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Constructive Dismissal on Grounds of Disability & Reasonable Accommodation – Award of 18 month’s salary

The recently published case of Fergal Reilly v United Parcels Service CSTC Ireland Limited Dec-E2013-077 concerned a claim of discrimination on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 (as amended) in terms of access to employment, failure to provide reasonable accommodation and discriminatory dismissal.BackgroundThe complainant commenced employment in 1999 with the respondent and was promoted to the position of lead driver in 2002. In 2009 the complainant suffered trauma to his knee which required surgery and he was absent from work from late 2009 to May 2010 on medical leave. He was then certified as being fit for light duties. The complainant stated that the respondent would not allow him to return to work as he would not be able to return as lead driver and he also complained that his salary had been stopped on 1 January 2010. The complainant tendered his resignation on 10 June 2010, citing the failure to give him work, the failure of the respondent to pay his wages, failure to process grievances previously raised by the complainant and failure to communicate.The complainant was subsequently offered a job in the respondent’s call centre which he refused as he did not have the requisite IT skills or experience. The respondent accepted the complainant’s resignation on 4th November 2010. The complainant contended that this amounted to a discriminatory constructive dismissal on the ground of disability.The respondent denied discriminating against the complainant and that the knee injury was subject to separate personal injury proceedings. It further provided that the complainant had a period of long-term sick leave from May 2007 to January 2008, during which his full salary was paid to him. The respondent stated it did not have an obligation to continue to pay an employee while they are out on sick leave. The respondent also stated that no suitable alternative roles were available at the time for the complainant and that the complainant would have to be certified as fully fit for work in order to return to work.The Equality Officer noted that the respondent did not enquire with their occupational health expert on what manual handling the complainant was barred from carrying out or for how long the injury would last. Equally the respondent did not enquire as to whether there would be any alternatives to hiring a helper, such as varying the complainant’s duties or offering the complainant part-time work. The Equality Officer noted “the respondent simply did not engage with either the complainant or its own doctor in this matter” and stated that the respondent fell short in the obligations identified by the Labour Court to get full information on a staff members disability and to be proactive in its approach. The Equality Officer referred specifically to the decision in A Government Department v. A Worker [ADE0516] which held”The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability…”The Tribunal noted that the scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances and may involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. In respect of what is “reasonable” when it comes to the accommodation of a staff member with a disability, the Equality Officer concluded that this depended on a number of factors including (a) the amount of accommodation needed (b) the expense attached and (c) the size and financial position of the company.In terms of constructive dismissal, the Equality Officer referred to the case of An Employer v. A Worker (Mr O)(No. 2) [EED0410] which set out the main applicable tests of the “contract” test and the “reasonableness” test. The Tribunal accepted that the complainant was forced to resign from work as he had no income and was not allowed to return to work.DecisionThe Equality Officer concluded:(i) the respondent did discriminate against the complainant 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(ii) the respondent did discriminatorily dismiss the complainant, by way of constructive dismissal, contrary to S. 8(6) of Acts.The respondent pay the complainant € 63,000 which equated to 18 months’ salary. The Equality Officer took into account the size and financial capabilities of the respondent as a leading multinational logistics provider and was guided by the principle enunciated by the by the Labour Court in Citibank v. Ntoko [EED045] that “an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive”.

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