In the recent WRC case of Damien O’Sullivan v Fg Wilson Engineering (Dublin) Limited – ADJ-00030123 an employee was awarded €41,076.00 for a dismissal that was deemed to be a discriminatory dismissal in breach of the Employment Equality Acts 1998-2015.
This case is particularly interesting as it revolved around a situation that arose early on in the Covid-19 pandemic where the employee in question was immunocompromised and was dismissed due to the Respondent’s concerns, that to allow the Complainant continue in his role could pose a serious risk to the Complainant’s health.
Facts:
The Complainant was employed as service engineer with Respondent from June 2013. The Complainant suffers from psoriatic arthritis, an illness which can cause a malfunction in the joints, an immunosuppressed condition which can result in a heightened vulnerability to contracting infections.
In the Complainant’s evidence before the WRC (most of which was uncontested by the Respondent), he explained that with the advent of Covid-19 the airwaves were full of the threat posed by the pandemic to immunocompromised persons. He confirmed that early on in the pandemic (i.e. on 23rd March, 2020) he told his line manager that he would have to cocoon and thereafter he stayed out of work for a number of weeks.
There was a delay in submitting medical certs which is outlined in the decision. However, on 18th May, 2020 he eventually sent in a doctor’s cert covering him for part of the period to date. The Complainant outlined in his evidence that on 19th May, 2020 the Respondent then asked him in an email if he was able to fulfil the terms of his contract. He responded that he was in a position to fulfil the terms of his employment contract and emailed a copy of a further certificate from his doctor which stated that he had an immunosuppressant condition but that he was fit to resume work on 8th June, provided good health and safety measures were in place in his workplace.
It seems that on 22nd May, 2020, just hours after receipt of the above mentioned medical cert from the Complainant’s doctor, the Respondent emailed the Complainant stating that he was not able to fulfil the terms of his contract and that the Respondent was terminating his employment. He then received a phone call from the Respondent’s service manager stating that he could not take any risks with him, given his weakened immune system.
The Respondent paid the Complainant €9,000.00 which the Complainant understood to be a payment in respect of holiday pay and redundancy. The Respondent claimed it was in respect of holiday pay and a tax-free ex-gratia sum.
The Complainant brought a claim to the WRC under the Employment Equality Acts, 1998-2015 (the “Acts”) and claimed he had been discriminated against on the grounds of disability. The Complainant also brought a claim for notice under the Minimum Notice and Terms of Employment Act, 1973.
At the WRC hearing witnesses for the Respondent claimed the termination of the Complainant’s employment was not a discriminatory act but was done for health and safety reasons. Evidence was given from one witness to the effect that the Complainant had told him he could die if he contracted the virus.
The Respondent argued that the Complainant’s precondition for a return to work was a guarantee that the sites which he would be servicing should be compliant with Covid-19 guidelines, but the Respondent had no control over these environments and therefore could not guarantee a safe environment as requested by the Complainant’s GP.
The Respondent acknowledged that it did not engage another medical opinion about the Complainant’s fitness to work nor did the Respondent contact the Complainant’s own medical practitioner. The Respondent did not talk to other employers about safety measures in place. Neither did it invite the Complainant to discuss the matter or argue against his dismissal before the decision to dismiss was taken. All of this very much went against the Respondent in terms of defending the Complainant’s legal claim.
Decision:
The WRC Adjudicator considered the facts of the case in light of Section 16 of the Acts and relevant case law such as the Supreme Court decision of Nano Nagle v. Marie Daly [2019] IESC 63.
By way of context, section 16 of the Acts deals with the obligation on an employer to consider reasonable accommodation to employees with a disability. In summary the section provides that if an employee with a disability would be capable of doing their job if they were afforded reasonable accommodation (e.g. if certain appropriate measures were put in place), then the employer will be obliged to provide such reasonable accommodation unless to do so would place a disproportionate burden on the employer.
The Adjudicator commented that in light of the prevailing climate in March – May 2020, with no vaccines on the horizon, and a heightened sense of fear amongst those without a disability, not to mention those who had an autoimmune disease, the Complainant’s requirements for assurances that safety procedures and protocols were in place was at the very minimum, worthy of exploration with the client companies concerned.
The Adjudicator was critical of the fact that the Respondent made no effort to establish that safety measures were in place in the sites to which the Complainant would be assigned. The Adjudicator acknowledged the Respondent’s submission that it did not have control but commented that that this did not prevent the Respondent from establishing exactly what controls were in place on the sites, providing the Complainant with that information and then determining the risk of, or exposure to, contracting the virus, if any, in collaboration with the Complainant based on whatever medical or other advice was necessary.
The Adjudicator stated that an employer’s response to assessing what appropriate measures are required demands an individualised approach and that there were a number of options which the Respondent could have explored which might have enabled them to accommodate the Complaint’s disability.
The Adjudicator concluded that the Respondent assumed without any examination that no reasonable accommodation measures were possible. The Adjudicator commented that the Respondent may have been correct in this conclusion, but it ignores the requirement to conduct such an examination.
Ultimately the Adjudicator found that the Respondent had failed to provide appropriate measures that would allow the Complainant to continue to be employed by them and that the Respondent had discriminatorily dismissed the Complainant on the grounds of disability.
In light of this, the Adjudicator ordered the Respondent to pay the Complainant the sum of €41,076 by way of compensation for the distress suffered as a result of the discrimination. This sum represented nine months’ salary.
The Adjudicator also awarded the Complainant €4,213 in respect of notice under the Minimum Notice and Terms of Employment Act, 1973.
Takeaway for the Employers:
Even in safety critical situations where an employer is genuinely concerned about the risk an employee might be exposed to if they continue in their role, an employer is unlikely to be able to lawfully dismiss the employee without first going through a number of rigorous steps.
These steps include a meaningful consultation process with the employee, gathering all necessary medical evidence, following a fair procedure and carefully considering whether there are any reasonable accommodations that could be provided to the employee in order to enable them to safely carry out their role.
If the outcome of that process is that there are reasonable accommodations that could be put in place that could enable the employee to safely carry out their role, then the employer will be obliged to put them in place unless to do so would pose a disproportionate burden on the Company and an employer will need to be mindful of the requirements of relevant legislation and case law in its assessment of what might constitute a disproportionate burden.
Authors – Laura Killelea and Anne O’Connell
30th September 2022