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Employer Succeeds with Astonishing Defence at WRC

This week we look at a recent Workplace Relations Commission (WRC) discrimination case in which the employer succeeded with an astonishing defence. Our Adrian Twomey highlights the key points to note in the case of McElhinney v EI Electronics, ADJ-00037768.

The Respondent employer manufactures fire and gas alarms in Shannon. The company hired the Complainant, Mr. McElhinney, as a production operative. He commenced employment on 1 October 2021 and was dismissed on 12 November of that same year. He later sued the company for discriminatory dismissal under the Employment Equality Act 1998 (as amended).

Mr. McElhinney submitted that he suffers from Crohn's disease and that his dismissal came about as a direct result of his having that disability. In particular, he contended that he suffered from a flare-up in his condition and symptoms in the days leading up to his dismissal.

On 12 November 2021 he went to the company's medical centre, explained that his condition had been giving rise to significant symptoms and that he wanted to go home early that day. He was given a note for his supervisor. When he went to his line manager, however, he was allegedly told that he could not be relied upon to work Monday to Friday and that he and the company would need to "part ways". He was escorted from the premises by his line manager. He later received a 'phone call from the HR Department who told him that he would not be kept on as he was not a "good fit" for the company.

Documents produced at the WRC hearing made it clear that he had been dismissed in circumstances where he had, from the commencement of his employment, asked to go home early on a number of occasions. They also made it clear that he had told his line manager about his Crohn's disease a week or so before he was dismissed.

Having set out details of the evidence given and arguments made by each side, the WRC Adjudication Officer, Ms Sobanksa, found that:

  • the Complainant had a disability within the meaning of the legislation; and

  • he had brought that disability to the attention of his employer (both at a pre-employment medical stage and when he told his line manager about it one week before he was dismissed).

The employer, however, had argued that the dismissal took place, not because of Mr. McElhinney's disability, but because of his "attitude, general conduct and performance". They went on to argue that he had not been treated in a manner that was discriminatory because others who had no disabilities had been treated in the same way. In support of this argument, they produced a "Leavers' Report" demonstrating that 78 employees were dismissed in the first six months of their employment between 29 January 2020 and 25 October 2022. The reasons given for these dismissals ranged from "missing time", "attendance", "not suitable", "asthma" and "childcare plus personal reasons".

That line of defence by the company is particularly interesting. Dismissing an employee for reasons connected to their "asthma", for example, hints at possible discrimination based on a disability. Nonetheless, their line of defence - that Mr. McElhinney was not the victim of discrimination connected to his Crohn's disease because the company regularly and routinely dismissed employees during the first six months of their employment - succeeded. The Adjudication Officer concluded that:

"While I have serious concerns about the manner in which the Complainant’s employment was terminated, I am constricted in my decision to the provisions of the Employment Equality Acts. The evidence before me shows that many other employees (some 78 according to the Respondent’s record), regardless of whether they suffered from a disability or not, were treated in the same manner. Thus, the Complainant was not treated any less favourably by virtue of his disability as claimed. I, therefore, cannot draw a conclusion that discrimination on grounds of disability occurred in this case."

The company's defence (and the fact that it succeeded) arguably highlights a significant gap or blind-spot in employment equality legislation. On the other hand, it is difficult to reconcile Mr. McElhinney's dismissal with recent decisions of the Labour Court. It will be interesting to see how the law develops on this point over the coming years.

Employers who require advice in relation to employment law issues or who need representation before the WRC or Labour Court can contact our Adrian Twomey.


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