Complainant

Respondent

Parties

Sean  Lynch

Synergy Security Solutions Limited

Representatives

Sherwin O'Riordan Solicitors

HR – In House

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-00061822-001

27/02/2024

The Complainant submits that (i) he was discriminated against on grounds of his disability (ii) there was a failure by the Respondent to provide him with reasonable accommodation and (iii) he was discriminatorily dismissed.

The Complainant commenced employment with the Respondent on the 16 July 2009 as a Security Operative having TUPED over from another Named Company on 2 January 2020. The Complainant submitted a letter from his GP informing the Respondent that he has hypertension on 6 January 2022 and that it would not be suitable for him to work more than six consecutive shifts. Mr M Account Manager responded to the email stating “Thank you for sharing this, we will only ever roster you for 4 shifts at a time across our working week from Friday – Thursday. Please let us know if you have any issues and we will do our best to support you. Just looping in our HR department and confirming you are fit to continue working?”

On 24 January 2022 the Complainant emailed Mr M and stated “Hi all, Just to let you know I would need to leave work on the above date for 3 hrs between 10am and 1pm to attend the above appointment at 11am..”. Ms D, Security Operations lead responded saying “.. Apologies for the late reply, that’s no problem at all. Just on the day, please make contact with myself to let me know when you are leaving site and when you return.”

On 10 February 2022, the Complainant emailed SD informing her of his previous roster before he transferred to the Respondent where he had always worked Monday to Thursday every week. He stated “I have conveyed this to Senior management at different intervals along with other ongoing health issues etc since returning to work as my roster has been to work quite a lot of weekend shifts, I hope you will consider this matter and reinstate my previous roster going forward.” SD responded stating “After getting confirmation of your roster that has followed you from a Named Company {my emphasis} to Synergy, I will make sure that you are rostered Monday to Thursday every week.” The Complainant responded stating “Thanks for your prompt reply and for rectifying my roster query.”

On 10 March 2022 the Complainant emailed SD stating “I’m still employed as a Static Security Guard and not a Corporate Security Guard, I have also made it clear on numerous times that I don’t have Computer PC skills….Going forward I will not be undertaking the Extended Workforce training. I hope this makes my position clear”.  SD responded stating “As part of your induction, you were taken through the operational requirements of the role as a Security Officer and the onboarding process is one of the requirements to fulfil this role. We can offer help and computer training to assist you with the process and ongoing use of the computers to fulfil your role.”

On the 3 April 2022 the Complainant sent an email to the Respondent which stated “Hi all, For quite a while now I have been bombarded with emails from Google to register for the above training programme for which I never gave permission to them to contact me in this way, also I have been pressed by various Synergy management to which I agreed to enrol in a recent phone call from SM {my emphasis} which has made me feel pressurised into agreeing. When I started with Synergy originally and when I started working in Google Sandyford sites I made it clear that I don’t have PC skills except at a very basic level. I’ve also been told if I don’t enrol, I’ll be moved off site.”

On 8 August 2022 the Respondent sent an email attaching a letter inviting the Complainant to an investigation meeting. In the letter it states “The investigation is in relation to the following: Alleged, abandoning your position on the 02/08/2022 as per roster issued at one of our client locations in Sandyford.” The Complainant responded on the same day stating “Hi S {my emphasis} As per my last email response I am consulting with my solicitors and will be in touch when fully advised, therefore I’m unable to attend the rescheduled meeting. Hope this clarifies my position re the above request.”

The Respondent followed up by email on the 11 August 2022 stating “We hope you have had sufficient time to consult with your solicitor as previously discussed, we are now looking to proceed with an investigation meeting that has been arranged for the 16 August at 11:00.” The Complainant responded on the 15 August 2022 stating “Hi All, Hopefully I will be able to finalise my correspondence with my solicitor by the end of the of this week as he has had a very busy schedule this month, also with annual leave etc. As soon as I have finalised matters, I will contact you regarding the above matter.”

On 19 August 2022 the Complainant emailed SM stating “Hi all, re the above meeting I have taken legal advice on the matter and want to point out an issue I have with SM attending the meeting. On the 2 August 2022 I received a phone call from SM {my emphasis} as I was leaving the Hospital which I have to attend for medical issues, I explained to SM when he asked me why I left the site that I emailed my manager SD as is the normal procedure for these appointments, SM was speaking to me in a very aggressive intolerant manner to which the conversation ended abruptly, consequently I believe he is not objective with a fair and open mind to attend this meeting I emailed SM the appointment notice and a photo of the treatment I received and the sick cert also. On leaving the site I contacted my work colleague and informed him I was not returning to site I also rang the Chase building and spoke to O {my emphasis} and informed him in the same manner, and to report to the team lead. PS. I will be attending the meeting.”

