Case Number: DEC-E2012-116- Full Case Report. Equality Tribunal.

• Docket Number: DEC-E2012-116- Full Case Report
• Date: 01 September 2012
• Court: Equality Tribunal

DECISION DEC-E/2012/116

PARTIES QUIRKE
(REPRESENTED BY PURDY FITZGERALD - SOLICITORS) AND SEPAM SPECIALISTS LTD.
(REPRESENTED BY MR. DARAGH BREEN BL
INSTRUCTED BY NOEL SMYTH & PARTNERS - SOLICITORS)

File No: EE/2009/472 Date of issue: 4 September, 2012

Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 and 16 - disability - discriminatory dismissal - reasonable accommodation - waiver of right to maintain complaint

1. DISPUTE

This dispute involves a claim by Ms Amy Quirke (hereafter "the complainant") that (i) she was dismissed by Sepam Specialists Ltd. (hereafter "the respondent") in May, 2009 in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts and (ii) the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the complainant is prevented from pursuing her complaint by virtue of a written agreement executed on 12 May, 2009 wherein she compromises her entitlement to pursue claims relating to her employment under, inter alia, employment equality legislation.

2. BACKGROUND

2.1 The complainant commenced employment with the respondent as a Human Resource Administrator in May, 2008. She states that she was diagnosed with Narcolepsy in mid-October, 2008 and informed the respondent of this fact. The complainant adds that in late April, 2009 the respondent advised her it intended to relocate her to a project in Holland. She states she informed the respondent that due to her condition she would be unable to work the long hours involved with the project in Holland but despite her protestations the respondent proceeded to relocate her, threatening to dismiss her if she refused to move. The complainant states that she considered she had no alternative but to resign from her employment with the respondent and submits that this amounts to constructive discriminatory dismissal on grounds of disability contrary to the Employment Equality Acts, 1998-2008. She further states that the respondent failed in its obligation to examine what it could do to provide her with reasonable accommodation in terms of section 16(3) of the Acts. The respondent rejects the assertion that the complainant advised it she suffered from Narcolepsy prior to her resignation and states that it was never apprised of the fact that she required assistance or accommodation in connection with her condition. It further rejects the complainant's assertion that she was dismissed, stating that the she resigned for lifestyle reasons. It adds that she raised no formal grievance with it about her condition and relocation prior to her resignation and submits that it is incumbent on the complainant to do so for a claim of constructive discriminatory dismissal to be made out. The respondent further submits, without prejudice to the foregoing, that the complainant is prevented from pursuing her complaint on foot of the terms of a Compromise Agreement executed between the parties on cessation of the complainant's employment on 12 May, 2009.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 13 July, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 31 January, 2012 - the date it was delegated to me. A Hearing on the complaint took place on 9 May, 2012. A small number of issues arose at the Hearing which gave rise to further correspondence between the parties and the Equality Officer. This process concluded in mid June, 2012.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The complainant submits that her complaint is validly before the Tribunal for investigation. She accepts that the document she signed was entitled "Final Settlement Agreement" but argues that regardless of what the document is called it arose because of the cessation of her employment with the respondent. It is submitted on her behalf that no matter what the document is called its import (insofar as the respondent contends) is to prevent the complainant from exercising her statutory right to pursue her complaint under employment equality legislation. The complainant states that when she signed this document she was not informed by the respondent that she should seek legal advice before signing same and she signed it when it was presented to her. She adds that no meaningful discussion took place between the parties and no reference is made in the document to any Irish employment legislation at all, not least the Employment Equality Acts. It is submitted on behalf of the complainant that in those circumstances the agreement is not valid. In this regard the complainant seeks to rely on the Circuit Court judgement in Hurley v Royal Yacht Club¹ and the High Court judgements in Sunday Newspapers Ltd. v Kinsella and Bradley² and PMPA v Keenan and Others³.

3.2 The complainant commenced employment with the respondent as a Human Resource Administrator on 6 May, 2008. She states that in July, 2008 she was suspected of suffering from Narcolepsy and following a series of tests was placed on medication for this condition under the care of a Specialist (Professor C), the following September. She adds that her condition required her hospitalisation overnight on 17 October, 2008 and that after this incident she advised the HR Manager (Ms. S) - who was also her immediate Line Manager - that she suffered from Narcolepsy. The complainant further states that she told Ms. K (the respondent CEO) of her condition about a week later. The complainant states that her employment was generally uneventful between May, 2008 and April, 2009 insofar as her condition was concerned - she worked at the respondent's premises in Clonmel, Co. Tipperary on a thirty-nine hour week. She adds that during this period she required no special treatment or facilities in terms of her disability. In the course of the Hearing the complainant accepted she was aware from her interview that the role she was recruited for would involve her having to travel abroad, sometimes at short notice. She also accepted she had been advised by Ms. S in November, 2008 (as part of the complainant's probationary assessment) that she was likely to relocate after completion of her studies the next year, although there was no indication of the location or length of time involved.

3.3 The complainant states that on 24 April, 2009 she was informed by the respondent that it planned to relocate her to a site in Holland in the near future. She adds that she had concerns about the hours she would be expected to work - she believed they could be up to seventy hours per week - and also had issues with the location and nature of the accommodation that she understood would be available. The complainant states that she asked Ms. S for clarification of these issues - stating that due to her disability she required routine - and she failed to address her concerns. She adds that she met with Ms. S on or around 2 May, 2009 to discuss the matter. The complainant states that in the course of this meeting Ms. S informed her that if she refused to relocate to Holland she would be dismissed. She further states that Ms. S suggested that she might consider resigning.

3.4 The complainant states that following on from this meeting she believed it was no longer feasible for her to continue working with the respondent and she e-mailed Ms. S on 7 May, 2009 setting out her concerns and objections to the relocation in light of her medical condition and giving notice of her intention to resign. She adds that the following morning she was called to a meeting with Ms. K. The complainant states that in the course of this meeting Mr. K told her that the content of her (the complainant's) e-mail was very unfair and suggested that if the complainant trusted her she (Ms. K) would look after her. The complainant states that nothing happened during this meeting to allay her concerns in terms of the proposed new post and her condition, that she informed Ms. K of that and she (Ms. K) asked her to resubmit her resignation, which she did later that morning. The complainant states that in the circumstances she had no alternative but to resign from her position and it is submitted on her behalf that this amounts to constructive discriminatory dismissal of her on grounds of disability contrary to the Acts.

3.5 The complainant also submits that the respondent failed to afford her reasonable accommodation in terms of section 16(3) of the Employment Equality Acts, 1998-2008. She states that in order to manage her condition it is necessary for her to have certainty around her work hours and attendance pattern so she can schedule her sleep period(s) accordingly. The complainant states that this was not a problem when she worked in Ireland because of the consistent work pattern she operated. She adds that the uncertainty surrounding what her work arrangements in Holland would be posed particular difficulty for her and she sought to engage with the respondent to resolve this issue. The complainant states that the respondent made no effort whatsoever to discuss what measures might be put in place to...