty working at heights, inter alia.

It is submitted that theComplainantworkedforthose sixyearswithsomeadjustmentstohisworkpracticesandtheRespondent wasawareofthese adjustments.

Within twenty-four (24) hours of the Complainant settling his personal injury claim, the Respondent’s Managing Director, Mr. Gerry Salmon, enquired of the Complainant what his future plans were. The Complainant responded that he planned to work until 70 years of age. The Respondent's MD stated that the Complainant's medical reports suggested otherwise, and the Complainant was put on sick leave on 11th May 2023 pending being medically assessed further by the Respondent's doctors. The Complainant indicated that he had been working away for the last six years in the same fashion and that the Respondent had never raised any issue with his work during this time. The Respondent insisted that the Complainant was to cease all contact with any customers or potential customers, even by phone or e-mail.

The Respondent arranged for the Complainant to see Anne Dowling, Occupational Health Nurse on 1st June 2023. Ms. Dowling referred the Complainant to Dr John Crowley, Occupational Physician who made, inter alia, the following recommendations:-

(a)    The Complainant should engage with his employer to explore a role that did not entail working at height and testing of vessels.

(b)    The Complainant is fit to continue in a sales role and customer service.

(c)     Specific tasks are to be risk assessed where high falls risk should be considered.

(d)    Dr Crowley stated that the Respondent will need to decide on these suggested adjustments and pending ongoing improvement he envisaged a return to work by June 2023 of the Complainant with the recommendations and engagement from the Respondent.

(A copy of the recommendations of Dr John Crowley was exhibited).

It is submitted that c. 14th July 2023, a HR Consultant acting on behalf of the Respondent scheduled a meeting with the Complainant at the Rochestown Park Hotel. The Complainant agreed that he would attend but indicated that he wished to bring along his Solicitor. This meeting was subsequently cancelled as the Respondent indicated that they too would or should be legally represented.

A subsequent meeting was rescheduled for 27th July 2023 at the same hotel, to which the Complainant again agreed to attend, but once more this rescheduled meeting was cancelled at the eleventh hour by (or on behalf of) the Respondent, in an email dated 26th July 2023.

No further meeting was proposed by the Respondent despite the Complainant and his Solicitor being willing and able to attend at any meeting with the Respondent its servants or agents. It is submitted that why this meeting never occurred is a matter solely within the knowledge of the Respondent, its servants or agents.

(Copies of the emails from the Respondent to the Complainant dated 20th July 2023, reminding him of the rescheduled meeting on 27th July 2023, the confirmation by the Complainant of his attendance by email dated 25th July 2023, and the subsequent cancellation for the second time by the Respondent on 26th July 2023 were exhibited).

The Respondent issued the Complainant with a ‘Letter of Redundancy’ dated 11th September 2023 stating inter alia that he was entitled to a six-week notice period but that he was to consider himself redundant with immediate effect and he would be paid for the six week notice period in addition to his statutory redundancy. (A copy of the said ‘letter of redundancy’ dated 11th September 2023 was exhibited).

The Complainant submits that the Respondent still has the office open in Kinsale, Co. Cork and it will be the Complainant’s evidence that in the main, he was working there at all relevant times as a ship broker on his own.

It is the Complainant's case that he was discriminated against on the basis of his disability which resulted from an injury at work. He worked for approximately six years for the Respondent between the accident in March 2017 and the successful settlement of his personal injuries’ action in May 2023. It is submitted that he did the same work he had done since 2011 albeit with some self-imposed limitations regarding working up ladders or going out on mono hulled craft or pulling ropes. It is the Complainant’s case that the Respondent knew or should have known of these adjustments to the Complainant’s work practices over this six-year period. It is the Complainant’s case that the Respondent failed to consider any meaningful adjustments or accommodations for this Complainant’s disability. Furthermore, it is the Complainant’s case that the Respondent failed to carry out any, or any adequate, risk assessments of the Plaintiff’s working practices and that they failed to engage with or consult with the Plaintiff about modifying his work duties and/or consideration being given to transferring the Complainant to another type of position within the Respondent company, notwithstanding the recommendations of their own expert Dr John Crowley, Occupational Physician.

Separately, it is the Complainant’s case that he was victimised by the Respondent for taking a personal injury action against them and another party and he will rely on the fact that the day after his case was settled, the Managing Director of the Respondent company set in train a sequence of events that would lead to his being made redundant on 11th September 2023. It is submitted that the Complainant was never given the opportunity to avail of any due process or make his case with the Respondent.

The Complainant submits that it is not contentious to say that he suffered a significant injury to his left distal tibia in March 2017 which was treated surgically; and that the Complainant has gone on to develop arthritic changes to the injured ankle which are symptomatic, and they have been treated, post-surgery with pain management relief, to include intra articular injunctions. It is submitted that this meets the definition of disability under the Employment Equality Act. 1998. The Complainant cited s.16(3) of the 1998 Act in relation to the obligations of employers.

The Complainant cites the WRC case of Customer Service Agent V. Online Sale (ADJ-00041008), in relation to the requirements in terms of (1) a Complainant establishing that a prima face case of discrimination exists, before the burden to disprove this discrimination moves to the Respondent, (2) hypothetical comparators and (3) reasonable accommodations.

He further cites McMenamin J. in the Supreme Court case of ‘Nano Nagle School V. Daly’ [2019] IESC 63 and quotes:-

“At (29). Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 CRPD, reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’.

He cites the Labour Court decision in Humphries V. Westwood Fitness Club in relation to the Employer’s obligations under s. 16. Of the Employment Equality Act 1998. He further submits that the Circuit Court, on appeal, upheld the decision of the Labour Court in Humphries v Westwood Fitness Club and that in particular that Dunne J. held:- “In respect of the employer, it has an obligation to put its concerns to the test. If the employer had taken appropriate medical advice it might have come to the view that it could have dismissed the plaintiff and that there was no way of having the plaintiff in its employment, if it had done that things might be very different today.’

Mr. Benjamin Shorten BL - opening remarks on behalf of the Complainant

The Complainant suffered a fall at work, which resulted in an injury, which was the subject of High Court proceedings against the Respondent company and a third party (the company whose truck delivered the boat from which the Complainant fell). High Court proceedings issued in 2018 and the case came on for hearing in May 2023. The case settled.

During that time, the Complainant continued to work for the Respondent in the same role albeit with some self-imposed restrictions. The Respondent was on notice of this, through that time. Within twenty-four (24) hours of the case settling, the Managing Direct of the Respondent company called the Complainant in and enquired as to his ‘plans for the future.’ It started a process, which  led to ‘redundancy’ (according to the Respondent). The Complainant says it was ‘not a redundancy’, that the job is still there. It is submitted that the rest of the paperwork from Respondent indicates that it is not a redundancy.

It is submitted that there is an obligation on an employer to consider reasonable accommodations and appropriate measures in respect of an employee who has a disability. It is submitted that it is non-controversial to say that the Complainant has a disability. It is submitted that he is not so seriously disabled that he is incapable of performing the job for which he was employed. In support of that, it is submitted that the Complainant worked for the Respondent for six (6) years, and he asked the Tribunal to consider what changed within those six (6) years.

It is submitted, on behalf of the Complainant, that what changed was the High Court case; that the Respondent failed wholly to even consider reasonable measures, that there were no consultations – two (2) consultations were set up with the Complainant but were cancelled by the Respondent. The first meeting was scheduled for 14/7/23 but cancelled by Respondent, when Complainant said he wanted to bring his legal representative. The second meeting was scheduled for 27/7/23 but was cancelled again, and it is submitted the Complainant does not know why the second meeting was cancelled.

The Complainant is relying on the High Court and the Supreme Court in the Nano Nagle case at paragraph 105, which sets out that there may be no legal duty on an employer to consult with an employee, but a prudent employer should and would do so.

It is submitted that there are two (2) strands to this. It obliges an employer to amply demonstrate that it has considered reasonable accommodations.

In April 2022, the Complainant had a fall, not at work, at his home address. At that time, the anniversary of the passing of his partner, marking that anniversary with family and friends, and had a number of drinks. He suffered a fall, which damaged the sight in his right eye – he is not hiding that fact – it did not occur at work.

It is submitted that the ‘falls’ referred to by Ann Dowling happened while the Complainant was on crutches. He had falls in the home place. He never fell at work, other than the initial index fall that caused the disability.

It is submitted that the Complainant’s case is straight-forward:-

1.       Yes – he has a disability.

2.       He worked for the intervening six (6) years with that disability and some self-imposed restrictions.

3.       His performance was never questioned within those six (6) years.

4.       The Respondent has failed in its statutory duty to amply demonstrate that they considered reasonable accommodations.

5.       Mr. J. McMenamin’s quote from Nano Nagle was reiterated: ‘105. 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.’

6.       WRC hearings/decisions also support the submission that there should have been an ample demonstration that reasonable accommodations were considered.

The Complainant, Mr. Alan Barton, took the oath, and gave evidence on his own behalf.

Mr Barton outlined his background and work history. He said that he was born in December 1956, in the UK. He left school at sixteen (16), joined the police cadets, became a constable at 18.5, and then became a detective in the special branch. In later years, in worked for a law firm – he did work in Crown law cases, at the request of Counsel. He said that he became a Pier Manager in Crosshaven. He also became a Fire Chief and he ran a fire station for five (5) years. He said that he worked for a broker ‘HM yachts’ for eleven (11) years and that company ‘folded in 2011.’ He then, took a job with the Respondent company, MGM ten (10) days later, in 2011.

He outlined his involvement in sailing. He said that he had been sailing since he was four (4), that he had sailed all his life, that he was in the RNLI for sixteen (16) years and, gave by way of example of his experience that he had been involved in the Fastnet Races.

He said that he worked for MGM since 2011, that he ‘fell off a boat in 2017’, that High Court proceedings issued in 2018, and the matter settled in May 2023.

