Complainant

Respondent

Parties

Andrew  Sinclair

Musgraves Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Michael Forde BL instructed   JV Geary & Co Solicitors

Judy McNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057955-001

28/07/2023

The complainant submitted that he was discriminated against by reason of his disability and discriminated against in being given training, given Reasonable Accommodation, and Conditions of employment.

The complainant submitted that he commenced employment on 31/05/2022 and on 01/06/2022 he had a serious accident with injuries to shoulder, pelvis and leg which required long term surgical and medical intervention.  It was submitted that the respondent did not provide reasonable accommodation and did not review home working as reasonable accommodation that the complainant might have been able to engage in.  The respondent also failed to engage in an OH review of the complainant and the respondent had a long-term disability policy that they did not engage the complainant in and ceased paying sick pay in February 2023 and could have engaged with government rehabilitation agencies but did not do so.

On 06/12/2022 the complainant advised Ms O’Connor and Mr Ward that he was not able to drive to work.  The respondent did not engage with an assessor to determine what work the complainant might have been able to do and no work plan or reasonable accommodation was provided and no consideration of deployment to an alternative position was considered despite significant financial resources available to the respondent. The respondent could have engaged with national organisations to consider how the complainant might have been reintegrated into the work place but did not do so.  No occupational therapist was considered to assess how the complainant might return to work.  The respondent had work available to work from home but did not engage with the complainant to facilitate his working from home which is available to other employees.  No work plan was developed, no difficulties were identified, and no reasonable accommodation considered. It was submitted that by terminating payments the respondent in effective terminated the complainant’s employment.  The respondent did not engage their own process for managing long term disability and did not apply their own process flow of considering retraining, a temporary change in job and adjustments referring him to OH.  It was submitted that there was a difference in the parties between the interpretation of s16(3)a of the Act and that a disabled person should be assessed in accordance with duties in terms of their capacity to perform the job and if they cannot perform those duties then the employer should undertake reasonable accommodation to render them capable of performing those duties.

It has been suggested that the respondent’s submission is that the complainant’s doctor did not deem him fit to return to work but the respondent did not engage an assessor or review changes.  The respondent is required to take appropriate measures to enable a person with a disability to have access to employment and to undergo training , unless the measures would have a disproportionate burden on the employer.  A person with a disability should be assessed in accordance with duties to determine their capacity to perform their job and if they cannot do the job then the next step is to undertake reasonable accommodation to render the employee capable of performing those duties.  Article 2 of the UN Convention on Human Rights was also cited.  The respondent has adequate financial resources available.  Cases cited included Nano Nagle and that the respondent has an obligation under s16(3) is unavoidable requiring an assessment of financial and other costs as well as the scale and financial resources of the employer and possibility of obtaining public funding.

The evidence of the complainant was to outline his previous working history where he worked as a social care worker before working with the respondent.  He said he had a full medical assessment before he started and he suffered an accident with injuries to pelvis, elbow and the shoulder that required surgery.  He was in hospital and kept in contact with the respondent and had difficulties lifting his arm and had surgery and had physio and there was a CT of his shoulder in November.  He has a partner and with 5 children he needed to be paid.  There was a welfare meeting on 06/12/2022 and never saw the minutes of this meeting.  He was worried they would stop paying him and there was a discussion about doing media work and he told the respondent he would have difficulty getting to work as he was living one hour’s drive from the Galway office and there was no OH assessment.  He was unable to give a return to work date at the meeting of 06/12/2022 and had no date at that stage for surgery and would have been happy to have undergone training but payment was cut prior to any OH assessment.  He was advised on 18/01/2023 that his sick pay would cease and had been absent from work from 01/06/2022.  There was no offer of retraining and no offer to work from home.  Surgery repaired his shoulder and the respondent would have been aware that he had 5 young children.  His last payment was 14/02/2023 and there were no other meetings after the resignation and no mention of OH assessment.  There was no mention of financial support and no other meetings after the resignation and no request for the gp to make suggestions and he is dyslexic.  He took up employment doing 1 day a week driving, then 2 days and then 4 days and there is no pulling and loading and no help was provided by the respondent to return to work.  He became fit for work in October 2023 and had to leave the respondent as he was forced to resign as his money stopped.  He said his disability was a broken pelvis, broken right elbow and large supraspinatus tear.  He said he was never asked to give a copy of an MRI and he would not have been able steer a vehicle and that when he took up the new job driving it took a few weeks to get used to it and he was very sore.

