Anne O'Connell Solicitors | View firm profile
In the recent decision of the Labour Court in the case of Kevin Roberts v United Parcel Service of Ireland Ltd, ADE/20/115, the Court overturned the decision of the WRC Adjudicator, deciding that the dismissal of Complainant was discriminatory dismissal, and he was not afforded reasonable accommodation.
Facts: The Complainant was employed by the Respondent from October 1986 until his dismissal in August 2019. At the time of his dismissal he was a senior manager deployed as a solutions manager and the role involved extensive travel in Ireland and abroad. Due to medical reasons, which were not disputed, the Complainant was unable to continue with the amount of travel his job involved. The Respondent advised the Complainant that there was no other suitable roles available and subsequently informed the Complainant on 1 July 2019 that he was being dismissed due to incapability. The decision was appealed and upheld.
Decision of the WRC: The Complainant lodged a complaint with the WRC claiming that the Respondent had breached his rights under the Employment Equality Acts (the “Acts”) by failing to provide him with any ‘reasonable accommodation’ and a second complaint of discriminatory dismissal. The WRC found that the complaint of discriminatory dismissal was not well founded but that the Complainant’s right to reasonable accommodation had not been met and was awarded €20,000 in compensation
Decision of the Labour Court: The Complainant gave a substantive account of his medical history at the hearing and the Court accepted that there was no dispute about the fact that the Complainant has a disability. As a result of his disability he was unable to travel to the extent required in his job. He sought to return to work. He was assessed as medically fit to return to work subject to him not being required to engage in travel and subject to adjustments in his responsibilities. The Court concluded that was not accommodated.
In respect of the discriminatory dismissal the Labour Court commented that even if the Respondent was concerned about the long-term viability of attempting to have the job performed without this level of international travel, it was open to them to do a trial of such an approach on a time limited basis. If the Respondent had done so, either it would have proved that such an approach was viable or, alternatively, it would have provided them with the basis to argue to the Labour Court that it had proven it was not viable. The Court noted that as there was no hard evidence provided to the Court, beyond assertions, the Court was not satisfied that the Complainant would have been incapable of carrying out the necessary functions of the job if a reasonable accommodation had been provided. The Court therefore concluded that the Complainants rights under the Acts were breached resulting in discriminatory dismissal.
In assessing the level of compensation for the effects of the discrimination the Court noted that although there is no requirement on the Respondent to do so, alternative employment within the company was explored by the Respondent for the Complainant and had these attempts been successful the effects on the Complainant of the failure to meet his rights under the Acts would have been mitigated. The Complainant’s refusal to countenance anything other than employment at his existing salary level hampered the ability of the Respondent of its responsibility to adhere to the requirements of the Acts. Had the Complainant showed more flexibility, then the effects of the discrimination would not have been so severe and the Labour Court took this into account in assessing the level of compensation awarded.
The Court concluded that the appropriate award for the failure to provided reasonable accommodation and the consequential discriminatory dismissal was €75,000.
Takeaway for the Employers: This decision places an incredibly high burden of responsibility on employers to mitigate their responsibility regarding discriminatory dismissal. Employers should take note of the decision and consider implementing a trial period to assess whether altering a role to accommodate an employee with a disability is viable. It is also work noting that the employee’s lack of flexibility in respect of salary level of alternative positions reduced the level of the award made by the Labour Court.
Authors – Eva Lindsay and Anne O’Connell