He said that his job pre-accident involved mainly meeting people, providing information to sell and buy boats. He said that he liaised with surveyors and engineers to check their boats out for the buyer. He said that he acted for buyers and sellers.

He outlined that he was in hospital for approximately (10) days, after his accident, but that he was engaged in work during that time – he was sending emails, phoning people, doing his job etc. He said that when he came out of hospital, he was doing the same at home, initially. He explained that he had a friend who would take him down to Kinsale – a friend who would ‘pack up my wheelchair and take me down.’ He said that clients came to his house as well. He said that most of his clients were friends.

In 2019, the Complainant went back to work, immediately. He said Mr. Gerry Salmon, MD of the Respondent, rang him to meet him in the Kinsale office. He said that Mr. Salmon told him that in view of what he had learned, he had to put the Complainant on paid sick leave. The Complainant said he asked: ‘Why?’ He said that the MD said he did not want to argue in the office, and that the conversation was ‘short and sweet.’

He said that [during the period between the accident and the High Court case] ‘they did accommodate me’ – that he went to the Southampton Boat Show in September, ‘but I was still on my crutches.’ He said that the hotel is close to the boat show, that the company accommodated him by putting him on the rotary stand, where he could sit down all day. He said that he needed crutches back to the gateway, and that he had to taxi to the hotel - 5 pounds each way – that he put in an expenses claim for that and received a phone call to say that ‘Gerry wouldn’t pay because I said I was okay to go.’

He said that when he was let go, he got an email telling him not to contact clients, to pass them on  to the Dublin office instead. He said that he thought ‘it made me look very ignorant because people were trying to get hold of me [and he could not respond].’

He was asked about his performance. He explained that the company had a CRM, a database of customers - it was to keep track of clients/opportunities. He said that the company had four (4) directors and a maximum of three (3) or four (4) brokers employed at the time, including him. He said, that in terms of the percentage of clients – the last time he looked before left, there were 7,000 clients on the CRM – and he, the Complainant had 3,000 clients (as one of 7 or 8 people). It was put to him that he ‘had a substantial amount’ of the company’s clients. He said: ‘Yes.’

He outlined the meetings he had. He met with Ann Dowling, Occupational Health Nurse Case Manager (report exhibited at Tab 4) and Dr. John Crowley, Occupational Physician (report exhibit at Tab 3).

Counsel for the Complainant took him through the Occupational Physician’s report, and the recommendations set out therein:-

Dr. John Crowley’s report sets out:

‘Functional capacity in relation to work:

Fit for work with recommendations, recommendations listed below

Workplace recommendations:

So far as is reasonably practicable for the employee and employer, I recommend the following.

1)      Should engage with employer to explore role with no duties working at height and testing of vessels.

2)      Fit to continue in sales role and customer service.

3)      Advise review in 6 weeks to further evaluate employee’s response to the recommendations.

4)      Specific tasks are to be risk assessed where his high falls risk should be considered.’

The Complainant said that there was ‘no consultation, none whatsoever’. He said that he was in a sales role, that he was customer facing all the time. He explained that he thought ‘his concern was my left arm and working at heights.’ He outlined that he had received ‘no training with MGM about working at heights’, but that he had previously been a fireman. He explained that he simply stopped going on boats that were on heights. He outlined how when yachts come out of the water, that a ladder is needed to get on it. He said that he continued going on yachts that were alongside – on a marina. He explained that some motorboats would not be high. He said that he used to do a lot of deliveries (of boats), that for the Respondent company he delivered a few motorboats. He said that he did not want to push his left arm. He explained that he was involved in the traditional regatta in Crosshaven but that he did not do any rope-pulling, that he is a skipper.

He said that in 2018, he brought down a big boat from Dublin for MGM (a 46 foot powerboat). He said that he was on and off that boat with potential customers, and also doing some entertainment for previous customers. He said that he was still on crutches, at that point, that Mr. Gerry Salmon came down for a couple of days, during covid (i.e. that the injury was visually obvious to Mr. Salmon).

No. 3 - The third point on the report advised a review in 6 weeks to future evaluate employee’s response to the recommendations. He was asked whether he was asked for his response. He said: “No.” He said that he was told that they would arrange a meeting to discuss. He said that in relation to the appointment, he told the lady who arranged it that he was taking his Solicitor with him to the appointment. He said that the meetings were set up by his employer ‘to see if there was a way forward so I could continue with my employer.’ He said the first meeting was cancelled ‘because Gerry’s lawyer wasn’t available.’ It was then re-scheduled but the second meeting never took place.

In relation to No. 4. on the report: He said that there was no assessment on any tasks he regularly did. He said that he ‘just got on with the job’ and that he ‘used to update Gerry etc.’

Page 2 of Dr. Crowley’s report sets out: ‘Pending ongoing improvements, I anticipate a return to work with recommendations, and engagement with his employer, in June 2023.’ This was put to him. The Complainant said that there was an email cancelling the meeting with the HR consultant. He then received a ‘letter of redundancy’’ on 11/9, which was both posted and emailed to the Complainant. The first two paragraphs set out that: ‘Following on from consultations…’ It was emphasised that whatever consultations may have taken place, they were not with the Complainant. He said that ‘the only thing I effectively stopped doing was climbing ladders.’

He outlined that the Respondent company is big, ‘probably the biggest in Ireland, alongside [another named company] in Dublin.’ He said that there are now three offices – that there had previously been four offices – Northern Ireland, Dun Laoighre, Kinsale, used to be an office in England where the Complainant worked for some time.

The Complainant outlined that when he started, ‘there was just me.’ He said that then (another employee) JM left in December 2016; the injury happened in March 2017. He said that it would have been June 2017 that another employee FR joined the office in Kinsale, that he then went to Southampton Boat show, then worked in the Dublin office, then came back to Kinsale office in 2019, packed it up and the end of December 2019.

It was put to him that from 2019 until his termination in 2023, it was just him (in the Kinsale office). He confirmed that it was. He was asked if the office was still open. He that it was, that he had been re-manned, that ‘a young lad has just started there.’

He was asked whether FR saw his ‘self-imposed limitations’. He said: ‘Yes. [FR] used to pick me up. in the early days.’

He went on to say that at a boat show in Dun Laoighre in 2019, MGM Boats accommodated the Complainant. He also outlined that he ‘went on the brokerage stand at Southampton’, ‘went on the brokerage stand at London.’ He was asked whether the Respondent company was aware of his limitations. He responded that they were, that he had his crutches with him. It was put to him that ‘no risk assessments were carried out; no complaints about [his] work.’ He said that he ‘carried on selling boats’, that ‘the only bit I really changed was not climbing tall ladders.’ He gave examples of 41ft yachts, 49ft yachts, 54ft yachts, saying that he sold boats in Ibiza, Corfu and Spain etc. and never saw the boats. He said that he arranged the viewings, the surveyors, the sales contracts, adding that ‘a lot of brokers don’t do sailing like I did.’ He outlined how he put in additional effort, helping out buyers who were starting out and who were not confident, that he would ‘put in the time on a Sunday’ and that those people would then come back.

The Adjudication Officer, at the hearing, requested the issue of the Complainant’s sight be addressed (based on the papers that had been submitted).

He outlined that a previous long-term partner of his, got ill in 2021, and died, during Covid and as a result, it was not possible to ‘give her a really good send-off’, at the time. So, an event was subsequently organised by her adult children in tribute to her. The Complainant outlined that he went up to the house in his car, that he consumed some alcohol at the event, that he fell on uneven ground and cracked his head off a car. He explained that he can still drive subsequent to the event, that he is not ‘off the road.’ He explained how the incident had affected his eyesight, that he experienced a shadow ‘from one side to the other’ and that he had resolved this by wearing a patch when he was driving, then subsequently ‘got some glasses made with a blacked-out lens.’ He said that he was still ‘competent to drive.’

He said that he sent the report in relation to his eye to Gerry Salmon, at the time. It was relevant in relation to the insurance on the van. He said that he was still selling and buying boats on behalf of customers. He was asked if he could still sail. He said that he could because he had so much experience at sea. He said that subsequent to the eye injury in 2022, he had delivered a catamaran – C-370 was the boat. He explained that then, ‘Cork week’ came along and he skippered it for the whole week; that the customer would also lend it to him on occasion. He further outlined that he got a  prize, for sailing a Contessa 32 sailboat. [A picture of the Complainant receiving his prize from then Minister Simon Coveney was submitted]. The Complainant explained that he does not have to pull ropes on a yacht.

He further explained that the month before the hearing, he sold three boats for friends, one was a neighbour’s boat. He said that ‘my brain needs to be active.’ The Complainant said that he actively went out on the boats like he always did.

Counsel for the Complainant directed him to paragraphs 8 and 9 of the Respondent’s submissions and asked about ‘falls.’  The Complainant outlined that he had been on crutches for all the falls, that he has not been since 2019. When the Complainant first had the eye injury, he said that it took him time to adjust. He outlined that he experienced ‘a couple of trips in the house, when he wasn’t used to having single vision (no 3D vision)’ He said that it was ‘a cottage with a couple of dodgy steps.’ He explained that ‘he got around that by using old sailing books to halve the size of the steps.’

An ergonomist (Ms. Noreen Roche) assessed him, at his home. The Complainant said that he was considering more surgery, at that point. He said that when he had the ankle injury, he spent approximately six (6) months on crutches, that when he had his shoulder injury, he was three (3) to four (4) months on crutches. He said that he ‘couldn’t get the shoulder done until he got the ankle fixed.’ He said that he ‘didn’t fancy another twelve (12) months hobbling around on crutches.’ So, he ‘made a decision to live with it.’

He was asked whether he had any of these falls at work.

He explained that he was ‘not climbing up ladders to go on boats on dry dock.’

He was asked whether it ever impacted his employer’s business negatively? He said: ‘Not that I’m aware of.’ He said that: ‘No one ever said anything to me.’ ‘I carried on selling boats.’

