Discrimination on grounds of disability has long been a sensitive employment issue and a frequent source of litigation under the employment equality legislation. Today’s email reviews two recent decisions by the Labour Court on appeal that focus specifically on the issue of discriminatory dismissal on grounds of disability. They examine the alleged failure of both employers concerned to treat employees with a disability fairly and to sufficiently investigate providing ‘reasonable accommodation’ in the form of ‘appropriate measures’ to facilitate the employees in question to continue in their employment notwithstanding their disability.

The first case demonstrates that an employer who is not pro-active and does not show the necessary willingness to thoroughly examine the feasibility of reasonable accommodation prior to dismissal will find it difficult to subsequently defend its actions. The second illustrates that a dismissal portrayed as solely based on employee absenteeism may be discriminatory if the decision maker is not in possession of the full medical information.


The Legislation

In general terms, Section 6 of the Employment Equality Act 1998 (as amended) provides that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of nine discriminatory grounds. One of these is the disability ground, i.e. that one is a person with a disability and the other either is not (a person with a disability) or is a person with a different disability. Section 8 of the Act prohibits discrimination in terms of access to employment and conditions of employment and this includes a dismissal based on any of the discriminatory grounds.

Section 16 (as amended) then goes on to provide further rules specific to the area of disability. It states that an employer is not required to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual is not or is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position. However, the section then goes on to clarify what ‘fully competent’ and fully capable’ means in the context of a person with a disability. It says that a person who has a disability is fully competent to undertake, and fully capable of undertaking, duties if ‘reasonable accommodation’ in the form of ‘appropriate measures’ provided by the employer would facilitate it.

S.16 then imposes a statutory obligation on an employer to take such appropriate measures to enable a person who has a disability to have access to employment, to participate or advance in employment or to undergo training, unless such measures would impose a disproportionate burden on that employer. In determining whether measures would impose such a disproportionate burden, account is to be taken, in particular, of the financial and other costs entailed, the scale and financial resources of the employer's business and the possibility of obtaining public funding or other assistance.

Finally, the section defines ‘appropriate measures’, in relation to a person with a disability, as meaning effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned. This can conceivably include the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for him or herself.


Pat McDonnell Paint Sales Ltd and O’Flynn (ADE//13/39, Determination No. EDA1412, 19 March 2014).

THE FACTS
The complainant in this case began work with the respondent employer in 1997, initially as a driver and then as a sales assistant. In 2004, his working week was reduced to a four day week at his request. In 2006, his working week was reduced to three days, although it was unclear whether this was also at the complainant’s request. What was not in dispute was that his job involved a considerable amount of standing and, in September 2008, he was legitimately certified unfit for work as a result of a ‘varicose vein’ condition. Subsequent medical procedures to correct this problem failed and further medical certification from his GP followed on 20th April 2009 to the effect that he was still unfit for work and that his condition would be exacerbated by prolonged periods of standing.

On 26 May the respondent acknowledged this correspondence and a further medical cert supplied by letter of 4 May. In its reply, it expressed concern that no prospective date for the complainant’s return to work had been provided; it pointed out the consequences for the workplace of his absence and that it was anxious to facilitate his return; it informed him that it was arranging for a medical examination with an Occupational Health Specialist and that unless he was in a position to return in the near future, termination of his employment might have to be considered. The complainant replied on 2 June, pointing out that he was not being paid by the respondent whilst on certified sick leave and that he too was anxious to return but had to follow the medical advice being provided.

The complainant’s surgeon examined him on 3 June and recommended in writing to his GP that no further surgical action be taken and stated his view that his current job was unsuitable for him as a result of his condition. The complainant said that he forwarded a copy of this letter to the respondent HR Manager but this was denied. In any case, the Occupational Health Specialist’s examination which took place on 15 June ultimately agreed with this basic assessment and suggested that the complainant’s condition would continue indefinitely. He further suggested that the complainant’s condition might be covered by the Employment Equality Act 1998 and advised the respondent employer to seek legal advice on this point.

By letter of 27 July, the HR Manager wrote enclosing a copy of the Specialist’s report and suggested a meeting with the complainant to discuss his future employment to which he should bring a colleague if he wished. The complainant alleged that in a subsequent phone call, the HR Manager suggested that he should bring a friend as he might not like what he would hear but this was also denied. After a number of failed attempts, this meeting took place on 2 October. The complainant was accompanied by his trade union representative; the HR Manager and a director of the company attended for the respondent.

