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.

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.