2013

The case concerned a claim by Mr B against a metal processing company. He claimed he was discriminated against regarding his conditions of employment on the grounds of disability. He also claimed that the Respondent failed to provide reasonable accommodation that would allow the Complainant to continue to be employed by them.

The Complainant commenced employment with the Respondent in May 1998. He obtained his lorry driving licence and started work as a Heavy Goods Vehicle (HGV) driver. In May 2005 Mr B was diagnosed as a Type 1 Diabetic. He immediately informed the Respondent. Following a hypoglycaemic episode in 2009 (in consultation with their medical advisors) Mr B was removed from driving duties and placed on a supernumerary basis a scrapyard. The Respondent submitted this was a temporary measure to facilitate Mr B while he awaited medical clearance to resume his normal driving role. One of the conditions of his employment was that he could never work alone i.e. a buddy system where he worked beside Mr Z (a welder) in case he had another hypoglycaemic episode.

In October 2010, following a review of operations, several employees were made redundant. The company no longer had the capacity to accommodate Mr B on a supernumerary basis. This was explained to Mr B at a meeting in November 2010 and he was informed that he could avail of this on a voluntary redundancy basis he wished. An enhanced package was offered. As he remained unfit to work as a driver, he also had the choice of going on sick leave. In May 2011 he was offered further work in the scrapyard due to seasonal capacity.

It was only following another hypoglycaemic episode in 2009 that Mr B was temporarily removed from driving duties. At that time the company expected that he would be allowed to drive commercial vehicles again within 12 -15 months. It was not until August 2010 that it was confirmed by the Respondent’s occupational physician that ‘he was unfit to continue commercial driving for the foreseeable future. It is unlikely that this situation will change’.The Respondent submitted that they did provide him with reasonable accommodation by offering a job in the scrapyard (on the driver rate of pay) and operating the buddy system. He was allowed to supply his own medical reports and was consulted at all times.

In conclusion the Tribunal found the Respondent acted appropriately by having conducted the necessary medical enquiries. The Tribunal accepted that the Respondent had a fair solution by employing a buddy system. This accommodation continued for a year until the Respondent made this ‘buddy’ redundant. Reasonable accommodation was provided by the Respondent until it placed a disproportionate financial burden on the Respondent. The tribunal noted the Respondent was exemplary example in how it conducted its enquiry as to whether Mr B was fit to remain as a HGV driver and in their attempts to accommodate him. In closing the Tribunal found the Respondent did not discriminate against Mr B and provided reasonable accommodation.

Employers should provide fair and reasonable accommodation to all Employees who have a disability. This involves reasonable steps to accommodate the needs of employees and prospective employees. In this case the court highlighted the commendable actions taken in the reasonable accommodation of an Employee with diabetes. The Respondent provided the Employee with a different role within the workplace, on the same wage he was on previously, they also used a “buddy system” until such a time that it became financially not viable. Under the Employment Equality Acts, an Employer shall do all that is reasonable to accommodate the needs of a person, and in this case the Organisation was in a position to demonstrate this. 

DEC-E2013-196 Mr B -v- A Metal Processing Company

This case is in relation to discrimination on the grounds of disability contrary to Section 6(2) (g) of the Employment Equality Acts 1998 to 2008. A submission was received from the Complainant on 4 July 2011. A submission was received from the Respondent on 12 August 2011. The Complainant started in the employment of the Respondent in 1999. In 2002, he was promoted to the position of lead driver. On 17 November 2009, the Complainant suffered trauma to his left knee in the course of his duties. The Claimant was certified as unfit for work from late 2009 until 11 May 2010. The Claimant was then certified as being fit for doing light duties. The Respondent refused to let the Claimant to return to work citing that the Claimant would not be able to complete the relative roles as being a lead driver. No other position was available for the Claimant. The Claimant stated that the Respondent had stopped paying his wages on 1 January 2010. The Claimant tendered his resignation on 10 June 2010. In Post correspondent between both parties a job was offered to the Claimant in the company’s call centre. The Claimant considered this roll but declined due to lack of experience and IT skills for the roll. The Complainant contended that this amount to a discriminatory constructive dismissal on the ground of disability.   The Respondent denies discriminating against the Complainant. 

The respondent disputed the responsibility of the injury, with proper application of the health and safety practices it could have been avoided. The Respondent pointed out that it does not have an obligation to continue to pay an Employee while he or she is out on sick leave. As the Complainant was also certified as unable to do manual lifting, it was not possible to accommodate him in a warehouse role. There were no other roles available at the time. The Respondent stated that they had no medical report to state that the problems with the Complainant's knee were permanent or that he suffered from a permanent disability. The Respondent stated they only issued the Complainant's P45 on 11 October 2010, following a letter from his solicitor, in which the Respondent was also advised of the Complainant's intention to take a personal injuries action.  

The Tribunal fund that there is no dispute between the parties in relation to the Claimants sick leave due to the knee injury sustained. Furthermore, there is no dispute that the Complainant's condition constitutes a disability within the meaning of the Acts. The decision of the tribunal was as follows:

• The Respondent did discriminate against the Claimant in relation to his disability by not providing him with reasonable accommodation pursuant to its obligations set out in S. 16 of the Acts and
• The Respondent did discriminatorily dismiss the Complainant, by way of constructive dismissal, contrary to S. 8(6) of Acts.

