The Equality Tribunal
3 Clonmel Street
Employment Equality Acts, 1998 to 2008
Equality Officer Decision
[Represented by Richard Grogan and Associates, Solicitors]
Camsaw Distributors Limited
File Ref: EE/2008/397
Date of Issue: 22 March, 2011
Headnotes: Discriminatory treatment in employment - gender, disability and race - conditions of employment -discriminatory selection for redundancy or dismissal-denial of reasonable accommodation- failure to establish a prima facie case - Employment Equality Acts 1998 to 2008 ss.2, 6, 8 and 16 (3).
This case concerns complaints by Ms Shirin Eldris, of Ukrainian nationality, that she was discriminated against on the grounds of gender, disability and race, within the meaning of sections 6 (2) (a), 6 (2) (g) and 6 (2) (h) and section 8 of the Employment Equality Acts 1998 to 2008 ("the Acts") by Camsaw Distributers Limited and that the company failed to provide her with reasonable accommodation contrary to section 16 (3) of the Acts.
Ms Shirin Eldris (hereinafter "the complainant") referred complaints under the Acts to the Director of the Equality Tribunal on 23 June 2008. The complainant sent in a written submission to the Equality Tribunal which was received on 3 November 2008. An answering submission was made by Camsaw Distributers Limited (hereinafter "the respondent") on 12 December 2008. As required by section 79 (1) of the Acts and as part of my investigation I proceeded to hearing on 12 November 2010 which was attended by both parties.
3. Summary of complainant's case.
3.1 The complainant stated that she was employed by the respondent as an administrative assistant on a job-sharing basis, working from 2 to 6pm, Monday to Friday. She suffered from chronic kidney failure which necessitated regular attendance at hospital for dialysis. She claims that on 29 February 2008 she was told she was being made redundant as they needed somebody full-time. Another individual (Ms A) who was employed to work on an early shift (8am to 1pm) was kept on. The complainant claimed Ms A was offered and accepted the full-time position. The complainant claims she was dismissed without a proper reason or procedure. The complainant was just told to finish and that was it. She was never given an opportunity to put forward any argument or to put forward any alternative. In particular, she denies that she was offered the full-time post as asserted by the respondent. The complainant believes she was dismissed because of her nationality and her medical condition. She also claims that she was also discriminated against in the following ways:
She did not receive any proper contract or any contract at all.
She did not receive any proper Health and Safety documentation or Training.
The employer did not provide reasonable accommodation for her in that, due to her need for regular dialysis, she was obliged to have a cannula in her arm. This made it awkward for her to carry packages of 2 to 3 Kg. Her employer did not provide assistance for her. The employer ought to have anticipated her need in this case.
3.2 The complainant argues that, as a non-Irish national, she is particularly vulnerable in case of dismissal. She quotes the Labour Court in the case of Campbell Catering Ltd v Aderonke Rasaqthat:
It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.
The complainant states that she did not receive from the respondent a Contract of Employment. She contended that following the case of 58 Named Complainants v Goode Concrete Limited, that there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the complainant. In this case the respondent has furnished no contract whatsoever. The complainant contends that the employer's failure to provide her with a written contract of employment is in conflict with his obligations under the Acts because a foreign national who does not receive a Contract of Employment is in a particularly vulnerable position. The complainant accepts that an employer is only obliged to furnish those particulars as are set out in section 3 of the Terms of Employment (Information) Act. The complainant argues that following the decision in Campbell Catering there would be a requirement on the employer to take special measures to advise a foreign national of their employment rights and this would include as a minimum providing them with a notification under section 3. The complainant contended that a notional Irish comparator would be aware of their entitlement to a statement under section 3.
3.3 The complainant submitted that the respondent failed to furnish her with a safety statement under the Safety Health and Work Act and that following the case of 58 named Complainants v Goode Concrete Limited there is a requirement to furnish a foreign national with a health and safety statement. There is a statutory requirement to furnish individuals with health and safety documentation. In the case of a foreign national who would not be conversant with Irish health and safety law, the complainant contended that that there is an obligation to provide her with a Health and Safely statement and in failing to provide same to her in a language likely to be understood by her amounts to discrimination. The complainant contended that a notional Irish comparator would be aware of their entitlement to a Health and Safety statement.