On 29 August 2022 the Complainant emailed the Respondent stating the following” Please find below email to SM {my emphasis) outlining my concern with him attending the meeting to which he has since handed over to HR I would prefer this and other concerns raised to be investigated fully and satisfactorily before I attend the scheduled meeting tomorrow or at any further date.” Mr T, Employee Relations responded “I am independent in this matter. The meeting will go ahead tomorrow as scheduled. Your assistance would be greatly appreciated.”

The Complainant then responded “I understand your position however there is another issue I have with management in Sandyford re onboarding, I was put under considerable pressure by management to partake in onboarding even though at all times I said I do not have PC skills or have never had any training in computer admin as far back as when I started with Synergy when I was transferred under TUPE but I was told by SM {my emphasis} if I didn't onboard I would be removed from the site. This also has put a huge strain on me and made it very difficult to feel at ease and comfortable in my work environment, if you are not the person to deal with these matters then please notify the appropriate personnel in Synergy.” Mr T replied “I will be passing on your grievance complaint to management and those matters will also [be] fully investigated. however, the meeting tomorrow is an investigation meeting only. I will proceed with that tomorrow. Someone will be in touch with you in regard to your grievance issues in the coming days.”

On 30 August 2022 the Complainant emailed the Respondent stating “Please note that I am unable to attend work today as I am sick. Thanks.” Mr T replied “Thanks for letting me know. Let me know when your back and we can reschedule that meeting.”

The Respondent emailed the Complainant on 1 September 2022 stating “I hope you are keeping well. My colleague had asked me to reach out to you regarding sick leave here at Synergy. As you have more than 18 months with the company you are entitled to 3 weeks sick contribution of €120 a week, this can be paid in addition to social welfare sick benefit almost as a top up. If you forward your medical certificate over to me here I will make sure this is updated and payroll can process the payment as they usually would with wages. I hope this helps and I wish you a speedy recovery, if you have any other questions please let me know, Kind regards.”

The Complainant responded “Thank you for your response. Please find attached requested medical certificate, please also note that my service record dates back to my previous employer as I was transferred to Synergy under TUPE Law Ireland. HR can confirm this.” Ms H replied “Thanks very much for forwarding this on to me, I will update this here with payroll. I will source out this information in the morning and update you of same, let me know if you have any other questions, Kind regards.” 

The Complainant then followed up with Ms H on 6 September 2022 stating “Any updates on the above. ” Ms H then replied “I hope you are keeping well! My apologies for my delayed response here, I can't catch myself this week! I have here your TUPE start date as 2009, this is also updated here for you meaning you will get the maximum 5 weeks sick pay from us here. How are you feeling? Wishing you a speedy recovery and if there's anything else we can help with please do not hesitate to contact me, Kind regards.”

The Complainant continued to submit his sick certificates. The Complainant received no further contact from the Respondent up until 4 August 2023. On 4 August 2023 Mr W of Employee Relations emailed the Complainant attaching  a letter which stated “Following on from your most recent medical certificate, your period on sick leave is approaching 12 months and it is a matter of great concern that you may no longer be in a position to conduct aspects of the duties and responsibilities of a security officer due to ongoing medical problems. Due to the nature of a security officer role which includes, but is not limited to;

● Standing for extending periods of time

● Conducting foot patrols both internally and externally

● Ascending / descending stairs

● Responding To Incidents

● Supporting Building Evacuations and taking into consideration your ongoing issues,

we will require further information relating to your condition and your fitness to continue within your role as a security officer. Should you no longer be able to conduct the duties of a security officer I would ask you to advise us without delay as this may impact your scheduled roster. We would ask you to liaise with your appointed practitioner, or we can arrange one should that be more practicable. Once you have been reviewed by your medical practitioner (or one appointed by Synergy) we will review next steps taking into consideration the medical practitioner’s feedback. Should you have any queries please do not hesitate to contact me.”

The Complainant responded to Mr W attaching his updated sick certificate. Mr W replied “Thank you for that. Given the amount of time you are out sick, what is required is a certificate from your Doctor stating that you are fit to perform the duties of a security officer, as set out in my letter to you. If your Doctor is not in a position to supply this, we can appoint an Occupational Medical Practitioner to supply same. I look forward to hearing from you.”

The Complainant proceeded to contact his GP, who furnished a letter on 10 August 2023 which stated “The above gentleman is a patient of this practice. He has been unfit to work since 1/09/2022 due to Stress and Anxiety. In that time he has also developed worsening Osteoarthritis of his right knee and he is due to undergo a knee replacement, currently on waiting list for same. His knee issue has also been a factor in preventing him from working due to pain when standing for long periods of time.” The Complainant forwarded same to Mr W on 10 August 2023. 