The tribunal order the Respondent to pay the Complaint €63,000. This is calculated from the Claimants salary of 18 months.  

A number of key learnings can be taken from the case, the importance of health and safety procedures, the need to make informed decisions based on medical advices and the requirements under the employment quality Acts to consider and demonstrate that reasonable accommodation was fully exhausted.

DEC077 - Mr Fergal Reilly V United Parcels Service CSTC Ireland Ltd – Discrimination Due To Disability award of €63,000

The Respondent is a community training centre and deals with, amongst other things, youth development. The Claimant was employed as a Learner Advocate in which role she worked with youths. In this role she helped them plan for their careers and arranged for work experience.  

She worked “over and above” what was expected of the role, was “extremely dedicated” and “passionate” about her work.   She did not have any difficulty in “20 years” until the events unfolded that led to her leaving. The original issue began in the car park whereby the catering tutor, Ms R, parked too near her car and caused her difficulties in that she could not open her car door properly. The Claimant perceived this as bullying.  

The next matter that occurred concerned the learning portfolios of the students.  The Claimant told the students that it would only be seen by an external assessor. However a problem arose circa March 2010 whereby she was in her manager’s office and he asked that she leave the portfolios in his office. A disagreement ensued and he “became quite aggressive”.  

The Respondent wrote to the Claimant and asked her to attend an investigatory meeting on 1 April 2010 in relation to her withdrawal of 37 learner portfolios from assessment and her continuing refusal to provide the documentation as requested for integrating the literacy project. After this meeting the manager wrote to the Claimant and reassured her that the documents would be kept confidential. Representation of the Claimant wrote on 19 May 2010 stating that the documents would not be put forward.  

Ms S raised an issue with the manager about difficulties she was experiencing working with the Claimant. An offer of mediation was made to Ms S and the Claimant but Ms S declined the offer of mediation and invoked the grievance procedure in writing on 8 June 2010. The Claimant was absent on sick leave from the time of October 2010. An independent mediator (W) conducted an investigation and a report issued in December 2010 with the finding that the complaint made by Ms S did not constitute bullying as defined by the employee handbook. The Claimant’s solicitor wrote on 25 August 2011 stating the Claimant would not be returning to work until such a time as she had appealed D’s report externally.  

Having listened carefully to the evidence tendered, it is clear to the Tribunal that there were significant interpersonal issues between staff personnel and management at the training centre. The Tribunal found that initially management and thereafter the Board failed in their duty towards the Claimant, and allowed a situation to pertain where an employee was off work on work related stress due to problems in the workplace.  

The Tribunal found that due to a total loss of faith in her employers, and a consequential illness, it was reasonable for the Claimant in all the circumstances to leave her employment.  

 Therefore the Claimant was entitled to succeed in her claim and consequentially the Tribunal award her €18,000.00 in compensation under the Unfair Dismissals Acts, 1977 to 2007.  

When the issue of bullying and harassment arises in the workplace it is critical that an employer adheres to their policy and procedure. The codes of practice for the HSA and the Equality Authority place significant emphasis on prevention of bullying and harassment in the workplace and Employers should ensure they have clearly documented and implemented policies in place.

UD1983 - Caitriona Dwan V Youth Development Project Ltd - Work related stress claim results in €18,000 award

 The Employer appealed the Decision of the Equality Officer to the Labour Court on the 21st August, 2013. A Labour Court hearing took place on the 7th January, 2014. The following is the Court's Determination:  

Mr Richard Beashel (the Complainant) worked for Stobart (Ireland) Limited (the Respondent) as a Truck Driver from 9th November 2009 until he was dismissed on 22nd June 2010. In the complaint he claimed that he was discriminatorily dismissed on the grounds of disability.  

(i) The Respondent discriminatorily dismissed the Complainant on the grounds of disability

(ii) The Respondent failed to provide appropriate measures that would allow the Complainant continue to be employed by them.  

The Equality Officer ordered the Respondent to pay the Complainant €22,000 compensation for the discriminatory treatment suffered. The Respondent appealed against that Decision to this Court.  

During his employment the Complainant accrued 23 days absence, 2 of which were uncertified. In April 2010 he sustained a back injury which resulted in his being absent from work for 2 weeks (12 April to 26 April 2010). This absence was certified by a medical practitioner. He says his father died in December 2008. In May 2010 he was diagnosed as suffering from depression. He required some time off work as a result. He was medically certified unfit for work from 31stMay to 14 June 2010.  

On 22nd June 2010 he was instructed by the Human Resources Department to attend immediately at a meeting with Mr Paul O’Donnell, (Operations Manager, Tesco, Dublin Port). He was given no or scant details of the purpose of the meeting. He attended the meeting and was summarily informed that he was dismissed with immediate effect. The Respondent states that he was told that the reason for his dismissal was a combination of his level of absence and his poor performance levels.  

The main point in the Respondent’s submission related to the requirement set out in that decision, that in order to come within the scope of the Directive a disability must be long term in nature. It argued that the Complainant in this case suffered about of depression and had no further contact with the medical profession on this matter  

The Court found that the Respondent failed to provide appropriate measures that would allow the Complainant continue in employment and that in all the circumstances of this case, the level of compensation awarded by the Equality should be varied. The Court ordered the Respondent to pay the Complainant €12,000 compensation for the discriminatory treatment he suffered.