DECISION NO: DEC-E/2012/085
(REPRESENTED BY THE NATIONAL ADVOCACY SERVICE FOR
PEOPLE WITH DISABILITIES)
PREMAIR MARKETING SERVICES LTD.
(REPRESENTED BY DENIS I FINN - SOLICITORS)
File No: EE/2009/496
Date of issue: 26 June, 2012
Headnotes: Employment Equality Acts 1998-2008 - sections 6&8 -disability- discriminatory dismissal - discriminatory treatment.
This dispute involves a claim by Mr. James Murray that he was (i) discriminated against by the respondent, 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, as regards his conditions of employment, when he was selected for lay-off in March, 2009 and (ii) dismissed by the respondent 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 when he was selected for redundancy in April, 2009. The respondent rejects the complainant's assertions in their entirety.
2.1 The complainant, who suffers from a neuromuscular condition called Myasthenia Gravis, commenced employment with the respondent as a Sales and Reservations Executive in July, 2002. He states that in mid-March, 2009 the respondent placed him on lay-off and four weeks later it terminated his employment without him ever resuming duty. The complainant contends he was the longest serving full-time member of staff in the respondent and submits that the treatment of him amounts to discrimination on grounds of disability contrary to the Acts. The respondent, which operates as a sales and marketing agent for international airlines on a contractual basis in Ireland, rejects the complainant's assertions and states that the treatment of the complainant was for genuine operational reasons unconnected with his disability. In addition, a question arose as to whether or not the less favourable treatment element of the complaint was validly before the Tribunal as it was not included on the complainant's original complaint form referred to the Tribunal.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 22 July, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 30 September, 2011 - the date it was delegated to me. A Hearing on the complaint took place on 17 January, 2012. A small number of issues arose at the Hearing which gave rise to further correspondence between the parties and the Equality Officer. This process concluded in late March, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 It is submitted on behalf of the complainant that the less favourable treatment element of the complaint connected with the circumstances surrounding his lay-off in March, 2009, is validly before the Tribunal. It is accepted on behalf of the complainant that the only box ticked at Part 4 of the original complaint form (Form EE1) submitted by him is that concerning "discriminatory dismissal", but his representative adds that Part 8 of that Form clearly sets out (in brief detail), inter alia, the circumstances surrounding his lay-off. The complainant's representative adds that there was no interruption between the lay-off and the termination of his employment. It is submitted that there is sufficient link between the two issues, that the respondent was on notice of same from the outset and had an opportunity to file a defence in the matter and that the complaint form (Form EE1) is not a statutory form and a failure to tick a particular box on it cannot invalidate the complainant's less favourable treatment element of his complaint. In this regard the complainant seeks to rely on the High Court Judgements in Louth VEC v the Equality Tribunal and Clare County Council v The Director of Equality Investigations .
3.2 The complainant commenced employment with the respondent as a Sales and Reservation Executive in July, 2002. He states that from the outset of his employment the respondent was aware he suffered from a neuromuscular condition called Myasthenia Gravis. He adds that his primary duty was to handle certain activities for group quotations/bookings in respect of Air Canada - which was one of the respondent's clients - and states that as far as he understood he was not required to perform duties for other clients of the respondent. The complainant states however that over time his duties expanded to other activities connected with Air Canada and during the eighteen months prior to his departure from the respondent he undertook new additional duties connected with other clients of the company. The complainant states that he endeavoured to assist the respondent as best he could as circumstances changed and that his disability did not adversely impact on his performance or his attendance.
3.3 The complainant states that the respondent (Mr. F) approached him on 13 March, 2009 and informed him that he was putting him on lay-off for a period of four weeks. The complainant adds that at the time there was one other full-time employee who had a smaller period of service with the respondent and when he (the complainant) asked why he was selected for lay-off the respondent (Mr. F) told him that Mr. A (who was Air Canada's General Sales Manager for Ireland) wanted "all staff out pounding the streets selling Air Canada and that it was unfair to ask you to do this and you would be unable to due to your circumstances". The complainant submits that this comment is a reference to his disability. He adds that the other employees went out generating new business at that time. He further states that Mr. F told him that he (the complainant) "could not be left in the Office alone". The complainant states that he was dumbfounded at this as it had never been an issue previously - indeed he opened the building every morning and was there alone for some time each day. The complainant adds that he met the respondent on 1 April, 2009 in the bar area of a Dublin hotel where they discussed the economic circumstances facing the company. He adds that he was not prepared to discuss the matter at any length in such a public area and the conversation was brief. He further states that no other reason was given to him for his selection for lay-off. The complainant rejects the respondent's assertion that he was aggressive and provocative at this meeting given the location it was held in. The complainant submits that his selection for lay-off constitutes discrimination of him on grounds of disability contrary to the Acts.