Under cross examination the complainant said he had an MRI in October 2022 and did not provide a copy to the respondent and had 4 weeks’ notice of the surgery and from what he could recall the surgery took place in May 2023.  He accepted that the company extended their discretion regarding sick pay and he was given sick pay payment until February 2023 which was 8.5 months sick pay.  He had engaged with Mr Lowry and Mr Ward and the engagement was good and he probably did tell them that he was feeling better and he could not have returned to work before the surgery.  He confirmed he was back driving a van.  He had secured a job after his resignation but not when he had sent the resignation letter. He had already started the job when he got the February 2023 letter from the respondent and he was never asked to reconsider his resignation.  He said he was not able physically to come into the office and did not recall if OH was discussed for after his surgery and he was never given an OH appointment and he expected the respondent would have been following of the process flow before monies were cut or ceased and expected an assessment before the monies were cut.  He said he could not do his role and the respondent could have accommodated him and he could not drive to Galway and he expected an OH assessment before sick pay would be cut.

The Respondent strongly refutes the claim of discrimination in relation to training, conditions of employment and an alleged failure to provide ‘reasonable accommodation’, on the grounds of disability. The Complainant has not demonstrated the primary facts on which his case relies and the burden of proof is on the Complainant to demonstrate facts from which it may be presumed that there has been discrimination.  Furthermore, the Complainant has failed to demonstrate that he was treated less favourably than a person of a different status as per the grounds of discrimination specified by the Complainant. The Respondent is one of Ireland’s largest family run businesses and supports more than 41,000 jobs. The Complainant was employed as a Rigid Driver from the 31/05//2022, and the annual rate of pay was €35,000 gross per annum and he received a Contract of Employment.  The Complainant resigned from his position on 30/01/2023.

On 01/06/ 2022, the Complainant was involved in a workplace accident and was on certified sick leave from that date. As a gesture of goodwill, the Respondent made an exception to the company sick pay scheme and paid the Complainant from 01/06/2022 until 15/02/2023, notwithstanding that the Complainant had only commenced employment with the Respondent on the 31/05/2022, one day prior to his accident at work. As per the terms of the Complainant’s contract, Company sick pay provides basic pay up to a maximum of twelve weeks for employees with at least one years’ service. On 06/12/2022, the Complainant attended an absence welfare meeting with Ms Karen O’Connor, HR Business Partner, and Mr Michael Ward, Transport Supervisor. During this meeting, the Complainant’s current absence, his future prognosis and next steps were discussed. Ms O’Connor advised the Complainant that his sick pay may cease as an exception to the policy had been made to continue paying him, and that the situation would be reviewed in the new year, and he would be notified in relation to same.

On 18/01/2023, the Complainant was notified by Mr Ward that as he had been absent from work since the 01/06/2022 and had been paid for this absence, resulting in him receiving Company Sick Pay for a period of 6 months, totalling an amount of circa €23,333, his sick pay would cease from the 15/02/2023. On 30/01/2023, the Complainant resigned from his employment.

