This case concerned a man who worked in a quarry and suffered a brain tumour.
He brought a claim that he was discriminatorily dismissed from his job and the employer failed to provide reasonable accommodation for his return to work.
The man started working in the quarry in 2004. In 2009 he underwent surgery for a brain tumour and he made a full recovery. He was advised by his doctor that he would be fit to work for 20 hours per week.
The employer initially accepted this and accommodated him and gave him 5 four hour shifts with no driving of company vehicles. However within a couple of months the employer told him he would have to return to a 39 hour week or he would lose his job.
In January 2011 the employee was absent from work on sick leave as his doctor said he could only do 20 hours. The employer arranged an independent medical assessment in June 2011 and in August 2011 he was dismissed because the employer could not give him 20 hours per week only and the employee was not able to work 39 hours.
The employee appealed this decision but was unsuccessful.
He then brought a claim that he was discriminated against on the grounds of his disability-the brain tumour-and also that the employer failed, contrary to S. 16 of the Employment Equality Acts to provide reasonable accommodation for his return to work.
Decision of the Equality Tribunal
Firstly, the Tribunal decided that the long term illness arising from the brain tumour was a “disability” within the terms of the Employment Equality Acts.
The employee pointed out to the employer that as he was only being paid for the 20 hours worked and overtime was cut, it was in the employer’s interest and was not costing the employer disproportionately.
He also offered to share the job with his son, also employed by the quarry, with his son doing the balance of the 39 hours.
The employee was 62 and only had 3 years to go to retirement and rang the employer regularly asking to be accommodated with the 20 hours work week. He said allowing him to do so did not place a disproportionate burden on the employer but the employer did not engage with him in a meaningful way.
The employer said that it needed the machine operated by the employee to operate in a full time capacity.
However it did not comment at the hearing on the offer of the man’s son sharing the job to ensure this happened.
The employer also referred to a department of Social Welfare scheme which allowed the employer to accommodate the employee in the first instance. However this scheme came to an end and it was then that the employer decided that it was 39 hours per week or dismissal.
The Tribunal found that regardless of any support provided by the Department of Social Welfare in these circumstances, the employer still had an obligation under the Employment Equality Acts to accommodate the employee.
The tribunal also found that permitting part-time work is one way in which reasonable accommodation can be provided and that the employer failed to provide reasonable accommodation to the employee within section 16 of the Employment Equality Acts and was entitled to succeed in this aspect of his claim.
His complaint of discriminatory dismissal was also upheld as the Tribunal found that his dismissal was directly related to his disability and to the employer’s failure to provide reasonable accommodation to him to return to work.
The Tribunal awarded him the maximum amount it could award in this case-€40,000- and noted that this was compensation, not pay, and was therefore not subject to tax.
Decision date:26th September, 2014
Read the full decision here.