EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-159
(Represented by HRS Consultants)
(Represented by Peninsula Business Services)
File reference: EE/2014/174 &157)
Date of issue: December 2015
HEADNOTES: Employment Equality Acts – Discriminatory Dismissal, Conditions of Employment
1.1. This dispute concerns a claim by Ms. A, that she was discriminated against by DS Beauty Salon on the grounds of disability contrary to section 6 of the Employment Equality Acts and in relation to conditions of employment in terms of section 8 of those Acts.
1.2. The complainant referred a claim to the Director of the Equality Tribunal on 18th March 2014 under the Employment Equality Acts. On the 16th July 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Michael McEntee, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 20th July 2014.
1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2: COMPLAINANT'S SUBMISSION
2.1. The Complainant stated that she commenced working for the Respondent’s beauty salon on the 4th July 2013. She maintained that she was totally honest and declared at interview that she had a skin disability – Psoriasis and Arthritis in the joints. She would only be available 20 hours per week.
The working week actually worked extended considerably in excess of this. For the most part the Complainant worked on her own.
2.2. Relationships with the Respondent deteriorated markedly after the initial period of employment.
A catalogue of complaints /disputes developed between the parties. These were allegations of unprofessional appearance, alleged till shortages, failure to maintain the workplace in a tidy and clean state, disputes over time off for funerals and multiple allegations of customer complaints. The Complainant resolutely denied all these allegations.
2.3: The husband of the salon owner, a Mr. P, allegedly treated her in a belittling fashion, referring to her as “Girl”, which gave rise to her feeling that she had no Dignity or Respect at work. Both the owner and the owner’s husband would speak to her in embarrassing terms in front of customers.
2.4. The Complainant brought an issue concerning her difficulties, arising from her disability, in moving a metal sheet, a foot plate, in a sunbed to the Respondent’s notice. It was necessary to move the foot plate to properly clean the appliance. She maintained that the Respondent failed to provide any proper Accommodation as required under the Equality Act for a person with a disability in relation to this lifting issue.
2.5 The situation culminated in an ending of the employment relationship – a dismissal of the Complainant on the 28th of January 2014.
3. RESPONDENT'S SUBMISSION
3.1. In summary the Respondent refuted all the allegations made by the Complainant. In particular the Respondent maintained the Complainant did not make her aware of any disability at initial interview and it only became known when the issue of hospital appointments arose post recruitment.
The issue of maximum weekly working hours and the requirement of the Dept. of Social Protection in regard to Disability benefit then also arose. The Respondent maintained that the Complainant’s working hours were then reduced in response to 20 per week from an initial 35/40.
3.2 A considerable volume of customer complaints began to arise regarding the Complainant. The Respondent had to remind her on a number of occasions of the need to be professional in her appearance and to keep the Salon clean and tidy.
Further issues arose of over use of her personal mobile phone to play games etc. during work times, family members making extended visits for social reasons during working hours, making deliveries of fast food, after hours, but still in her Salon uniform and smoking outside the Salon in a manner that was unprofessional.
3.3. The Respondent maintained that all these issues were discussed with the Complainant at meetings on the 10th September, 11th October, 20th November and the 11th December 2013. Minutes of the discussions were produced by the Respondent. The meetings, it was maintained, failed to effect any improvements in the relationship or work standards required by the Respondent.
3.4. In relation to Accommodation for a Disability the Respondent more than facilitated the Complainant in allowing time off for hospital appointments related to her skin condition. The metal tray at the base of the Sunbed was described as not being of any significant weight such that it would require special measures. The Respondent was always available, if required, to offer assistance with lifting.
3.5. At a meeting on the 28th January 2014 the Respondent informed the Complainant that she was being dismissed. It is alleged that a very heated and unpleasant exchange followed.
3.6 The Respondent maintained that the Complaint was dismissed, having failed to improve following the meetings referred to above, for general incompetence, lack of proper customer care skills and unprofessional appearance.
There was no question of her disability having any connection with the decision. The Respondent maintained that once she became aware of the Complainant’s disability she was at all times helpful and supportive.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision, having reviewed all the written and oral evidence presented, is whether or not the Complainant was subjected to discrimination, culminating in discriminatory dismissal on grounds of disability, in terms of section 6 and 8 of the Employment Equality Acts and contrary to section 77 of those Acts and whether finally the Respondent failed to provide “appropriate measures” under Section 16 of the Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
4.3 In the case at hand there was a substantial conflict of evidence and recollection of events between the parties. At the Oral hearing the parties both gave direct evidence.
It would appear that a good personal relationship initially existed between the parties but deteriorated rapidly. In the employment context a high degree of informality characterised the relationship.
On balance the Tribunal could not come to a firm position in relation to the probity of most of the evidence. However it appeared that, allowing for marked differences in recollections, the Respondent had genuine performance issues with the Complainant.
None of these issues were related to any perceived Disability of the complainant.
4.4 A background issue for the Tribunal was the nature of the original employment contract between the parties and the weekly hours of work required.
The knowledge or otherwise of the parties of the Department of Social Protection requirements especially involving permitted hours of work when a Disability Benefit claimant is employed was a matter requiring clarification. This is not within the remit of the Equality Tribunal.
The question of the nature of how weekly wages were paid and the nature of the PAYE /PRSI situation also required more information but again is a matter not within the Tribunal’s remit.
4.5. The entire employment relationship was possibly characterised from the start by factors not normally encountered in a standard employment relationship. The eventual ending of the relationship was also going to be accordingly overshadowed by these factors and not inextricably linked, to the required standard of proof, to any allegations of Discrimination.
4.6: Accordingly I have to find that the case for investigation under Equality legislation fails as the Complainant has not provided any substantial or detailed evidence to establish a prima facie case of discrimination, on the grounds of disability, to the level required by the Equality Acts. Likewise the level of required proof for a prima facie case of discriminatory dismissal case has not been reached.
4.7: In relation to Reasonable Accommodation for a disability the Respondent made such arrangements as were appropriate in terms of time off for medical appointments and offers of assistance with physical tasks, specifically moving the metal sheet in the tanning cubicle, if required. Accordingly there is no sustainable basis for a successful claim on this ground.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
· the complainant has failed to establish a prima facie case of discrimination or dismissal on the grounds of disability
· the complainant has failed to establish a prima facie case of failure of the Respondents’ part to provide Reasonable Accommodation.
Adjudication Officer/Equality Officer