In the case of Abdulah Aljaber v Dawn Meats Group Unlimited Company (ADJ-00036503), the Complainant brought...

In the case of Abdulah Aljaber v Dawn Meats Group Unlimited Company (ADJ-00036503), the Complainant brought a successful case under the Employment Equality Acts 1998-2015 (“the Acts”) on the basis that he was discriminatory dismissed on the ground of disability and the Respondent failed to fulfil its obligations in relation to providing reasonable accommodation for his disability.

Facts: The Complainant began employment with the Respondent in October 2020. He received online training during the COVID-19 Pandemic which he considered to be inadequate. He submits that he often had to carry heavy trays of meat, sometimes over 25kgs, in sub zero temperatures.

The Complainant sustained an injury to his back in January 2021. It is in dispute as to whether this injury was sustained at work or at home. On 5th January 2021, the Complainant’s GP sent a letter to the Respondent advising that the Complainant had ‘radicular lumbar back pain’ and requesting that the Complainant be tasked with light duties. The Respondent submits that due to the nature of the work, there were no light duties available.

The Respondent submits that the Complainant received a probation review on 22nd December 2020 which outlined a number of instances of lateness and absence. The Respondent alleges that the Complainant met with the Safety Manager on 7th January 2021 without a medical fitness certificate to return to work after a period of sick leave. Following this, the Safety Manager issued an email to a number of colleagues outlining a number of concerns that he had in relation to the Complainant, including hygiene concerns such as the lack of a face mask when necessary.

The Respondent further alleges that in July 2021 a number of meetings were arranged with the Complainant that he failed to attend due to illness.  On 12th July 2021 the Complainant was advised that due to his absence and lack of return to work date, that he had failed his probation and that his contract was being terminated.  The Respondent told the Complainant that if he were fit to work in the future that he should reapply for a job with them.

Preliminary Issue: The Adjudicator, Gaye Cunningham, noted the difficulty in investigating this complaint due to numerous submissions, correspondence from the Complainant’s solicitor, threats of judicial review and interruptions during evidence in the three hearings. Allegations were made against the Respondent regarding hygiene and and falsification of records, all of which were refuted by the Respondent.

The Adjudicator noted that the investigation of the complaint was under the Employment Equality Act 1998 on the ground of disability, discriminatory dismissal and failure to provide reasonable accommodation. There were no complaints under the Protected Disclosures Act 2014 or the Safety Health and Welfare at Work Act 2005. The Adjudicator reiterated that she had a duty to inquire and investigate and admit only relevant evidence, citing the Supreme Court decision in County Louth Vocational Education Committee v Equality Tribunal and Pearse Brannigan [2016] IESC 40 where it was stated that in relation to the Tribunal, it must be determined what has lawfully been referred to it with a view to providing redress – the Tribunal cannot freelance its inquiries.

The Adjudicator thus clarified that the complaint at hand is that the Complainant suffers from a disability and was dismissed as a result of such, and that the Respondent made no effort to provide the Complainant with reasonable accommodation.

Decision: The Adjudicator found that the Complainant’s back injury met the definition of disability under Section 2 of the Acts, citing the seven medical certificates submitted in relation to his absence from work which stated “lumbar spine disc prolapse” and “medical illness.” The Adjudicator noted that the Complainant was employed with the Respondent for less than three months when he went on long term sick leave. The Adjudicator held that no due process was followed when the Complainant was dismissed for having failed his probation, as per S.I. 146/2000 where the employee ought to be given the right to reply, right to representation and right to appeal the decision to dismiss. The Adjudicator stated that despite the short service, there was some onus on the Respondent to afford the Complainant due process. She noted that despite the seven medical certificates submitted to the Respondent, the Complainant had not been referred to Occupational Health.

However, it was the fact that the Respondent had offered the Complainant the opportunity to apply again for a job with the Company if and when he was fit to do so that led the Adjudicator to conclude that the dismissal of the Complainant was linked to his disability.

In relation to the latter element of the Complainant’s complaint, the Adjudicator noted Section 16(3) of the Acts in which the obligations and requirements on employers to take appropriate measures to enable a person with a disability to have access to employment. It was noted that for reasonable accommodation to arise, it is necessary for the employee in question not only to have a disability within the meaning of the Acts but also that appropriate measures must be necessary in order for the employee to undertake their duties.

The Adjudicator cited the Supreme Court in Nano Nagle School v Daly in relation to this issue where it was stated that an enquiry into whether reasonable accommodations were necessary could only be held to be adequate if the employee concerned was “allowed a full opportunity to participate at each level, and, on the facts of that case, to present relevant medical evidence, and submissions.”

The Adjudicator in the present case found that there was no such enquiry into whether the Complainant could be reasonably accommodated with the opportunity to carry on employment with the Respondent company, and that the evidence of the Respondent was simply to state that there were no light duties available without any examination of alternatives, no medical examination and no input from the Complainant. The Adjudicator therefore held that the Respondent discriminated against the Complainant on the grounds of disability and failed to fulfil the requirements in relation to the matter of reasonable accommodation.

The Adjudicator held that the complaint was well founded and ordered the Respondent to pay the Complainant €15,000 compensation.

Takeaway for Employers: Employers should note that, regardless of the length of service or availability of light duties, it cannot simply dismiss an employee due to a disability without following fair procedures which includes obtaining medical evidence and including input from the employee in question throughout the process. Furthermore, reasonable accommodation must also be properly examined again with the input of medical evidence and the employee’s input.

Link  - https://www.workplacerelations.ie/en/cases/2024/july/adj-00036503.html

Authors – Anne O’Connell and Hannah Smullen