Mr W sent an email to the Complainant on 15 August 2023 which stated “Thank you for your response and Doctor’s letter. I am sorry to hear that you are still experiencing medical issues. As set out in my original letter to you, what your Doctor needs to certify is a likelihood that you will be fit to resume the duties of a security officer, which include, but is not limited to; standing for extending periods of time, conducting foot patrols both internally and externally, ascending/ descending stairs, responding to incidents, supporting building evacuations. I look forward to hearing from you.”

The Complainant did not respond to this email and Mr W sent a follow up email on the 23 August 2023 which stated “I refer to my email of 15 August and wonder if you are in a position to respond or to give me an update. Many thanks.”

On 4 September 2023, the Respondent issued a letter to the Complainant which stated “First of all we would like to thank you for taking the time to attend your medical practitioner to take part in the Occupational Health Assessment. Following on from the assessment we are in receipt of your medical report. Taking into the consideration the results of the assessment report we deem you unfit to safely fulfil the role of a front line security officer based on the following;

● He has been unfit to work since 1/09/2022 due to Stress and Anxiety.

● In that time he has also developed worsening Osteoarthritis of his right knee and he is due to undergo a Knee replacement , currently on waiting list for same.

● His knee issue has also been a factor in preventing him from working due to pain when standing for long periods of time. Taking into consideration the findings of the assessment we deem it to be unsafe for you to continue in your position as a frontline security officer. This decision has been reached taking into consideration the core duties of a security officer which include but are not limited to;

● Lone working

● Responding to emergencies

● Dealing with incidents / potential conflict

● Dealing with challenging scenarios

● Conducting foot patrols / standing for prolonged periods ● Responding to intruder / Fire Alarms

● Monitoring CCTV

As we don't currently have a suitable non frontline security officer based position we will have no other alternative but to cease your current employment providing you with 1 weeks notice effective as of 11 September 2023. We would like to thank you for your service and commitment to date. Should you have any queries please do not hesitate to contact me.”

The Complainant submits that the Respondent did not consider if there were any facilities or special treatment available to the employee which would allow him to be fully capable. The Complainant contends that no reasonable accommodation was discussed with him or a return to work meeting facilitated or initiated since the Complainant had been out sick in August 2022.  The Complainant argues that his sick certificate submitted at the time was not due to end until 31 October 2023. The Complainant cites the decision of the Labour Court in Audrey Cafolla t/a Jesters Hair Studio and Ms Roisin Coakley UDD2253 wherein the Complainant submitted a medical certificate certifying her as unfit for work from 10 July 2020 up to and including 6 August 2020. The Respondent in her evidence to the Court confirmed that she had received and accepted that medical certificate. The Respondent knowing that the Complainant could not comply with the ultimatum to return to work on the date specified proceeded to terminate her employment with effect from 16 July 2020. The Complainant states that the Labour Court found in this case that “the decision to dismiss by the Respondent knowing that the Complainant was not medically fit to return to work was not the action of a reasonable employer. The Court finds that the Complainant was unfairly dismissed.” The Complainant submits that is aligns with the instant case where the Complainant still had a live sick certificate on file with the Respondent and in the circumstances the Respondent should have arranged to meet with the Complainant to discuss his fitness to work/return to work. 

The Complainant further cites the caselaw in the Labour Court decision in A Government Department v A Worker ADE 0516 and the Adjudication Officer decision ADJ 00044696 Marie O’ Reilly v Chadwicks Group in support of his claim.   

The Respondent states that the Complainant joined Synergy Security Solutions Ltd on 2 January 2020 (TUPE) and his employment was terminated on grounds of capability on 4 September 2023. The Respondent states that despite a request, no copy of his contract of employment was supplied by his previous employer during the TUPE process, however he was given a copy of his Synergy TUPE Welcome Pack on commencement with the Respondent.

The Respondent states that the Complainant submitted a claim to the WRC on 27 February 2024 stating that he had been dismissed on a discriminatory basis on grounds of disability.

The Respondent states that it is well established that managing absences can be difficult for employers particularly in circumstances where those absences are medically related. The Respondent states that in attempting to manage this particular case, it was particularly conscious of the Complainant’s wellbeing and the protections afforded to the Complainant under the Employment Equality Acts and that it made every effort to obtain and consider medical advice before reaching its decision. The Respondent states that it can demonstrate that despite the Respondent’s best efforts, the Complainant did not engage in any meaningful way with his employer on his long-term illness and even when his contract was eventually ended, the Complainant made no contact with the company to remedy or discuss this long term absence issue.