On 03/02/2023, Ms O’Connor responded to the Complainant’s resignation and asked him to reconsider his decision. Ms O’ Connor requested the Complainant to contact her by 10/02/2023 if he wished to reconsider his decision to resign. The Complainant did not respond to Ms O’Connor’s correspondence. The Complainant’s claim of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent and it was submitted the Complainant has failed to outline a comparator to demonstrate how he believes he has been treated less favourably under the grounds cited. As such, the burden does not shift to the Respondent in this instance.  The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

The Complainant submitted an open ended sick cert certifying that he was not fit for work and was in contact with his manager to update him on his absence on a regular basis. At the absence review meeting on 06/12/2022, the complainant advised that he had not received a date for surgery and that he was still not cleared to drive and was signed off indefinitely. Mr Ward asked the Complainant if he could potentially work in the office. The Complainant advised that he could not drive and therefore, could not get to the depot as he lived far away. Mr Ward discussed some other options and advised that most options involved the office/depot which the Complainant would have to come to. In response, the Complainant discussed his family life and said he would not be able to organise a lift each day from where he was located. Ms O’Connor asked the Complainant where would be easiest for the Complainant for an Occupational Health appointment and he advised either Castlebar or Claremorris. When the Complainant was advised by letter dated 18/01/2023 that his discretionary sick pay was due to cease, the Complainant subsequently resigned from his employment on 30/01/2023 and cited the stopping of sick pay as one of the reasons for submitting his resignation. In his resignation, the Complainant alleged that he was not offered any temporary position whilst awaiting surgery. In response to this, Ms O’Connor provided the Complainant the opportunity to reconsider his decision and advised that the company was still very much open to exploring alternative roles and offered the opportunity to meet to discuss further. The Complainant did not respond to this correspondence and his employment with the Respondent was voluntarily terminated on 30/01/2023.

The Respondent strongly denies that it failed in its duty.  No reasonable accommodation was required in this case at the time in question as the Complainant’s GP certified him as unfit for his role and did not suggest any accommodations that could be made to enable him to return to work in any capacity. The Complainant did not dispute that he was unfit for work or for his role, nor did he request or enquire about reasonable accommodation until such time as he notified the Respondent of his resignation.

Medical evidence in this case is quite clear that the Complainant was not capable of doing any aspect of the job he was employed to do during the period in question. At no point before the Complainant resigned, did he request to be considered for alternative roles. In fact, when Ms O’Connor and Mr Ward suggested alternative roles, the Complainant stated that he would not be able to travel to the office/depot to undertake such roles. The Complainant has not submitted any means by which he could have been accommodated in order to be fully capable of performing his role or any other potential role. The Respondent submits that should the Complainant have been seeking to be reasonable accommodated, notwithstanding it is their position that he had not up until the time he resigned, the Complainant was given an opportunity to engage with the Respondent regarding same, which he failed to do and instead proceeded with terminating his employment.

In this instant case, the Respondent was prepared to engage with the Complainant around any reasonable accommodation that could be made, even though no such requests were made before the Complainant resigned. Furthermore, from June 2022 to his resignation in January 2023, the Complainant had been continuously certified as unfit to work, therefore, no obligation to make reasonable accommodation arose. The Respondent submits that the Employment Equality Acts does not require redeployment to a new role to fulfil the duty to reasonably accommodate.  The burden of proof rests with the Complainant to show that he has been treated less favourably on the disability ground specified and it was submitted that the Complainant has failed to establish a prima facie case of discrimination.

Case law cited included : Melbury Developments v Arturs Valpetters, EDA0917, Busikas v Eupat Ltd, EDA103, Southern Health Board v Mitchell, DEE011, [2001] ELR 2011, Margetts v Graham Anthony & Company Limited, EDA038, Department of Employment Affairs and Social Protection and Neary EDA218,Daly v. Nano Nagle [2019]IEHC 63