He said that it was a sales and customer services role, and that he did it for six (6) years.

He was asked about the content of paragraph 22 of the Respondent’s submissions, which referred to ‘consultations’ He was asked ‘with whom?’ He said: ‘No idea.’

He was asked whether Mr. Gerry Salmon knew about his restrictions. The Complainant reiterated that he did. He reiterated that he rang Mr. Gerry Salmon to tell him about the eye injury. He said that he ‘didn’t hide it.’

An actuarial report was introduced into evidence. It set out the Complainant’s gross salary as being a base salary of €27,000 + commission. The Complainant explained that if the Respondent company ‘got 6% on the sale of a boat, I got 15% of that. If it was less than that, I got 10%.’ He outlined that his total earnings from his employment with the Respondent company varied between mid-late 30s  to early 40s. He said: ‘My best year was €52,000.’ Counsel for the Complainant submitted that the figures were not disputed in the course of the High Court litigation.

A contract was issued 2011. A copy of that was submitted (at Tab 15) in the Respondent’s booklet

On cross-examination by Mr. O’Flaherty BL

The Complainant outlined what the role involved – sales, the delivery of vessels, sea trials. He said that he travelled a fair bit for work, to the UK, and between Crosshaven and Kinsale.

He said that subsequent to the accident ‘I never stopped working.’ He said that he was ‘not involved in going onto vessels when in a wheelchair.’

He explained that to do the job, you ‘don’t have to do sea-trials’, that you ‘can get a skipper to do it and customers will pay for that.’

He said that part of the reason that he was hired was that he ‘worked for what was effectively MGM’s competition.’ He said that he used to meet Gerry Salmon and his team at every boat show, and that ‘he knew I was a good salesman.’

The Complainant’s experience is set out at Tab 14 (in an email dated 4/7/14):

-        RYA Yacht master offshore commercially endorsed

-        ISA Qualified advanced power boat instructor

-        Ex lifeboat helmsman for 8 years

-        Sailing for 50 years over 100,000 miles logged

-        Can row a punt

He was asked if that was the reason he was hired - it was put him that it was. He said ‘that was a plus factor for him. I was taken on because I was a good salesman.’ He outlined that he brought a lot of those clients (from his former employer) to the Respondent company, that he knew them all after working with them for twelve (12) years.

He explained that ‘the boats that were in Ireland, I would go to see. I didn’t have to do sea trials – a skipper could do that.’

He outlined extra things he did, on his own time (not paid by the Respondent company) to help buyers who were starting out – that he would take them out on to a vessel on the weekend, that he would help them out, that he would either do it himself or arrange it, that they would start out in a small boat and enjoy it; explaining that if people had a negative/frightening experience when starting out, they would not go back on a boat again. He said that he still does it, that he ‘did it last month.’ He said that ‘all that changed is: ‘I don’t do ladders anymore.’’

Page 2 into page 3 of Noreen Roche’s report (exhibited at Tab 5) were put to the Complainant [Heading: General Disabilities as Described by the Plaintiff (based on the twelve activities of daily living): This sets out what the Complainant told her about his own disability along with some observations of her own.] In particular, the key points were put to give him an opportunity to reply including:- his permanent left ankle pain, his ability to walk short distances only and his avoidance of uneven terrain, steps/stairs, inclines etc., that (on observation by N. Roche) ‘his left foot tends to deviate outwards when mobilising, constituting a trip hazard’, that he had sustained trips and falls (the initial injury resulting in a period of hospitalisation), ongoing pain and injury in his left shoulder resulting in reduced shoulder movement and exacerbated by over-exertion, injury to his right eye affecting his field of vision and psychological sequelae as a result of the accident and its impacts.

He said: ‘My left shoulder and my left ankle aren’t hurting now. I try to mind myself.’

He said that with most boats, he can park close, during the year. He said: ‘I can do it, if I need to.’ He said that he had ‘made several trips to the UK in the last year, in my car.’ He said that he was considering two further operations at that time of the report.

He said that ‘the report also says: ‘that I am a most determined man.’’

He said that he had not fallen since the night of the tribute to his former partner, when he had consumed some alcohol and ‘damaged my eye.’

He said: ‘I’m just a very determined man, continued to work through pain and the loss of sight in my eye, continued on doing what I do, because I enjoy it.’

It was put to him that that contradicted the description in the report. He explained: ‘They do still cause me problems, but you can either give into it or get on with it. I get on with it.’

He was asked about being at very serious risk of falling again. He disputed this. He said: ‘I don’t think so. It hasn’t happened.’

He said ‘that depends what I do about it, I think. I look after myself now. I take things easy. I can still do my job.’ He said: ‘I can walk down marinas. I can walk through gravel, which is a mainstay of my job.’

It was put to him that boarding and sailing a vessel was not stable. He said that he had more than sixty (60) years’ experience on boats and that ‘he never had an accident on a boat, never had any crew have an accident on a boat, never lost anybody on a boat.’ ‘I can only tell you what I can do.’

He worked for the Respondent company for a six (6) year period. It was put to him that the Respondent is saying that it had no option in the interests of his own safety and the safety of others, but to dismiss him.

It was put to him that there was some level of engagement with Dr. Crowley, that the Respondent company employed him for six (6) years after the accident, that it employed him for 5.5 years after he instituted proceedings.

It was put to him that the Respondent company was ‘not vindictive’ and that it was being suggested by lawyers for Complainant was now vindictive. The Complainant said: ‘My answer is very simple: I worked for six (6) years, the High Court case settled, then I was laid off, that’s all that changed.’

The Respondent company’s position was put to him, that the job involved ‘boarding, sailing, operating vessels, delivering vessels, forestry (customer support), travelling within this jurisdiction (Crosshaven to Kinsale and back), travelling to sail shows in UK, having to go on to most boats you showed.’

The Complainant said that he ‘didn’t have to’, that he ‘chose to’ [board most boats he showed]. He was a salesman. He outlined that he carried on doing that after the accident, ‘in the main.’

It was put to him that the report suggests that he should be engaging with the employer. He said that he has never been asked to do that – that was the whole point of the meeting that was cancelled.

He said that there is a massive customer base in Cork, that he sold a lot of boats of the last twelve (12) years. He said that at the Respondent company, ‘not everybody has to do that, [in order] to be a salesman. It’s a bonus.’

It was put to him that the sales role that Dr. Crowley envisages in the report is not the role that he had. The Complainant outlined that, in respect of his left arm, that he does not sail boats on his own anymore, that he doesn’t sail on motorboats on his own anymore. He addressed the potential concern that the Complainant could not pull someone out of the water with his left arm – he said that he does not sail on his own anymore. The Complainant said: ‘I’ve told you. I’m still sailing. I was criticised for being good – for being up ladders.’ He was asked whether there were serious risks? He said: ‘There hasn’t been and there isn’t.’

He said that he was never given any chance to suggest any assessments; that ‘that was the whole point of going to a meeting – it was to air that with the HR consultant. It wasn’t for me to decide that – it was to see what was the best way forward.’

He was asked about the suggestion of a lack of communication following the High Court. It was put to him that they (Respondent company) came to Kinsale within 48 hours of the hearing? He said it was ‘just not true.’ The Complainant said, in respect of his phone, that he had that same number for twenty-four years. The Respondent company had paid the bill (when he went to work for it). He said that the company ‘won’t release that phone back to me. The phone they were ringing, they have.’ He said that: ‘No-one had a problem getting a hold of me.’ He said that he had ‘thousands of contacts on the phone’, and the Respondent company ‘wouldn’t give it back to him.’ He said he also does not have access to his MGM (Respondent company) emails.

Counsel for the Complainant – Closing Submissions:

He submitted that there were two strands to the statutory obligations on the Employer.

He said that the employer has to engage with the employee first and to hear any input from them, relying on McMenamin J. in Nano Nagle V. Daly @ paragraph 105 (strand 1).

He submitted that he has not seen any jurisprudence where an employer can absolve themselves of reasonable adjustments. He said that in terms of the medical report, that the employer said that one medical report was cut and dried, and that that was ‘good enough for him.’ He submitted that s.16 of the Employment Equality Act does not allow that. He submitted that that approach ‘flies in the face’ of determinations by WRC, and of natural justice – that there should be engagement with the employee. Counsel for the Complainant submitted that the Respondent company engaged a healthcare company - they engaged Dr. Crowley but renounced and ignored all his recommendations. He submitted that the Complainant had intended working until the age of 70, that he is of pension age now. Counsel submitted that the letter submitted on behalf of the Respondent, written by the insurance company four days earlier, should be ignored, that a ‘cautious view’ should be taken ‘of such evidence.’ In relation to the matter of identified comparators – he emphasised that the other salespersons do not have disabilities and are doing the same job.

Additional point heard at end

The Complainant went to England to work with MGM in 2015, but not since the accident ‘No’.

When asked in relation to other staff, he said it ‘might be half and half - have to work it out. Think John was there 4/5 years. Francis was there.’

On Re-direct

He was asked about his contract of employment and the reference to attending boat shows, [headline: Sales Representative.] He said that since 2011, he had only done four (4) deliveries of [a particular] type of boat.

He was asked whether Professor Crowley’s recommendations at point 2 of his report – ‘Sales and Customer Service role’ – whether in his understanding, it was anything different from what he was currently doing. The Complainant said: ‘No.’

Summary of the Respondent’s written submissions:

The Respondent denies the Complainant’s claims. It submits that the Complainant was fairly dismissed pursuant to section 6 of the Unfair Dismissals Act 1997; and that at no stage has it been in breach of the Employment Equality Act 1998. It submits that the Complainant’s dismissal from his employment was in accordance with the provisions of section 16 of the 1998 Act. The Respondent denies the Complainant’s personal injuries claim was a ground on which the Respondent has sought to prejudice him. It submits, that this could not be further from the truth and cites the fact that the Respondent continued to employ the Complainant for over five (5) years while his High Court personal injuries claim was active and ongoing.

