Occipital Ltd (Represented by Tiernan Lowey B.L., Instructed by DWF, Solicitors) v Joseph Hayes (Represented by Lars Asmussen B.L., Instructed by Sean Ormonde & Company, Solicitors)
| Jurisdiction | Ireland |
| Judgment Date | 10 January 2018 |
| Judgment citation (vLex) | [2018] 1 JIEC 1001 |
| Date | 10 January 2018 |
| Court | Employment Appeal Tribunal (Ireland) |
| Docket Number | FULL RECOMMENDATION,DETERMINATION NO.EDA184,DEC-E2017-049 et-155609-ee-15 |
Labour Court (Ireland)
FULL RECOMMENDATION
ADE/17/58
DETERMINATION NO.EDA184
DEC-E2017-049 et-155609-ee-15
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Tanham
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
1. An appeal of an Adjudication Officer's Decision No: Dec-E2017-049.
2. The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on 3 July 2017. Two Labour Court hearings took place on 22 November and 14 December 2017. The following is the Court's Determination:
This is an appeal by Mr Joseph Hayes against the decision of an Adjudication Officer in a claim that his former employer Occipital Limited had failed to provide appropriate measures to accommodate the Complainant's disability and had discriminatorily constructively dismissed him on the ground of disability contrary to the Employment Equality Acts 1998 to 2015 (“the Acts”). The Adjudication Officer found that the complaint was not well founded and dismissed the complaints under the Acts. A number of related complaints were not upheld by the Adjudication Officer and were not appealed to this Court.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Joseph Hayes will be referred to as “the Complainant” and Occipital Limited will be referred to as “the Respondent”.
The Complainant referred his claim under the Acts to the Director of the Equality Tribunal on 18th March 2015, a hearing was held on 12th April 2017 and the Equality/Adjudication Officer's Decision was issued on 15th June 2017.
The Court was informed that in addition to the complaints made pursuant to employment equality legislation, the Complainant also instituted a constructive dismissal claim pursuant to the Unfair Dismissals Acts and a personal injuries claim. The Unfair Dismissals case was withdrawn on the day of the hearing before the Employment Appeals Tribunal and the personal injuries claim, which related to a back injury sustained at work, was settled by the parties in advance of any hearing with no admission of liability.
The Complainant was employed by the Respondent initially as a General Operative at its Ballymun site. In April 2012, the Complainant was promoted to the positions of De-kitting Supervisor at it logistics and outsourcing business, located at its customer base in Donabate. By letter dated 30th December 2014, the Complainant tendered his resignation to take effect from 9th January 2015.
De-kitting involves the loading and unloading of heavy goods vehicles with cages which are on wheels and which are then moved from place to place. The Court was told it was a physically demanding role where a number of cages are nested together before their removal from the vehicle. Each cage weighs approximately 42 kilos. The Complainant had a supervisory role which involved much of his time pushing and pulling cages and being on his feet for extended periods.
The Complainant suffered an injury at work on 2nd July 2012, which necessitated a number of extended periods of absence over the following years, In or around October 2012, the Complainant was also diagnosed with early onset Multiple Sclerosis.
On 21st September 2013, the Complainant reported a second workplace injury that was alleged to have occurred on that date when he injured his back while pulling cages off a trailer.
The Complainant was absent from work for the following periods:-
• 10th February 2013 to 15th April 2013;
4th June 2013 to 11th June 2013;
13th July 2013 to 27th August 2013;
20th October 2013 to 11th November 2014.
By email dated 21st October 2014, the Complainant wrote to his manager, Mr Boylan, stating:
• “I am inquiring about my medical with the company doctor. I have been given the all clear to return and am only waiting on a date. I would be grateful if you would give this your immediate attention as 1 am looking forward to getting back to normal life as soon as possible.”
In response, Mr Boylan stated: ‘I have requested a medical appointment with the company doctor last Friday and again this morning I am awaiting for them to give a suitable appointment time for you.’
By email dated 23rd October 2014, the Complainant stated:
• “Sorry to bother you again, but could you get on to your doctor again about an appointment as I am anxious to get back to work. As from tomorrow I am being taken off illness payments as I have been deemed fit for work.”