In the within matter, the Respondent states that it (i) had the up-to-date medical position (ii) had consulted with the employee and (iii) considered the availability of alternative employment. The Respondent highlighted that the Complainant was out sick for over 12 months and that the company had followed fair procedures. It stated that it acted reasonably in the manner in which it dealt with the Complainant.

The Respondent submits that with regard to the within matter, it should be noted that it is a defence for an employer in an unfair dismissal case to rely upon S.6(4) of the Unfair Dismissals Act, 1977 which states that no unfair dismissal arises if the employee is not capable of fulfilling their duties. Section 6(4) states; “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Respondent states that the decision to dismiss in the within case is directly connected with ‘capability’, i.e. the person's ill-health and inability to complete their job role and the Respondent is relying on this defence. The Respondent reiterates that the Complainant was out sick for a period in excess of 12 months.

The Respondent states that the Complainant reported sick on the day he was to appear at an investigation meeting; this investigation meeting having been previously rescheduled on several occasions to facilitate the Complainant taking legal advice, thereby respecting his natural justice rights.  The Respondent maintains that due to the Complainant’s absence, this disciplinary matter was never finalised.

The Respondent states that despite the Complainant’s assertions, medical certificates citing “medical illness" were submitted in an irregular and haphazard fashion and often only after they were specifically requested. It states that on 5 May 2023, a medical certificate was submitted covering a three month period as opposed to all previous certs which were for one month. The Respondent states that given this change to a longer term prognosis, the Complainant was requested to have his Doctor provide an indication of whether he was fit to perform the duties of a security officer, or alternatively the Respondent would provide an Occupational Specialist to examine him for that purpose. It was submitted that the Complainant responded only with another medical certificate, citing medical illness, and made no reference whatsoever to his availability, intention, or otherwise, to attend a specialist.

The Respondent states that following a further reminder, the Complainant did provide a Doctor’s letter which indicated that he remained unfit for duty and set out his various medical issues. It states that as this letter did not fully comply with what had been requested, yet another request was made, however, the Complainant never responded to this request, despite reminders being issued.

The Respondent submits that in the absence of any substantive response, the company’s HR Department made a decision to progress the matter on the basis of the Complainant’s Doctor’s letter of 10 August 2023 which indicated to the company that the Complainant’s illness amounted to a capability issue as set out in Section 6(4)(a) of the Unfair Dismissals Act, 1977.

It was submitted that ‘Capability’ includes issues such as lateness, absenteeism, and persistent absence through illness or injury, either short-term or long-term.

The Respondent states that on 4 September 2023, a termination letter issued to the Complainant on the grounds that he was deemed unfit to safely fulfill the role of a front line security officer and that no suitable non-frontline security officer based positions were available. The Respondent states that the Complainant was informed that he could make contact if he had any queries, however he did not respond.

The Respondent states that in relation to within claim, the Complainant states;

"Mr. X [my emphasis] went out on sick leave and submitted medical certification regularly. The most recent medical certificate submitted to HR certified him until January 2024. Mr. X was not called to a meeting to discuss any alternative positions within the company nor was he informed he may be dismissed or given an opportunity to discuss the matter. He was not sent to be medically assessed by the Respondents' medical advisor and only submitted a letter from his GP. He was informed on the 4th September 2023 that he was being dismissed."

The Respondent asserts that the main issues submitted by the Complainant appear to be the following;

a.     The Complainant claims that he was medically certified up to January 2024; this is incorrect - his last cert expired on 12 September 2023 (Any cert that would bring him up to January 2024, as claimed, would be a four month certificate and would have had to have been issued after his termination date.)

b.     The Complainant claims that no alternative positions were discussed. The Respondent states that none were available and he was informed of same by letter dated 4 September 2023.

c.     The Complainant claims he was not informed that he may be dismissed. The Respondent refers to letters dated 8 August 2023 and 4 September 2023 where this fitness to continue in his role were addressed.

d.     The Complainant claims he was given no opportunity to discuss the matter. The Respondent refutes this assertion and refers to email dated 9 May 2023, letter dated 4 August 2023 (and subsequent email of the same date), and email correspondence of 15 August 2023, 23 August 2023 and 4 September 2023.

e.     The Complainant claims he was not sent for medical examination. The Respondent states that the Complainant was offered this option, but in fact refused and ignored the Respondent’s efforts in this regard.

The Respondent states that by way of background to the within matter, it has set out a chronology of events from August 2022.

•       The Complainant was was the subject of a disciplinary enquiry on 2 August 2022 in relation to leaving his workplace without permission.

•       An investigation meeting was scheduled for 3 August 2022 and the Complainant was issued with an invitation letter and a copy of the Company Disciplinary Policy.

•       The Complainant responded to the invitation letter indicating that he would not be attending this meeting as he was consulting with his legal team and would be following their advice to the letter.