The Respondent submits that what became apparent through the personal injury litigation, and the emergence of a considerable number of medical reports, is that the Complainant’s condition caused by his ongoing symptoms is very serious – this includes blindness in his right eye and his ongoing mobility issues caused by very serious symptoms to his hip, ankle and shoulder. Of particular concern is the professional finding that the Complainant has a very high risk of falling. It is submitted that if such an incident were to occur in the workplace, it would pose a serious risk of injury and/or death for the Complainant, other employees, and/or the public; and that this is of paramount concern for the Respondent.

The Respondent submits, further to the above, that it has met all of its obligations under statute and case law by using its own resources to obtain professional opinion and advice regarding the Complainant in the form of an occupational therapist’s report. The Respondent submits that while the Complainant suggests he should have ‘influence’, the legal authority cited by him does not say ‘input’ and it does not state the form this influence should take. The Respondent submits that the information the Complainant gave to his treating medical practitioners and to the medical professional who prepared the occupational therapist’s report amounts to influence. In any case, the Respondent submits that any such influence provided by the Complainant cannot override professional medical advice. There is objective evidence that the Complainant cannot and/or should not continue and/or return to his previous role. The legislation and authorities are also very clear – reasonable accommodation does not mean providing a new role. It is submitted that the Respondent is under no obligation to employ the Complainant in a sales/customer services role. It is therefore submitted that the Complainant was not discriminated against he was dismissed in accordance with the Respondent’s obligations. The Respondent, therefore, seeks this claim to be dismissed in its entirety.

It sets out the factual background, as follows:-

On or about 9th March 2017, the Complainant suffered an injury as a result of an alleged accident at work, in which the Complainant alleges that he fell from a truck/boat and fractured his leg – ‘a left distal tibia pilon fracture comminuted with multiple fragments’, as per the medical report of a Consultant Orthopaedic Surgeon (dated 8/12/2017). He was 60 years of age at the time. He was treated at the scene by paramedics and subsequently admitted to Cork University Hospital (CUH). The injury necessitated surgery. The Complainant was discharged from hospital over two weeks later and was wheelchair-bound. He relied on the assistance of friends and family to bring him to appointments in the hospital fracture clinic. When this support was not available, he was forced to crawl along the floor.

After a number of weeks, the Complainant progressed to the use of crutches. He required five (5) hours of assistance per day. His use of crutches proved difficult and painful as he also claimed to have suffered a shoulder injury in the alleged accident. He still required some twenty-eight (28) hours of assistance weekly.

The Complainant attended physiotherapy and hydrotherapy for his injuries in the following months. Due to his use of crutches, his shoulder symptoms persisted.

The following year, in May 2018, the Complainant was reviewed and treated with suprascapular nerve block injections into his shoulder.

In 2019, the Complainant still required a significant amount of assistance each week. He began to develop symptoms in his right hip. After a series of investigations into these symptoms, the Complainant underwent a right-sided hip replacement procedure. He remained precluded from performing heavy tasks.

In September 2020, the Complainant underwent a left ankle arthroscopy.

In April 2021, he sustained a heavy fall which resulted in damage to his optic nerve of his right eye. He was admitted to Cork University Hospital (CUH) overnight. As a result of this injury, he now has minimal vision in his right eye which has, in turn, affected his mobility. It is noted by his treating medical practitioners that he now tends to deviate to the right. The Complainant was provided an eye patch which unfortunately caused his right eyelid to drop.

It has also been reported that as a result of his ongoing symptoms and defects, the Compainant remains considerably compromised.

The Complainant was reviewed by Noreen Roche, a consultant and ergonomist and safety advisor in January 2023. On this occasion, it was noted that the Complainant had a significant amount of serious disabilities. He suffered from permanent left ankle pain which is exacerbated further following mobilising and in poor weather conditions. He has to elevate his right leg and immerse his left ankle in water to relieve pain and swelling. His left ankle has minimal movement and is almost completely fixed in one position. The Complainant is only able to walk very short distances, less than two hundred years, at a slow pace on safe terrain. Following which he has to rest. He avoids walking on uneven terrain, steps, inclines, in crowds and in poor weather conditions. His left foot tends to deviate outwards when mobilising which constitutes a trip hazard.

Of very serious concern [to the Respondent] is that the Complainant’s symptoms post-accident were noted to have caused a number of trips, falls and missed falls - one of which required hospital treatment.

The Complainant is also reported to only be able to stand for short periods. He predominantly weight bears on his right leg - this caused right hip symptoms and necessitated a total hip replacement in April 2018. He suffers from back pain, a dropped left shoulder and limited shoulder movement generally. He has permanent left shoulder, upper arm and scapular area pain which is exacerbated by activities such as getting dressed. His shoulder pain becomes severe when attempting to lift his left arm. Following his further injury to his right eye, the Complainant now relies on his left eye for navigation and when driving. His right eye can only identify shadows. The Complainant can only drive for short distances.

Upon examination at this home in January 2023, the Complainant was noted to have continued his employment following the accident. He continues to receive assistance. The Complainant’s "frequent" falls were reported to remain a major concern. His rented accommodation was noted to be of poor ergonomic design and presented a hazard. If the Complainant were to undergo surgery then his accommodation would be totally unsuitable. It was also noted that he required an occupational therapy assessment to ascertain the necessary aids he requires. Further physiotherapy, hydrotherapy, psychology and psychotherapy assessment/sessions were advised.

Ms. Roche provided an updated opinion in February 2023 on foot of an assessment of the Complainant’s various medical reports. A report prepared by Dr Mairead O'Leary, Consultant Psychiatrist, noted that the Complainant suffers from PTSD and prolonged adjustment disorder which caused a state of objective distress and emotional disturbance usually interfering with social functioning and performance. He was described as developing significant psychiatric sequalae.

The Complainant’s General Practitioner, Dr. George Fuller, noted in his report that the Complainant has a protracted, complicated and difficult experience with the injuries he sustained. Given the long-term nature of his injuries he sustained, a continued difficulty with the injuries was expected.

Mr. Rehan Gul, Consultant Orthopaedic Surgeon, noted in his report that the Complainant developed arthritis following his accident. He receives pain management and intra­articular injections to treat his pain caused by arthritis. It was reported that these injections will stop working and the Complainant will require further surgery including an ankle fusion operation which will make his ankle permanently stiff. It was noted that this may provide pain relief but it will be difficult for him to be on a yacht or carry out any activities on uneven ground.

Mr. David Morrisey, Consultant Orthopaedic, Shoulder and Elbow Surgeon noted in his report that the Complainant will require a reverse geometry total shoulder replacement. The average lifespan of this replacement is 10-15 years. It was also reported that the vast majority, if not all of his symptoms were secondary to the trauma described. If the Complainant did undergo the aforementioned shoulder replacement surgery, it would take a year for him to recover. It was further noted that some patients are unable to return to work following a shoulder replacement.

As of 24th February 2023, it was noted by Ms. Noreen Roche that the Complainant will require daily domestic assistance.

The Complainant initiated personal injuries proceedings against the Respondent and another party in October 2018. Notwithstanding this, the Complainant’s employment with the Respondent continued. The aforementioned proceedings were settled in May 2023 and were subsequently struck out.

The medical reports which were raised as a result of the personal injury proceedings were of serious concern for the Respondent as to the health, safety and well-being of the Complainant. A very real and significant risk of the Complainant sustaining anther injury while at work was outlined through the findings of the Complainant’s own treating medical practitioners. As admitted by the Complainant in his own submissions, he was forced to make "adjustments" to his practices as a result of his prolonged and significant symptoms.

For the health and safety of the Complainant and others, the Respondent arranged for the preparation of an occupational physician’s report in relation to the Complainant. In a report dated 16th June 2023, Dr. John Crowley found that the Complainant was only fit to continue in a sales/customer services role with a very low likelihood of him ever being able to return to pre-accident duties. It was also noted that the Complainant’s high risk of falling should be considered.

As per his report, Dr. Crowley notes that the Complainant’s orthopaedic treatment is ongoing. The Complainant is not able to use ladders, sail mono-full vessels and pull rope among other restrictions to his activities. The Complainant often does not enter vessels due to his restrictions. Dr. Crowley goes on to note that the management of the Respondent will need to decide if his suggested adjustments are reasonably practicable to accommodate and how long they can be reasonably continued for. Any possible return to work in a sale/customer services role was pending ongoing improvement in the Complainant.

A subsequent occupational health risk management report was prepared by Ms. Anne Dowling, an occupational health and risk management nurse specialist, on  14th August 2023. She reiterated the findings of Dr. Crowley and recommended a HR Specialist to engage with the Respondent to advise on how to manage the Complainant’s circumstances including any possible job specification of the Complainant’s role.

Following this, and a number of consultations, the Respondent wrote to the Complainant on 11th September 2023 to inform him of the termination of his employment.

Mr. Liam O’Flaherty BL, opening remarks on behalf of the Respondent

Counsel for the Respondent submitted that there was no disagreement as to the severity of the accident, which occurred in March 2017. The Complainant continued on return to work in a certain capacity, with some self-imposed limitations, having initially working from home for a period.

He submitted that there were a series of discrepancies between the two parties. He said that High Court Personal Injuries litigation (in respect of the 2017 accident) was called on for hearing in March 2023. He said that shortly before that hearing date, the Respondent was able to assess fully the medical reports which were obtained on behalf of the Complainant for the personal injuries litigation. He submitted that the full extent of the Complainant’s injuries and the consequences only came to light then. He highlighted that there was a ‘very serious risk of him having a fall.’

He said that there was ‘a real and continuing risk of fall’ as a result of both his eye injury and his symptoms relating to his ankle. He said that there was a stream of very serious sequelae – back, hip, shoulder, very serious ankle injury, near complete loss of sight in his right eye, upper arm and scapular area, psychological sequalae as well.

