The complainant was employed as a general operative with the respondent.  He and his colleagues were periodically laid off from work and on each occasion the complainant was taken back at the same time as his colleagues.  This did not happen on the last occasion of lay-off.  The complainant broke his toe on 23 March 2011 after being informed on 21 March 2011 of the latest impending lay off and was expected to be unavailable for work for 4 to six weeks.  On 13 April 2011 the complainant received a text along with his colleagues about returning to work.  The complainant was subsequently told the text was not meant for him and that he was not required.  He did not resume duty and received his P45 some weeks later.  The employer had no previous issues with the complainant’s performance or behaviour.  No medical advice was sought.

The Equality Officer found that a broken toe was a disability in terms of the Acts and on the basis of the evidence found that the complainant had established a prima facie case that he was dismissed in circumstances amounting to discrimination on the disability ground.

Given the frequency of the lay-offs the Equality Officer accepted that the respondent was generally facing financial difficulties but found that it was unable to produce any credible evidence that it could not sustain the complainant returning to work with his colleagues because of this.  In addition no evidence was presented to indicate that an objective evaluation of the complainant as compared to other employees as a candidate to be left on lay-off at the relevant time was undertaken.

The complainant was awarded €5000 taking account of further lay-offs and the respondent’s cessation of trade in late 2011.

Why this case of interest

• Where an employer is arguing financial difficulties there must be an indication as to how this relates to the circumstances of the complainant particularly rather than financial difficulties generally.