Yacht broker dismissed on incapacity grounds despite being assessed as 'fit to work' awarded €66k

Seán McCárthaigh

An international yacht broker and dealer had been ordered to pay €66,500 in compensation to a salesman who was discriminatorily dismissed shortly after he settled a High Court personal injuries action against his employer.

The Workplace Relations Commission ruled that MGM Boats (Cork) Limited, which operated an office in Kinsale, Co Cork had breached the Employment Equality Act 1998 by discriminating against former broker, Alan Barton, on grounds of his disability.

The WRC said the company had disregarded the recommendations of a report by an occupational physician it had commissioned which stated that Mr Barton was “fit to continue” in a sales and customer service role.

However, it ruled that the complainant was not the subject of victimisation.

Mr Barton (68) claimed he was placed on sick leave by his employer in 2023 and subsequently issued with a redundancy letter shortly after he had settled High Court proceedings taken against the company for an injury he suffered at work in 2017.

However, MGM Boats maintained he was dismissed from his role on grounds of his “incapacity” and denied the allegation that Mr Barton was the subject of a discriminatory dismissal.

WRC adjudication officer, Lefre de Burgh, concluded it was not possible for the company to maintain the position that he was incapable of doing a job when he had continued to work satisfactorily for over six years after sustaining the inquiry.

Ms de Burgh said it seemed that the company had implemented the view of an earlier medical report in the immediate aftermath of the conclusion of the High Court legal action.

She said it was unclear why MGM Boats had not implemented the recommendations of the occupational physician but the most likely explanation was that the decision to terminate his employment was already a “fait accompli.”

The WRC heard that Mr Barton, who had worked with the company since March 2011, fractured his left leg when he fell from a boat in March 2017 which had resulted in some self-imposed restrictions regarding working on ladders and pulling ropes.

Mr Barton, a former fireman and police officer, said the company was well aware of these limitations to his work at all times.

He claimed MGM Boats managing director, Gerry Salmon, asked him within 24 hours of the settlement of his High Court action what his future plans were.

Mr Barton said he replied that he wanted to work until he was 70 but that Mr Salmon claimed medical reports suggested otherwise and placed him on sick leave on May 11, 2023 pending an assessment by the company’s doctors.

He was also told to cease all contact with any customers or potential clients and was not allowed access to his phone or e-mail.

The WRC heard the subsequent assessment by the company’s occupational physician. John Crowley, had envisaged that Mr Barton could return to work by June 2023.

The WRC heard that two scheduled meetings planned with Mr Barton and his solicitor in July 2024 were cancelled at the last minute by the company.

Mr Barton said he was issued with a letter of redundancy on September 11th, 2023 with immediate effect and paid six weeks salary in lieu of notice.

His counsel, Benjamin Shorten BL, argued that there was an obligation on his employers to consider reasonable accommodation for an employee with a recognised disability.

The WRC heard that Mr Barton also suffered damage to his right eye in a fall at his home in April 2022 on the anniversary of his partner’s death, although he was still “competent to drive.”

The former broker said he did not hide the eye injury from Mr Salmon as the company needed to be informed about it for insurance purposes.

The company claimed it became apparent during the court proceedings and from a number of medical reports that Mr Barton’s condition was very serious.

MGM Boats claimed it was particularly concerned about mobility issues and the injury to his eye as well as a professional finding that he was at a very high risk of falling.

It maintained there was objective evidence that he could not and should not have continued in his role with the company.

Counsel for MGM Boats, Liam O’Flaherty BL, said the full extent of Mr Bartons’ injuries only came to light during the High Court litigation.

Mr O’Flaherty said the issue of safety in the workplace had to be addressed once the legal action had been settled and there was “no other option but to terminate” his role.

He argued that the company did not want Mr Barton to have an accident at work but it would have no insurance if that happened, while the company’s actions were being painted “as a vindictive act.”

Mr Salmon gave evidence that he was “in limbo” when the company’s solicitors drew his attention to the extent of medical reports about Mr Barton four weeks before the case was due before the High Court.

He said a report by a nurse and ergonomist, Noreen Roche in January 2023 had caused a “big red flag” as it showed Mr Barton had a significant number of serious disabilities with symptoms that had caused a number of trips and falls.

Mr Salmon said his insurance broker had also advised him that Mr Barton could not be on the premises during this period.

He told the WRC: “If there were no concerns about falling over, we certainly wouldn’t be here today.”