Property developer must pay €35,000 for discriminatory dismissal of ‘elderly’ builder

A property developer has been ordered to pay €35,000 to a medically vulnerable construction worker made redundant after taking sick leave when the Covid-19 pandemic hit Ireland.

The Workplace Relations Commission (WRC) made the order as it upheld the employee’s complaint of discriminatory dismissal under the Employment Equality Act 1998 in a decision published on Wednesday, which was anonymised on medical privacy grounds.

The worker, who had been on site at residential construction projects before the pandemic, was dismissed in August 2020 and had been out of work until shortly before a hearing in November 2022, the tribunal was told.

His lawyers said their client was an “elderly gentleman” suffering from chronic obstructive pulmonary disease (COPD) who had been confined to home during the pandemic because of his “particular vulnerability” to Covid-19.

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Barrister Karl Shirran BL, who was instructed by solicitors Coughlan White and Partners, said his client took a number of periods of sick leave in May and June 2020 before getting two weeks’ notice of redundancy from the company in July 2020.

“No reason was given for dismissal,” Mr Shirran said.

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The complainant said in evidence there were two other workers younger than him still at work at the last site he had been at – adding that he believed he was selected for redundancy because of his “age and ill health”.

Counsel said his client had been given assurances in March that year, when the pandemic reached Ireland, that the construction firm had “more projects ongoing”.

At the time of a hearing in the case last November, Mr Shirran said the firm was looking for planning permission for 400 new houses and that it still had 30 to 40 apartments left to complete at another development.

A company director gave evidence that one of the workers identified as a comparator in the complainant’s case was an agency cleaner and “not a relevant comparator”.

The other was employed by an “affiliated company”, not the respondent firm named in the complaint, the director said.

The director said the complainant “was not required” on the site because of the stage the housing development was at – and denied that there had been an “issue” about either the complainant’s age or disability.

Under questioning, the director accepted that both the respondent company and the affiliated company which employed the comparator named by the complainant had the same directors, but different shareholders.

The WRC noted “financial information ... showing substantial company income for 2020 and 2021 for the affiliated company”.

Mr Shirran submitted that there was “no merit” to the selection of his client for redundancy, with no formal decision-making process and no objective selection criteria for the decision.

Denying the allegations of discrimination on behalf of the property development company, solicitor Alan Devaney of Ronan Daly Jermyn said there was “no prima facie case showing discrimination”.

In her decision on the case, adjudicator Davnet O’Driscoll disagreed and found the complainant side had succeeded in shifting the burden to disprove discrimination to the employer.

This was because the evidence was that the worker’s termination “closely followed his return to work ... from a bout of sick leave due to his disability” and that there had been no redundancy consultation process or any consideration of mitigation or alternative positions for him despite a site remaining active.

“The response of the respondent is insufficient in my view to discharge the burden of proof,” Ms O’Driscoll wrote.

Noting the “significant impact” of the dismissal on the complainant and his difficulty finding new work because of his age and condition, Ms O’Driscoll ordered the company to pay €35,000 in compensation for the effects of discrimination.

She said the award took into account the fact that the company’s sites had been closed for a number of months in 2022.

Ms O’Driscoll had rejected a motion from the employer to throw out the complaint because it had been submitted more than six months after the termination – the usual statutory deadline for claims before the WRC.

This was on the basis that the complainant’s solicitors had “difficulty obtaining clear instructions” in time because their client had no computer or email access and had not been able to attend its offices, which the WRC regarded as reasonable cause to extend jurisdiction.