A recent decision of the Labour Court (on appeal from the WRC) imposes a significant additional burden on companies when engaging with agency workers.

Introduction

Mr Gerard Cahill, an agency worker, worked as a manufacturing team member with Arravasc Limited (“the Company”) from October 2014 until July 2015 when he suffered a heart attack at home. He remained absent from work on extended sick leave until the employment agency terminated his employment in September 2015.

Mr Cahill issued a claim for discriminatory dismissal on the grounds of disability against the Company. The Company provided work to Mr Cahill in his capacity as an agency worker, but it never employed him.

The Adjudication Officer awarded Mr Cahill the sum of €42,640. His hourly rate of pay was €10.25.

Background

The Company designs, manufactures, distributes and markets medical devices. The volume and consistency of its work is uncertain. As a result, it uses an employment agency to supply agency workers, as and when required.

Following 9 months of agency work with the Company, Mr Cahill suffered a heart attack at home. His wife contacted the Company notifying them of the situation and a medical certificate was submitted. The Company’s Operations Manager visited Mr Cahill while he was in hospital and, it was submitted at the hearing, assured Mr Cahill that his job was safe.

On 18th August 2015 the Company wrote to the employment agency enquiring about Mr Cahill’s health. The agency replied indicating that it would be another 4-6 weeks before he was likely to recover. The Company said that it was difficult to sustain long term absences.

On 7th September 2016 the Company notified the agency that it had replaced Mr Cahill and had invested a “huge amount of training” into the replacement worker. The Company impressed upon the agency that they needed “to make a decision on this ASAP”. At that time, Mr Cahill was certified as unfit for work until 28th September 2015.

On 9th September 2015 the agency wrote to the Company and advised that they needed to terminate Mr Cahill’s week to week contract, but asked if the Company would consider him again once further opportunities arose and he was in full health. The Company confirmed that it would. Two days later, Mr Cahill was dismissed.

Mr Cahill’s case

Mr Cahill claimed discriminatory dismissal and submitted that the Company had failed to reasonably accommodate his disability. It was undisputed that Mr Cahill had a disability within the meaning of the legislation.

Mr Cahill focused his case on the fact that the Company failed in the following ways:

  1. It sought no information about his medical condition;
  2. It gave him no fair notice that he was going to be dismissed for incapacity.
  3. He was not given an opportunity to influence the Company’s decision by providing any medical evidence or submissions.

The Company’s case

The Company accepted that it provided work to the agency worker, but denied that it was the employer. It argued that it had no control or input into how the agency terminated Mr Cahill’s employment.

The Company could not reasonably accommodate Mr Cahill as the employment agency had taken it upon itself to terminate the worker’s employment.

Findings

In upholding the decision of the Adjudication officer, the Labour Court agreed that the termination of Mr Cahill’s employment was a discriminatory dismissal.

The Labour Court relied on the recent cases that have come through the Courts, including the decision of the High Court in Marie Daly –v- Nano Nagle School. It held that a failure to consider how a person with a disability can be accommodated is a breach of an employer’s duty to that worker. It held that this requirement applies equally to companies who provide work to agency workers.

The Court held that liability cannot be avoided by simply directing blame for the decision to terminate the employment to the agency.

The Labour Court reduced the significant award made by the Adjudication Officer to €27,000.

Learning Points

Agency workers are a protected class of worker. Since the commencement of the Protection of Employees (Temporary Agency Work) Act 2012, companies are mindful of their duty to ensure that agency workers are provided with the same basic working terms and conditions of employment as if they had been hired directly.

The decision in this case now arguably increases the duties on a company when a decision is made to terminate a worker’s role. In this case, the failure on the part of the Company to take any of Mr Cahill’s medical circumstances into account, or to provide him with the opportunity to make a submission to the Company on his health and/or likely return to work date was fatal.

The responsibility to provide equal treatment extends beyond basic terms and conditions of employment. In electing to terminate an agency worker’s role, the same requirements for fair procedures and natural justice applies.

It is important to remember that Companies cannot contract out of the obligations to treat agency workers equally in their agreements with the employment agencies. As was the case here, the Company was the entity responsible to compensate the worker, despite the fact that it had no hand, act or part in the termination of the worker.