Decision No: DEC-E/2013/182
(Represented by Richard Grogan and Associates – Solicitors)
A Cleaning Company
(Represented by IBEC)
File No: EE/2009/657
Date of issue: 16 December, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6 and 8 – resignation- discriminatory dismissal – disability.
This dispute involves a claim by an employee that she was 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.
2.1 The complainant commenced employment with the respondent as a Cleaner in August, 2008 and was assigned work in two locations – one in the morning between 8am-10am and another in the afternoon 3pm-6pm. She states that she has suffered from Depression since 2005 – she had been diagnosed by a doctor in her home country of Lithuania. She states that on the morning of 10 April, 2009 she suffered an episode at work which caused her to go temporarily insane and she placed items from the store into a bag. She further states that she was admitted to hospital with Depression within days of this episode and remained hospitalised until early May, 2009. She states that the respondent terminated her employment for gross misconduct on 11 June, 2009 and it is submitted that this amounts to discriminatory dismissal of her on grounds of disability contrary to the Acts. The respondent rejects this assertion and states that (i) the complainant terminated her own employment and (ii) in the alternative, the complainant’s employment was terminated on 11 June, 2009 as a result of Gross Misconduct for theft.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 3 September, 2009. In accordance with his powers under the Acts the Director delegated the complaints 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 16 April, 2012 - the date it was delegated to me. Submissions were filed and a Hearing on the complaint took place on 27 April, 2012. A number of points arose at the Hearing which required further clarification from the complainants. This process concluded in late March, 2013. In accordance with the standard practice of the Tribunal where the personal and sensitive matter of mental health disability is at issue, the identities of the parties have been anonymised.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant commenced employment with the respondent as a Cleaner on 26 August, 2008. She worked twenty-five hours per week (over five days) at two different locations owned by clients of the respondent – 8am-10am at a retail outlet in Liffey Valley Shopping Centre and 3pm-6pm at an Office Complex. She states that she was diagnosed with Depression in 2005 by a doctor in native country of Lithuania. In the course of the Hearing the complainant accepted that she never informed the respondent prior to her employment, or at any time during it, that she suffered from Depression and accepts that the first occasion her mental health was mentioned to the respondent was at a meeting on 10 June, 2009. She further stated at the Hearing that she did not disclose her condition because she felt well and there had been no occurrence of her Depression between August, 2008 and April, 2009.
3.2 The complainant states that on the morning of 10 April, 2009 she was working at the store in Liffey Valley Shopping Centre. She further states that she suddenly felt unwell and she went “temporarily insane”. She adds that during this episode she did not know what she was doing and she began collecting items from the store and placing them in a plastic bag. The complainant rejects the respondent’s assertion that she went to the canteen and instead asserts that she went direct to the store room where she lay down and fell asleep. She adds that she was subsequently woken by her Supervisor (Ms. A), whom she understands was contacted by the Store Manager, and when her Supervisor arrived she told her (the complainant) to go home, which she did.
3.3 The complainant states that she was quite distressed at this time and she recalls her sister (who was also an employee of the respondent) telling her that she (the complainant) would lose her job. The complainant adds that this placed more stress on her and she attended Tallaght Hospital on 13 April, 2009 where she was admitted and subsequently transferred to St. James Hospital under the care of Dr. X, Consultant Psychiatrist, until she was discharged on 8 May, 2009. The complainant states that she understands her sister spoke with the respondent around this time but she is unable to say what her sister said to the respondent. She adds however, that she did not authorise her sister to terminate her employment with the respondent. The complainant states that she did not furnish the respondent with medical certificates covering this absence, nor did anyone do so on her behalf. She adds that whilst she had such certification in her possession subsequently she did not furnish it to the respondent because she had received her P45 by that time.
