Case Number: DEC-E2016-017. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberDEC-E2016-017
Date05 February 2016
PartiesAn employee -v- An employer
EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-017 PARTIES An employee (Buckley and Company Solicitors) AND An employer (Represented by IBEC) File reference: EE/2013/308 Date of issue: 5th February 2016

HEADNOTES: Employment Equality Acts Sections 6, 8, Disability Discrimination, Discriminatory Dismissal

1: Background

This dispute concerns a claim by Ms. PK that she was Discriminated against on the grounds of Disability and Dismissed for Discriminatory Reasons, and refused “Reasonable Accommodation” by Employer SC contrary to the Equality Acts.

The Complainant referred a claim to the Director of the Equality Tribunal on the 29th May 2013, under the Employment Equality Acts. On the 12th October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Michael McEntee, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 15th October 2015.

2: Complainant’s Submission

2:1 The Complainant was a Chef employed since 9th December 1996. In 2003 she received a new Contract of Employment to reflect her supervisory duties. She was dismissed on the 3rd December 2012.

2:2 In July 2010 the Complainant commenced a period of Sick Absence due to a wrist injury. This was later diagnosed by a Consultant Surgeon as first dorsal compartment syndrome of the right hand. The Complaint claims that this constitutes a Disability within the meaning of Section 2 of the Equality Acts. Her condition restricted her ability to move and use her wrist such as to amount to a malfunction of her body. The Complaint has undergone extensive treatment for her condition and it is still extant to date

2:3 In August 2011 the Complainant’s GP recommended, as supported by the Consultant in July 2011, that the Complainant, though unfit for manual aspects of her job, could undertake essentially administrative and supervisory elements of her role. The Respondent refused to acknowledge the Supervisory elements of the Complainant’s position and deliberately misrepresented her duties to be that of a Cook only. This constituted an unlawful restriction on her return to work.

2:4: The Complainant stated that at no time did the Respondent contact the Complainant’s medical advisors and no vocational assessor was engaged to review the Complainant’s case.

The Respondent held an internal meeting, the Complainant was not in attendance, on the 28th July 2011 to discuss the Complainant’s medical evidence and alternative work options. The negative conclusions of this meeting were confirmed to the Complainant by letter of the 13th September 2011. The Complainant contended that this meeting was fundamentally unfair and in breach of duties required of an employer by Section 16 of the Equality Acts in relation to proper consideration of alternative work.

2:5: The Complainant attended a meeting with Ms.C. and Mr.O’N of the Respondent on the 4th August 2011. At this meeting she was informed that the medical evidence was that she could not return to work and suggestions of alternative work were dismissed.

In September 2011 the Complainant’s sick pay was ceased. On the 13th October 2011 a further meeting was held between the Complainant and the Respondent (Ms. C and Mr. O’N). A number of alternative positions were referred to by the Respondent but no effective attempt was made to engage proactively as required by Section 16 of the Acts. The Respondent concentrated on her disability and not her ability.

A disciplinary hearing was held on the 3rd October 2011. The Complainant did not attend and was dismissed in her absence.

2:6 In summary the Complaint maintained that through the entire process the Respondent did not adequately consider the medical reports of the Complainant and did not discharge their duties as required by Section 16 of the Acts in relation to alternative work

3: Respondents Submission.

3:1: The Respondent rejected the Complainant’s case on the following grounds

Ø The case was out of time

Ø Reasonable Accommodation would not have resulted in the Complainant being fully capable of performing her role

Ø The Complainant does not have a disability as defined under the Acts

Ø The Complainant has not identified a Comparator with whom she was treated less favourably

Ø The Complainant failed to establish any link between her alleged disability and the decision to terminate her employment.

Ø The decision to terminate her employment was based on her failure to engage with the Respondent in relation to her on-going absence from work.

Extensive written and oral evidence was provided in support of all these points.

4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4:1 Background and Preliminary Issues

To properly consider this case The Tribunal felt that four Background /Preliminary issues needed to be considered carefully before going to discuss the questions of Disability Discrimination and Reasonable Accommodation. The four issues are

a. Character and Procedures of the Respondent

b. Necessary Communications

c. Time Limits

d. Disability / Definition /Valid Grounds

(a) Character and Procedures of the Respondent

The Tribunal found that the Respondent was a well-run professional organisation with good procedures and well documented practices. Staff displayed professional competence. Considerable latitude was allowed by the Respondent to the Complainant at all stages, particularly in relation to extra paid Sick Leave and additional time to engage in all employment procedures. Respondent evidence given at the Oral hearing was credible.

(b) Necessary Communications

A critical theme running through the detailed evidence, both written and oral, of the parties and particularly the Respondent, was of a failure by the Complainant to engage pro-actively in any employment proceedings or requests for clarification/further evidence particularly on the medical issues.

A critical example would be the Consultant (Mr.C) Medical report obtained in February 2012. Despite numerous requests to the Complainant and her legal advisor, detailed in evidence by the Respondent, no comment was ever received by the Respondent in relation to the opinion expressed by the Consultant.

A report from an alternative Consultant (Ms.E) was promised but never materialised.

The outcome was a Disciplinary Hearing on the 3rd October 2012 at which the Complainant did not attend. She was dismissed in absentia although all correct notification procedures were followed by the Respondent.

At the Oral Hearing it was stated in supporting evidence from a friend of the Complainant (Ms.F.O’B) that the Complainant was suffering from serious stress and psychiatric issues during late 2011 and 2012. It was alleged that her advice was that to engage in the Employment Processes of the Respondent would be majorly detrimental to her physiological health.

However this Medical/Psychiatric evidence was not presented to the Respondent and they were effectively in the dark in relation to these issues. The Complainant’s Legal Advisors, at that time, July 2012, were in correspondence with the Respondent in relation to the Mr.C report referred to above and no reference was made to any Psychiatric issues.

The major authority in these matters is the seminal Labour Court case Humphries v Westwood Fitness. [2004] ELR 296. It is worthwhile to quote the relevant paragraphs:

This Section, on which the Respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the Complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the...

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