EQUALITY OFFICER'S DECISION NO: DEC-E/2012/053
MS. ELIZABETH GRAHAM
(REPRESENTED BY TERENCE LYONS AND CO. SOLICITORS)
ATOLVO ENTERPRISES LIMITED
(REPRESENTED BY CROWLEY MILLAR SOLICITORS)
FILE NO: EE/2009/906
DATE OF ISSUE: 27 April, 2012
This dispute involves a claim by Ms. Elizabeth Graham that she was discriminated against by Atolvo Enterprises Limited, on the grounds of, her disability in terms of section 6 (2)(g) of the Employment and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, when she was dismissed from her employment, while in hospital recovering from surgery. The complainant has also made claims in relation to promotion, conditions of employment and dismissal on grounds of disability, age and gender.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 7th December, 2009.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of February, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. A written submission was received from the complainant. No submission was received from the respondent. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 30th March, 2012.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, for 10 years, in a part-time capacity. It is submitted that, on 1 June 2009, the business came under its current management Terence Sweeney and Karl Sweeney, under which the complainant continued to work under the same terms and conditions. It is submitted that in or around the 5th of July, 2009 the complainant, who had been suffering from back pain, discovered, as a result of tests, that she had a tumour on her kidney and would have to be admitted to hospital to have it removed. It is submitted that the complainant advised the respondent of this, and was told that she could furnish medical certificates, on her return to work. It is submitted that the complainant, underwent surgery on 20th July 2009 and that she received a get well card from the respondent a week before her surgery. It is submitted that the complainant, while recovering in hospital, from surgery, received a letter of dismissal, dated 24th July, 2009 and her P45, from the respondent. The cessation of employment date on the P45 was 7th July, 2009.
3.2 It is also submitted that the complainant who had been working part-time hours was denied the opportunity to move to a full-time position after her hospitalisation as she was dismissed while in hospital. It is submitted that this amounts to discrimination on grounds of her disability in relation to promotion and conditions of employment.
3.3 Age ground- It is submitted that the complainant was discriminated against the age ground in relation to conditions of employment in that in that she was treated less favourably than another employee of a different age has been or would be treated regarding the manner of her dismissal. It is also submitted on the age ground that the complainant was discriminated against in relation to 'promotion or regrading' in that she was denied the opportunity to work full time hours and it is believed full-time employees of a different age were taken on.
3.3 Gender ground- It is submitted that the complainant was discriminated against on the gender ground in relation to conditions of employment in that she was treated less favourably than another employee of a different gender has been or would be treated regarding the manner of her dismissal. It is also submitted on the gender ground that the complainant was discriminated against in relation to 'promotion or regrading' in that she was denied the opportunity to work full time hours when full-time employees were taken on.
4. Summary of respondent's case
4.1 The respondent, by letter to the Tribunal indicated their intention to 'vigorously defend' the claim by Ms. Graham, but did not provide a submission to the Tribunal.
4.2 The respondents, prior to the hearing, submitted a letter, to the Tribunal, indicating that they had ceased trading and would not be attending the hearing. This letter also requested that a copy of the Tribunals determination be forwarded to the respondents when available.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her dismissal, conditions of employment and promotion. Furthermore, I must also consider whether the complainant was discriminated against, on grounds of age and gender, in relation to promotion, conditions of employment and dismissal. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
5.4 Disability Ground
5.4.1 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
5.4.2 It is submitted that the complainant's condition of, a tumour on her kidney and the subsequent removal of that tumour and affected kidney is covered by the definition in Section 2 (1) of the Acts. The complainant presented her medical records to the hearing, which verified her condition. I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.
5.5 Employment Relationship
It was submitted at the hearing that the complainant was employed by the respondent for 10 years and that even though the business came under new management, that of Terence Sweeney and Karl Sweeney, on 1 June 2009 the employment relationship remained unbroken. In support of this, the complainant submitted a determination of the Employment Appeals Tribunal who having heard submissions from both parties, on the issue, was satisfied that the complainant was in continuous employment from 2002 to 2009. I note the Employment Appeals Tribunal's findings on this matter and am satisfied the employment relationship was unbroken.
5.6 Discriminatory Dismissal
5.6.1 The complainant, at the hearing, outlined the circumstances surrounding her dismissal. The complainant, Ms. Graham, told the hearing that upon discovering that she had a tumour on her kidney, and that she would have to be admitted to hospital to have it and the kidney removed, phoned her employer, Mr. Terence Sweeney to tell him that they were keeping her in. The complainant, at the hearing stated that she asked Mr. Sweeney, during this phonecall, if she should send in sick notes, but that he told her she could bring them with her, when she returned to work. Ms. Graham advised the hearing that this conversation took place in or around the 5th of July, 2009. Ms. Graham went on to state that she received a 'get well soon' card, which she presented to the hearing, from the respondent a week before her surgery. This card was signed by Messrs Terence and Karl Sweeney. Mr. Graham stated that she underwent surgery on 20th of July, 2009 to have the tumour and the affected kidney removed, Ms. Graham presented her medical records to the hearing to verify this. Ms. Graham went on to state that while in hospital recovering from surgery, she received a letter of dismissal, dated 24th July, 2009 and this was accompanied by a p45. This letter (presented to the hearing), referred to the fact that the complainant was still in hospital, and indicated that the respondent could not offer her continued employment, due to uncertainty about her return to work and, stated that they had now taken on full time staff, to fill the vacancy.