3.4 The complainant states that in late May, 2009 she asked someone to contact the respondent on her behalf to see if she could return to work, although she is unable to say who this person was and when this approach occurred. The complainant states that this person spoke with a Ms. M who told her she could return to work. The complainant states her representative at that time organised a meeting with the respondent – this meeting took place 10 June, 2009 – and she attended with her representative. She states that at this meeting she was accused of stealing items on 10 April, 2009 and she indicated that she was mentally unwell that day. The complainant states that she does not recall furnishing the respondent with any medical documentation in support of this assertion on the day and received a letter terminating her employment (dated 11 June, 2009) for Gross Misconduct. It is submitted on behalf of the complainant that she was dismissed in circumstances amounting to discrimination on grounds of disability contrary to the Acts. However, in the course of the Hearing she was unable to identify any other employee who had been treated differently in similar circumstances.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions in their entirety. It accepts the employment details submitted by the complainant and states that at no time during her employment did she advise she suffered from Depression, indeed it notes in her application form that she stated she did not suffer from any serious illness or disability. The respondent states that the complainant was working her shift at the store in Liffey Valley Shopping Centre on the morning of 10 April, 2009. It adds that the Store Manager observed the complainant (on CCTV) acting oddly whilst on the shop floor and then placing items of stock into a rubbish bag she was holding. It further states that when the Store Manager confronted the complainant about this she (the complainant) handed her the bag and walked off the floor to the canteen, where she proceeded to clean the area. The respondent further states that the Store Manager called the complainant’s Supervisor (Ms. A) and informed her of the situation. Ms. A states that when she arrived the complainant was back on the shop floor. She adds that when she attempted to talk to the complainant she (t went to the canteen and proceeded to clean it and then went into the store room and lay on the ground. The respondent (Ms. A) states that when she attempted to speak with the complainant she (the complainant) ran out of the shop. Ms. A adds that when she was unable to catch the complainant she rang her sister and told her what had happened as she was concerned about the complainant. She further states that the Store Manager showed her the CCTV and the plastic bag containing the items.
4.2 The respondent (Ms. A) states that she tried to contact the complainant on several occasions later that day and the following days but her phone was off. She adds that she was concerned about the complainant and a few days later she (Ms. A) spoke with the complainant’s sister. Ms. A states that the complainant’s sister informed her that the complainant was not coming back to work and had returned to Lithuania and requested the respondent to issue her P45. Ms. A further states that she passed this information onto the Services Manager (Ms. B) who states that she too made a number of unsuccessful attempts to contact the complainant. The respondent states that no medical certificates were submitted by, or on behalf of, the complainant at this time and in light of this and the previous request from her sister, it issued the complainant’s P.45 on 3 May, 2009 and that in essence, the complainant terminated her own employment. The respondent submits that it was reasonable for it to have regard to the request of the complainant’s sister as the complainant had secured employment through her sister (she was an employee at that time).
4.3 The respondent states that in late May, 2009 Ms. M, Accounts Manager, received a phone call on behalf of the complainant seeking her return to work. It adds the caller advised that the complainant was only seeking to return to her shift in the Office Complex and as Ms. M was unaware that the complainant’s P.45 had issued, she informed the caller to contact Head Office. The respondent states that following communications between the parties a meeting with the complainant and her then representative was arranged for 10 June, 2009. It further states that it considered this meeting to be a Disciplinary Meeting to deal with the events of 10 April, 2009 although it did not advise the complainant or her representative of this. The respondent states that at this meeting the complainant was informed of the contents of statements taken from store personnel and Ms. A and was shown the CCTV footage taken on the day. The respondent states that the complainant advised she had suffered a mental breakdown on the day which subsequently required hospitalisation. It states however, that the complainant did not furnish any medical evidence at this meeting supporting her explanation and advised that she had no such documentation. The respondent adds that in the absence of this documentation and her failure to advise the respondent that this was the reason for her absence from 10 April, 2009, it decided to write to her on 11 June, 2009 terminating her employment for Gross Misconduct. In the course of the Hearing the respondent stated that it did not consider the complainant to be an employee when it received the telephone call on her behalf in late May, 2009. It could not offer any explanation why it then convened a Disciplinary Meeting on 10 June, 2009 and terminated her employment the following day.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is 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 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 she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is 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 her case cannot succeed.
