Case Number: DEC-E2012-011- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-011- Full Case Report
• Date: 01 February 2012
• Court: Equality Tribunal

The Equality Tribunal

Employment Equality Acts 2000 to 2011

EQUALITY OFFICER'S DECISION
NO: DEC-E2012-011

Parties

An Employee
(Represented by Ms. Grainne Fahey BL on the instructions of E.P. Daly and Company Solicitors)

V

A Logistics Company
(With Mr. Brendan Meehan FCCA CPA of Meehan & Associates, Registered Auditors)

File No. EE/2009/397 Date of Issue: 6 February 2012

Keywords:
Employment Equality Acts - Discriminatory treatment - Failure to provide appropriate measures - Conditions of employment, training, promotion/re-grading - Discriminatory dismissal - Victimisation - Victimisatory dismissal - Disability - Prima Facie Case

1. Dispute and delegation

1.1 This dispute concerns a claim by An Employee (hereafter "the complainant") that he was subjected to discriminatory treatment, including a failure to provide reasonable accommodation, victimisation and dismissal by A Logistics Company (hereafter "the respondent") on the grounds of his disability. The date of dismissal was 30 March 2009.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 June 2009 under the Employment Equality Acts. On 30 September 2011 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 15 December 2011. The decision has been anonymised to protect the privacy of the complainant.

2. Case for the complainant

2.1. The complainant has worked with the respondent since it took over from a previous company in January 2008. The complainant submitted that in early 2008 he began suffering with stomach complaints and was also diagnosed with depression. As a result of these health issues the complainant was absent on sick leave for a significant period of time. It was submitted that these absences were certified if he was absent for more than one day.

2.2. The complainant received a letter dated 12 January 2009 stating that the respondent was bringing in a new sick leave policy. This new policy allows for 4 uncertified sick days in one calendar year. If the 4 sick day leaves are exhausted, an employee must avail of the appropriate benefits provided by the State. Prior to the introduction of this policy to company had paid staff who were out sick. The new policy limits such pay to 4 days per calendar year.

2.3. The above letter also informed the complainant that his level of absenteeism was unacceptable. The complainant was informed that he had been absent for 26 days in 2008 and that he would be issued with a final warning in relation to this matter.

2.4. The complainant replied to this letter stating that he had been genuinely sick on each occasion that he had been out. He informed the respondent that he is receiving treatment and is hopefully that this will improve his attendance. The complainant took exception with the threatened final warning and informed the respondent that such action may be unreasonable. The complainant submitted that he responded to this letter by a letter where he stated that:
"I handed in doctor's notes on numerous occasions, even one from the hospital where I was forced to visit due to illness. And every time I was absent I was genuinely sick and sometimes even came to work before being forced to leave early.
I have been getting treatment and hope this will improve my attendance as I understand your concern.
I apologise for the inconvenience caused by my illness and I have being doing everything in my power to regain full health.
I was disappointed with the last paragraph of your letter as I made every effort to get into work even on occasion when I was not very well and therefore your threatened action may be unreasonable. Assuring you of my best intentions at all times."
It was submitted that the complainant's mother personally handed in this letter to the respondent offices sometime in January 2009.

2.5. In February 2009 the complainant went on indefinite sick leave. On medical advise the complainant sought a meeting with the respondent in late March 2009. At this meeting the complainant indicated to respondent's manager that he may be able to return to work on a part-time basis as he believed that work was contributing to his illness. The next day, on 26 March, 2009, the director told the complainant's mother that the respondent would not accept the complainant back. He then indicated to the complainant's mother that he would revert back to her with a settlement offer. The next day, on 27 March, 2009 the director reiterated to the complainant's mother that the complainant could not return to work and that the complainant was entitled to one months notice. In addition to this the respondent would offer an additional two months' pay to the complainant.

2.7. The complainant submitted that the respondent had taken no steps to attempt to accommodate his disability. He was never medically examined by the respondent. The complainant relied on the labour Court decision in Humphries v Westwood Fitness Club that was up held in the Circuit Court by Judge Elizabeth Dunne

2.8. The complainant submitted that he suffered from a disability within the meaning of the Acts at all material times. As a result of this disability the complainant was absent on a number of occasions. He was discriminated against by virtue of the fact that he received a final warning for his absences without any fair procedures and without any hearing. His conditions of employment were impacted by the action of the respondent in serving him with such warning.

2.9. The respondent's refusal to allow the complainant to return to work because of his disability in March 2009 amounts to a discriminatory dismissal.

2.10. The complainant submitted that he most likely did hand in more sick certificates in 2008. However, he was not certain of this and has no documentation that could assist his memory in this regard.

3. Case for the respondent

3.1. The respondent is a logistics company that employs a small number of people who ensure customs clearance for a large retailer operating in Ireland. The activity is paper driven and involves the meticulous inputting and recording of product details including tariff codes, weights and values. The imputing must be carried out on an instantaneous basis and, should any member of the respondent 10 staff not arrive in work it can impact heavily on the respondent staff's ability to complete these tasks on time. It was submitted that because of this there is a significant dependence on employees to be in attendance.

3.2. It was accepted that the respondent altered its sick leave policy at the end of 2008. This was done because the existing policy that the respondent inherited when it took over the company in early 2008. It was submitted that the previous policy that ensured payment of uncertified sick leave was no longer sustainable. The respondent does not accept that the policy is discriminatory and submitted that all employees were called in individually to meet with the Director who informed them of the changes. All staff, including the complainant, agreed to these changes.

3.3. The respondent director had a conversation with the complainant on 4 September 2008 where the director advised the complainant's absenteeism was not acceptable. A similar conversation was had between the parties on 22 September 2008 and the complainant again told the respondent that he was sick. The respondent had also offered to arrange an independent medical examination for the complainant but the complainant had refused this stating that his mother had arranged a specialist appointment with a consultant. The complainant had told the respondent on his return from...