3.4 The complainant states that he received a telephone call from Mr. F on 20 April, 2009 advising him that he was being made redundant and making arrangements for a meeting the following day to complete the relevant paperwork. He adds that he met with Mr. F and his wife the next day when he was presented with the relevant documentation for signature and received two cheques - one in respect of his redundancy payment and the other in respect of salary and outstanding holidays. The complainant rejects the respondent's assertion that he had previously raised the issue of redundancy with it, although he accepts that the topic was touched upon in the course of a meeting between him and Mr. F in late February, 2009. The complainant also rejects the respondent's assertion that he was inflexible and refused to adapt to a different role within the company. He states that there were other employees with less service than him who were not selected for redundancy and submits that his selection constitutes discriminatory dismissal on grounds of disability contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent submits that the discriminatory treatment element of the complaint is not properly before the Tribunal for investigation. It states that the EE1 Form is the document which confers jurisdiction on the Tribunal and that its investigation must be restricted to the matters referred on that Form. It is submitted that the EE1 Form only refers a complaint of discriminatory dismissal and consequently this is the only matter which can be investigated.
4.2 The respondent (Mr. F) accepts that the complainant commenced employment with it in July, 2002 as a Sales and Reservations Executive and confirms that he knew the complainant suffered from a disability from the outset of his employment. Mr. F states that he had known the complainant previously and was aware of his thirty years experience in the travel industry. The respondent states that it operates in a highly competitive business and that in April, 2009 it provided services to six clients. It adds that any breakdown in service or lack of professional standards can bring a contract with a client to an end and it has had to adapt within a changing market environment to survive. It states that a core client was Air Canada and that this was the area of work with which the complainant was primarily involved. The respondent adds that revenues from this area of work began to reduce significantly in 2006 when Air Canada introduced its own website which facilitated passengers booking their own tickets on-line. It adds that the global recession also impacted adversely on its business and these factors necessitated the respondent sourcing new clients.
4.3 The respondent states that in order to maintain the existence of the company he required staff be flexible in their work practices and perform tasks wherever and whenever the need arose. It (Mr. F) states that the complainant displayed significant resistance to assisting in all areas of the business activity of the respondent despite several discussions on the matter. The respondent adds that this resistance was a constant feature of the complainant's demeanour and asserts that he (the complainant) would redirect calls to other staff if it was not connected with Air Canada business, stating that this was not part of his job. The respondent further states that, notwithstanding this, the complainant was a valued member of staff given his extensive experience in the sector and in an effort to cajole his co-operation, the respondent discussed an incentivised remuneration package with him in February, 2008 which was contingent on him performing tasks in respect of some of the respondent's other clients. It (Mr. F) states that the complainant completed some training in those areas and did some work for those clients but this was short- lived. Mr. F adds that consequently, the incentivised remuneration package never came to fruition.
4.4 The respondent (Mr. F) states that by late 2008/early 2009 it was clear the company was in a critical financial position. Mr. F adds that in order to reduce costs he sought volunteers from staff to take an unpaid leave of absence in November, 2008 (as it was not a busy period). Only Ms. B took a few days off. The respondent further states that in February, 2009 it had no option but to apply a 10% pay cut to all staff. The respondent adds that as a result of these same financial difficulties it did not pay the complainant for a period when he (the complainant) was absent due to an illness unconnected with his disability at end February, 2009. The respondent (Mr. F) states that he met with the complainant at his request to discuss this matter on 26 February, 2009 and adds that during this meeting the complainant asked if he (Mr. F) was considering making him redundant and he replied that was not an option he was considering at that time. The respondent adds that traditionally March/April was the height of the booking season for Air Canada business but this "peak" did not emerge in 2009 and he (Mr. F) was faced with applying further cost-cutting measures and he decided it was necessary to lay-off a member of staff. The respondent (Mr. F) states that he decided to lay-off the complainant because (a) his workload with Air Canada had reduced significantly and (b) he had displayed an on-going unwillingness to perform duties associated with other clients, despite his (Mr. F's) best efforts to the contrary. The respondent rejects the complainant's assertion that his disability influenced his decision to place him on lay-off. In the course of the Hearing Mr. F stated that he was acutely aware that people with disabilities can face particular difficulties sourcing and retaining employment due to the fact that an immediate family member suffered from a disability (details supplied). The respondent (Mr. F) further states that whilst he may have referred to a comment made by Mr. A, this was metaphorical in nature and was meant in the context that every effort needed to be made to actively seek business rather than waiting for business to come to them. He (Mr. F) rejects the assertion that he made any reference to the complainant's personal circumstances during this discussion and adds that in any event he made the comment to the complainant after he had informed him of the reasons for his lay-off.