5.6.2 The complainant Ms. Graham, told the hearing that she was very upset to receive this letter, especially while in hospital recovering from surgery. The complainant advised the hearing that she had received no warning of such dismissal and had never had any warnings verbal or written, during her employment with the respondent. The complainant at the hearing, went on to state that she phoned the respondent once she was out of hospital (about 2 weeks after receipt of the letter) and asked him why she was dismissed, she said he didn't have an answer other than that he wasn't certain if she would be able to return to work. The complainant, advised the hearing that she asked the respondent why he hadn't inquired as to how long her recovery would be, or why he had not made any effort to find out when she would be fit to return to work, but that she received no satisfactory answer to these questions. The complainant also stated that, had the respondent given her the chance, she could have told him that she needed 5 weeks recovery time after which she would have been able to return to work. The complainant also added that she was not paid for sick leave, so the respondent would not have had to pay her while she was in hospital or during her recovery period. It is submitted on behalf of the complainant that the respondent could have taken on temporary staff to cover the complainant's hospitalisation and recovery period.
5.6.3 I am satisfied based on pgh 5.4.2 above that the complainant was at the relevant time suffering from a disability within the meaning of Section 2 of the Acts. I am also satisfied based on the evidence of the complainant that she advised the respondent of her condition. I am satisfied based on the fact that the respondent sent the complainant a 'get well soon' card and also referred to her condition, in the letter of dismissal, that the respondent was aware of the complainant's disability.
5.6.4 Section 16(3) of the Acts, sets out the obligations and requirement on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability - this approach was endorsed in Humphries v Westwood Fitness Club . The respondent, in the instant case, made no enquiries whatsoever in order to ascertain when or if the complainant would be in a position to return to work. Furthermore, it is the complainant's evidence, and this is undisputed, that had the respondent enquired, she would have been in a position to advise them, that she would be able to return to work after a 5 week recovery period.
5.6.5 As evidenced by the complainant above, the respondent dismissed the complainant while she was in hospital recovering from a serious operation. The respondent made no effort to ascertain the exact nature of the complainant's disability or its effects on her, nor did he make any effort to engage with the complainant with a view to ascertaining when or if she would be fit to return to work. Indeed, the letter of dismissal, refers specifically to the fact that the complainant is still recovering in hospital and indicates that there is a perceived 'uncertainty' regarding her ability to return to work. In addition, the complainant, at the hearing, stated that she had received no prior warnings nor had there been any discussion of a dismissal, prior to her receiving the letter of dismissal while in hospital recovering from surgery. Having regard to this and the totality of the evidence adduced by the complainant, which is undisputed due to the fact that the respondent did not make a submission to the Tribunal and failed to appear at the hearing, I am satisfied that the decision to terminate the complainant's employment was entirely due to the fact that the complainant was absent from work due to her disability, and the respondents perceived uncertainty about her return to work. Consequently, the dismissal of the complainant amounts to unlawful discrimination of her contrary to the Employment Equality Acts, 1998-2008 and this aspect of his complaint must succeed.
5.7 Disability- Conditions of employment and promotion
5.7.1 It is also submitted that the complainant was refused the opportunity to move from part time to full time hours, and that this was due to her disability. The complainant, at the hearing stated that some weeks prior to her admission to hospital, and prior to the tumour being discovered, she and the respondent had a discussion where it was agreed that the complainant would move from part time to full time hours. The complainant at the hearing stated that she was denied the opportunity to move to this full time position due to her dismissal. This claim is unsupported by documentary evidence but is supported by the fact that the letter of dismissal, issued by the respondent, refers to the respondent taking on full time staff, in place of the complainant. I am satisfied, that the complainant was denied an opportunity to work full time hours, and that this occurred due to her dismissal. However, I do not consider that the respondent's failure to employ the complainant, on a full time basis, was a discriminatory action in and of itself, as no separate decision was made by the respondent, to deny the complainant access to the full time post, it was merely a consequence of her dismissal. In addition, I can only consider conditions of employment, during the period in which, the complainant was employed by the respondent, and, as the opportunity to work full time hours was denied, as a consequence of her dismissal, the complainant had at that point been dismissed and was no longer employed by the respondent. I do however acknowledge that the denial of the opportunity to work full time hours was a consequence of the complainant's dismissal, a dismissal which I have found to be discriminatory on grounds of her disability, and I shall bear this in mind when making my award.
5.7.2 The claim relating to disability and promotion was not substantiated at the hearing. I am thus satisfied that the complainant has not established a prima facie case of discrimination on grounds of disability in relation to this matter, and this claim must fail.
5.8 Age and Gender
The claims relating to age and gender were not substantiated at the hearing. I am thus satisfied that the complainant has not established a prima facie case of discrimination on grounds of either age or gender, in relation to these matters, and these claims must fail.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts.
(ii) that the respondent did not discriminate against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of her conditions of employment, and promotion.
(iii) that the respondent did not discriminate against the complainant on grounds of age and gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of her conditions of employment, promotion and dismissal
6.2 In making my award, I am mindful of the fact that the complainant was dismissed, while in hospital, having had a tumour and kidney removed, an event which in itself was traumatic and distressing for the complainant, let alone compounding it with being dismissed from her job. I find the actions of the respondents, in sending an employee a letter of dismissal while in hospital recovering from major surgery, while not malicious, to be particularly thoughtless. I am also bearing in mind, the fact that the complainant's dismissal also had the consequence of denying her the opportunity to move from a part time to a full time position. In addition, I must ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €18,720 to be just and equitable.
6.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
27 April 2012