THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-243
(represented by Oliver Costello B.L instructed by Wilkie and Flanagan Solicitors)
A Manufacturing Company
(represented by Gary O'Mahoney, Irish Business and Employers Confederation)
File reference: EE/2007/655
Date of issue: 10th December 2010
Keywords: Employment Equality Act, Disability, Access to employment, promotion training and conditions of employment, Discriminatory dismissal, Failure to provide reasonable accommodation, time limits
1.1. The case concerns a claim by Ms B against A Manufacturing Company. Her claim is that she was discriminated against regarding access to employment, promotion, training and conditions of employment and that she was discriminatorily dismissed on the grounds of disability in terms of 6(2) (g) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. She also claims the respondent failed to provide appropriate measures within the meaning of the Acts.
1.2. Through her legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 12th December 2007. On 8th July 2010, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 3rd November 2010 as required by Section 79(1) of the Acts. The last piece of information requested by me was received by the Tribunal on 5th November.
Summary of the complainant's case
2.1 The complainant submits that she suffers from serious psychiatric problems and was certified as unfit to work by her General Practitioner. In addition, the complainant has literacy problems of which the respondent is aware. She submits that her literacy difficulties are a further disability.
2.2 According to the complainant, her employment was terminated in a discriminatory way in July 2007. She submits that the respondent did not contact her except by letter to inform that they were considering terminating her employment.
2.3 The complainant submits that the respondent treated her less favourably on the grounds of her disability and failed to provide appropriate measures to afford her access to, or the ability to advance, in her employment by not keeping in contact with the complainant concerning her progress in a manner which was accessible to her. The complainant submits that the respondent knew that she was not able to read the letters requiring that she attend appointments with them. The complainant submits that the respondent made no attempt to contact the complainant despite having her telephone details.
Summary of the respondent's case
3.1 The respondent argues the complaint is out of time. The complainant was not terminated in July 2007 but on 6th April 2007. They submit her P45 as evidence.
3.2 On a further preliminary issue, the respondent states the Tribunal has no jurisdiction to examine discriminatory dismissal as they argue that a hearing of the Employment Appeals Tribunal regarding an unfair dismissal began on 22nd April 2008. (Please see Paragraph 4.4)
3.3 The complainant had a history of both short-term and long-term absence during the course of her employment with the respondent.
3.4 On 20th January 2003, the complainant attended work under the influence of alcohol and was in an incoherent state. The respondent organised a taxi home for her and the Occupation Heath Advisor accompanied her. On 29th January 2003, the complainant attended a meeting with the HR Business Partner of the respondent. The complainant was accompanied by her SIPTU representative. Ms B recognised that she needed time off to seek help with her alcohol addiction. The company agreed to give her six weeks paid leave.
3.5 Ms B returned to work on 12th March 2003 and said she would liaise with the HR Business Partner if she needed support from the respondent. From 10th September 2003 to 29th January 2004, the complainant was facilitated with 5 months unpaid leave of absence to attend 'rehab'.
3.6 Upon her return to work the respondent assisted Ms B in a number of ways:
- They sourced adult literacy classes for her
- They facilitated Ms B's attendance at counselling during work time
- in 2004 the complainant secured a different position with the respondent with an increase in earnings.
3.7 The complainant had sporadic absences from February 2004 to February 2005. In October 2005, the company again facilitated the complainant with four months unpaid leave. Following her return there were numerous absences. On 12th June 2006, Ms B was invited to meeting with the recruitment and training officer. The complainant did not respond to this letter. She did however attend a meeting with the HR Business Partner on 20th June. The HR Business Partner pointed out that her level of absenteeism is unacceptable. The complainant returned to work but was absent again from 8th August. She met the Company Doctor on 14th August. The doctor said she was unfit for work and recommended that she attend her GP. The Occupational Health Advisor phoned her on 20th August and 8th November. On the first occasion, the complainant was unable to speak as she was with her counsellor. On the second occasion, she was in bed with a cold.
3.8 She was requested to attend the Occupational Health Advisor on 13th February 2007. She did not attend nor did she contact the company to say she would not attend. The complainant was invited to a meeting on 22nd February with the HR Business Partner. Again, she was not in attendance nor did make any contact with the Company. All of these letters were sent by ordinary and registered post and would have had the company logo on the envelope. The company maintains that while they were aware Ms B had literacy difficulties; this did not mean she could not read. The HR Business Partner had previously given her books suitable for the reading ability of a 13 year old and she and the complainant discussed them. The respondent submits that they had sympathy for the complainant and would have offered support to enable her to return to work. As well as phoning and writing to her, they enquired as to her wellbeing through one of her friends.
3.9 The HR Business Partner wrote to the complainant on 26th Mach 2007 referring to the two previous meetings that she did not attend and the necessity of keeping in contact about her absences. She went on to say in her letter 'if you do not contact me by close of business on 6th April 2007 I will presume that you do not intend to return to work and therefore you will have terminated your contract of employment with [the respondent]'. Ms B did not contact the company. A P45 issued on that date.
3.10 On 25th May 2007, the respondent received a letter from the complainant's GP stating she was unfit for work. The GP had been sending in medical certificates sporadically for a number of years. The respondent replied to the GP and the complainant on 5th June stating her employment had been terminated since 6th April.
3.11 The respondent submits it has a clear track record of putting in place reasonable accommodation to assist the complainant with any difficulties she may have had. At the time of her termination, the complainant had not been in any contact with the respondent in months.
Conclusions of the Equality Officer
4.1 Before I have jurisdiction to examine the substantive complaint, I must first consider whether the claim is within the statutory time limits. Section 77(5) (a) states a claim for redress must be made within six months from the date of the most recent occurrence of alleged discrimination unless the complainant applies for an extension of time to twelve months.
4.2 I accept the respondent's evidence that all relevant letters were sent by ordinary and registered post. I also accept the Occupational Health Advisor's direct evidence that she did phoned the complainant on a few occasions prior to the dismissal. The complainant did not dispute this in her direct evidence. I am also satisfied that the respondent attempted to make contact through informal channels by asking a friend of Ms B to reassure the complainant that the respondent would be supportive if Ms B contacted them. Therefore, I find that Ms B was aware of the need to contact her employer to continue in her employment. I am also satisfied that she received the letter of 26th March 2007 stating that her employment would be terminated if she did not contact the respondent by 6th April 2007 and that she was able to understand that letter. I find that the 6th April 2007 (the day the P45 issued) is the most recent occurrence of alleged discrimination. That her GP subsequently sent in generic sick certificates ignores the reality of the situation - Ms B's employment was terminated on 6th April 2007.
4.3 Through her legal advisor, her complaint was submitted on 12th December 2007. This is more than three months beyond the statutory limit. No application was made for an extension of the time limit by the complainant's representative.
4.4 For the avoidance of confusion on the second preliminary issue mentioned by the respondent in Paragraph 3.2, I find the hearing of the unfair dismissal case had not begun on 22nd April 2008. I accept the evidence of the complainant's representative that they only attended the hearing venue to request an adjournment so that they could pursue their discriminatory dismissal complaint with this Tribunal which was granted. The letter of 31st August 2010 from the Employment Appeals Tribunal unequivocally confirms this. Therefore had the complaint been in time I would have had jurisdiction to investigate the discriminatory dismissal complaint.
I have concluded my investigation of Ms. B's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that this complaint is out of time and that consequently I do not have jurisdiction to investigate it further.