Tom Moloney Limited trading as Squire Maguires v Mr Thomas Keogh [2016] Labour Court Determination ADA 1617

 
Background

This case relates to an Appeal to the decision of the Adjudication/Equality Officer upholding a complainant’s claim that he was constructively dismissed from his employment as a barman in a public house in Limerick.

The complainant worked full time as a barman in the respondent’s premises from August 2008 until October 2012, when he alleged that he was constructively dismissed due to a disability from his job. The complainant had attempted to take his own life on two occasions and was undergoing treatment during a one-week absence from work between 15th and 22nd October 2012.

The complainant met with the owner of the respondent pub on two occasions (22nd and 31st October) to update the respondent on his condition and to arrange for his return to work.

The respondent outlined to the Labour Court that he was worried about the complainant. It was alleged by the complainant that he was asked to provide a letter stating that he was “100% sane”.  This was disputed by the respondent at the hearing.

The Complainant ultimately provided a letter stating he was fit to return to work on 31st October 2012 and sought permission to do so.  The respondent refused to allow the complainant to return to work and complainant says that he understood that he was dismissed from such refusal.


The Law

The Employment Equality Acts 1988 as amended (“the Acts”) prohibits discrimination in relation to all aspects of employment on any of the nine grounds set out in the Act. In particular, the following sections are most relevant:-

Section 6 “….discrimination shall be taken to occur where a person is treated less favourably than another person ….. in a comparable situation on any of the grounds specified in subsection 2.”

Section 6(2) “… as between any two persons, the discriminatory grounds… are:-

(a)  Gender
(b)  Marital Status
(c)  Family Status
(d)  Sexual Orientation
(e)  Religion ground
(f)    Age ground
(g)  Disability ground
(h)  Ground of race
(i)    Traveller Community ground”

Section 8 “In relation to:-

(a)  Access to employment
(b)  Conditions of employment
(c)  Training or experience for or in relation to employment
(d)   Promotion or regrading
(e)  Classification of posts

An employer should not discriminate against an employee or perspective employee...”


The Labour Court Decision

It was acknowledged by the complainant and respondent that both parties were aware that the complainant was suffering from a disability, and that he had brought it to the attention of the respondent.  The complainant’s disability required him to undergo treatment, and once he was medically fit, he notified the respondent that he wished to return to work.  He provided a Certificate confirming his fitness.  It was submitted at the hearing that in presenting the Certificate and not being permitted to recommence his job, he was effectively dismissed.

The respondent stated that he was concerned that the complainant should not return to work until he was fit to do so because of the nature of the environment in which they worked, and the fact that it could have been challenging for him.

The evidence put to the Court was “clouded in claim and counterclaim”, however the Court accepted the evidence of the complainant as credible and consistent, and his version of events was confirmed by certain documents upon which he relied.  The Court held that the respondent was vague in his response and handling of the complainant’s disability and placed obstacles in the complainant’s way to prevent and frustrate him from returning to normal work.

The Court therefore upheld the decision of the Adjudication/Equality Officer and directed the respondent to pay the complainant compensation in the sum of €16,000.00, on foot of the discriminatory dismissal contrary to section 8 of the Act. 


Conclusion

This case highlights the importance of actively engaging with employees suffering from a disability to ensure that reasonable accommodation is always properly considered.

In this case, the complainant was absent from work for one week only and provided a suitable Certificate of Fitness to return to work. The respondent’s position was that he wanted to ensure that the complainant was capable of working and, upon receipt of the medical certificate confirming same, he failed to allow the employee to return putting various obstacles in place.

The respondent had no other medical evidence in his possession to allow him to refuse to accept the medical certificate confirming the complainant’s fitness to work.  No request was made for the complainant to attend with the respondent’s doctor for his own assessment, for example. No legitimate reason to refuse to permit the complainant to work existed.


What can be learned from this case?

Employers must ensure that they have specific “absence due to illness” policies in place, with provision to refer the employee to their own company doctors for assessment as to fitness to work (and diagnosis and prognosis in the event of continued absences).

It is critical that in the event an employer wishes to look behind a medical certificate, it does so fairly, and in compliance with the policies and procedures in place for doing so. The potential stigma attaching to this employee’s disability resulted in an employer refusing to accept a medical certificate, which clearly outlined that he was fit to work, and directly discriminating against the employee on the basis of the disability.

The complainant did not submit a grievance, did not seek to engage in any further way, and simply deemed that he was effectively dismissed from employment by the delays and obstacles put in place by his employer.

It is generally recognised that a claim for constructive dismissal is a difficult case in which to succeed. However, in this case, given the complete failure on the part of the employer to permit the employee to return to work, it is easy to see how the Labour Court upheld the decision of the Adjudication/Equality Officer.

A full copy of the decision can be reviewed at the following link:-
https://www.workplacerelations.ie/en/Cases/2016/July/EDA1617.html