Evidence of Ms O’Connor

She is a HR Business Partner for transport and heard of the accident shortly after it happened. It was agreed to pay 6 months and his manager was in contact with him and it was a serious accident with serious injuries.  Then the sick pay was extended to over 8.5 to 15/02/2023 having worked 1 day and nobody else was ever given this length of sick pay which was greater than provided for under their sick pay policy and they did not want to pull it before Christmas.  She met the complainant on 06/12/2022 and there was a query about would he return to work and she told him she might send him to OH and there was a discussion if she sent him which OH would he be sent to.  She said the complainant was awaiting surgery and there was no return to work date agreed and he lived away from the depot and it was not possible for him to work from home and she had first heard about dyslexia at the WRC hearing.  She said it was not possible for someone in transport to work from home in his role and was surprised to get the resignation which came as a shock.  They were open to alternatives and he had options and he was over an hour from the office by driving.  She believed he was treated more fairly and better than anyone else might be and had said he was able to do very little by way of lifting

Cross Examination of Ms Connor

Under cross examination she said there were conversations about a role in the office on 06/12/2022, they could not train him just randomly and they did not do an assessment and he could not drive and there was no work available to work from home within his department.  There may have been a possibility to work from home within other departments and he had a difficulty getting into the office and he was offered work at the transport office.  She said her interactions with him were pleasant and he did not raise any questions when she advised the sick pay might end soon and that the minutes of the meeting of 06/12/2022 did not get sent to him at the time and it was her understanding that he would only be fit to drive maybe 6-12 weeks after surgery but no surgery date was available.

Evidence of Mr Ward

Evidence of Mr Ward was that he was with the company 10 years and found about the accident on the day of the accident and interacted with the complainant from October when Mr Lowry was out.  He knew the complainant had received sick pay which was supposed to be for six months and it was a good will gesture when they extended it as they recognized he had bills and the accident happened during work and no other employee got this sick pay whereby he was paid until February 2023.  There was plenty of opportunities to do paperwork in the office but not to work from home.  He knew the complainant was awaiting surgery and did not recall any query about additional training and he did not know anyone else working from home and did not know any jobs that did not require the ability to use your arms and manual handling and he did not know the complainant had dyslexia until the WRC hearing.  He was surprised to get the letter resigning as he was expecting that he would return to work and there had been a discussion about office work.  He was awaiting on surgery before they would do an assessment and did not agree that the complainant was discriminated against as nobody got more than the complainant and his job was there.  He said that the complainant had got a job driving and that an artic truck at the respondent might be 46/48 foot and a rigid truck in the new employment might be 35 ft and he did not know if the complainant was deemed fit to drive a vehicle in his new job.

Cross Examination of Mr Ward

Under cross examination Mr Ward said that the complainant’s role was to drive and he showed he had limited arm movement and there was not a lot that could be done. He said there was physical work involved driving within the respondent’s organisation.  The work the complainant was employed to do is significant physical work.

Evidence of Mr Ken Lowry

Evidence of Mr Ken Lowry was that he has been working with the respondent for over 7 years.  He was the complainant’s direct line manager and rostered him on the day of the accident to go with another driver to learn the ropes and he was advised the complainant had an accident and that an ambulance had been phoned.  Another employee went to the hospital with the complainant and they did not know if he would be admitted.  On day 2 of his absence the complainant asked about sick pay and the witness had to check with HR and advised the complainant he would be paid as normal for 6 months when it would then be reviewed.  The complainant was advised that he was not entitled to this owing to his length of service land they were giving it as a good will gesture and the complainant was paid for 8.5 months and the witness did not know anyone else who received that amount of sick pay.  The complainant told the witness he was unable to lift his kids and was worried and his main pain was his shoulder and he was unable to drive and that he could not drive to the Galway office.  Mr Lowry was out of the office from October 2023 and he would have no involvement in making an appointment for the complainant with OH.  It was his opinion that the complainant appeared open and genuine and wanted to come back but was not fit and he needed two hands for driving and there was no discussion about driving but there was a discussion about working in the office.  Nobody in his department works from home and there was no discussion about working from home because of the confidential information that cannot leave the office.  It was his belief that the opposite of discrimination occurred as the complainant was looked after every way that he could be and that the company went the extra mile.  If he had been deemed suitable for the office work he would have been sent to HR for them to decide next steps and whether that might include an OH review.  There was also a discussion around July/August 2023 about returning to work as the complainant said he was bored.