4.5 The respondent states that the situation did not improve - in that it became clear to Mr. F that the upturn in Air Canada business which he had expected was not going to materialise - and he decided he had no option but to make an employee redundant. He states that he did consider making another employee (Ms. B) redundant and accepts that she had joined the company after the complainant. He adds however, that she had displayed a great willingness in the past to perform any tasks involved with all of the respondent's clients and that this, in tandem with the fact that it was the area of work that the complainant had performed which had diminished, underpinned his decision to make the complainant redundant. The respondent states that it has not recruited any other staff since that time and the work is carried out by the existing compliment of staff.
4.6 The respondent submits that its decision to (i) place the complainant on lay-off and (ii) to subsequently make him redundant was based on factors unconnected with his disability, in particular his unwillingness to perform the full range of duties associated with his position. It further submits that in those circumstances its actions are lawful in terms of section 16(1) of the Employment Equality acts, 1998-2008.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the equal treatment element of the complaint, as regards the lay-off of the complainant from his employment, is validly before the Tribunal for investigation, (ii) if so, whether or not it constitutes less favourable treatment of 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 and (iii) whether or not 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. 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 presented at the Hearing.
5.2 The first issue I must address is whether or not that element of the complaint connected with the lay-off of the complainant from his employment is validly before the Tribunal for investigation. The complainant accepts that the complaint form referred to the Tribunal (Form EE1) does not have the box at Part 4 thereof denoting "discriminatory treatment" ticked but argues that such an omission is not fatal to the issue in hand because it is clear from the remainder of the EE1 Form, in particular Part 8 thereof, that the complainant is asserting the circumstances surrounding his lay-off amounts to unlawful treatment of him contrary to the Acts and comprise part of his complaint. The respondent takes the completely opposite view submitting that the extent of the complaint is limited to what is contained at Part 4 of the EE1 Form. This Tribunal has held on many previous occasions that the referral form (Form EE1) is not a statutory form and is, in essence, an administrative tool for the Tribunal and the parties. Its objective, inter alia, is to give basic details of the complaint and a brief overview of the issues involved. It cannot therefore be regarded as a rigid document which is not capable of expansion and the Tribunal has treated it as such on many occasions in the past. The Tribunal's approach in this regards has been approved by the High Court in County Louth VEC v Equality Tribunal .
5.3 In the instant case the EE1 Form clearly indicates that the first alleged act of discrimination occurred on 13 March, 2009 - which is the date the respondent advised the complainant of his intention to place him on lay-off. It also contains a brief outline of the events of that date. The EE1 Form was referred to this Tribunal on 22 July, 2009 - four months after the first alleged incident occurred. The respondent was therefore aware of the lay-off issue from shortly after that date and indeed it addressed the matter in its responding submission received by the Tribunal in January, 2010. It is common case that the complainant did not resume duty from the period of lay-off before his employment was terminated. I also note the respondent submits that it considered the same factors when reaching the separate decisions to firstly, place the complainant on lay-off and subsequently terminate his employment. In County Louth VEC v Equality Tribunal and Brannigan McGovern J held as follows - "if it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim [to this Tribunal].. so long as the general nature of the complaint ...., remains the same.". I have carefully considered the arguments advanced by both parties on this issue and applying the aforementioned rationale to the instant case, in light of my comments in this and the preceding paragraph I find that the element of the complaint connected with the complainant's lay-off from his employment in March, 2009 is validly before the Tribunal for investigation.
5.4 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination in respect of the treatment of him. It is only if this initial burden is discharged and I am satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required, his case cannot succeed.
5.5 The decision as to whether or not the complainant fulfils the initial probative burden requires a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or set of facts which are proved in evidence or admitted. At the initial stage all the complainant is merely seeking to establish is a prima facie case. Therefore, it is not necessary to establish that the conclusion he was subjected to discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved or admitted facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
5.6 The following facts have been proven or admitted in the course of my investigation -
The complainant suffered from a disability in terms of section 2 of the Acts and the respondent was aware of this.
The respondent made a decision to place the complainant on lay-off in March, 2009 and four weeks later terminated the complainant's employment without him resuming duty.
There was one other employee (Ms. B) who was in a similar position to the complainant and who was considered by the respondent for the aforementioned treatment.
This employee had three years' less service than the complainant with the respondent.
She did not have a disability in terms of the Acts.