Further fundamental conflicts of evidence arose from this meeting and it does not appear from the determination that the respondent employer attempted to agree a written account of it with the complainant’s union. In brief, the union suggested that it requested the respondent to make some “accommodations” for the complainant as required by the legislation; that the respondent undertook to do so but never came back to the union but instead dismissed the complainant by letter of 16 October. The HR Manager on behalf of the company on the other hand suggested that the union opened the meeting by accepting that the complainant was not fit to return to work and indicated it was willing to discuss a severance package for him.

According to this account, the company indicated that it had already explored the possibility of ‘reasonably accommodating’ the complainant and that the complainant himself had acknowledged his job could not be carried out from a seated position and that there were no vacant positions available to which he could transfer. It explained to the union and the complainant that it had not considered a severance package because no redundancy situation arose but that it would revert to the complainant on this.

Ultimately, it was accepted by both sides that the respondent next wrote to the complainant on 16 October terminating his employment with six weeks’ pay in lieu of notice (to expire on 3 December) and outstanding leave entitlements (but no redundancy lump sum). This letter said that the medical advice stated the only circumstances in which he could return to work was in a suitable seated position but that none was available and this had been accepted by both the complainant and his union. The union responded to this letter on 27 October expressing disappointment at the failure to revert to it, that the complainant had 12 years loyal service and that the respondent had made no effort to accommodate him. The respondent replied that the complainant could not carry out his role from a seated position and that no suitable alternative work was available.

THE COURT'S CONCLUSIONS

The Court noted that it was agreed that the complainant suffered from a disability within the meaning of the Acts and was not, without reasonable accommodation, capable of undertaking the duties of the post for which he was employed. It referred to its own analysis of Section 16 of the legislation in the case of Humphries v Westwood Fitness Club (No. EED037) and to the legal textbook, Employment Equality Law (Bolger M., Bruton C. and Kimber C. – Round Hall, Dublin 2012) which says as follows:

‘In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employee; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment’

The Court then proceeded to subject the respondent employer’s actions in this case to scrutiny in light of these principles. It concluded that while the company may have carried out an analysis of the complainant’s duties, it did not provide him with details of this job analysis or invite comment from him and it failed to involve him at any point. For example, it did not engage with him on the effect his condition might have on his capacity to stand for short periods of time, where the medical advice had only certified that he could not stand for ‘prolonged periods’. Having received the relevant medical reports, it only held one meeting with him and there was clear disagreement as to the outcome of that meeting. On this point, the Court found that where there is ambiguity regarding what transpired at a meeting at which a critical engagement takes place, the obligation lies with the person, on whom the statutory responsibility for identifying the potential for reasonable accommodation falls, to fully meet the legal onus that lies with it under the Act.

The Court concluded that the respondent employer in this case only partially discharged this obligation. It discriminated against the complainant in failing to properly consider the circumstances in which the complainant found himself, the extent to which these circumstances limited his capacity to remain engaged in the workplace and the possibility of providing him with reasonable accommodation to do so. However, in considering the remedy to be applied in this case, the Court also found that there was considerable confusion regarding the preferred accommodation sought by the complainant. In this regard, the Court accepted that the complainant had indicated at the meeting of 2 October that he was prepared to terminate his employment in return for a statutory redundancy lump sum payment as an alternative to accommodating his return to work. Taking into account the complainant’s ‘contribution to the confusion that arose’ the original award of €20,000 made by the Equality Tribunal in this case was reduced to €10,000 by the Court.

* Stobart (Ireland) Limited and Beashel (ADE/13/35, Determination No. EDA1411, 14 March 2014).

THE FACTS
The complainant in this case worked as a lorry driver for the respondent and he was dismissed after some eight months of employment, short of the one year’s service required to bring an unfair dismissal claim. His claim, however, before the Equality Tribunal, that his employer had failed to provide him with ‘reasonable accommodation’ to continue in his employment and that his dismissal was discriminatory on grounds of disability succeeded and he was awarded €22,000 in compensation. The respondent appealed this decision to the Labour Court.

The Court heard evidence that the complainant had 23 days absence during his relatively short period of employment from November 2009 to June 2010. Two of these days were uncertified due to sleeping in and another driver covered for him on both occasions. In April 2010 he sustained a back injury and was medically certified absent for two weeks. In May, he was diagnosed as suffering from depression and was medically certified unfit for a further two weeks. Upon his return on 15 June, he spoke with a Mr Woods, who described himself as an Operations Manager, who told him that if he needed more time off, annual leave could be arranged and he was reassured by this. One week later on 22 June, he was instructed by the Human Resource department to report to a Mr O’Donnell, also referred to as an Operations Manager, who dismissed him with immediate effect.

