Case Number: DEC-E2016-020. Workplace Relations Commission
| Judgment Date | 01 February 2016 |
| Court | Workplace Relations Commission |
| Docket Number | DEC-E2016-020 |
| Parties | An employee -v- A Food Services Company |
HEADNOTES: Employment Equality Acts Sections 6, 8, 16, Disability Discrimination, Dismissal, failure to provide “Reasonable Accommodation”
1: BackgroundThis dispute concerns a claim by Mr. H that he was Discriminated against on the grounds of Disability, Dismissed for Discriminatory Reasons, and refused “Reasonable Accommodation” by Food Services Company XL contrary to the Employment Equality Acts.
The Complainant referred a claim to the Director of the Equality Tribunal on the 14th February 2014, under the Employment Equality Acts. On the 28th September 2015, in accordance with his powers under section 41of the Workplace Relations Act, 2015 and Part V11 of the Employment Equality Acts, the Director 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 9th October 2015.
2: Complainant’s Submission2:1 The Complainant was a Warehouse Operative since April 2006 in the Respondent’s Warehouse. He was dismissed on the 20th January 2014.
2:2 In 2011 he suffered from a back injury and was diagnosed as suffering from chronic back pain. Medical reports of the 3/11/2011 and 30th January 2013 found him unable to do heavy manual work and he should avoid lifting. It was clear that he could not carry out his previous work.
2.3 The Complainant requested a move to another position, more appropriate to his medical condition, but was effectively refused contrary to Section 16 of the Equality Act.
The Complainant stated that he felt the employer was a business of sufficient size and financial standing as to be able to find a new role or to adapt his former role in such a way as to make it possible for him to return to work.
2:4 At no stage did the Respondent take steps to carry out any assessment, review or audit of the work roles and the burden of finding a new role was left to the Complainant. This was in complete breach of Section 16 of the Act.
3: Respondents Submission.3:1 The Complainant was a Warehouse Operative. He was on Sick leave from October 2011 to December 2011, was on Sick leave again from 1st August 2012 to the 3rd September 2012 and finally from 7th December 2012 to the date of his termination on 20th January 2014.
3:2 During early 2013 the Respondent made numerous efforts to contact the Complainant. A Welfare Meeting was scheduled for late July but was rescheduled by the Complainant for the 15th August 2013.
An issue arose in relation to the Complainant giving access to his medical records to the Respondent. This later proved to be a significant operational and procedural difficulty for the Respondent. The Respondent required full medical records to enable it to see what accommodations could be made to assist the Complainant in returning to work.
The Complainant attended the Respondents’ Physician on the 31st October who felt that while he was still unwell he would greatly benefit for a 4/5 weeks back programme.
3:3 The Complainant indicated that he was fit to return to work on the 10th November 2013. The Respondent asked for a “Fitness to Return” Certificate. The Complainant indicated that he wished to work “light duties” in the Hardware Dept. as against his former post in the warehouse.
The Respondent replied that the duties in the Hardware Dept. were essentially the same as in the warehouse and the move would not make any material difference to his exposure to manual lifting.
The Respondent requested medical reports to support their review of the case -18th November 2013. This was not replied to by the Complainant. A further Medical Review took place on the 7th January 2014. No medical reports were forthcoming from the Complainant and the Respondent decided to dismiss the Complainant.
3:4 The Complainant was informed in writing on the 20th January 2014 that he was being dismissed. The Respondent undertook to look to reinstate the Complainant if he agreed to provide the requested Medical evidence that would allow the Employer gain a full understanding of the nature of the medical situation and particularly the “Light Duties” request.
An Appeal Hearing against the dismissal was held on the 3rd February 2014. The Appeal was unsuccessful. The lack of permission to obtain medical records was again noted.
Reasonable Accommodation
3.5 Extensive records of correspondence with the Complainant were produced. The basic issue faced by the Respondent was the failure of the Complainant to cooperate in any useful way with the requests from the Respondent for medical evidence or clearance for discussions with Physicians attending the Complainant.
Taking the tests in the Humphry’s v Westwood Fitness Club [2004] ELR 296 case the Respondent was satisfied that all reasonable medical inquiry steps had been attempted and that the Complainant was aware from July 2013 of his employment being in jeopardy,
3.6 In conclusion the Respondent felt that Section 16, Reasonable Accommodation, had been complied with and that there was no sustainable evidence to support any claim of Discrimination.
4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICERDiscrimination
4:1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the Complainant was discriminatorily dismissed and whether the Respondent failed to provide reasonable accommodation in order to enable him to continue to work with the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the Complainant has established a prima...
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