The case of Warren Sweeney v MSL Engineering ADJ-00030065first looked at whether the Complainant was technically "an employee" and eligible to take a case under the Employment Equality Act, 1998.  The Adjudicator took the view the Complainant was qualified to take a complaint under the Act.

The Complainant in this case had been offered a six to eight week position as Mechanical fitter placement via MSL on Pfizer site in Cork.

Complainant's Case

The Complainant attended the site on 13 July 2020 to begin work. He attended the required site induction meetings.

The first session was with Mr. P, Safety Officer, in his cabin. The door was marked for “Three Persons” but actually seven individuals were crowded in. Another worker, a Mr. F, was apparently unwell and was coughing and sneezing. He was not wearing a face mask. The Complainant asked him, publicly in the meeting, to show “respect to his fellow workers” and at the very least put on a mask or cover his mouth. Mr. F reacted negatively to his and some words were exchanged.  The workers were moved to Mr. W (MSL Site Manager) to collect individual Oxygen monitors. The issue of footwear arose and the Complainant expected MSL to supply which he reiterated to the manager. However, it was explained that the individual worker was expected to bring his own boots.

At this stage the Complainant and some colleagues went back to their cars in the car park to collect their safety boots. Mr. W accompanied the Complainant to the Car Park. He instructed other workers to move back to the Plant. He then told the Complainant that he would not be starting work as he was a Diabetic. Mr. W had a duty of care to staff and he was not going to allow a Diabetic on to the Pfizer site.  The Complainant protested that being a Diabetic was not an issue. Covid regulations did not prevent Diabetics from working and he was simply being completely discriminated against. Being a diabetic is a recognised Disability and the law expected that he would be treated fairly.

Mr. W did not change his mind and the Complainant went home. He subsequently sought a MSL Headed letter from the Company to allow him to receive the PUP. This never arrived.

The Complainant was at the loss of some eight weeks' wages and was also at the loss of the money he had paid for rented accommodation in Cork.

Supporting oral evidence was given by a colleague, Mr. B, who was present on the day and a witness to nearly all events. He confirmed much of the Complainant’s account save for the verbal exchanges in the car park with Mr. W where he was out of earshot.

Respondent's case

In its defence, the Respondent made an oral testimony stating there was no question of any MSL discriminatory policy against Diabetics as there were many other diabetics on the Pfizer site including some senior Managers.

Key evidence was given by Mr. W, the MsL Manager. The Pfizer contract was a major Company contract. His responsibility was to ensure that all MSL sourced contractors were a “Good fit” for the Pfizer site.

Following his initial meeting with the Complainant and verbal reports from his fellow Managers especially regarding the incidents at the Induction meeting involving Mr. F, he had come to the view that the Complainant would not be a “good fit” for Pfizer. On this basis he had decided not to proceed with the Complainant. He was aware from the Medical questionnaire that the Complainant was a diabetic, but this had nothing to do with it.

As a responsible experienced Site Contracting Manager, he had made a decision regarding the overall unsuitability of the Complainant for employment on the site.  Supporting evidence was given by Mr. P, the Safety Officer regarding the induction meeting and the incidents involving Mr.F.

The Respondent Representative, Mr. O’Connell from the Construction Industry Federation queried legally if the Complainant had an actual qualifying disability and if the complaint was soundly based. He cross examined the Complainant on all his Oral evidence.

Relevant Law

Section 85 A of the EE Act, 1998 states:

Burden of proof.

85A.— (1) Where in any proceeding’s facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section ‘discrimination’includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked.

Outcome

Considerable oral evidence was given here by all parties and it largely focused on the exchanges between the Complainant and his fellow worker, Mr.F. Unfortunately, Mr. F was not present to give evidence. Key parties present who gave evidence regarding the first induction meeting were Mr. P, the Safety Officer, the Complainant and his witness, fellow worker, Mr.B.

It was clear that the Complainant had directly made it publicly clear to Mr. F that, “out of respect” to fellow workers and their dependants/contacts he should cover up his face. It was not denied that he, Mr. F, was coughing and sneezing. A difference in recollection arose as to how much the exchanges were seasoned with the F word. The induction meeting was in an area marked out as suitable for three persons but seven were present. It was clear from all evidence that the Complainant was forceful in his public interventions concerning Mr.F.

The Complainant pointed out that a duty of care existed for any employer and Mr. F should have been approached by the Employer regarding his coughing and sneezing.  Covid was in full progress at the time and obviously, anxieties were heightened.

The next issue was with the safety shoes. Nothing really passed on this although the Complainant did express surprise that he was asked to provide his own boots.

The activity then moved to the Car Park where a conversation took place between the Complainant and Mr. W, the MSL site manager. Recollections differed as to what was exactly said by Mr.W. Both Mr. W and the Complainant were very capable and excellent witnesses. On the balance of probability, it was hard not to see the evidence pointing to Mr. W at very least referring to the Complainant’s diabetes as a reason for non-allowing him to start.  It was a very difficult call for Mr. W, responsible for a pharmaceutical site, and he appeared to err on the side of caution by excluding the Complainant. However, it was agreed and stated in evidence that there were, already, diabetics on site with no issues.

There was certainly an element in the evidence that Mr. W did not need the “headache” of a forceful diabetic on site querying the Covid safety rules. The issue of “a good fit” was interesting here. The equality issue is that a person with a disability or any other special condition is unlikely, in the normal run of events to be seen by operating managers a “good fit” and thereby needs the protection of the Employment Equality Act, 1998.

The question was really one of whether or not the Complainant was not a “Good fit” because he was a forceful employee at the Induction meeting or simply because he was a diabetic. A reasonable observer might ask was the disability used as a convenient means of addressing the first issue.

In addition, it appeared, on a reasonable assumption from the exchanges that if the Complainant, a publicly acknowledged diabetic, had not so openly confronted Mr. F at the induction session, there might not have been a problem.

On balance and from listening to all the oral testimony, the demeanour of the witnesses and conscious of the burden of proof requirements in an Employment Equality case the evidence has to sway in the Complainant’s favour.

If he had not been a Diabetic the balance of probability indicates he would have been employed. Mr. W may have acted for the very best motives in the midst of a Covid crisis, but his actions cannot escape the conclusion that a discriminatory act took place.

Taking the reports from the Car Park of the exchanges between the Parties, all under Oath, diabetes was mentioned as a reason for a non-start of work.  The Complainant was discriminated against because of his disability.  As the evidence points to discriminatory treatment the dismissal or in this case the non-starting of work was also discriminatory.

Key takeaways for Employers

1. Once an employer is on notice of an employee's disability, they have a duty to engage with the employee to ascertain what accommodations are required, if any particularly in the midst of covid.
2. Employers should note in a disability/equality discrimination case it is a very high bar for any employer to successfully defend a dismissal as being for unconnected reasons while acknowledging that the worker has a disability.
3. In a circumstance where an employer may believe they have acted for the very best motive in the midst of a covid crisis their actions cannot escape the conclusion of discrimination, if a discrimatory act took place.

https://www.workplacerelations.ie/en/cases/2022/april/adj-00030065.html