5.3 It is common case that the complainant left her place of work on the morning of 10 April, 2009 and made no personal communication with the respondent thereafter until her representative (at the time) made contact with the respondent in late May, 2009. In essence therefore she was absent for this period without leave or explanation. The respondent (Ms. A) states that the complainant’s sister spoke with her within a few days of 10 April, 2009 and advised the complainant was not returning to work and requested that the respondent issue her P.45. I also note the evidence of both Ms. A and Ms. B that they made several unsuccessful attempts to contact the complainant in order to clarify the aforementioned position before the P.45 issued. I found both these witnesses to be truthful and credible and I accept their evidence in this regard. The general thrust of the first argument relied on by the respondent is that by her actions – absent without leave or explanation – and the request of her sister, the complainant terminated her own employment. In general, it is established law that a resignation is a unilateral act which, if expressed in unambiguous terms, brings a contract of employment to an end. However, there can be exceptions to this general rule (see for example Millett v Shinkwin). Whilst it may have been reasonable in all of the circumstances for the respondent to reach the conclusion it did – that the complainant had terminated her employment – the subsequent actions of the respondent are inconsistent with that viewpoint and on that basis I make no finding on the alleged resignation.
5.4 It is common case that the complainant’s representative made contact with the respondent (Ms. M) in late May, 2009 seeking the complainant’s return to work and that a meeting between the parties occurred on 10 June, 2009. It is the respondent’s position that this meeting was a Disciplinary Meeting, although it is difficult to understand how this could be the case if, as suggested, it did not consider the complainant an employee at that time. In any event the meeting took place and the complainant was confronted with witness statements and CCTV footage in respect of the incident on 10 April, 2009. It is common case that the complainant advised that she had suffered some sort mental breakdown on the day in question but was unable to furnish any medical evidence in support of this. Minutes of this meeting were furnished to the Tribunal which indicate this was the response she made and the complainant takes no issue with this. Moreover, she confirmed at the Hearing that she did not, at any time prior to this meeting, indicated to the respondent that she suffered from a mental health disability. At this juncture I consider it necessary to say that I am satisfied the complainant did suffer from depression. The respondent states that it terminated her employment the next day for Gross Misconduct although again it is difficult to see how this could be the case if, as suggested, it did not consider her an employee.
5.5 The manner in which the respondent handled this matter is akin to a comedy of errors. Procedurally it falls considerably below what one might expect from an employer operating best practice in terms of the standards of fairness required under the unfair dismissals legislation. However, this Tribunal is not looking at the fairness or otherwise of the process, rather it is required to determine whether or not the complainant’s disability was a factor in the decision. The respondent contends that it was unaware of the complainant’s disability. I do not accept this fully – it was aware of a possible mental health issue on 10 June, 2009 – the day before it issued the letter of termination to the complainant. The complainant is unable to identify any other employee who had been treated differently in similar circumstances i.e. retained in employment when found guilty of Gross Misconduct for stealing. However, the wording of section 6 of the Employment Equality Acts, 1998-2008 provides for the use of a hypothetical comparator in certain circumstances and I am satisfied that I should examine the instant case in that context. Having evaluated the evidence adduced by the parties I am not satisfied that the respondent would have treated another employee (with a different disability to the complainant or with no disability) any differently to the complainant in similar circumstances – where the employee had been found guilty of Gross Misconduct for stealing. It follows therefore that the complainant cannot succeed with her complaint.
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 the complainant has failed to establish a prima facie case that she was dismissed 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 and her complaint fails.
16 December, 2013
  ELR 319
 See in particular UD197/2011