•       On 8 August 2022, a further letter issued regarding a rescheduled investigation meeting.

•       The Complainant responded as follows; “As per my last email response I am consulting with my Solicitors and will be in touch when fully advised, therefore I am unable to attend the rescheduled meeting. Hope this clarifies my position re the above request.”

•        Further correspondence again issued to the Complainant on 11 August 2022 as follows;

We hope you have had sufficient time to consult with your solicitor, as previously discussed, we are now looking to proceed with an investigation meeting that has been arranged for the 16th of August at 11:00. This will be conducted by video call, for which you will be sent a calendar invite via email. Please find attached correspondence in relation to this meeting and a copy of our disciplinary procedures. If you are not in a position to attend, please contact me and we can agree on an alternative date.

•        On 15 August 2022, the day before the scheduled meeting, the Complainant responded;

Hi All. Hopefully I will be able to finalise my correspondence with my Solicitor by the end of this week as he has had a very busy schedule this month, also with annual leave etc. As soon as I have finalised matters, I will contact you regarding the above matter, until then I will not be attending any scheduled meetings re the same subject. Hope this meets with your approval. Regards.

•        The Respondent states that the Company replied to the Complainant by email as follows;

Thank you for coming back to us. We completely understand and have been accommodating to you to allow you sufficient time to follow up with your solicitor, the purpose of the meeting is to investigate the alleged incident so we would like to proceed as outlined tomorrow.

•        Correspondence was then received from the Complainant stating;

My preference is as I have already outlined in previous correspondence, therefore my position remains the same. Regards.

•        The Respondent states that a further response was received from the Complainant stating;

Hi All. Re the above meeting I have taken legal advice on the matter and want to point out an issue I have with SM [my emphasis] attending the meeting. On the 2nd of August 2022 I received a phone call from SM as I was leaving the Hospital from an outpatients ongoing appointments I have to attend for medical issues, I explained to SM when he asked me why I left the site that I emailed my manager SD as is the normal procedure for these appointments, SM was speaking to me in a very aggressive intolerant manner to which the conversation ended abruptly, consequently I believe he is not objective with a fair and open mind to attend this meeting I emailed SM the appointment notice and a photo of the treatment I received and the sick cert also. On leaving the site I contacted my work colleague and informed him I was not returning to site. I also rang the Chase building and spoke to O {my emphasis}nd informed him in the same manner, and to report to team lead. PS. I will be attending the meeting. Regards.

•       The Respondent states that in the interests of transparency and fairness, SM subsequently withdrew from the process, given the submission made by the Complainant.

•       The Respondent states that an investigation meeting was then arranged for 2pm on the 30 August 2022 with FT (then ER specialist).

•       On 29 August 2022, the Complainant sent correspondence as follows; “F, {my emphasis} I understand your position however there is another issue I have with management in Sandyford regarding onboarding, I was put under considerable pressure by management to partake in onboarding even though at all times I said I do not have PC skills or have never had any training in computer admin as far back as when I started with the company when I was transferred under TUPE but I was told by SM {my emphasis} that if I didn’t onboard I would be removed from the site. This also has put a huge strain on me and made it very difficult to feel at ease and comfortable in my work environment, if you are not the person to deal with these matters then please notify the appropriate personnel.”

•       The Respondent states that FT (ER Specialist) replied on the same date; “I will be passing on your grievance complaint to management and those matters will also be fully investigated, however the meeting tomorrow is an investigation meeting only. I will proceed with that tomorrow. Someone will be in touch with you in regard to your grievance issues in the coming days.”  The respondent states that as the Complainant never returned to work, this matter did not progress.

•       The Respondent states that on the day set for the investigation meeting, the Complainant reported sick (30/08/2022). The Complainant submitted a medical certificate covering his absence from the 30 August 2022 up to and including 30 September 2022; as a medical certificate was furnished, the investigation meeting was to be arranged when the Complainant returned to work.

•       The Employee Relations specialist, FT, emailed the Complainant on 31 August 2022 and advised him that the matter will be investigated on his return.

•          The Respondent states that a subsequent medical cert was received for October 2022.    (30/09/2022 – 31/10/2023, issued on 26/09/2022 – four days in advance).

•          The Respondent states that a further medical certificate was received from 01/11/2022 to 30/11/2022. (This cert is dated 17 October 2022 -14 days in advance of the valid date).

•          On 10 November 2022, at the request of Employee Relations, PD (Manager) made a welfare call to the Complainant. The Respondent states that the Complainant reported that he is going back to the doctor to extend his time on sick leave as opposed to getting his Doctor’s opinion on his fitness to work as requested by management.

•       The Respondent states that there is no record of any medical certificate being received to cover the period 30/11/2022 to 09/01/2023.