Cross Examination of Mr Lowry

Under cross examination Mr Lowry said that the deed of confidentiality deals with destruction of documents and that if you leave, you return documents.  He said that the complainant could not bring documents home as they are not told when audits occurs and if the complainant had the information and an audit was done it would be a non-conformance.  In his area nobody works from home as the paperwork has to be on site.  The complainant had sent in certs and the complainant was in pain, could not drive and was awaiting surgery and therefore OH was not done.  In the process flow chart the complainant is at the stage where he is off work as their doctor deems them sick and if the doctor had said he was fit for some work and not fit for other work it would have been passed on to HR.

The complainant submits that he was discriminated against by reason of his disability and discriminated against him in providing training, Reasonable Accommodation, and Conditions of employment.  The respondent refutes the allegations.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, o

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—…

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Section 16 sets out :

Nature and extent of employer’s obligations in certain cases.

16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

 (3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

It is set out in Section 85A(1) of the Act that the burden of proof rests with the Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

and within the Labour Court decision Southern Health Board v Mitchell [2001] ELR 201, the evidential burden imposed on a Complainant was considered by section 85A which held:

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Cork City Council v McCarthy EDA 21/2008 it was outlined that:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language .81used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

and in Melbury Developments Ltd v Valpeters [2010] ELR 64, that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

It was not in dispute that the complainant acquired injuries following an accident that occurred whilst in employment and that these injuries resulted in a disability as defined under the Act.  It was not in dispute that the complainant was paid sick pay for 8.5 months and it was not in dispute that this was paid as an exception to the respondent’s normal sick pay policy.  It also appears that it was paid owing to inter alia the seriousness of the accident and the injuries. 

The complainant gave evidence that he resigned after he was informed sick pay would cease and it was not in dispute that the respondent had not referred the complainant to their OH physician prior to the employment ending.  It was also not in dispute that the complainant submitted certs which set out his unfitness for work and it was not in dispute that there was a discussion around the complainant returning to a role that might not involve driving as the complainant stated he was unable to drive.  The complainant’s evidence was that he could not attend the office to do office work as he was unable to drive to work and he should have been facilitated with working from home.  The respondent submitted that their policy does not allow for removal of documentation for the work that they discussed with the complainant and therefore the complainant could not have completed the work at home.  The respondent’s policy sets out that “The Masterfile will be maintained in the main office” and “Documents must be available at the point of use”. 

It was not in dispute that the complainant was awaiting surgery and it would appear that the catalyst for the complainant’s resignation and subsequent referral of complaints to the WRC arose when he was advised that sick pay would no longer be paid.  The complainant accepted in cross examination that he had been paid sick pay for a period of time greater than what other employees with similar length of service would normally receive and that what he received was outside of the respondent’s policy.  For completeness the complainant’s evidence was clear that he left the respondent as he was no longer in receipt of sick pay and I do not find that the complainant’s sick pay ceased owing to his disability.  

I note that the respondent’s policy referenced that “Long term absence is normally defined as 10 days or more and it is usually due to sickness or injury….A referral to Occupational Health is also normal at this time.“ and that the process flow outlined“Return to work date given?” If “no” then the next step is “refer to occupational health” but it is not explicit as to when this might actually happen and what factors influence such a decision.  It would appear from the correspondence that there was discussion at the December 2022 meeting about referring the complainant to an OH but no urgency appeared attached to it by either the complainant or the respondent.  It appears on the facts of the case, the complainant did not appear to have difficulties with the failure of the respondent to refer him to OH while he was still in receipt of sick pay and in any event the complainant was awaiting on a date for surgery. 

