Christopher Zammit Dimech vs. Cherry Limited
The plaintiff, who was employed with the defendant company as a Creative Web Designer, suffered from a heart condition which regularly left him feeling drained and lacking energy, and has been undergoing numerous operations throughout his life due to this condition.
In June 2014, the plaintiff was granted a four-week trial period to work from home – which was agreed to due as the nature of his work made this arrangement quite feasible – for him to be able to recover and rest at home as the morning commute was becoming a significantly stressful burden for him. At the end of that period, the management met with the plaintiff and it was agreed that this period was to be extended for the remainder of the summer as things seemed to have been going well at the time.
In mid-September, the plaintiff was informed that the company wished for him to return back to the office on a full time basis. It was shown that he was given the option of going back on a “phased return” period (gradual reintegration of full-time office hours) or to resign and work freelance for the company. The plaintiff insisted that he was not able to return to work at the office and that he wished to continue working from home, however he was given an ultimatum; to either comply with any of the options given by the company, or to have his lack of presence at the office imply an abandonment of his employment.
Witnesses seemed to agree that, in general, the plaintiff’s work proved satisfactory, and problems only began to arise upon the request for the plaintiff to return to the office. The company management had made it clear that the plaintiff’s job necessitated teamwork with his fellow colleagues, most especially since the company was about to engage in a number of big projects – evidence of such projects was not brought forward at any time. At the time being, it was evident that the plaintiff was not slacking in any way, and had not fallen behind on any of his work due to this arrangement.
The Tribunal considered the options which had been granted to the employee (namely, phasing back into full-time office hours, or working freelance) and noted that the phasing in option was never formally presented to him, but he was only told about the option via email, with the onus of working out such a proposal seemingly shifted onto him. The Tribunal also took into consideration the fact that the company never sent its own doctor to assess the plaintiff’s medical situation when it was in its own interest to do so, especially since it took cognizance of the fact that the specialist appointed by the plaintiff only recommended that he work from home, but never stated that he was unfit to work from the office.
The Tribunal also analysed the concept of telework – in essence, it concluded that it is not an automatic right of an employee. However, once the faculty is granted by an employer to an employee, such employee merits the same treatment as other employees. With this, the Tribunal intertwined the concept of discriminatory dismissal – under the Equal Opportunities (Persons with Disability) Act, the plaintiff’s condition constitutes a “disability”, and therefore the employer was obliged to provide “reasonable accommodation” for him. The Tribunal recognised European and English judgments which concluded that a situation where policies on teleworking are not made available by a company, particularly as regards persons suffering from a disability, constitutes indirect discrimination. This holds even in a case where such a policy is not popular with the majority of employees – such a reason cannot constitute an impediment to the application of the policy.
The Tribunal noted that one of the exceptions to the above obligation is where the policy proves to be prejudicial, or has a detrimental effect on the resources or finances of the employer. In the present case, the Tribunal considered that there was insufficient evidence to prove the latter, as enunciated above.
Therefore, the Tribunal found that the plaintiff was unjustly dismissed from his employment, and the motivations behind such dismissal were indeed discriminatory, owing to the plaintiff’s condition. The Tribunal ordered the defendant to pay the plaintiff the amount of €20,000 for unjust dismissal, and an additional compensation of €10,000 due to discriminatory treatment.