He submitted that the Respondent felt that it may not be safe for him in the workplace. He said that the Respondent did not wish to cause any issues (did not want to prejudice its position). He said that it is now being blamed for trying to oust the Complainant, which is denied. He submitted that the Complainant continued to work, that he was facilitated at all times, that once the personal injuries litigation was settled, then the issue of safety in the workplace had to be addressed.

He denied a lack of consultation and a lack of action on behalf of the Respondent. He submitted that the Respondent company tried to facilitate the Complainant, that it chose to have him medically assessed, to assess his position. He further submitted that meetings took place, that the Complainant wished to have his lawyer present at a meeting with HR specialist, that that meeting was therefore postponed for two (2) weeks, that in the interim, the occupational therapist’s report became available, which he submitted set out that the Complainant was not able to return to his previous role and could only do a more administrative role. He submitted that ‘no such role exists.’

He said that a letter was sent on September 11th , 2023 and he submitted that there was ‘no other option but to terminate’ the Complainant’s employment. He stated that ‘as a gesture of goodwill towards the Complainant, the Respondent offered statutory redundancy payment.’

He submitted that the termination was based on ‘capacity’ and that the Respondent’s insurance provider cannot provide insurance (due to the occupational physician’s report).

He further submitted that the Respondent company had a moral and also a legal/business concern, that it did not want the Complainant to have an accident at work but that it also would have no insurance if that happened.

In addressing the case of Nano Nagle School V. Daly [2019] IESC 63, and Counsel for the Complainant’s submission, in relation to same, Counsel for the Respondent company submitted that it was not safe for the Complainant to return to work in his previous role; and that s. 16 of the Employment Equality Act 1998 sets out that there is no obligation on an employer to provide an employee with a new role/training/promotion that would match his disability. He submitted that the issue of reasonable accommodation does not arise.

He also further submitted that, in the event the Adjudication Officer was not with him on the point in relation to the issue of reasonable accommodation not arising on the basis outlined, that reasonable accommodation was, in fact, explored.

He stated that the Respondent company accepts that the Complainant has a disability in its legal sense. He submitted that the case turned on a net point, as a result.

In relation to comparators, he first addressed a ‘hypothetical comparator.’ He submitted that there is no mention of what that hypothetical comparator might be in the Complainant’s submissions. He further submitted that there was also no ‘real comparator.’

He cited HK Denmark decision – from the CJEU, which he submitted set out the EU Law basis for the finding of Mr. Justice McMenamin as well [stems from DIRECTIVE 2000/78].

He further emphasised paragraphs 36-37 of the Respondent’s written submissions in relation to s. 16(3) of the 1998 Act, which set out:-

‘36. In the Labour Court determination of A Worker (Mr. O) V. An Employer (No. 1) [2005] E.L.R. 113, the court referred to the UK decision of Mid-Staffordshire General Hospitals in NHS Trust V. Cambridge which held that an employer has an obligation to carry out a proper assessment of a disabled employee’s needs and abilities. The Labour Court went on to state that the duty under section 16(3) of the 1998 Act includes a requirement to “make proper and adequate assessment of the situation before decisions are taken which may be to the detriment of the disabled employee…”. This includes discussing the matter with medical professionals.

37. The Labour Court also analysed section 16 of the 1998 Act and held;

“Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all of the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity. Moreover in certain circumstances the contract of employment may come to an end by operation of the law due to frustration.” ’

He submitted that what occurred was being ‘painted by the Complainant as being a vindictive act.’ However,  he submitted that ‘the Respondent has at all material times had consideration of the Complainant’s position’ and that ‘only then, did Respondent act.’ He said that this was ‘because they were only then aware of the full extent of the injuries, including any future falls/injuries.’ He said that the Respondent had the Complainant medically assessed, and that the occupational therapist’s report set out a serious risk of future injury to the Complainant and the Respondent was therefore not able to maintain insurance cover, submitting that very serious injuries were suffered by the Complainant in 2017, that that was the main concern and that any mention of redundancy was secondary.

He submitted that the Respondent company offered a redundancy payment due to the years of the Complainant’s service, and also six weeks’ notice pay.

Mr. Gerry Salmon, MD – witness for the Respondent, gave evidence on oath, on behalf of the Respondent company

He set out the background to the company – saying MGM had started twenty-seven (27) years ago and then eleven (11) or twelve (12) years ago, MGM (Boats) Cork was launched. He outlined that an opportunity had occurred in the context of the recession, and that he rented a commercial unit, selling boats. He likened it to a housing auctioneer, that the business involved representing both buyers and sellers

He said that in Dublin, the company had an engineering yard, involving hauling and selling etc., and that he also has a company in Carrigfergus – a single unit sales office.

He said that in Dublin, there were ten (10) full-time employees including 3 directors and one (1) or two (2) brokers. He said that the employees included crane operators, mechanics etc. as well as an accountant.

In relation to the Complainant’s employment contract dated 18/2/2011, he outlined that when had  reached out in 2011 to the Complainant he said that they were looking out, more than anything else, for someone who can ‘drive a boat’, someone who can do a sea-trial. The role also involved work in the office bringing in clients ‘with the full support of the Dublin office.’ He explained that the Dublin office produced  advertisements to draw the clients in.

He said that the Complainant ‘did a good job’, that he ‘worked diligently over the years.’ He said that the Complainant ‘went to boat shows’, ‘primarily in sales’, explaining ‘that’s what the boat show is about – sales and gathering information.’ Having gathered the information, to ‘then follow up on sales/leads’, in the ten (10) days following on from the show.

He said that the business had had  various salespeople throughout the years, that ‘business has been very difficult over the years, that they don’t know when a customer is going to sell their boat or when a customer is going to buy.’

He said that ‘both sales guys left’ and that ‘primarily the role would be a single person in the [Kinsale] office.’

In terms of the salary, he said that he ‘starting salary was as per contract’ and that there was ‘a commission ratio.’

He said that was ‘negotiated further on, as [the Complainant] progressed on.’

He likened it to the car industry, where there is ‘a fairly standard basic, and then commissions to make their money.’

He was asked about the email at Tab 14, which sets out the Complainant’s sailing experience. He explained that the company was taking a catamaran around the coast and insurance required that there be an experienced skipper on board. That was the rationale for the email.

In relation to the accident which occurred at work in March 2017, he said that there was ‘a limited amount of time [the Complainant] was missing from work.’ He emphasised the need to ‘satisfy the sellers’, that negotiation was ‘what they have in their hands’ involving the ‘sale of an actual boat.’ He said that ‘the vast majority would be an in-person viewing with a sea trial.’

He said that the normal sequence would be ‘contact from a customer who has a boat that they have to sell. That call is distributed to the relevant regional office. Then, the broker is given the task of making contact with the seller, inventory done etc.’

He said that the ‘Dublin office tidied up the photographs etc. (for sales advertisements). He said that ordinarily, there would be ‘two (2) viewings – one to see the boat; one is to see the customer over the boat.’ Then, there may be an offer made. If the offer is accepted, then surveys done. He said that a sea-trial would take place after the survey.

He said that a survey ‘may pick up some items’, which may be relevant to the negotiation, that a contract would then be drawn up, and the title passes from one owner to another using bills of sale.

He said that the Complainant was involved in all of those aspects of a sale.

He said that the Complainant was involved in a serious accident in March 2017, and – upon learning that, the witness said that he went to Cork immediately and stayed there for three (3) days, that he ‘bought PJs, housecoats etc., allowed all the leverage required.’ He said that he was ‘unaware of the severity of the injuries.’

He said that he was ‘happy with [the Complainant]’s work.’ He described a good working relationship, saying that they may be banter or disagreement, back and forth, that it was a small team and a small company. He said that people would ‘have a chat, agree to disagree, or get over it, or sort it out’, that it was a ‘very personable business.’

He said that his perception was that it was a ‘slip and fall’ case; but that four (4) weeks before the case was due to be adjudicated (in the High Court), he was invited to a meeting by the company’s Solicitors, who drew the extent of the medical reports submitted for the High Court litigation by the lawyers for the Complainant, to his attention.

In particular, he emphasised the contents of pages 2, 3 and 6 of Nurse Roche’s report. He highlighted that the Complainant’s foot was protruding, which indicated a slip hazard, trips, slips and falls (one requiring hospitalisation); as well as the subsequent injury to the Complainant’s optic nerve. He talked about how companies mitigate the risk of slips and trips, in the ordinary course, but asked in this instance: ‘If the ankle injury is the obstacle, how can I mitigate against that?’ He said that this was brought to his attention four weeks before the High Court case, and that he was in ‘limbo’, as a result, ‘irrespective of whether there was a win or a lose on the [High Court] case.’

He outlined his concerns as being the contents of the report submitted (as part of the High Court  personal injuries litigation), and insurance.

He explained that the company uses an insurance broker. He said: ‘We raised a concern, are we covered (to cover the employee)?’ He said the role was a singular role, that there is nobody there, that there have only been two (2) people there. He said that ‘business isn’t good, hasn’t been good.’

He said that he did ask the Complainant on several occasions whether he was ‘fit to attend.’ He said that (at page 6 of the report), it says that the Complainant’s ‘frequent falls remain a serious concern’, and that he ‘had to rely on the medical reports’, that he ‘had to be honest with my insurance broker.’

He said that the Nurse Noreen Roche report itself was the reason for the termination of the Complainant’s employment. He said that he then got a ‘back up report – from AMA.’ He said that he ‘took advice from a HR company’ and ‘presented the case that I had.’ He said that the Respondent business was an SME and, as a result, they did not have a full HR function, saying that he was the person who dealt with HR or administrative issues.

He said: ‘What I really should have done is commissioned my own medical report in 2017, but that’s been adjudicated and that’s happened.’