The respondent’s meeting of 06/12/2022 discussed possible “access to employment” for the complainant however, it would appear that the complainant was unable to drive to attain access to this alternative work.  The respondent’s letter of 18/01/2023 clearly outlined:

“During this meeting you advised that you will possibly need further Surgery and unfortunately, you were unable to provide us with a return to work date at present.”

The complainant did not appear in his evidence to dispute the above and it would appear that the letter mostly dealt with the removal of sick pay:

“As part of this meeting we advised you that we needed to review your continuance or otherwise in the Company’s Sick Pay Scheme. As you are aware; ‘the Company reserves the right to continue to review an employee’s absences and sick pay on an ongoing basis as is currently the case and at the Company’s discretion sick pay may be continued, discontinued, or continued at a reduced rate and the individual’s current absence issue and overall attendance history during the course of his/her employment will be taken into account.”

There is a clear requirement under S16(3) take “appropriate measures, …to enable a person who has a disability” to have access to employment, participate in employment, or undergo training and the complainant submitted that the respondent failed with regards to this but I note that the respondent appeared to be taking measures in all the circumstances of the case at the time the complainant resigned.  It also seems unclear what other action was necessary at the time that would not result in a completely different role for the complainant who was adamant he could not drive.  Charleton J stated in very clear terms at paragraph 10 of his judgment in Nano Nagle School v Daly [2019] 3 IR 369 that the obligations of an employer under section 16 do not extend to redeploying an employee with a disability into a job other than that which they were hired to perform.

The complainant’s sick cert clearly set out that the complainant was unfit for work and the complainant during his evidence did not dispute his unfitness to drive albeit extraordinarily he then secured a position that required him to drive.  While I note that the complainant commenced a position as a driver using a different type of vehicle which might have required less physical effort however, it does not appear he ever raised with the respondent that he could drive some vehicles.  Even if he had, it is unclear why if the complainant deemed himself fit to drive as part of this new role that he could not drive to work to the office for the position that the respondent proposed might be suitable.  It would appear on the facts of this complaint that the complainant had clearly stated he was unfit to return to work in his current position and appeared from his evidence to expect that this would be reassessed following the surgery. 

The complainant’s letter of resignation to the respondent came as a surprise where the complainant outlined

“I wasn’t offered any temporary job position within the company whilst awaiting my surgery prior to the decision being made to stop my sick pay. This was something we had spoke about at the meeting with HR in December 2022.   I feel disappointed by this outcome and therefore, with a family to feed I have no other option but to resign.”

The respondent sought clarification on whether the complainant was fit to drive on 03/02/2024

“however, my understanding at our last meeting is that you are unable to drive. Again, if there is any misunderstanding and you want to explore other options, we are happy to meet with you”

The complainant did not indicate if circumstances had changed which it would appear they had as he secured a position whereby he would resume driving in his new position.  As set out in Nano Nagle School v Daly [2019] 3 IR 369:

In this State, however, our courts have always attached importance to fair procedures where employment is at stake. (See Bolger v. Showerings [1990] ELR 184, Lardner J., and the recent judgment of Ní Raifeartaigh J. in Dublin Bus v. McKevitt [2018] IEHC 78).

However, I note the evidence of all the witnesses for the respondent was that they appeared to be having at all times amicable conversations with the complainant and his position was not at the time of his resignation in any way at risk.

I find in all the circumstances of this case the complainant made a decision to resign and did not engage thereafter with the respondent.  The complainant has not established a prima facia case of discrimination and I find that the complainant was not discriminated again by reason of his disability, in being given training, with Reasonable Accommodation, and conditions of employment and I dismiss the complaint.

The complainant has not established a prima facia case of discrimination and I find that the complainant was not discriminated again by reason of his disability, in being given training, with Reasonable Accommodation, and conditions of employment and I dismiss the complaint,

Reasonable accommodation, training, conditions of employment, disability, equality, driving