Employment Equality Acts 2000 to 2011
DECISION NO: DEC-E2013-166
(Represented by O’ Hanrahan & Co. Solicitors)
TA Hotels Ltd. t/a Lynams Hotel and Café Carlo
Date of Issue: 13 December 2013
File No. EE/2011/509
Keywords: Employment Equality Acts - disability - working conditions - discriminatory dismissal – victimisation - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Angelika Kozlowska (hereafter "the complainant") that she was discriminated against in relation to her working conditions on the grounds of disability and subjected to discriminatory dismissal on the same ground by TA Hotels Ltd t/a Lynams Hotels and Café Carlo (hereafter "the respondent"). The complainant alleges that she was injured at work on 6 May 2011 and was subsequently dismissed on 18 June 2011 as a result of her disability. The complainant also alleges that she was subjected to victimisation for making a complaint about the alleged discriminatory treatment.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 22 June 2011 under the Employment Equality Acts. On 30 September, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 23 October 2013.
2. Summary of Complainant’s case
2.1 The complainant who is a Polish national commenced employment with the respondent on 28 February 2011. On 6 May 2011, she was involved in an accident at work when she stepped on debris and a sharp object like a nail penetrated her footwear and punctured her left foot. The complainant states that she was absent from work for two days as a result. The complainant states that when she returned to work, she was treated poorly and subsequently dismissed on 18 June 2011 without any procedures. She states that two weeks following her injury, she received a telephone call from her manager L, who said to her “don’t come in any more, we don’t need you”. The complainant also contends that she was subjected to victimisation by her employer in her new place of work. She states that following her dismissal, she got a job in another hotel and her former employer and husband came to the bar in the hotel and engaged in a loud conversation about the complainant and her complaints against the respondent. The complainant submits that she was discriminated against on the grounds of her disability and summarily dismissed from employment on that basis. She also alleges that she was subjected to victimisation as a result of making a complaint about the treatment.
3. Summary of Respondent’s case
3.1 The respondent states that the complainant was wearing ballet pumps instead of the correct work footwear on the day she sustained an injury. The manager, L, stated that there was only a tiny mark on her foot, however, L insisted that she see a doctor and paid for same. L states that she offered her a taxi home and advised her she could have the weekend off and paid her for same. The complainant resumed work on the following Monday morning. The respondent states that initially in the job, the complainant’s role was housekeeping and cleaning duties and then she progressed to front of house duties. The respondent states that it had concerns regarding her attitude to customer service and she was reprimanded a number of times by management in relation to the way she served customers. The respondent contends that it received a written complaint from a customer on 9 June 2011 who the previous day had booked the restaurant for a deal ‘steak dinner and wine for two’. The customer who had a pre-booked voucher was a few minutes late and the complainant advised that there were no steaks left and refused to seat them. The customers ended up having to go to a fast food outlet nearby and were extremely irate. The respondent states that on checking with the chef regarding the evening in question, although they had run out of fillet steaks, they had borrowed some from the restaurant next door and would have been in a position to take the customer’s order. The respondent states that the complainant could have checked with one of the other staff but that she was quite abrupt with the couple and a written complaint was submitted to the company where the voucher was purchased and to the respondent.
3.2 The respondent also states that on 15 June, the company received an e-mail from a customer with a complaint where the customer was left waiting an inordinate amount of time for their food and when the wrong dish arrived at their table, the complainant stormed over to the table and slammed her hands on the table and said “what do you want? ” The respondent states that L spoke to the complainant about the two complaints received from customers but that she offered no explanation. L states that she contacted the complainant and requested her to come in and have a chat with her and advised that she could not be given a shift dealing with customers given the recent complaints but the complainant declined to meet with L. The respondent states that given the serious nature of the above incidents and the complainant’s complete lack of regard for customer service, it had no other option but to terminate the complainant’s contract of employment on grounds of gross misconduct. The respondent refutes the allegation that it dismissed the complainant on grounds of disability. The respondent also states that there is no basis for the allegation of victimisation which is totally without foundation.
4. Conclusions of Equality Officer
4.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts in relation to her conditions of employment and discriminatorily dismissed the complainant and (ii) victimised the complainant contrary to the provisions of section 74(2) of the Employment Equality 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.
4.2 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". 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".
4.3 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”.
4.4 The complainant suffered a minor injury to her foot after walking on some debris in the respondent hotel. She was absent for two days and then returned to her normal duties. In its reasoning, the Labour Court in its decision of Customer Perception Limited v. Ms Gemma Leydon [EED0317], addressed the question whether Ms Leydon was suffering from a disability within the meaning of the Acts. Ms Leydon's representative relied on the definition as given in paragraph (c), quoted in paragraph above. The Labour Court found that
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a Court of Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter, or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
Taking the ordinary and natural meaning of the term malfunction (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.
4.5 When one compares the Leydon case to the facts of the case on hand, it becomes clear that the injuries sustained by the respective complainants are very different in severity and impact. Ms Leydon required in-patient hospital treatment and follow-up physiotherapy care. Her mobility was limited for several months. The complainant, on the other hand, was sufficiently treated by a local GP but did not require any follow-up treatment. The GP gave the complainant a medical certificate for two days off work but did not request any light duties on behalf of the complainant. In making a finding on this matter, I feel bound by the literal interpretation which the Labour Court gave to the meaning of "malfunction" in Leydon. I therefore accept that, following the injury to her foot, the complainant sustained for a short amount of time a minor malfunction of a body part. However, I do not find that the complainant's injury is of sufficient significance for her to establish a prima facie case that, while that situation lasted, she was disabled within the meaning of the Acts. In the present case, the GP did not request that the complainant should undertake lighter duties and the complainant returned to work two days after the injury. I am therefore satisfied that the complainant has not established a prima facie case that she is disabled within the meaning of the Acts.
4.6 The complainant also submits that she was victimised by the respondent. In relation to the issue of victimisation, Section 74 (2) states:
…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, …….”
In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. It is clear from the wording of victimisation in the Employment Equality Acts that a complaint of victimisation must relate to a complaint made under the Act and not a general complaint of victimisation. The complainant provided no evidence to substantiate her claim that she was victimised for making a complaint under the Acts. Having examined all the evidence in relation to the claim of victimisation, I find that there is no basis to the claim as I consider that the complainant has not got a disability within the meaning of section 2 of the Employment Equality Acts.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Based on all the foregoing, I find, pursuant to section 79(6) of the Employment Equality Acts that the respondent did not discriminate against, or discriminatorily dismiss the complainant on the ground of disability contrary to sections 8 (1) and 8 (6) of the Acts. I also find that the complainant was not subjected to victimisation in terms of section 74(2) of the Employment Equality Acts.
13 December, 2013