Applying these facts to the test set out in the preceding two paragraphs I find that the complainant has established a prima facie case of discrimination and the burden of proof shifts to the respondent to rebut the inference raised.
5.7 The respondent states that due to the economic downturn it experienced from 2007 onwards it had no option but to reduce its outlay in 2009, in the first instance by laying-off a member of staff and that subsequently it had no option but to make a member of staff redundant. It further states that it decided to select the complainant for this treatment because (a) it was the area of work he primarily worked on which had reduced and (ii) he had previously displayed a general resistance to be flexible in performing the full range of tasks which staff at his level within the company might be expected to do, despite its best efforts to encourage him to do so, when compared with the more amenable attitude displayed by Ms. B.
5.8 The respondent furnished the Tribunal with financial accounts covering the period at issue. It is clear from these that the company went from a position of profit in 2007 to a position of significant loss in 2009. In tandem with this I am also satisfied that the revenue stream from Air Canada - which was the client the complainant primarily dealt with - reduced by almost 40% over the same period. Consequently, it is clear that the role the complainant had performed in the company was altered considerably. I am satisfied that the respondent was in a serious financial position at the time and that it had made a number of attempts to reduce costs by other means before it ultimately decided to reduce its staff expenses. The respondent is, of course, perfectly entitled to manage its affairs in whatever way it deems fit so long as it does not infringe the relevant statues - in this instance the employment equality legislation. The respondent states that one of the primary reasons underpinning its decision to select the complainant for lay-off and subsequently redundancy over Ms. B, was his continued resistance over the eighteen months prior to the termination of his employment to carry out tasks connected with clients of respondent other than Air Canada.
5.9 In the course of the Hearing the complainant stated it was his understanding he was recruited to handle Air Canada business and that he was not expected to deal with other Airlines. Although there is no written contract of employment for the complainant this was the reality of his role from the beginning of his employment until late 2006/early 2007 when the landscape within which the respondent operated changed with the arrival of the Air Canada website. The respondent opened a number of documents to the Tribunal which satisfy me that it had spoken with the complainant with a view to him being more flexible in his approach to work and that he was resistant to this proposition. It also opened documents dated March/April, 2008 which support Mr. F's evidence at the Hearing that the respondent engaged in a process with the complainant at that time in an attempt to encourage him take on these others duties for financial gain, although this was not finalised. At this juncture I feel it necessary to say that I found Mr. F to be a credible witness who gave his evidence in a forthright manner. I am therefore satisfied, on balance, that the complainant was in general unwilling to undertake the tasks which the respondent required him to perform in the particular circumstances which prevailed at the time. I also accept the respondent's evidence that Ms. B was considerably more flexible in this regard. In the normal course one might expect that the employee with the smallest period of service might be selected for lay-off and redundancy and that a departure from that approach could be perceived as unfair. However unfairness, of itself, cannot be determinative of discrimination - which is what is at issue in the instant case. Having carefully considered all of the evidence adduced by the respondent on this point, I am satisfied, on balance, that the determining factors in its decision to treat the complainant in the manner which it did were unconnected with his disability and that it was based on the facts that (i) the primary work the complainant had performed had diminished significantly and (ii) he was unwilling to perform other tasks as necessary. Consequently, the respondent has discharged the probative burden required of it and rebutted the inference of discrimination raised by the complainant.
5.10 One final matter requires attention. The complainant states that Mr. F made a comment to him in the course of their meeting on 13 March, 2009 - a comment which appears to have emanated from Mr. A, who was Air Canada's General Sales Manager for Ireland. The respondent accepts that he recounted such a comment to the complainant but argues that it should be taken in the context of the changing business environment the respondent was operating in. The respondent also rejects the assertion that he made any reference to the complainant's personal circumstances during this conversation. I have given careful consideration to this matter and I prefer, on balance, the respondent's version of events and find that the complainant is mistaken when he asserts the respondent informed him that it would be unfair to expect him to do this work given his circumstances. It is clear that the respondent had ample opportunity to lay-off the complainant prior to this and did not do so, despite the worsening financial circumstances it encountered. Moreover, I cannot accept that a comment from a client, whose business with the company had diminished considerably, would provoke such a reaction in the respondent particularly in circumstances where the respondent has personal experience of a person with a disability seeking employment.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that -
(i) the discriminatory treatment element of the complaint is validly before the Tribunal for investigation,
(ii) 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 when it selected him to be placed on lay-off in March, 2009,
(iii) the respondent did not dismiss 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 when it terminated his employment by way of redundancy in April, 2009
and his complaint fails in its entirety.
26 June, 2012