•       On 9 January 2023, a medical cert is received from the Complainant to cover 09/01/23 – 07/02/23. This cert is pre dated on 06/01/2023 (Tuesday).

•       On 23 January 2023, there is a note on file - employee still on sick leave – no further action until his return.

•       On 8 February 2023, a medical cert is received from the Complainant covering 07/02/23 –     07/03/2023 and on 7 March 2023 a further medical cert is received until 05/05/23.

•  On 9 May 2023, correspondence issued from the company to the Complainant seeking a valid certificate or an indication of his intentions as regards a return to work. On the same date an updated sick certificate was submitted by the Complainant from 05/05/2023 to 04/08/2023. (4 days after expiry of previous cert.) The Respondent states that this was the first time a medical certificate had been submitted for a three month period as all previous certs were for 1 month.

•       On 4 August 2023, given that the Complainant’s previous medical certificate had been for a period of three months, a letter regarding fitness to undertake duties of security officer issued on this date. On 4 August 2023, the Complainant responded with another sick cert covering the period 03/08/2023 to 31/10/2023. On the same date, an email response issued to the Complainant acknowledging receipt of his medical cert but pointing out that what was required was a certificate from his Doctor stating that he was fit to perform the duties of a security officer, as set out in earlier correspondence. It was also stated that “if your Doctor is not in a position to supply this, we can appoint an Occupational Medical Practitioner to supply same.”

•        

•       On 10 August 2023, a letter from the Complainant’s Doctor is submitted to the Respondent by the Complainant wherein it states; “the above gentleman is a patient of this practice. He has been unfit to work since 1/09/2022 due to stress and anxiety. In that time, he has also developed worsening Osteoarthritis of his right knee and he is due to undergo a knee replacement, currently on the waiting list for the same. His knee issue has also been a factor in preventing him from working due to pain when standing for long periods of time.”

•          On 15 August 2023, a letter issued to the Complainant from the Respondent; “Thank you for your response and Doctor’s letter. I am sorry to hear that you are still experiencing medical issues. As set out in my original letter to you, what your Doctor needs to certify is a likelihood that you will be fit to resume the duties of a security officer, which include, but not limited to;

•        Standing for extending periods of time

•        Conducting foot patrols both internally and externally

•        Ascending / descending stairs

•        Responding To Incidents

•        Supporting Building Evacuations.

I look forward to hearing from you.”

•       On 17 August 2023, the Respondent sent further correspondence to the Complainant informing him that what is required is a fitness to return to work letter and that it should state that the Complainant is fit to perform the duties of a security officer, as per letter of 4 August. The Respondent sent further correspondence to the Complainant on 23 August 2023 requesting a response / update but no response was forthcoming.

•     On 4 September 2023, as there was no further response to the correspondence of 15 August 2023; at the weekly HR review meeting, it was decided to address this matter based on the medical report dated 10 August 2023 from the Complainant’s Doctor. This report indicated that the Complainant has been unfit to work since 30 August 2022 due to stress and anxiety. In that time he has also developed worsening Osteoarthritis of his right knee and he is due to undergo a knee replacement, currently on a waiting list for the same. His knee issue has also been a factor in preventing him from working due to pain when standing for long periods of time.

•        The Respondent provided a summary of the Complainant’s sick certs are as follows;

 Medical Certificate covering 02/08/2022 (1 day)

31/08/2022 – Cert received for 30/08/2022 up to and including 30/09/2022.

Cert dated 26/09/2024 received on 27/10/2022 for the period 30/09/2022 – 31/10/2022

17/10/2022 – Cert received covering the period 01/11/2022 to 30/11/2022

No cert received for December 2022.

09/01/2023 – medical cert received to cover 09/01/23 – 07/02/23

08/02/2023 – medical cert received covering 07/02/23 - 07/03/23

07/03/2023 – medical cert received to cover from 07/03/2023 until 05/05/23.

Cert submitted to cover from 05/05/2023 until 09/05/2023 – this was in response to correspondence from the Respondent

Cert covering 05/05/2023 – 04/08/2023

Cert from 03/08/2023 – 31/10/2023

The Respondent states that no further medical certificates were received from the Complainant despite his claim that he submitted certificates up to January 2024.

The Respondent states that as the Complainant has been on extended sick leave since 30 August 2022 and the letter from his Doctor indicated that he was suffering from stress and anxiety and worsening Osteoarthritis of his right knee, he was deemed to be unfit to perform the duties of a security officer and a letter issued to him indicating that his employment was being ceased. It was submitted that this approach was based on guidance from Humphries v Westwood Fitness, EED 007; ED/02/59; ELR 296; which indicated that the following matters should be taken into consideration;

(i) a bona fide belief that the employee was incapable of carrying out the duties of a security officer safely,

(ii) making enquiries to establish this, and

(iii) giving the employee an opportunity to participate and provide evidence.

