Finding that the company had failed to make reasonable adjustments for the woman who suffered with glaucoma and chronic uveitis, and could therefore not peel onions because of the unbearable pain it caused her, Employment Judge Bell concluded that the suggested adjustments to allow the woman to continue working would have incurred little or no cost to the business.

Background

The claimant, Ms Celia Luisa Pereira Da Costa, was diagnosed with glaucoma and chronic uveitis at the age of 16, and when she was 23 she lost 100 per cent vision in her left eye.

In 2011, Ms Da Costa attended an interview for a job at Summer Garden Salads Limited, though a Steps to Work Programme with the South West College. At the interview, Ms Da Costa informed the technical manager that she suffered from glaucoma – however Judge Bell said that it was unclear whether she disclosed that she was suffering from uveitis.

Through the Steps to Work programme, Ms Da Costa worked part-time as a janitor and “shortly thereafter began also to help our in production”. In 2012, Ms Da Costa left the Steps to Work programme and entered into a contract of employment with Summer Garden Salads as a production operative. She was considered ‘a good reliable and hard worker and no issue was raised at any time with [Ms Da Costa] regarding her work or performance’.

Unbearable pain

In February/March 2017, Summer Garden Salads changed from using frozen onions to fresh onions in its stuffing sauce, and Ms Da Costa was asked if she would prefer to peel the onions or prepare the breadcrumbs. Although not specifying that peeling the onions would be painful because of her eye condition, Ms Da Costa opted to prepare the breadcrumbs stating that peeling the onions would be ‘more difficult’ for her.

While she was provided with eye goggles by her employer, it was accepted by the Tribunal that Ms Da Costa needed to wear glasses when peeling the onions and experienced difficulty with her glasses steaming up when she placed the goggles over them. Notwithstanding some discomfort, Ms Da Costa felt obliged to help with peeling the onions when the company was short-staffed. However, in April/May 2017, Summer Garden Salads began using smaller onions which Ms Da Costa found to be more acidic – and on 8 June 2017, Ms Da Costa had to attend the eye clinic in the Royal Victoria Hospital because of the unbearable pain brought on by peeling the onions.

Thereafter, Ms Da Costa was assessed as unfit for work for a number of weeks, and on 26 June 2017, Ms Da Costa’s GP wrote to Summer Garden Salads requesting that she ‘be excused’ from peeling onions due to the discomfort it caused her. This letter stated that Ms Da Costa was otherwise fit to return to normal duties, however Ms Da Costa continued to experience problems with her glaucoma and did not return to work.

On 18 August 2017, Summer Garden Salads terminated Ms Da Costa’s employment, stating that her “continuing health problems…made it impossible for us to continue to employ her in her role as a production operative” and that, as onions were handled in all parts of the production process, it had “no other alternative work available”.

Unfair dismissal

Not persuaded that Summer Garden Salads treated Ms Da Costa “less favourably than it would have treated a hypothetical comparator in the same circumstances on the ground of the claimant’s disability”, Employment Judge Bell found that there was no “prima facie case of direct disability discrimination”.

However, Judge Bell did find that Summer Garden Salads failed to prove it had complied with the duty to make reasonable adjustment. Finding that “no evidence was presented to support prohibitive cost, microbial cross contamination or absence of any safe area where chopped onions could have been left for the use of the claimant”, Judge Bell said that the suggested adjustments would have incurred little or no cost.

Judge Bell was also satisfied that Summer Garden Salads failed to complete the statutory dismissal procedures and hence the dismissal was automatically unfair under Article 130A(1) of the Employment Rights (Northern Ireland) Order 1996.

In assessing the level of compensation, Judge Bell awarded Ms Da Costa a total of £11,852 in compensation – which included an award of £6,000 compensation for injury to feelings.

• by Seosamh Gráinséir for Irish Legal News