Case Number: DEC-E2012-006- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-006- Full Case Report
• Date: 13 January 2012
• Court: Equality Tribunal

EQUALITY OFFICER'S DECISION NO: DEC-E/2012/006

PARTIES

HOWELL
(REPRESENTED BY CATHAL MCGREAL BL
INSTRUCTED BY EUGENE SMARTT - SOLICITORS)

AND

CRONINS RACKING AND SHELVING CENTRE LTD

File No: EE/2009/312 Date of Issue: 13 January, 2012

Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 & 16 - disability - discriminatory treatment - dismissal - reasonable accommodation.

1. DISPUTE

This dispute involves a claim by Mr. Martin Howell that he was (i) discriminated against by the respondent in respect of his conditions of employment 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) dismissed 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. The respondent rejects the complainant's assertions in their entirety.

2. BACKGROUND

2.1 The complainant was employed by the respondent as a General Operative until November, 2008 when he contends his employment was terminated in circumstances amounting to discrimination on grounds of disability contrary to the Employment Equality Acts, 1998-2008. There is a dispute as to when he commenced employment. He further contends that on informing the respondent of the nature of his disability in September, 2008 the respondent advised him that it was no longer in a position to offer him full-time employment and was instead only able to do so on a day to day basis. It is submitted on the complainant's behalf that this constitutes less favourable treatment of him on grounds of disability contrary to the Acts.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 -2008 to the Equality Tribunal on 13 May, 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 30 September, 2011- the date the complaint was delegated to me. A Hearing on the complaint took place on 1 December, 2011. A small number of points emerged at the Hearing which required clarification and gave rise to subsequent correspondence between the Equality Officer and the parties. This process concluded in late December, 2011. At the Hearing the complainant stated that he wished to forego his anonymity in respect of these proceedings - contrary to the established practice of the Tribunal in complaints involving a disability of this nature - and on that basis the parties are identified.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The complainant states that he worked for the respondent as a General Operative. He contends that he commenced employment with the respondent approximately five years before he was dismissed - 17 November, 2008. He adds that during 2008 he had "felt down and things were getting on top of him" for a while and this feeling was exacerbated when his car was stolen in mid-September of that year. He states that he contacted his employer the day after his car was stolen to ask for some time off work to "sort things out" but was unable to speak with him and left a message on his voice mail. He adds that when he received no response from the respondent he decided to attend his General Practitioner (GP) who diagnosed him with depression and certified him as unfit for work from 15 September, 2009 for one week. The complainant states that he sent this medical certificate to the respondent immediately and received a letter dated 16 September, 2009 from Mr. Cronin confirming receipt of the voice mail he (the complainant) had left on his mobile phone. The complainant adds this letter also advised that absenteeism due to illness must be supported by a doctor's certificate if over two days and that due to a decline in business the respondent could only offer him employment on a day to day basis in the future and the respondent would contact him in due course if necessary. The complainant states that during his period of employment with the respondent he had previously only been absent for two days due to illness. He adds that in the weeks immediately before his absence on sick leave commenced he had worked full weeks, although some of these duties were on properties owned by Mr. Cronin as distinct from the work he was originally recruited to do - assembly etc. of racking and shelving. It is submitted on the complainant's behalf that the behaviour of the respondent in this regard constitutes less favourable treatment of him on grounds of disability contrary to the Acts.

3.2 The complainant states that he continued to furnish the respondent with medical certificates from his GP on a weekly basis covering his sick absence. He states that the first contact he had with the respondent was when he received a hand delivered letter from Mr. Cronin dated 6 November 2008 which noted that the complainant had been absent from work on sick leave from 15 September 2008 and requesting he attend a meeting with Mr. Cronin on 10 November, 2008 to discuss his "position within the company". The complainant states that on receipt of this letter he contacted the respondent by phone to advise him that he (the complainant) did not feel well enough to attend such a meeting. The complainant adds that the respondent enquired as to when he might return to work and he (the complainant) advised that that he was unable to say. He adds that when the respondent continued to press him for a date the discussion became heated and he told the respondent that it "might be one year, two years or six years". The complainant states the respondent then mentioned that he (the complainant) might attend the respondent's physician for a medical examination. He states that he had no problem in doing so until Mr. Cronin stated that it would be at the complainant's expense. The complainant adds that he did not have the finances to attend for such an examination and the discussion grew more heated. The complainant accepts that the conversation concluded by him telling Mr. Cronin to "f*** off". The complainant states that he furnished the respondent with two further medical certificates - one covering the period 10-16 November, 2008 and the other covering 17-24 November, 2008. He adds that the next he heard from the respondent was the letter dated 17 November, 2008 terminating his employment with it and enclosing his P45 and outstanding holiday pay etc.

3.3 Counsel for the complainant states the respondent was on notice that the complainant was suffering from depression and when the...