The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-040
(Represented by Claire Bruton BL instructed by Lynch and Partners)
Dunnes Stores Limited
(Represented by Lorna Lynch BL instructed by BCM Hanby Wallace)
File reference: EE/2007/174
Date of issue: 5 June 2009
Employment Equality Acts, 1998-2008 Disability – Access to Employment, Conditions of Employment, Discriminatory Dismissal & Failure to Provide Reasonable Accommodation
1.1 This dispute concerns a claim by Ms Margaret Connolly that she was discriminated against by Dunnes Store Limited on the grounds of disability contrary to section 6 (2) (g) of the Employment Equality Acts 1998-2008 in relation to access to employment, conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts and a failure to provide reasonable accommodation in accordance with section 16 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 3 April 2007 under the Employment Equality Acts 1998 and 2004. On 21 January 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 21 April 2009 and final information was received on 27 April 2009.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started working for the respondent in 1989. In August 2004 she had an accident at work which resulted in her sustaining a neck injury and she was out of work for a number of days. In October 2004 she was moved from the Drapery Department to the Grocery Department. However, two other colleagues with less service were remaining in the Drapery Department. When she asked why she was moved the complainant submits she was told that the names were put in a hat and hers was pulled out. The complainant submits that was moved because she had made an application to the PIAB, arising out of her accident in August.
2.2 The complainant submits that she was off work for a number of weeks in November and December 2004 because of pain resulting from the neck injury she suffered in August. On her return to work on 15 December 2004 she was put to work on the tills which exacerbated her neck injury. She went out sick again in March 2005 and was out of work until January 2006. She had a back to work interview but nothing was discussed about the duties she would be carrying out, even though her medical certificate stated “It would probably be advisable initially not to spend prolonged periods sitting working at a cash register.” The complainant submits that, because of her neck injury, she requested a return to Drapery or Homeware but was again put into Grocery and after stocking shelves for a couple of days she was again made to work on the tills. On her return to work in January 2006 the complainant discussed the possibility of changing to part-time work but she decided to remain working full-time. When she made a further enquiry at the end of January the conditions had changed to make it completely unattractive to her; as she would only have been given 15 hours work per week and she would have had to work three out of four Sundays.
2.3 The complainant submits that she went off sick again in February 2006 and returned to work 25 September 2006 after she received a letter from the respondent stating that she would be dismissed if she did not return to work. She was again made to work on the tills in Grocery which made her neck painful and she felt that she had no choice but to resign, which she did and left the respondent’s employment on 6 October 2006.
2.4 The complainant submits that on a number of occasions she made the respondent aware that working on the tills was aggravating her neck injury and requested a move to the Drapery or Homeware Departments where she would be undertaking a variety of duties and not constantly working on tills. By refusing this request the complainant submits that the respondent failed to provide reasonable accommodation by not allowing her to work in an area that would not aggravate her neck injury.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent raised a preliminary issue that as the claim was submitted on 3 April 2007 it was not possible for my investigation to consider events that took place before 4 October 2006. Without prejudice to their contention that incidents prior to 4 October 2006 were out of time the respondent made a submission in relation to all incidents referred to by the complainant and denies any discrimination took place.
3.2 The respondent submits that when the complainant returned to work after the initial accident in August 2004 she indicated at her back to work interview that she was fit to resume work and did not bring up the need to provide reasonable accommodation.
3.3 The respondent submits that the move to Grocery in October 2004 had nothing to do with the complainant making a claim to PIAB, as they were not aware of the claim until March 2006. The move arose because most of the Drapery Department was closed during a refurbishment programme. The complainant’s name was not pulled out of a hat. Decisions regarding allocation were made by the Store Manager and the two staff who remained were chosen because of their experience in children’s clothing which was staying open. Six other members of staff were moved to another store.
3.4 The respondent submits that the complainant’s absence in November and December 2004 was stated to be due to stress on her medical certificates. Therefore, as no back to work interview took place they were unaware that the complainant had a problem with her neck. The respondent became aware of this when the complainant went off sick in March 2005 and the medical certificate submitted by her indicated “neck pain”. The complainant returned to work in January 2006 with the medical certificate which stated that “It would probably be advisable initially not to spend prolonged periods sitting working at a cash register.” The complainant returned to work in the Grocery Department but was rostered to work on the ‘Shop Floor’ and she was put on lighter duties in toiletries. The respondent discussed the possibility of part-time work with the complainant and told her that there was a part-time vacancy in the Drapery Department on a standard part-time contract of 15 hours per week and working three out of four Sundays. The complainant went off sick again at the beginning of February 2006.