The Respondent submits that this course of action was also in compliance with Section 6 of the Unfair Dismissal Act and the standard Respondent Contract which states;

Absence for Work

If you are absent from work due to sickness or injury, you will be eligible to Statutory Sick Pay as you may be entitled to receive provided that the Company receives notification and certification of sickness. Self Cert Absence Form, Form HR 010, must be filled for an absence of two days or less, which is available from the HR Department. Whilst the Company will be sympathetic if you are ill, you will appreciate that if you are persistently off work through ill health or long-term injury or capacity, this cannot continue indefinitely and your employment may not be renewed or terminated.

We reserve the right to ask you to submit to an independent medical examination, the cost of which will be borne by the Company. As a result of this opinion, the Company may terminate your employment if suitable alternative work cannot be found for you. A refusal to be examined may lead to disciplinary action being taken, which may result in termination of your employment.

The Respondent states that the Complainant did not avail of the offer to attend a company arranged visit to an Occupational Specialist and instead submitted a medical report from his own General Practitioner.

The Respondent states that as the Complainant had been out sick in excess of 12 months and had not made any efforts to indicate any possible return date (despite being so requested on several occasions) and taking cognisance of his Doctor’s report, the company took its decision to terminate the Complainant’s employment. It was submitted that in the termination notification, the Complainant was afforded an opportunity to make contact with Employee Relations to discuss any issues he might have, but he failed to do so. The Respondent states that the only correspondence received from the Complainant since its letter of 4 September 2023 was the WRC complaint of 27 February 2024, which was received by the Respondent on 12 March 2024 just over six months after the termination.

The Respondent states that it is important to note that an incident occurred on 2 February 2022 which, under company policy, required an investigation/ fact finding meeting. Had the investigation proceeded it may have found that the Complainant was not in breach of policy and no disciplinary procedure would have followed. The matter could have ended there, but for the fact that due to his absence on sick leave, the matter could not be progressed and all the facts could not be ascertained at that time. Thereafter, the matters were in abeyance pending his return to duty.

The Respondent states that with regard to the medical certificates, as set out in the summary provided by the company, the certs were invariably late, pre, or post dated, and in some instances had to be sought from him by the Respondent.

The Respondent states that while the Complainant claims that he provided medical certs up to January 2024. The Respondent refutes this assertion and states that no further medical certs other than those listed and provided in the submissions were received.

The Respondent maintains that when it became obvious that the Complainant was not returning to work in the immediate future (his cert from March 2023 progressed from one month to three month absences) the company, having carefully considered the matter, decided to issue the Complainant  with a letter seeking medical certification that he was fit to perform the duties of a security officer and set out general examples of what this might entail. The Respondent states that this is standard HR procedure and has been utilised on six occasions for other employees since February 2023. (In all these six cases, employees responded and co-operated with company policies and their contractual obligations). It was submitted that three of the six have since left the company on medical grounds. The remaining 3 individuals are still employed by the Respondent.

The Respondent states that instead of abiding by company policy and his contractual obligations, the Complainant completely ignored the requests and instead responded only with further medical certificates. It was submitted that he was again informed of what was required and subsequently provided a Doctor’s letter, which did not address or comply with what was requested by the company.

The Respondent submits given that the Complainant failed to engage with the company’s lawful requests and would not communicate with representatives of the Respondent; on 4 September 2024 the Respondent took the decision to act upon the Complainant’s Doctor’s letter of 10 August 2023 and wrote to the Complainant in the following terms;

“First of all we would like to thank you for taking the time to attend your medical practitioner to take part in the Occupational Health Assessment. Following on from the assessment we are in receipt of your medical report.

Taking into the consideration the results of the assessment report we deem you unfit to safely fulfil the role of a front line security officer based on the following;

•       He has been unfit to work since 1/09/2022 due to Stress and Anxiety.

•        In that time he has also developed worsening Osteoarthritis of his right knee and he is due to undergo a Knee replacement, currently on waiting list for same.

•        His knee issue has also been a factor in preventing him from working due to pain when standing for long periods of time.

Taking into consideration the findings of the assessment we deem it to be unsafe for you to continue in your position as a frontline security officer. This decision has been reached taking into consideration the core duties of a security officer which include but are not limited to;

•       Lone working

•       Responding to emergencies

•       Dealing with incidents /potential conflict

•       Dealing with challenging scenarios

•       Conducting foot patrols / standing for prolonged periods

•       Responding to intruder / Fire Alarms

•       Monitoring CCTV

As we don’t currently have a suitable non frontline security officer based position we will have no other alternative but to cease your current employment providing you with x1 weeks notice effective as of 11th September 2023.

