At the outset of his investigation the Equality Officer first addressed the issue of who the correct respondent was.  The original employer had been taken over in November 2011 under a TUPE arrangement.   The former HR manager of the original employer who had transferred under the TUPE arrangement was present at the initial hearing and the reconvened hearing.  The TUPE occurred in November 2011.  The complainant was dismissed on 5 August 2011 and the Equality Officer was satisfied that the named respondent, was the employer at the relevant times.

The complainant was employed by the respondent, a quarry business, from 2004 until he underwent surgery for a brain tumour in November 2009.  His doctor advised he would be fit to return to work for 20 hours per week in October 2010.  The respondent initially accommodated this until December 2010 when the complainant was told that if he could not work fulltime he would lose his job.  According to the HR manager the employer was willing to accommodate the complainant’s rehabilitation as long as the Department of Social Protection’s scheme applied.  He stated that an agreement was then reached that the complainant would stay out of work until capable of working 39 hours.  He did not comment on the complainant’s suggested alternative options such as sharing the role with his son although he asserted that the machine the complainant had been operating was required at full-time capacity.  The respondent had the complainant medically assessed and when that assessment agreed with the complainant’s own doctor, that he could only work 20 hours per week, the complainant was dismissed.

The Equality Officer was satisfied that a brain tumour, even if successfully treated, was a disability in accordance with the Acts.  He found that the respondent provided the complainant with some degree of accommodation initially but never seriously considered his situation in light of its obligations to provide reasonable accommodation.  He also said that the obligations exist independently of whatever financial assistance was provided by the Department of Social Protection.  The Equality Officer found that the respondent failed to provide reasonable accommodation to the complainant.

The HR manager confirmed that on receipt of the respondent’s medical report the complainant was issued with his P45.

The complainant appealed his dismissal and it was heard by the HR manager who had issued the letter of dismissal.  The Equality Officer found that there was no evidence that the complainant’s dismissal was ever reconsidered and was satisfied that the complainant was discriminatorily dismissed on the ground of his disability.

The Equality Officer awarded the complainant €40,000 compensation, not subject to tax or prsi, which he said was the maximum award possible.

Why is this case of interest

• Employer’s duty to provide reasonable accommodation applies irrespective of any schemes that may be available from Department of Social Protection
• Be proactive in assessing the situation.  The requirements are well settled since the Labour Court Decision Humphreys v Westwood Fitness Club EED037  and the subsequent Circuit Court judgement
  • Satisfy yourself as to the capability of the employee.
  •  Identify if and what special treatment is required.
  • Finally, ensure that the employee is permitted a full opportunity to participate in these considerations and that any alternative options they propose are considered.

To read the full case:

http://www.workplacerelations.ie/en/Cases/2014/September/DEC-E2014-066.html