Grievance and Disciplinary procedures
3.4 The complainant claims that at no stage was she advised of her right to raise a grievance as is required by the code of Practice and Grievance and Disciplinary procedures and therefore no method was open to her to raise any issues. Special measures may be necessary in the case of a foreign national to ensure that they are advised of their basic employment law rights and that the failure to do so amounts to discrimination.
Other authorities cited
3.5 The complainant referred to the following other cases in support of her application:
Khumalo v Cleary & Doyle Ltd [DEC- E2008 - 003]
Ning Ning Zhang v Towner Trading [DEC - E2008 - 001]
Golovan v Porturlin Shellfish Ltd [DEC - E2008 - 032]
Wolfgang Lange v Georg Schuenemann GmbH [ECJ C-350/99], Judgment of 8 February 2001.
4. Summary of Respondent's case.
4.1 The respondent states that the complainant started work on 13 November 2007. She was employed as a Junior Office Assistant in a temporary, part-time capacity. Her hours of work were Monday to Friday 2pm to 6pm. Her duties included, but were not limited to, taking orders for spare parts over the phone, answering all customer queries, invoicing orders, preparing orders for delivery, etc. The complainant's English was excellent and she claimed in her CV that she had previously worked as a translator. Due to an increase in business levels, the company found that there was a requirement for somebody to work in this role in a full time capacity. This full time work was offered to the complainant at a meeting with the Company director Ms C, but she turned it down. As a result, the complainant's employment was terminated on the basis of needing a person to work in a full time capacity. The complainant parted ways from the respondent on excellent terms. Her employment was terminated on 27 March 2008.
4.2 The respondent denies that Ms A, a part-time worker of long-standing, was given the full-time job as claimed by the complainant. The respondent states that Ms A was not interested in full-time work. Because Ms A was many years senior to the complainant, she was kept on while the complainant was let go. The respondent submitted in evidence a copy of a newspaper advertisement and invoice showing that a position of Junior Office Person was advertised on 20 February 2008. The respondent also submitted in evidence payroll details showing that the complainant's employment was terminated on 27 March 2008 and a new employee, Ms B, was employed on a full-time basis from 1 April 2008. Due to a downturn in business, the respondent stated that they had to make Ms B redundant with effect from 4 July 2008.
4.3 The respondent claimed that the complainant had failed to establish a prima facie case of discrimination and consequently the complaint cannot succeed. In this regard the respondent cites the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) where the Labour Court stated:-
The first requirement ... is that the claimant must 'establish facts' from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.
Also cited by the respondent is the case of Graham Anthony & Co Ltd v Margetts, where the Labour Court stated:-
"The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred."
4.4 The respondent argued that the present case is readily distinguishable on its facts from that of Campbell Catering Limited v Aderonke Rasaq because the latter dealt with information requirements in a situation of disciplinary proceedings and not the day-to-day information requirements of a contract of employment.
5. Contractual Documentation.
5.1 The respondent admits that "due to an administrative oversight a contract of employment may not have issued to the complainant." However in the respondent's view this does not amount to discrimination, since this was in no way related to the complainant's race, gender or disability. Any employee could have been subject to the administrative oversight in question. In direct evidence, the respondent states that a named Irish male employee also was not given a written contract. The complainant disputed this and claimed to have seen a written contract for that Irishman.
6. Reasonable accommodation
6.1 The respondent states that the complainant did not make them aware that she was having difficulties carrying packages due to her having a cannula in her arm. If they had been made so aware, there was someone available who could have assisted her. They claim that another staff member has a profound disability and has been a wheelchair user for a number of years. As a result they are acutely aware of the challenges presented by both illness and disability.
