Summary of the Complainant's case
The Complainant was employed as a receptionist/office administrator by the Respondent for approximately 10 months, from 15th May 2018 until her employment was terminated on the 28th March 2019.
The Complainant submitted that her dismissal was based on performance related issues arising from her disability and that references were made at the termination meeting, to her poor hearing and memory impairments. The Complainant argued that her performance as never assessed by the Respondent and that she was not subject to a probation period, as the Respondent claimed.
The Complainant accepted that her disability affected her performance and admitted having difficulty hearing and remembering instructions. The Complainant submitted that the Respondent was aware of her disability, however, the Respondent dismissed her without any consultation and without attempting to identify any course of action that would have accommodated her.
The Complainant acknowledged that she did not inform the Respondent of her disability formally. However, in her interview she informed the Respondent that she had a brain tumour which had led to impaired hearing and memory loss. The Complainant submitted that all of her performance issues arose from her disability, which the Respondent made no effort to accommodate.
The Complainant highlighted the fact that no reasons for the dismissal were given in the termination letter dated 28th March 2019. In a second letter dated 29th March 2019, the Respondent stated that it had no work for the Complainant and in a third letter the Respondent explained that the 'seasonal nature' of the business was the reason for her dismissal. However, the Complainant submitted that this was contradicted by the fact that the Respondent advertised her former role soon after her termination.
Summary of the Respondent's case
The Respondent denied that the dismissal was related to the Complainant's disability and claimed that the Employment Equality Acts did not apply to the case. The Respondent claimed that during the Complainant's interview her previous illness was mentioned briefly, but the more focal point of conversation was her lack of experience and omission to work for the previous eight years.
The Respondent accepted that the Complainant did reveal details of her previous illness and the difficulties emanating from it, however, at no point during her employment did she refer to it as a disability.
The Respondent contended that the Complainant was offered the job on a trial basis and that although the Complainant's performance was satisfactory, there were some issues. The Complainant made frequent data entry errors in relation to orders which led to pricing problems. The Respondent stated that this performance issue was not rectified over time. The Respondent argued that the Complainant's consistent errors and lack of improvement over time were the main reasons for the termination of her employment.
When asked if the Complainant was made aware of the alleged performance issues and Manager A, on behalf of the Respondent, replied that he had never formally highlighted these problems with the Complainant and that she would have been receiving reports from her supervisor.
Findings and Conclusions
The Adjudication Officer noted that it was not in dispute that the Complainant had a disability within the meaning of the Employment Equality Acts. The Adjudication Officer noted that that Complainant suffered from a hearing impediment and memory loss and agreed that she was a person with a disability under the Acts.
The issue in contention was whether the Complainant was required to inform the Respondent of her disability in order to avail of the Employment Equality Acts.
The Adjudication Officer noted that the Respondent placed great reliance on the Complainant's failure to notify them of her disability and implied that this removed any obligation to acknowledge the disability.
However, the Adjudication Officer found that the Respondent was aware of the Complainant's disability and chose to ignore it. She further found that the Respondent failed to inquire further into the Complainant's disability.
The Adjudication Officer went on to say that the "Employment Equality Acts place an unavoidable obligation on an employer to carry out an assessment to ascertain if measures can be put in place to enable an employee with a disability to continue in employment before making any decisions to their detriment".
She found that the Respondent was obliged to assess if reasonable measures could be put in place to enable the Complainant to fulfil her role before terminating her employment.
There was a dispute on the facts as to whether the Complainant was subject to a probationary or trial period. The Respondent claimed that the Complainant was told she would have to undergo an initial trial period during which her suitability for the position would be assessed. The Complainant claimed that she was never informed of this. The Adjudication Officer favoured the Complainant's version of events in the absence of any written evidence to support the Respondent's position.
Ultimately the Adjudication Officer concluded that the Respondent's engagement with the Complainant regarding the alleged performance issues was inadequate and that even if it had addressed those issues with her, the presence of the Complainant's disability placed an additional obligation on the Respondent to assess, what, if any, reasonable measures could be put in place to accommodate the Complainant and enable her to continue her employment.
The Adjudication Officer found that the Complainant had established a case of discriminatory dismissal and awarded her compensation in the amount of €10,000 (over 5 months' pay) as distress suffered as a result of the discrimination.
What this means for employers?
Employers must be aware that dismissing an employee with less than one year's service is not always without risk. Although employees with less than one years' service are not eligible to bring a claim for unfair dismissal under the Unfair Dismissals Act 1977 (as amended), it is important to note there is no service requirement under the Employment Equality Acts.
This decision also indicates that employers have considerable obligations under the Employment Equality Acts, where they are aware that an employee has a disability, even where the employee has not formally notified the employer of a disability.
The decision also confirms that where performance issues are identified and where those issues may be attributable to an employee's disability, the employer must conduct an assessment and engage with the employee in relation to possible measures to accommodate the employee, before making any decisions to their detriment.
If you have any questions, please get in touch with a member of the team below.
First published on Legal Island on 25th August 2020.
Authors: Alison Martin, Associate and Thomas Bulfin, Trainee Solicitor.