top of page

WRC Considers Issues of Absence and Disability

This week we look at a recent Workplace Relations Commission (WRC) case in which the Adjudication Officer was required to consider issues relating to an employee's sick leave absence and disability. Our Adrian Twomey highlights the key points to note in the case of Baker v Doyles Veg Prep Limited, ADJ-00030702.


The Respondent company provides fresh, pre-prepared vegetables to the catering industry. The Complainant, Mr. John Baker, commenced employment in 2007. His job involved preparing cabbage for customers. In doing so, he apparently came into contact with a chemical agent (sodium metabisulfite) that is used as a disinfectant and preservative agent. He was paid approximately €518 per week.


The relationship between the Complainant and the Company seems to have been somewhat fractious. The WRC heard evidence from Mr. Baker that at various times:

  • he was harassed or ill-treated by one of the directors;

  • he told that director to "f*** off" on one occasion;

  • his wages had been cut;

  • in his view, there were poor standards of health and safety at the company;

  • there was a dispute about moving him to an earlier start time; and

  • he was passed over for promotion and training.

Mr. Baker also suffered from asthma and COPD (Chronic Obstructive Pulmonary Disease), both of which constitute "disabilities" for the purposes of the Employment Equality Acts 1998 to 2021. He submitted approximately 36 medical certificates between June 2016 and November 2021. 25 of those certificates referred to his respiratory conditions.


The Complainant raised concerns with his employer about his workstation and ventilation in 2016. In March 2020 he informed the company that he believed that a move to a different workstation would rectify the problem. He began to consistently go out sick from June 2018 onwards. He returned to work briefly and intermittently until July 2019. From that point on he was absent on long-term sick leave. His medical certificates began to refer to work-related stress from July 2019 onwards.


Mr. Baker submitted a grievance to the company in February 2020. His grievance included a complaint that his working conditions were impacting on his asthma. It should, perhaps, be noted at this juncture that the employee was a relatively heavy smoker. In October 2020 he informed the company that he wished to be located to a drier area of the plant (powerhoses were used in the workplace). Grievance hearings took place in late 2020 and early 2021. No move to an alternative workstation ensued.


In June 2021 a medical report from the Complainant's GP stated that he could return to work if he was provided with a role that involved no heavy manual handling, dust or chemicals (readers who are interested in learning more about employee requests for "light duties" should click here). The company gave evidence that such a move was not possible. A report from the Company's occupational health physician in March 2022 stated that Mr. Baker was medically fit to return to work on a phased basis but that he was unlikely to do so because of his grievances with the company.


Mr. Baker submitted a complaint to the WRC under the Employment Equality Acts on 1 December 2021. His complaint alleged that he had been subjected to discrimination due to his disability and that the employer had failed to afford him reasonable accommodation.


Cabbage

Mr. Baker was originally represented by Citizens Information but he was unrepresented at the hearing of his complaint. That appears to have been unhelpful to the conduct of the hearing in that the Adjudication Officer observed that "much of what he ... presented in evidence [was] either unhelpful or irrelevant". However, the Adjudication Officer found that Mr. Baker's complaint was essentially that:


"He was discriminated [against] because he was not able to attend work due to his employer’s failure to provide reasonable accommodation under Section 16 of the [A]cts. His comparator for the purposes of Section 6 is a hypothetical comparator who does not have a disability and who was able to attend work as normal."


The Adjudication Officer concluded that:

  • there was a "clear and consistent failure" on the company’s part to demonstrate engagement with Mr. Baker;

  • he was not, however, an "easy employee to deal with";

  • his concerns regarding his disability and reasonable accommodation were raised alongside "a myriad of other grievances";

  • none of these factors absolved the company of the responsibility to "proactively engage" with the employee;

  • there was no evidence that the company actually examined whether or not a transfer to another work station could be facilitated; and

  • this meant that there had been discrimination against the Complainant.

However, the Adjudication Officer also concluded that the company's failure to deal properly with Mr. Baker's transfer request was not the root cause of his continuing absence. Rather, he remained absent because of his other grievances which did not involve breaches of the Employment Equality Acts.


The Adjudication Officer suggested, but did not order, that an independent mediator be engaged to facilitate discussions between the parties. He awarded Mr. Baker €4,000 compensation arising from the discrimination, having taken into account the fact that the employee had, in his view, caused some of his own difficulties and "failed in his obligations to maintain a proper working relationship with his employer". He also directed the Respondent to review company policies regarding accommodating disabilities and to provide training to management following that review.


This case is unlikely to make the newspaper headlines given the modest award and the fact that the company is not a household name. The facts of the case, however, are interesting in that similar situations often arise in many companies. It is noteworthy that the Company lost the case because there was no evidence of serious consideration having been given to the employee's request to move to another workstation. On the other hand, employees should note that being difficult and obstructive is likely to be reflected in the size of any awards made by the WRC.


Those who require advice in relation to employment law cases or who need representation before the WRC or Labour Court can contact our Adrian Twomey. Those seeking assistance in relation to personal injuries (whether caused by their working environments or otherwise) may obtain advice and assistance from our Robert Jacob.




Comments


bottom of page