On 29th October 2014, the Complainant attended Dr Deirdre Gleeson, Occupational Health Specialist of the Medwise Occupational Health Clinic, for the purposes of an occupational assessment. By medical report dated 3rd November 2014, Dr Gleeson noted that the Complainant had made a: “remarkable recovery”, and that: “his symptoms of back pain, hip pain and neck pain have completely resolved”. Dr Gleeson noted that the Complainant's GP and physiotherapist had declared him fit for work before making the following recommendation:
• “Joe has recovered from back pain. It appears his symptoms were multifactorial in aetiology. There is some degeneration in the spine and joints, which is age-related and any soft tissue injuries have healed over time and with the intervention of rehabilitation physiotherapy. There is no evidence of serious underlying ongoing musculoskeletal or spinal disease today. I find Joe to be in excellent physical and mental health.
In my opinion Joe is fit to return to full normal duties without restriction. He is fit to perform any manual work, providing he adheres to safe work practices, including good manual handling and ergonomic standards .
I have not arranged to review Joe again but would be happy to do so at your request. I do not anticipate any further health problems.”
Mr Lars Asmussen, B.L., instructed by Séan Ormonde & Co, Solicitors on behalf of the Complainant claimed that the Complainant was constructively dismissed by the Respondent on the grounds of his disability and that the Respondent had failed to provide appropriate measures to accommodate him contrary to the Acts.
Mr Asmussen stated that following his accident the Complainant had a number of absences from work due to difficulties arising from his injury. He said that these absences arose due to a failure on the part of the Respondent to provide reasonable accommodation to the Complainant in failing to facilitate his return to work and / or his return to work on lighter duties.
In August 2012, the Complainant raised a grievance with Mr David O'Flaherty, Service Delivery Manager, regarding the workplace injury and his wish to be accommodated through a transfer. At a meeting with Mr O'Flaherty in September 2012 the Complainant stated that due to the injury that he had suffered and the ongoing damage that performing de-kitting duties was causing to his back, he wished to step down from his position as De-kitting Supervisor and be returned to his post as Hygiene Supervisor at the Ballymun site. In response, Mr O'Flaherty refused his request to transfer back to Ballymun as a Hygiene Supervisor and told him that if he stepped down from his role as De-kitting Supervisor his salary would be reduced to minimum wage; and that if he was not up to the job, he could leave the Respondent's employment.
On 6th December 2012, the Complainant attended an occupational health review with Dr Jacqueline Furlong McCarthy, Occupational Health Physician of the Meridian Clinic. By letter dated 6th December 2012, Dr Furlong McCarthy wrote to Mr O'Flaherty outlining her opinion on the fitness of the Complainant to return to work, it read as follows:-
• “Following my consultation today I have formed the opinion that Mr Hayes is currently fit to return to work. However, given the nature of his symptoms it is possible that Mr Hayes may have one of the relapsing illnesses such as MS. This will need to be further evaluated. While he is currently fit to work, I cannot state without further evaluation of his intended investigations that he will be fit to attend for all duties on a regular long term basis.”
Mr Asmussen said that the Complainant returned to work as a De-kitting Supervisor shortly thereafter without any alterations or accommodations being made to his role. However, from 10th February 2013 to 15th April 2013 the Complainant was absent again due to difficulties arising from his injury. By email dated 8th April 2013, Mr O'Flaherty wrote to the Meridian Clinic arranging an appointment for an occupational assessment for the Complainant. Mr O'Flaherty attached a form describing the roles allegedly available within the Respondent and the manner in which all were allegedly physically demanding roles requiring performance of some tasks that were physical in various manner. Mr Asmussen submitted that the Respondent had failed to consider whether any such problematic tasks could be redistributed from the Complainant's portfolio; whether shift or break lengths could be altered; or whether the workplace environment could be altered or further equipment provided in order to accommodate the Complainant's disability. Further, he contended that the Respondent failed to inform or consult with the Complainant regarding this alleged assessment. The Complainant had his assessment the following day. By letter dated 11th April 2013, Dr Furlong McCarthy wrote to Mr O'Flaherty outlined that in her opinion the Complainant was fit to return to work, however, until a definitive diagnosis was made she said that a prognosis for relapse could not be given. The Complainant...
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