Case Number: DEC-E2016-020. Workplace Relations Commission

CourtWorkplace Relations Commission
Date05 February 2016
Docket NumberDEC-E2016-020
PartiesAn employee -v- A Food Services Company
EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-020 PARTIES An employee (Kancelaria Rostra Solicitors) AND A Food Services Company (Represented by Peninsula Business Services) File reference: EE/2014/057 Date of issue: 5th February 2016

HEADNOTES: Employment Equality Acts Sections 6, 8, 16, Disability Discrimination, Dismissal, failure to provide “Reasonable Accommodation”

1: Background

This 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 Submission

2:1 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...

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