The complainant began working with the respondent on 12 January 2011 as a Speed Monitoring/Surveying operator. Just two months later on 13 March 2011 he suffered severe psychological injury as a result of a petrol attack on his speed survey van which was set alight while he was inside. His employer paid him while he was on sick leave and he forwarded his cheques from the Department of Social Protection to the employer. He was sent to occupational health (OH) twice, on 27 June 2011 and 10 October 2011. He was dismissed after this second visit when according to the respondent he was adamant with OH that he would never go back working as a speed monitoring operator.

The Equality Officer found that the complainant suffered from post traumatic stress manifested in “depression, anxiety sleep disturbance following the incident” and that this amounted to a disability in accordance with the Acts. She found the complainant established a prima facie case of discriminatory dismissal on the basis that the dismissal was influenced by his disability, which in turn caused his absence and inability to return to work.

The Equality Officer then considered whether reasonable accommodation had been appropriately considered by the employer. She considered the Humphries v Westwood Fitness case both in the Labour Court (EED037) and in the Circuit Court ([2004] ELR 296). She was satisfied that the employer had informed itself as to the nature and extent of the complainant’s condition. 

The employer described the changes made to vehicles since the attack. These were not undertaken for the complainant but were applied generally. The complainant was not made aware of these changes and therefore it would appear that the assertion he would never return to his role (and the complainant does not appear to have denied stating this) was made without the knowledge of changes undertaken. She found, therefore, that the employer had not consulted with the employee before coming to the conclusion that he was not capable of performing the duties for which he was employed. On this basis the employer was not entitled to avail of the defence in section 16(3).

There is significant discussion on whether the employer gave consideration to placing the complainant in an alternative role. The employer asserts that this was considered and that no suitable alternative role existed as its head-office is in Listowel and cleaning is outsourced. However, and perhaps more importantly, there appears to be a suggestion that an employer is required to consider alternative roles. 

The employer also argued that section 37(3) provides a complete defence as considered in Department of Justice, Equality and Law Reform v William Kavanagh (EDA1120). The Equality officer found that the respondent company in the instant case did not fall within the definition of “employment within the Garda Síochána, prison service or any emergency service”...

The complaint was upheld against the respondent for both failing to engage with the complainant in evaluating alternatives and in considering if any special measures could enable him to return to work (presumably in his own role) and the complainant was awarded €28,000.

Why is this case of interest?

• It is well established that employers are required to consult with employees, having informed themselves of the nature of the employee’s disability, about appropriate measures that would permit the employee remain in employment. Ensure in such circumstances that you engage with the employee in considering options.
• It remains to be seen whether a requirement to consider entirely different roles is congruent with the recent Labour Court case EDA1430 where it stated that the employer “has a duty to fully consider the viability of a reorganization of work and a redistribution of tasks amongst all of the SNA so as to relieve the Complainant of those duties that she was unable to perform.”