In summary, the complainant submitted that at the time of his dismissal, he was suffering from depression, a medically diagnosed disability within the meaning of the legislation and that his employer was on notice of this disability. He further argued that the proximity of the date of his dismissal to his employer becoming aware of his disability raised a prima facie case of discrimination and the onus was therefore on the respondent employer to show that the Act was complied with. He submitted that no objective grounds to justify the dismissal were provided and that his employer failed to offer him ‘reasonable accommodation’ to enable him to continue his work while suffering a disability.

It is widely accepted that the five-pronged definition of disability in the Irish employment equality legislation is very broad, broader for example than its equivalents in the UK or Northern Ireland. Thus, it is worth noting that the first plank of the respondent’s defence was that the complainant was not suffering from a disability at all. For this purpose, it relied on the decision of the Court of Justice of the European Union (CJEU) in the case of Chacon Navas [2006] ERC I- 6467 in which the Court stated that “for a limitation of the capacity to participate in professional life to fall within the concept of disability, it must be probable that it will last a long time”. In this regard, the respondent argued that the complainant only attended a medical practitioner concerning his depression for the first time around 15 June, was prescribed no further medication and therefore recovered from his disability within a very short time.

Alternatively, it argued that the complainant was no longer capable of carrying out the duties attached to the job in terms of Section 16 but principally it suggested that the complainant’s dismissal was not on grounds of disability at all. For this purpose, it relied upon the evidence of Mr O’Donnell whom it said was the Operations Manager at the relevant time, as opposed to Mr Woods who, it was suggested, was not a member of management. Mr O’Donnell gave evidence that the Human Resource Department of the respondent supplied him regularly with ‘absenteeism figures’ in relation to staff in his department. Where a staff member exceeded a pre-determined threshold, he had the power to decide how to proceed. In the complainant’s case, he was informed after 15 June of the high rate of absenteeism and he decided in principle to dismiss him. Mr O’Donnell consulted the existing HR Manager who did not advise him of any reason why he should not proceed with the dismissal. In response to questions from the Court, he said that he was not aware but should have been made aware that the complainant was suffering from depression at the time and that there was a sick cert on file. Had he known, he would have accommodated rather than dismissed him.


The Court's Conclusions

In considering the question of whether the complainant suffered from a disability, the Court noted that the respondent, though aware of the complainant’s depression, made no enquiries to determine the likely prognosis. In this respect, the Court took the view that the respondent kept itself ignorant of the prognosis. Having done so, it could not seek to rely on subsequent events, i.e. that the episode of depression may have been short-lived, to excuse its failure to establish the medical position at the time. In any case, the Court did not accept that the complainant’s illness was not long term in nature and therefore not a disability. In their evidence to the Court, both the complainant and his partner stated that he still suffered from periods of depression.

The Court also dismissed the argument that the complainant was no longer capable of carrying out the duties attached to the job in terms of Section 16. To begin with, the respondent did not carry out the necessary enquiries to rely upon this section. In any case, at the time of the dismissal, the complainant had already returned to work. It then proceeded to examine whether his dismissal was influenced by his disability. The Court particularly noted that the so called acceptable level of absenteeism had been exceeded by the complainant before he was diagnosed with depression but the HR department did not flag the absenteeism problem with Mr O’Donnell until after it had received both the medical certificate diagnosing depression and the report of Mr Woods on the return to work discussion he had with the complainant. However, the evidence suggested that neither of these documents were disclosed to Mr O’Donnell, not even when he informed HR in advance of his decision to dismiss the complainant. The Court noted that no witness evidence was provided by the HR department to explain why.

Thus, the Court concluded that the proximity of the complainant’s date of his dismissal to his employer becoming aware of his disability raised a prima facie case of discrimination and the onus was therefore on the respondent employer to show that his dismissal was not related to his disability. The Court noted that Mr O’Donnell specifically stated that he would have come to a different decision had he had the information that had been submitted to Human Resources. Thus, it was clear that this onus had not been discharged and that the respondent had also failed to provide appropriate measures that would allow the complainant to continue in his employment.

The Court therefore upheld the Equality Officer’s decision. Curiously, for reasons that are not articulated in the decision, it decided to reduce the compensation award from €22,000 to €12,000.