He said that he obtained healthcare advice - that he got the AMA healthcare report, and again emphasised his reliance on the doctor’s report and his concerns in relation to his insurance company. He said: ‘If there were no concerns about falling over, we certainly wouldn’t be here today.’ His sought advice ‘literally the day I got the [Roche] report.’ Mr. Salmon said: ‘My first piece of advice from my [insurance] broker was that [the Complainant] could not be on the premises during this period, until such time as we had our own reports.’ He said: ‘I put him on sick leave. I had to put him on sick leave.’

The findings of Dr. Crowley’s report (exhibited at Tab 3) were put to him. He outlined his decision to terminate the Complainant’s employment was ‘given the nature of the work, given the nature of the business that we’re in, given that my insurance company won’t insure me.’ He said that he was ‘in possession of a report that he had a tendency to fall over and therefore the ankle injury was the obstacle, which we could not mitigate.’ The witness contrasted this with a situation where a trip hazard/risk could be mitigated with ‘putting a mat over a lead or a wire, for example.’ He said: ‘The only item I was aware of from the accident until four (4) weeks before the High Court was that the Complainant could not climb ladders, that is all I was aware of.’ He said that there was no alternative role: ‘There is no function. We’re not able to function. Even if workplace became the home – deemed to be in the workplace (not sure about that.)’ He was asked if there was any possibility to accommodate such a change. He cited the report: ‘Occasional trips and falls resulting in hospitalisation’ [Adjudication Officer’s note – this is a misquote from the report], saying that ‘nothing we could put in place to make sure that you are okay.’

In relation to the meetings, which took place in July, he said of the first meeting, he ‘employed a HR company to try to take the heat out of it – and see what were Alan’s plans.’ He described how up until that point, it was a ‘legal battle, that there were lawyers involved, Alan was involved, I was involved.’ [In relation to the High Court litigation]. He said that he thought ‘a fresh pair of eyes could go onto this – a HR company.’ That meeting was re-scheduled for the end of July. He was asked about the cancellation of that (re-scheduled) meeting. He said that the HR person was going to meet with the Complainant, but that he ‘didn’t want to put her in a spot either’, that the brief was to use her skills as a HR consultant ‘to find a way forward.’

He was asked about receiving the report on July 2nd, and how he reacted. He said that he ‘took it in view, spoke to [his Solicitor].’ He said that then ‘holiday-time took over’, that he ‘had to get the directors around the table’, but that ‘most of the summer, they were off.’ He also said that ‘my insurers live in Spain.’

In relation to the Insurer’s Letter (exhibited at Tab 1). He said that he ‘kept it very broad.’ He said that he was ‘quite nervous talking to the insurance company about people falling over etc. because my premium is based on risk and assessment of risk.’ He said: ‘I have a liability under the Employer’s Liability Act’, saying ‘I was sued, in the courts, as an employer.’ ‘But’, he said: ‘I had a duty to the company as well to notify my insurers. If another incident were to take place, I would not be insured…and that would have been the end of the company.’

The termination letter (exhibited at Tab 2) was put to him. He said that the company offered the Complainant ‘statutory redundancy’ and ‘also offered to pay more than the contracted notice [6 weeks v. 4 weeks]’ He said that: ‘Again, it’s a misfortune that the accident took place, but it did’ saying that ‘the consequences of that were that I had to make a Health and Safety decision as an employer.’

On Cross-examination by Mr. Ben Shorten BL

A second meeting invitation by Olive Grimley, HR Consultant (from MGM to the Complainant) (exhibited in High Court affidavit) was put to the witness. The second invitation was not included in the booklet of documents submitted to the WRC. It was accepted by the witness. It was put to the witness that the Complainant did not know what the agenda was for the meeting, and requested information.

The issue of comparators was raised with the witness. The company’s website: ‘Meet the MGM Team’ was drawn to his attention, and two specific individuals were identified as comparators by Counsel for the Complainant, and put to the witness: Mr. Ronan Charters and Mr. Jacobs. The witness said that Mr. Charters was not a replacement for Mr. Barton. It was put to him that he was ‘now assigned to the Cork office’. He said that the Cork office was a ‘one man show’, there had previously been two employees in the Cork office. The role was described as ‘singular’ - salesman and customer service. It was put to him that Mr. Charters had no disability. It was formally put to him that Mr. Jacobs and Mr. Charters are comparators for Mr. Barton’s job. The witness said that he was ‘formally disagreeing.’

The assertion that he had been ‘primarily looking for someone who could drive a boat’ was put to him, and he was asked to identify that in the contract of employment.

He outlined that he had bought the office (in Kinsale), turned the lights on and was driving back to Dublin when he got word that their competitors had just gone into liquidation. He said that he turned around and turned off the lights, that it ‘didn’t feel it was right for us to be going up when someone else was going down’, that it was ‘not the done thing’ and that he waited six (6) weeks to launch the office. He said that he had no intention to take on staff, but ‘an opportunity arose’ and he ‘took on someone who could drive a boat, sell, boat deliveries etc.’ It was put to him that ‘Mr. Barton would be considered an asset for you.’ He said: ‘His abilities to drive and abilities to sell. I’m conceding that.’ It was put to him that sea trials are not in the contract of employee. He responded that bills of sales were also not in the contract.

It was put to him that both before and after the accident he was happy with the Complainant’s work. He re-iterated that he had given all the necessary leverage and support to the Complainant in the wake of his accident for him to get back on his feet; that what changed was the Roche report which was handed four (4) weeks before the High Court date for hearing. He said that prior to that what had been said to him [by the Complainant] was: ‘I’m available and I’m fit provided that I am not climbing ladders.’ And that ‘at no stage, was it ever reported to me ‘sorry Gerry, I’ve a tendency to fall over.’’ He said: ‘I’m relying on the report that was handed to me.’ It was put to him that he had allowed certain accommodations to the Complainant e.g. allowing him on a desk at boat shows? He accepted that.

It was put to him that the Complainant was allowed to remain at or near one of the boats, rather than require him to move around (and that the Complainant had given evidence that he required a taxi). He said that at that particular time, the Complainant was on a crutch; that at a boat show, customers gather to look at boats and to gather information. It was put to him that he was aware of the Complainant’s disability. He said: ‘Yes, I was aware that he had a difficulty of walking with the stick/cane, but I wasn’t that he had a tendency to fall over.’

The timeline of personal injuries litigation was put to him. It was put to him that a personal injuries summons has to be issued within two years of the event; that in 2018, the personal injuries summons was issued and served listing the then known injuries. He said: ‘Yes.’ It was put to him that several updates to particulars were filed, which would have been sent to him by his Solicitor. The list of medical reports filed were put to him. It was put to him that he would have received the Professor Harty reports, all these medical reports. He said: ‘I accept that that is the case.’ He said, however, that he ‘never received one single medical report – prior to [Noreen Roche report].’ He said: ‘I was aware that there was a serious accident. Stated that.’ He said that on receipt of a medical report (Roche report) he became aware of the actual position, stating that he did not have a medical background, and that he had not been able to tell the seriousness of the disability on a doctor’s report and a submission about an ankle injury, that he had relied on the general disabilities as described by the Plaintiff.

The issue of insurers was raised with him. He reiterated that ‘Cork was a singular role’, saying ‘there would be no one there to pick him [the Complainant] up if he fell.’

He was asked whether he had considered sending the Complainant to the Dublin office or the NI office? The witness said: ‘The factor of me being worried about him falling over was one of the singular factors.’ He said: ‘I have to take the advice of medical professionals.’ He was asked whether he took the advice of (your own) Dr. John Crowley? He said: ‘Yes, I believe I did.’

The recommendations in Dr. Crowley’s report were put to him. He was asked about Recommendation 1 - what engagement? He said that at that point, he had employed AMA Healthcare and a HR Consultant to make those meetings happen. He said they were recommendations, not directions. He said that he took the advice of all the reports.

Recommendation No. 1 – It was put to him that he did not engage with Mr. Barton [engaged a specialist]

Recommendation No. 2 – It was put to him that the Complainant was ‘fit to continue’ in sales role and customer service.

Recommendation No. 3 – the advice was to review in six (6) weeks’ time. It was put to him that as there was no initial engagement, this was no consequence because it ‘didn’t happen.’

Recommendation No. 4 – risk assessment – it was put to him that this also ‘didn’t happen’. That there was no risk assessment.

It was put to him that Dr. Crowley’s report was written subsequent to Noreen Roche’s report. The witness said that he ‘relied upon page 2 of Dr. Crowley’s report – ‘Management will need to decide if these suggested adjustments are reasonable practicable to accommodate and how long they can be reasonably continued for.’ He said that he ‘could not accommodate an injury [risk] that is on the person. I can’t accommodate that. No employer can.’

It was put to him that the problem with that is that there is a statutory requirement on you to ‘at least consider.’ It was put to him that the company ‘did not engage, did not review, did not risk assess any particular functions that he [the Complainant] had.’ The witness said that ‘not being able to dry dock or sail would be a major difference’ from what the Complainant had been doing. [Dry dock – drive in, crane would lift them out; requires a lot of skill (tides, winds etc.)]

It was put to him that the Complainant successfully worked since 2017. He was asked whether the Complainant sailed or dry docked a boat in those six years. He said: ‘I imagine that he would have. I imagine that he did.’

It was put to him that he had asserted ‘there was no possibility of any improvement’ in his evidence. The witness said: ‘The doctor’s report said that, as well.’ He was asked to identify where in the report it said that. He said: ‘At page 2 of Dr. Crowley’s report.’ He said: ‘I certainly relied upon the reports to frame the decision I made.’

‘reasonably practicable’ to accommodate.

He said that he had placed the employee on sick leave, contacted AMA healthcare assessment and met with his insurers. He said that he did his best, as an employer.