3.5 The respondent submits they had a discussion with the complainant in July 2006, following which she submitted a medical report which gave no indication as to when her condition would improve. Consequently the respondent wrote to her in September 2006 requiring her to return to work or lose her job. The complainant returned to work on 25 September 2006 with a medical certificate stating that she was fit to return. On her return the complainant was not required to work on checkouts all the time but only when the store was busy and in this respect the respondent submits that she was treated the same as everyone else. On 4 October the complainant met a representative from Human Resources and she asked to be moved to the Drapery or Homeware Departments. It was explained that there were no vacancies and the respondent was asked to try and settle into work in the Grocery Department on the Shop Floor. On 6 October 2006 the respondent submits that the complainant was rostered to work on Grocery Shop Floor but she resigned.
3.6 The respondent submits that medical evidence did not specify that reasonable accommodation was needed and therefore they had no obligation to do so, other than on her return to work in January 2006 when it was provided.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I must first consider the preliminary issue raised by the respondent; that the claim was lodged on 3 April 2007 and therefore all incidents before 4 October 2006 are out of time in accordance with section 77 (5) (a) of the Employment Equality Acts, 1998 – 2007 which states: “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence.”. The complainant claims that she resigned on 6 October 2006 because she considered the respondent not to be providing her with reasonable accommodation. I take this date to be the “most recent occurrence” and this is within six months of the date the complaint was made. The resignation can be related back to the accident at work in August 2004 and the intervening incidents amount to a chain of related events, which I must consider as part of my investigation.
4.2The complainant alleges discriminatory treatment on the ground of her disability in relation to access to employment, conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts and a failure to provide reasonable accommodation in accordance with section 16 of the Acts.
4.3 Whilst the complainant may have had periods of absence from August 2004 there was nothing to indicate that she had a disability within the meaning of section 2 of the Acts until she went on long term sick leave in March 2005. I must look to see if the respondent fulfilled their obligations when the complainant returned to work in January 2006 with a medical certificate which stated that “It would probably be advisable initially not to spend prolonged periods sitting working at a cash register.”
Section 16 (3) of the Acts states:
“(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.
Appropriate measures are defined in section 16 (4) of the Acts:
“(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.”
4.4 Evidence was given at the hearing that when the complainant returned to work in January 2006 she was rostered to work on lighter duties in the toiletries section. Whilst I accept that this may not have been the complainant’s choice I find that this distribution of tasks amounted to appropriate measures to ensure that the complainant did not “spend prolonged periods sitting working at a cash register.”
4.5 After going off sick again in February 2006 the complainant contends that she was forced back to work on 25 September 2006 and she was not allowed to work in Drapery or Homeware and the duties she had to undertake led to her resignation on 6 October 2006. The respondent contends that they had to consider if the complainant was capable of performing her job as she had been out sick for a period of eighteen months apart from one period of three weeks. Shereturned to work with a medical certificate stating that she was fit to return and with no proviso suggesting that she needed reasonable accommodation. The respondent did not have a vacancy in Drapery or Homeware to accommodate her request for a transfer and she was rostered to carry out the same duties as when she returned to work in January 2006, which the respondent considered would be no more onerous than if she had been working in the Drapery Department. I find that the respondent has satisfied their obligations in relation to the provision of reasonable accommodation.
4.6 The complainant resigned her position two days after she had spoken to the respondent and was asked to try and settle into the duties on the Shop Floor of the Grocery Department. No evidence was adduced that the complainant went back to the respondent to say she was having difficulties with these duties before she decided to resign. Therefore, as the respondent was not given an opportunity to consider if the complainant was having difficulties with her job I cannot conclude the situation amounted to a constructive dismissal and find that the complainant left of her own accord.
4.7 The complainant also made a claim in relation to access to employment. However the complainant was an employee of the respondent and did not apply for a vacancy. Therefore discrimination could not have taken place in relation to access to employment
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the respondent did not discriminate against the complainant in her conditions of employment;
- that the respondent did not discriminate against the complainant in relation to access to employment;
- that the complainant was not dismissed in a discriminatory manner;
- that the respondent did not fail to provide reasonable accommodation on the grounds of the complainant’s disability.
5 June 2009