THE FACTS AND EVIDENCE
The complainant in this case was first employed by the second respondent (the company) from July 1997 to May 2003 as a production operative. He resigned his employment to become a full-time carer for his wife who has a disability. He later became aware in 2005 that the company might be recruiting staff and he applied for a job anew. His CV and application form was sent by the company to the first respondent (the agency), an employment agency that had been contracted to recruit staff on its behalf. This CV disclosed to the agency that the complainant had previously worked for the company and so in line with its normal practice, it enquired about his suitability for employment.
The company informed the agency that the complainant would not be ‘a suitable hire’ and the agency in turn informed the complainant that he had been unsuccessful. When he enquired why, he was told by the agency that the company had given it a negative reference in relation to him. In response, he brought claims against both the agency and the company, alleging that the decision not to consider his application further was as a result of his caring role in respect of his wife’s disability, and that this amounted to discriminatory treatment on a number of grounds. His claims before the Equality Tribunal failed and he appealed to the Labour Court. His appeal focused on one ground only; that he had been discriminated by association on account of his wife’s disability.
In his evidence, the complainant gave a lengthy account of his history with the respondent company, culminating in his resignation in 2003 to provide full-time care to his wife, who had also worked for the company prior to her illness. He detailed what he regarded as its unhelpful attitude to his predicament, including its failure to allow him to take unpaid leave of absence, which had forced him to take annual leave and sick leave on stress grounds to care for his wife. This resulted in him being placed on a ‘corrective action’ plan for excessive levels of sick leave, even though he claimed that the company were aware that the bulk of his absences related to his wife’s illness.
He took carers leave under the newly passed Carers Leave Act, 2001 in 2002, but having presumably exhausted his entitlement, finally resigned in May 2003. In 2005, the complainant became aware that the company was recruiting staff and as a relative was then available to care for his wife, he applied for work. He alleged that the agency rejected this application on the specific instructions of the company and that this rejection was as a result of his wife’s disability.
The respondent company called three separate witnesses including the complainant’s last supervisor. He gave evidence that the complainant’s performance at work was generally poor and that he had rated this at 1 out of 5 in 2002, although there was no documentary evidence of this assessment available for the hearing. He also stated that the complainant had an unacceptable level of absence which the supervisor was obliged to act upon, as the complainant had already been the subject of documented counselling prior to the initiation of the corrective action plan. Finally, the supervisor confirmed that it was he who had indicated that the complainant was not suitable for rehire, following an enquiry from the company’s HR manager. He said that although he was aware that the complainant’s wife suffered from diabetes, he was not influenced to any degree by her disability in coming to this conclusion. In turn, a witness on behalf of the agency denied any knowledge of the complainant’s wife’s condition.
THE DECISION
Both respondents made submissions to the Court in this case regarding their potential liability should any discrimination be found to have occurred. The Court concluded that had the complainant been hired, he would have entered into a contract of employment with the agency, even though he would have provided work personally to the company. However, the Court noted that by virtue of Section 2 (5), the employment equality legislation also applies to a ‘provider of agency work’ – a person who, under a contract with an employment agency, obtains the services of one or more agency workers but is not their employer - and it concluded that the company was such a provider of agency work.
It also rejected the submission made by the agency that it was merely acting on the instructions of the company and so should not be liable for any discrimination that might potentially have occurred. It stated that knowledge for the purposes of establishing legal liability can be actual or imputed and that knowledge may be imputed where a person should have made further enquiry but failed to do so. Thus, where a prospective employer is instructed by another not to employ a particular person, and that instruction is tainted with discrimination, liability cannot be avoided by pleading that the instruction was accepted without question.
Thus, the Court found that under the terms of Section 8 of the Act, which provides that an employer shall not discriminate against an employee or prospective employee and that a provider of agency work shall not discriminate against an agency worker, both the agency and the company could potentially be held liable as ‘concurrent wrongdoers’.
However, on the facts of the case, the Court concluded that there was nothing in the evidence to suggest that a person who was not associated with a person with a disability (a so called hypothetical comparator) would have been treated differently to the complainant if that person’s sick leave record was similar. It accepted the evidence of the supervisor that the complainant’s application had been rejected on the basis of his previous work performance and it found that the fact that he had been placed on corrective action as a result of his sick leave record also influenced the outcome. The appeal therefore failed.
Labour Court Online:
http://bit.ly/ygOVJ5
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