He said that he employed a HR consultant ‘to take the heat out of the situation.’ It was put to him that he wanted to see what the Complainant wanted, but, (also) that he had a view on lawyers in general. The witness said that the Complainant had texted him to say that he was not to communicate with him unless it was in writing. It was put to him that it would be ‘highly unusual to make direct contact with [the Complainant], one has to go through his Solicitor.’

There was a dispute between the parties as to an email. It was put to him that there was an email on 26/7/23 at 16.19 from Ann (on behalf of the Respondent) and refers to an email from the Complainant (22.58). It was disputed – the parties could not clarify the exact details. The witness said: ‘I cancelled because we the email came at ten to eleven at night. There was no time to get Counsel/Solicitor for meeting the next day.’ He said he ‘cancelled the meeting with Olive [HR Consultant].’ He said he ‘didn’t want to throw here into a situation she as not equipped for.’ He was asked if he arranged a subsequent meeting. He said: “No.”

‘Letter of Redundancy’

It was put to the witness that ‘it is not a question of whether you wanted to see what Alan wanted, that you have a statutory duty to engage with him.’ He said: ‘That’s your interpretation. The law will determine whether I failed on it.’ There was dispute as to the meaning of the phrase ‘should engage with employer.’ Counsel for the Complainant submitted that the duty is on the employer to engage. It was put to the witness that he cancelled meetings, which he accepted. The insurers’ letter, dated 9/5/24 (submitted at Tab 1), was put to the witness. It was put to him that that letter was an attempt to mend his hand. The witness said that the company office had a broken post-box with mould, and as a result he only received notice of the WRC hearing two weeks before the hearing. The issue of the letter being constructed the week before the hearing for the purposes of this case was explored. It was put to the witness that the insurer’s letter was ‘simply stretching credibility’, that the Complainant had worked on with his injuries for six (6) years, and a letter was written only four days prior to the WRC hearing. The witness said that his company ‘tries to mitigate’ the risk, that he had been sued on the basis of the advice that he had be given, that he ‘couldn’t find insurance in August/September 2023’, re-iterating that he got the WRC claim ‘two weeks’ ago’. He again emphasised ‘the Roche report, the AMA report, the doctors’ report and consultation with our insurance.’

He was asked whether he took a decision in July 2023, given the ‘Letter of redundancy’ is dated 9/11/23, the insurance letter is dated 9/5/24, four days prior to the WRC hearing. He said that in his correspondence with the insurance company he was ‘trying to be very liberal/general initially, that it is necessary to be careful what you say to insurers; however, there is an obligation of the utmost good faith.’ He was asked where in the letter of redundancy he sent if he mentioned insurance cover. He said that he took into consideration ‘all of the facts that we got in front of us.’ He accepted that there was ‘no mention of insurance’ in the letter. He said that the ‘Roche report is the one that caused the big red flag in the first place.’ He said: ‘I dictate the letters the way I write them.’ and that if there were any disparities, it was attributable to that. He said: ‘We’ve never made anybody redundant.’ It was put to him that his position was ‘simply unbelievable’, that there is ‘no evidence of insurance difficulties’ and that ‘by your own admission, you failed to engage with Mr. Barton.’ It was further put to him that he ‘went against your own Dr. Crowley.’

On re-direct

He said that he had several meetings with his [named] insurer after the Roche report and prior to the High Court case, that they had a very good working relationship for the previous 27 years, that he kept it ‘very broad’ and that he ‘didn’t want him to come in and do an over-view.’

In relation to the Complainant’s contract, he said that boat delivery is ‘driving a boat.’ He reiterated that there was no role in the company for the Complainant in light of the report specifying a ‘tendency to fall over from time to time’, resulting in a risk of injury.

He said that he took into account of his opinion ‘based on the situation I was in.’

Closing Submission

Mr. O’Flaherty BL, Counsel for the Respondent company submitted that Mr. Salmon stated that he was happy with the Complainant, that he did not want to terminate his employment, stating that the catalyst for his employment being terminated arose from the medical reports submitted as part of the personal injuries’ litigation. He characterised the contents as posing a very serious threat.

In relation to the insurance letter, he submitted that the date is in issue. However, he emphasised the Respondent company’s MD’s direct evidence, that he spoke to the insurance broker in great detail and the subject matter of those discussions was the Complainant’s own safety and health and Respondent’s business, and any perspective claim which may arise therefrom.

He submitted that the decision to terminate the Complainant’s employment was made on the basis of professional advice acquired from medical practitioners, that the recommendations were based on what is ‘reasonably practicable’, and that they were ‘not at all.’

He submitted that the Respondent company has a duty of care towards their own employees, other employees and members of the public.

He emphasised that there is a legal issue in relation to s. 16 of the Employment Equality Act and the Respondent’s submissions for engagement/input from the employee. He emphasised that there is no legal obligation, that the Respondent company cannot be found to be contrary for not engaging with s. 16. He said that the Labour Court (and subsequent Circuit Court decision) in 2004 allowed ‘a certain level of opportunity for the employee to influence the Respondent’s decision.’ He said that the Complainant did have an opportunity, that previously it was thought that the only was that the Complainant could not utilise tall ladders. He submitted that an employer’s obligation to obtain medical advice was overturned by the Circuit Court.  He said that there were very unfortunate circumstances in this case.

He submitted that the status of those reports were that the key reports were the Roche report and Dr. Crowley’s report.  He said that there culminated in there being nine (9) medical reports, that there was reference to those in the findings, especially in relation to the ankle injury, which was described as becoming ‘completely fixed.’ The compilation of the reports predated the Roche report. He submitted that Dr. Crowley’s report simply deals with the report from an occupational point of view, whereas he submitted that the other report was more holistic.

He submitted that the red flag was the Roche report. He submitted that any employer would be negligent to know that their employee was at risk of falling and to take no further action. He submitted that the Respondent company in this case did take action, that it sought further medical advice from an Occupational Health. He submitted that Dr. Crowley’s report clearly states that the Complainant should not be involved in dry docking and should not be sailing, and he submitted that his duties included boat delivery, which he submitted of necessity includes sailing. He submitted that the Complainant was simply not able to carry out his role as understood between the parties both orally – [he relied on the CJEU case of HK V. Denmark in this regard.] and further submitted that the Respondent has no obligation to provide a fundamentally different role, than the one which the Complainant was involved in.

He submitted that there was no comparator – no reference to anyone in a similar situation, e.g. another employee who has a different disability but was kept on. He submitted that there had been no discrimination against the Complainant in 6.5 years post work-accident.

He submitted that there was insufficient evidence provided that a disability was the rationale following any unfair treatment. He submitted that after the accident, the Complainant had acquired a disability, was treated fairly, was accommodated to return to his work, that it was the medical report that led to an investigation by the Respondent which led to professional advices being taken, which meant the Complainant could not continue in his role. He again re-iterated that it was very unfortunate.

Counsel for the Complainant raised a legal point, saying that Counsel for the Respondent had submitted that the Circuit Court (Dunne J.) had not upheld the Labour Court findings in the Humphries v. Westwood Fitness Club , whereas he submitted that, in fact, it had been upheld, and said that it was a matter for the Adjudication Officer to consider and determine.

It is common case between the parties that the Complainant has a disability within the legal meaning of the applicable legislation; and that he acquired that disability in a work accident (the index fall) in 2017. He had a subsequent accident (not at work), which was disclosed his employer, which impaired his sight, but not sufficiently to prevent him from driving. He continued to work subsequent to both accidents, up until his dismissal in 2023.

The Complainant was dismissed from his employment, and it is his case that was due to his disability; or alternatively that he was victimised by his employer by way of dismissal in circumstances where he took High Court personal injuries proceedings (which settled) against his employer in respect of the sequelae of the workplace accident. The employer’s position is that he was lawfully dismissed due to ‘incapacity’, and that no unlawful discrimination and no victimisation occurred, and it points to the fact that the Complainant continued to work for the Respondent company for 6.5 years post-accident. Mr. Gerry Salmon, the MD of the Respondent company very fairly said in his evidence that, on reflection, he should have commissioned his own medical report at the time but did not. The difficulty for the employer is that more than six (6) years have elapsed during which the Complainant continued to do his job, with some self-imposed restrictions/adjustments; and the employer has outlined that it was happy with his work during that time. I think, in those circumstances, it is really not possible for the employer to maintain the position that the Complainant is incapable of doing his job due to the nature and extent of his disability. I find that the employer was on notice of the Complainant’s injuries and their impacts throughout that time period.

I am persuaded by the Complainant’s evidence, taken in conjunction with his contract of employment, that this is a sales (and customer service) role. I accept that he is an excellent salesman and that he was an asset to the Respondent company which he joined in the wake of his previous employer (a competitor of the Respondent) going out of business, bringing both his acumen and a substantial client list with him. I note that the refusal to return his phone, resulting in him being unable to respond to longtime customers/friends particularly rankled with the Complainant, as he felt it reflected badly on him. I accept his evidence in relation to him having no access both to the company email, and to the phone which had been his but for which the company had taken over payment.

The timeline of the reports is of note too. The Respondent company commissioned Dr. Crowley’s report, which Counsel for the Respondent correctly identified as being ‘more occupational’ in nature. That is relevant because the requirement under the legislation and applicable case-law is to assess the disability through the prism of its occupational impacts, which Dr. Crowley’s report does; and then, to assess what, if any, accommodations/adjustments may be required in order to enable the employee to do their job. The previous report of Nurse Noreen Roche (a nurse and an ergonomist) predates Dr. Crowley’s report. It was commissioned in the context of personal injuries litigation. It is also of note that the item which particularly caused alarm to the Respondent company is one identified as being ‘on observation’ in the Roche report, rather than reported by the Complainant. In any event, Dr. Crowley’s report, commissioned by the employer, specifically considers the impact of the disability in the context of employment. He made four recommendations. I accept the submission of Counsel for the Complainant that the Respondent then disregarded the recommendations in its own report. It did not implement the recommendations, cancelling meetings without explanation at the time – one was provided, in evidence at the hearing. It disregarded the fact that the report specifically identifies the Complainant as ‘fit to continue in sales role and customer service’, which is what I accept his job was.