We would like to thank you for your service and commitment to date. Should you have any queries please do not hesitate to contact me.”

The Respondent states that the Complainant did not respond to said correspondence.

The Respondent reiterates that the Complainant’s employment was ceased as he was deemed unfit to safely fulfil the role of a front line security officer and as there were no suitable non frontline security officer based positions available. The Respondent states that it is evident from the medical report that stress, anxiety and worsening osteoarthritis are debilitating conditions and would have obvious effects on the capability to perform the duties of a security officer as set out in the contract.

I have considered all the evidence both written and oral presented to me.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.  In this regard, I am cognisant of the Labour Court case in Arturs Valpeters v Melbury Developments [2010] 21 ELR 64.

The Complainant has alleged that he was discriminated against on the grounds of his disability by the Respondent. Disability” is defined in Section 2 of the Acts as meaning –

“(a)        the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)          the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

               (c)           the malfunction, malformation or disfigurement of a part of a person’s body,

(d)          a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)          a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

I note that the medical report submitted by the Complainant’s GP refers to the Complainant suffering from stress, anxiety and osteoarthritis. In that regard, I am satisfied that the Complainant has a disability within the meaning of the Acts.

The Complainant submits that (i) he was discriminated against on grounds of his disability (ii) there was a failure by the Respondent to provide him with reasonable accommodation and (iii) he was discriminatorily dismissed on grounds of his disability.

 Section 16 of the Acts provides:

“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,

(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 herself or herself;”  

I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club EED037 which was upheld by the Circuit Court.  The Labour Court stated:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      “At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition…… In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant’s own doctor or an independent doctor where there are concerns in relations to the health of a worker. 

In the textbook on Irish Employment Equality Law (Bolger M., Bruton C. and Kimber C. Employment Equality Law (Second Edition) there is a summary of an employer’s duties under the law as follows:

“In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment).”

In relation to reasonable accommodation, in the case of Nano Nagle School v Daly 2019 IESC 63, the Supreme Court held;

“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 in an entirely different job. Section 16(1) of the Act refers specifically to "the position", not to an alternative and quite different position.”

I am also cognisant of the decision in Health Services Executive v Marie O’Shea EDA2227, wherein the Labour Court stated;  

“Charleton J unequivocally pointed out at paragraph 10 of his judgment in Nano Nagle that section 16 of the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired:

“The requirement to redeploy does not arise under the 1998 Act in this jurisdiction. Thus such cases as cited above [i.e. Archibald v Fife Council [2004] UKHL 32, [2004] I.C.R. 954 and Chief Constable of South Yorkshire Police v Jelic [2010] I.R.L.R. 744] from the England and Wales jurisdiction would not carry the same imperative here.”

I note based on the testimony provided at hearing that the Complainant was offered on a number of occasions to be referred to the Company’s Occupation Health Physician for assessment but refused that offer.  The Complainant subsequently furnished a report from his GP which indicated that he was suffering from stress and anxiety and worsening Osteoarthritis of his right knee. The Complainant was due to undergo a knee replacement and was on a waiting list for same.

I note that the Complainant was afforded opportunities to make contact with Employee Relations to discuss any issues he might have but he failed to engage with the Respondent. I note the evidence provided by the Respondent that given the Complainant was out sick in excess of 12 months and it became evident that the Complainant would not be returning to work in the short term and on the basis of his GP’s medical report, the company made an assessment that the Complainant was deemed unfit to safely carry out the role  of a frontline security officer which he was contracted to fulfil.

Based on the information provided, I note the Respondent’s evidence that there were no suitable non frontline security officer based positions available and taking all the relevant factors into account, a decision was taken to terminate the Complainant’s employment on the basis of an inability to achieve a return to work capability on medical grounds.

Having carefully examined all of the evidence adduced in the within claim, I find that the Complainant has not established a prima facie case of discrimination on the disability ground.

I find that the Complainant did not demonstrate a nexus to the alleged treatment and his disability nor did he identify a comparator who had been treated differently. The mere fact that the Complainant falls under one of the protected grounds is not sufficient in and of itself to establish a prima facie case of discrimination.  As stated by the Labour Court previously in Melbury Developments Ltd. v Valpeters [2010] ELR 64 “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  Therefore, the Complainant’s case fails.

I find that the Complainant was not discriminated against by the Respondent on grounds of disability in his conditions of employment.

I find that the Complainant was not discriminated against by the Respondent due to a failure to provide reasonable accommodation.

I find that the Complainant was not discriminatorily dismissed by the Respondent in terms of the Acts.

Employment Equality Acts, disability, reasonable accommodation, discriminatory dismissal