Eamon Murphy v Michael Connolly & Sons Limited Supervalu Supermarket is a recent Workplace Relations Commission (“WRC”) case concerning alleged discrimination on the grounds of disability,
discriminatory dismissal and alleged failure to provide reasonable accommodation. This is an interesting case examining an employer’s responsibilities when one of their employee’s is an alcoholic.
Facts: The Complainant was employed as a Store Manager with the Respondent, a large Supermarket franchise, from 19th September 2005 until 27th January 2021. It was accepted by both parties that the Complaint was an Alcoholic. He had a number of alcoholic related issues culminating in a serious incident at work on 21st December 2019 and a further serious incident at work on 24th October 2020.
In relation to the incident that occurred on 21st December 2019, the Respondent did not initiate a formal disciplinary process and the Complainant was asked to attend the company doctor, Dr P, on 31st December 2019. Dr P certified the Complainant as unwell but declared him fit to work in January 2020. The Complainant undertook to attend at AA with no repeat of the alcoholic incidents. The Respondent stated they accepted these assurances in good faith. The Complainant also saw Dr P again in September 2020. In oral testimony at the hearing the Complainant expressed his remorse for what happened and stated in December 2019 he thought he could resolve his addiction issues on his own. He stated that Dr P, while helpful, was not an addiction expert and was realistically of little value.
The second serious alcoholic incident took place at work on 24th October 2020, while the Respondent family was away at a family event. The Complainant brought a considerable amount of alcohol to the store and consumed it on the premises. He became completely unconscious, alarming his colleagues who brought him home. The Respondent’s representative emphasised that this breach of trust was incalculable, that it was well known in advance that the Respondent family would be away at a daughter’s wedding and the Complainant had been given full responsibility for the store. Following this incident, the Complainant entered the Aiseir residential Alcoholic 28-day treatment programme. The Respondent paid him throughout this course. When he was fit to return to work, the Complainant was suspended with pay pending an investigation. An investigation meeting with the Respondent employer took place on 16th December 2020, where the Complainant admitted he had been seriously intoxicated on 24th October but he was now a changed man following the Aiseir programme.
A disciplinary hearing took place on 18th January 2021 and following the hearing a dismissal letter was issued, dismissing him for gross misconduct. The Complainant appealed the decision to dismiss him, and an appeal was then chaired by Ms Barry of Simplify HR on 10th February 2021. The Complainant’s representative argued this appeal did not take his Alcoholism into proper account and reasonable accommodation for his disability was not considered. They referred to the Nano Nagle Supreme Court case and contended the clear duty to consider and assess whether reasonable accommodation could render the Complainant capable of doing their job did not happen. The Complainant said he had been a loyal and efficient employee and his dismissal was devastating for himself and his family. The Respondent conversely argued the appeal finding was based upon the repeat nature of the offence and that the breach of trust was paramount, the relationship could not continue.
Decision: The Adjudicator confirmed that being an Alcoholic is a well-recognised disability, and accordingly a case can be made for discrimination on the grounds of disability. Section 16(3) of the Employment Equality Acts 1998-2015 (“the Acts”) allows an employer to plead that “reasonable accommodation” would be an unduly onerous burden, financially or operationally. The Adjudicator noted these issues were never really addressed or considered by the Respondent witnesses, save the view that as the Complainant was a store manager, a senior role, giving him a lesser role or imposing a regime of regular alcohol blood tests would not be workable. The Adjudicator was critical of this in light of no independent medical/addiction advice being sought.
The Adjudicator noted a point by the Complainant’s counsel, that reliance on case law under the Unfair Dismissals Acts by the Respondent should be treated with caution, as this complaint was under the Employment Equality Acts. The Adjudicator observed that legal precedent indicated that a breach of trust in an employment contract is primarily a matter for the Unfair Dismissals Acts, or the Civil Courts. That unless and until tested in a Higher Court breach of trust cannot be an effective employer defence in an equality case. The Adjudicator upheld the complaint of discriminatory dismissal under section 77 and failure to provide reasonable accommodation under section 16 of the Acts.
Extraordinarily, the Adjudicator acknowledged that the Complainant was suffering a loss of €103,000 and continuing but only awarded €39,750 without any explanation for same.
Takeaway for Employers: Employers should be aware that alcoholism is recognised as a disability and that a failure to provide reasonable accommodation for a disability is a breach of employment equality legislation. Employers can rely on the defence that to provide reasonable accommodation would impose an unduly onerous burden financially or operationally, but employers need to be able to demonstrate this. Employers must get independent medical reports and/or addiction expert advice. It is not sufficient to rely on breach of trust and confidence for a claim of discrimination.
Authors – Tara Kelly and Anne O’Connell
23rd December 2022