It seems to me based on the evidence of the MD of the Respondent company, that the employer had taken a view on foot of the Roche report…and simply implemented that view in the immediate aftermath of the conclusion of the High Court litigation. The employer emphasised its insurance concerns. However, I am persuaded by the submission made by Counsel for the Complainant, in that regard. No mention of insurance was raised with the Complainant, in the document entitled ‘letter of redundancy’ or at any other point. The letter written days before the WRC hearing cannot be retroactively fitted to explain decision-making which took place many months earlier, in my view.

It seems to me that the employer took a view, terminated the Complainant’s employment and sought to offer cesser pay (akin to a statutory redundancy payment along with an enhanced notice payment), in an attempt to conclude the employment relationship on what it considered to be a reasonable footing in the circumstances. The unilateral nature of that falls foul of the protections afforded to persons with a disability in relation to their employment. I accept the Complainant’s evidence that he is a ‘very determined man’, and that it was his intention to work until 70. I accept his explanation in relation to where things were at, at the time of the Roche report, and the prospect of further surgeries, and his decision not to pursue those.

It is unclear why the employer did not implement the recommendations set out in its own report (Dr. Crowley’s report). My conclusion is that the decision was a fait accompli.

I accept the comparators (i.e. other salespeople) identified by Counsel for the Complainant as having comparable roles, not having a disability and not being dismissed.

I note that the Respondent company did not explore other options, such as, the Complainant working out of either the Dublin or NI office.

I think, of particular relevance, is the assertion in evidence by the Respondent’s MD that if the trip hazard is on the employee, how can any employer mitigate against that? The difficulty with that position is that the logical conclusion of it is that the employee is automatically excluded from the workforce (even if working from home). That flies in the face of the European jurisprudence in this area and the Irish case-law on foot of it. I am guided by the Supreme Court in Nano Nagle School V. Daly, (which is supported by the CJEU case of HK Denmark k V. Dansk almennyttigt Boligselskab (Joined Cases C-335/11 and C337/11) [2013] I.C.R. 851, and the Framework Directive), and the Circuit Court decision in Humphries v. Westwood Fitness Club, in this regard.  

In the Supreme Court case of Nano Nagle School V.  Daly, 448 3 I.R., McMenamin J. sets out @ para 85-93 how the interaction of s. 16(1) of the Employment Equality Act 1998 with s. 16(3) of the Employment Equality Act 1998 is to be interpreted and applied:

“Interpretation and application to this case

[85] Reduced to its essentials, the interpretation issue as applied here could, at one level, be characterised as to whether s. 16(1) is to be seen as subject to s. 16(3), or vice versa. The terms of the section have been set out earlier. Section 16(1) sets out a premise. This is that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s. 16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the 1998 Act, which includes the entirety of s. 16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But 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.

[86] In my view, the term “distribution of tasks” must be read in a manner which is consistent with the entirety of s. 16, and the purpose of the Act. If it is arguably ambiguous, it should be given an interpretation that reflects the plain intention of the Oireachtas, which can be determined from the Act as a whole (see s. 5 of the Interpretation Act 2005). Seen from the perspective of legislation, it could not have been the intention of the legislature to create a situation where, by deploying the term “tasks” to divide up the term “duties”, an employer could effectively render an employee’s duty incapable of performance. That would defeat the purpose of the 1998 Act, which is to achieve equality. It is arguable also that this would allow an employer to unlawfully “classify” a post in a discriminatory way (see s. 8(1)(e)).

[87] The Court of Appeal reversed the High Court judgment, and set aside the Labour Court determination, thereby allowing the decision of the Equality Officer to stand. The court did not consider it necessary to remit the case to the Labour Court, which is the forum charged with evaluating evidence. Both judgments of the Court of Appeal make references to the term “core duties”, but no such distinction is to be found in the 1998 Act. One would have thought that if it was the intention of the legislature to identify the words “core duties” as creating some form of separate category, it would have been simple to do so. Similarly, the term “essential functions” does not occur in the section.

[88] Moreover, the distribution of some of the respondent’s duties, in order to require her to do more of that which she could do, would not necessarily mean that she was not performing the duties of an SNA. The term “where needed” in a particular case, to adapt the employer’s place of business to the disability (see s.16(4)(a)) must be read in the context of s. 16(4)(b), which provides that, without prejudice to the “generality” (that is, to adapt the place of business where needed), there are also specific duties which include adapting premises, equipment, working patterns, or task distribution. The limitation contained in these sections is only that of disproportionally.

[89] But to imbue the word “tasks” with an artificial value, or as some form of interpretative “trump card”, defeats the purpose of the section and the 1998 Act. At any level, to seek to distinguish between tasks and duties would pose real problems, as to how the distinction is to be made, and who should make it. In the case of the respondent, how many of the “task demands” set out in the table can be seen as entirely divorced from duties? In my opinion, very few, if any, of them. Limitation

[90] This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”. If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or “stripped out”. But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s. 16(1), to ascertain whether an employee is, or is not, “fully capable of undertaking … the duties” attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s. 16(3). 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. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought is an entirely different job. Section 16(1) of the 1998 Act refers specifically to the “position”, not to an alternative and quite different position.

[91] But I am forced to agree with counsel for the respondent: he is correct in saying the Court of Appeal “read in” words and intent to s. 16, which are simply not to be found there. Thus, when, at para. 54, p. 269, Ryan P. observed that the fundamental proviso in s. 16(1) “must be respected”, this was, to my mind, to misunderstand the section. Neither the 1998 Act, nor the Framework Directive (were it necessary to refer to it), requires full competence, seen in isolation. Ryan P. was of the view that s. 16 required that there be full competence as to the tasks that are the essence of the position, otherwise s. 16(1), is rendered ineffective. I differ from this view: to the contrary, full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures.

[92] It is unnecessary to resort to the judgment of the CJEU in HK Danmark v. Dansk almennyttigt Boligselskab (Joined Cases C-335/11 and C337/11) [2013] I.C.R. 851, or the Framework Directive, though all of these support the interpretation. But the analysis can be confined to the words of the section. The words of s. 16(3) provide that a person will be seen as fully competent if they would be fully competent on reasonable accommodation. Those terms, too, have meaning. They must be seen as being included in the legislative intention that what is contained in s. 16(1) can only be seen or understood in the context of what is provided for in s. 16(3) of the 1998 Act. Section 16(3) is not peripheral – it is fundamental to understanding the section. This conclusion, based on the words of the section alone, as it happens, accords with any interpretation of the section by reference to the reasoning of the ECJ in HK Danmark v. Dansk almennyttigt Boligselskab (Joined Cases C-335/11 and C-337/11). But this does not mean that s. 16(1) of the 1998 Act is irrelevant.

[93] It follows, therefore, that I am constrained to express respectful disagreement with the judgments of the Court of Appeal.”

In Humphries V. Westwood Fitness Club, Dunne J. noted at pp. 300 and 301 the following in her analysis of s. 16 of the 1998 Act:- “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 is 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.”

As per Charleton J. in his judgment in Nano Nagle School V. Daly @ para 135:

“In Dublin Bus v. McKevitt [2018] IEHC 78, [2018] E.L.R. 193, Ní Raifeartaigh J. endorsed at para. 53, p. 206, the decision of Lardner J. in Bolger v. Showerings (Ireland) Ltd. [1990] E.L.R. 184, which held at p. 186 that where an employer wishes to dismiss an employee with poor health on grounds of incapacity, the onus is on them to show:- (i) that it was the incapacity that was the reason for the dismissal; (ii) the reason was substantial; (iii) the employee received fair notice that the question of his dismissal for incapacity was being considered; and (iv) the employee was afforded an opportunity of being heard.”

I note that Counsel for the Complainant is correct on the legal point raised, in relation to the Circuit Court appeal in Humphries V. Westwood Fitness Club.

I find for the Complainant.

I find that this complaint is well founded.

I find that the Complainant was the subject of a discriminatory dismissal, based on disability (rather than the subject of victimisation).

I find that the employer failed to implement the recommendations in its own doctor’s report, which was commissioned to examine the impacts of the Complainant’s disability, through the lens of employment, and did not engage with the Complainant in relation to same, having cancelled meetings and not re-scheduled them. I find that the employer failed to have regard to the fact Dr. Crowley characterised the Complainant as ‘fit to continue’ in a sales role and customer service, which I find was the role he was doing and continued to do with some self-imposed restrictions/adjustments post-accident for 6.5 years. I find that the most likely explanation for this is that the decision was a fait acompli prior to the commissioning of the medical report examining the Complainant’s disability and its impacts through the lens of employment. While the document terminating the Complainant’s employment was entitled ‘letter of redundancy’, neither party is suggesting this was a redundancy situation. This was a unilateral notification to the Complainant of the end of the employment relationship including an offer of cesser pay the equivalent of a statutory redundancy payment.

The maximum jurisdiction under the Employment Equality Act 1998 is two years’ remuneration.

I note that the Von Colson principles apply (i.e. the need for an effect deterrent). The European jurisprudence on equality law indicates that any award must be ‘effective, dissuasive and proportionate’.

An actuarial report was submitted, at hearing. [It had been submitted in the High Court litigation and not disputed.] It outlined that the Complainant’s gross salary was €44,411.43 for the year 2022 (the year prior to dismissal).

For the reasons set out above, I direct the Respondent to pay the Complainant €66,500 for discrimination and the effects of discrimination in this case, on the basis of disability, within 42 days of the date of this decision.

Disability; Discriminatory Dismissal; Victimisation; Employment Equality Act 1998; Nano Nagle School V. Daly; Humphries V. Westwood Fitness Club; Von Colson principles;