7. Director's conclusions
7.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
7.2 It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
7.3 Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2) (a) of the Acts defines the gender ground as follows- "as between any 2 persons that one is a woman and the other is a man". Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, that they are of different race, colour, nationality or ethnic or national origins". Section 6 (2) (g) defines the discriminatory ground of disability as follows- "as between any 2 persons, that one person is a person with a disability and the other is not or is a person with a different disability." Disability is defined in section 2 of the Acts as including the malfunction of a part of a person's body. I conclude that the complainant's kidney failure is a disability within the meaning of the Acts. It follows that the complainant must establish that she was subject to less favourable treatment in terms of gender because she is a woman, on the ground of race (nationality) because she is Ukrainian or on the ground of disability because she has kidney failure.
Discriminatory treatment in relation to Conditions of Employment
7.4 The complainant has raised an issue in relation to the respondent's failure to provide her with a written contract of employment. The respondent has admitted their failure to provide the complainant with a written contract, but state that in this respect they did not treat the respondent less favourably than other employees who were male or not Ukrainian or without a disability.
7.5 The complainant has also claimed that that the respondent discriminated against her by not providing her with a health and safety statement. No evidence was presented that other workers of a different gender, race or disability status were so provided.
7.6 I conclude that there is insufficient evidence to establish that unfavourable treatment in the provision of contractual documentation occurred. I am not satisfied that the complainant, in the present case, has adduced any evidence from which I could reasonably conclude that she was treated less favourably than other workers of a different gender, different nationality (including those of Irish origin) or without a disability or having a different disability, have been or would be treated in terms of the respondent's obligation to provide her with written employment documentation. It is not a matter for the Tribunal to investigate allegations of breaches of the Terms of Employment (Information) Act 1994.
Similarly, since there is no evidence of a difference in treatment based on gender, nationality or disability, in the provision of a Health and Safety statement, this element of the complaint also must fail. It is not a matter for the Tribunal to investigate breaches of the Safety, Health and Welfare at Work Acts.
Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.
8.1 There is a clear conflict of evidence between the complainant and respondent as to what transpired in the run-up to the termination of the complainant's employment. I conclude that the complainant is factually wrong in claiming that her fellow part-time worker, the Irish woman Ms A was offered and accepted the full-time job. It is clear from documentary evidence that the full-time post was advertised publicly and filled by an outside person who was prepared to work full-time. The respondent, in a written submission signed by Ms C, the director, claimed that Ms C offered the complainant the full-time post but that the complainant said that she was not in a position to accept. The complainant in oral evidence denied that such an offer was made and stated that she would have accepted such an offer if it had been made. Either way I do not see that the complainant has established a prima facie case of direct discrimination on the grounds of gender, disability or race in selection for redundancy. Both sides agree that the motivation for termination of her employment was a wish on the part of the respondent to move to full-time employment. I conclude that the complainant was selected for redundancy ahead of Ms A on the application of the "last in, first out" principle. If the complainant had claimed that for reasons connected to her gender, race or disability it was impossible for her to move to full-time employment, there may have been a case of indirect discrimination on those grounds, but such a case was not made by the complainant.
9. Denial of reasonable accommodation
9.1 Section 16 (3) of the Employment Equality Act 1998, as amended, provides:-
(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.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3) --
'appropriate measures', in relation to a person with a disability --
(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.
9.2 In this case the "appropriate measures" sought by the complainant (assistance with lifting and carrying packages) could have been provided without imposing a disproportionate burden on the respondent. However, subsection 16 (3) (b) obliges an employer to take appropriate measures, where needed in a particular case, to enable a person who has a disability to access or participate in employment (emphasis added). An employer cannot be expected to anticipate an employee's needs, where, as in this case, the employee has not communicated his or her needs to the employer. The Acts do not place an obligation on employers to provide appropriate measures in anticipation, but only where needed in a particular case.
Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the gender ground, the disability ground or the ground of race pursuant to section 6(2) of the Acts in terms of her conditions of employment contrary to section 8 of the Acts.
the respondent did not discriminate against the complainant on the gender or disability ground or the ground of race pursuant to section 6(2) of the Acts in terms of her conditions of employment by denying her the same treatment in relation to redundancy or dismissal contrary to section 8 (6) (c) of the Acts.
the respondent did not discriminate against the complainant by failing to provide reasonable accommodation in accordance with section 16 (3) of the Acts.
Accordingly, I find in favour of the respondent in this matter.