EMPLOYMENT EQUALITY ACTS 1998-2011
DEC-E2015-161
Parties
A Retail Assistant
(represented by Mr Micheal MacNamee B.L.,
instructed by DAS Legal Expense Insurance Company Limited.)
-v-
A Retailer
(represented by Mr Peter O’Brian B.L.
instructed by Kirwan McKeown James Solicitors)
File reference: EE/2013/447
Date of issue: 21st December 2015
1. DISPUTE
This dispute involves a claim by A Retail Assistant (hereinafter referred to as “the complainant”) that she was discriminated against by A Retailer ( hereinafter referred to as “the respondent”) on the disability ground, in terms of section 6(2)(g) of the Employment Equality Acts, 1998-2011 (“hereinafter referred to as ‘the Acts”) in terms of conditions of employment and harassment under section 8 of the Acts. The complainant also claims that she was subjected to victimisation in terms of section 74 of the Acts. At the hearing of this complaint the complainant sought to include discriminatory dismissal.
2. BACKGROUND
2.1 The complainant referred a complaint under the Acts, to the Equality Tribunal on the 2nd September 2013. The complainant was granted an extension of time for referral of the complaint under the Acts (DIR-E2014-001) which was upheld on appeal to the Labour Court (Determination No EET146). On the 22nd September 2015, in accordance with her powers under the Acts the Director delegated the complaint to the undersigned, Peter Healy, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Hearings of the complaint took place on the 3rd November 2015 and on 12th November 2015.
2.2 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.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant was employed by the respondent as a retail assistant since 1997 and at the time she left on sick leave was earning €22,000 per annum. The respondents business had a number of retail outlets and over 400 employees. The complainant has provided this Tribunal with a medical assessment outlining a history of the most serious depressive and anxiety symptoms with related treatment dating back to January 2009. It is the complainant’s submission that independent medical advice backs up her assertions that she has consistently connected the onset of these symptoms with difficulties at work related to bullying.
3.2 Specifically, the complainant submits that she had been subjected to continuous pressure from a senior manager (Ms A). In January 2009 the complainant had to take two weeks off due to severe depression and attended a psychiatric facility. The complainant submits that, on the day of her return she met with her line manager (Manager X) with whom she had a good relationship and advised her of the full background to her medical condition and recent treatment, presenting a medical certificate. The complainant contends that it was common knowledge in the workplace that she was suffering from an “illness” and she would on occasion be seen crying or shaking. The complainant submits that she heard nothing further from the respondent about her medical condition.
3.3 On 7th June 2009, the complainant submits that she was the subject of bullying and harassment by (Ms A) which so affected her health as to trigger a complete breakdown at work which resulted in her being driven home. Specifically the complainant submits that she was brought into a disciplinary meeting with Manager X and Ms A at which she was issued a written warning for what she submits were trivial issues. On the 9th June 2009 the complainant submits that she was forced to take extended sick leave due to a severe form of depression during which time and to date she was deprived/continues to be deprived of her salary.
3.4 The complainant submits that no efforts were made by the respondent to enquire after her health or fitness to return.
3.5 The complainant submits that, in April 2011, that a HR representative (Ms B) wrote on behalf of the respondent to the complainant advising that she may have an entitlement to a disability benefit under their pension scheme without seeking to establish the factual position of any disability. During this period the complainant submits that she was so badly affected by depression and anxiety that she had completely ceased to function as a person and was certainly not capable of initiating contact with the respondent. However, the complainant submits that at a later stage as part of her recuperative process she attempted to engage in some training courses.
3.6 The complainant submits that, on the 6th of June 2012 she telephoned Ms B due to a mistaken understanding that she needed a P 45 form for submission to the Department of Social Protection in relation to a particular allowance.
3.7 In February 2013, the complainant contacted Ms B by phone to indicate that she wished to return to work but that Ms B raised the issue of the complainants request for her P45 in June.
3.8 The complainant contends that she her employment has not been terminated and she has never resigned. The complainant contends that she has been the victim of continuing discrimination on the disability ground since 2009 and said discrimination continues.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent submits that on the 7th June 2009 the complainant left work of her own accord, feeling unwell and subsequently furnished a note from a HSE psychologist indicating that two weeks rest was required. The respondent submits that no sick notes of any nature were furnished by the complainant during the course of her absence from work.
4.2 The respondent submits that Manager X attempted to contact the complainant by phone, text and personal house call in the weeks/months following her absence. No communication was received from the respondent. The respondent submits that on the 8th April 2011 a letter was sent to the complainant inviting her to contact the respondent.
4.3 The respondent submits that on the 6th June 2012 the complainant contacted the Respondents HR Department by phone (Ms B) and requested a P45 form in order to pursue a course of full time study. During that call Ms B discussed the complainants final pay cheque consisting of accrued holiday pay and later issued same to the complainant.
4.4 The respondent submits that the claimant made no contact with them for the following eight months until on the 22nd February 2013 the complainant again contacted Ms B by telephone to indicate that she wished to return to work. The respondent submits that during that call the complaint made it clear that the reason she wished to return was her inability to find alternative employment. It is the respondents position that the complainant had resigned in June 2012 and that this was explained to her during the call.
4.5 The respondent submits that, as there had been no contact between the complainant and Ms A after June 2009 and that the complaint solely refers to matters which pre-date the statutory limitation of six months /one year.
4.6 The respondent submits that the primary issue to be determined is as per the original complaint form – namely whether she was discriminated against contrary to the provision of the Acts on foot of behaviour of Ms A, the last incident of which occurred about May 2009.
4.7 The respondent submits that the complainant cannot now include a complaint of discriminatory dismissal as it fundamentally alters the general nature of the claim being made.
CONCLUSIONS OF THE EQUALITY OFFICER
5.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability.
Without taking into account that the original complaint form was filled out online by a lay litigant who was (she submits) suffering from the most severe depression, the original complaint form (which is short on detail) clearly submits allegations by the complainant that she has been discriminated against by the respondent on the disability ground to the effect that,
a. Her conditions of Employment were effected
b. She was Victimised
c. She was Harassed.
I must investigate all of these allegations and in doing so, I have taken into account all of the submissions, written and oral, made by the parties.
5.2 The complainant has alleged that she was discriminated against on the grounds of her disability by the respondent. “Disability” is defined in Section 2 of the Acts as meaning –
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
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”.
I find based on a Doctor’s report (not available to the respondent until these proceedings) and other medical certificates, that the complainant was suffering from a disability as defined under the Acts.
5.4 The next matter I have to consider is whether the complaints were referred within the statutory time limits. Section 77(5) of the Acts provides as follows:
(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".
Section 77(6A) of the Acts provides as follows:
For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
period"
As the complainant has already been granted an extension of time for referral of the complaint under the acts, the effect of these provisions is that the complainant can only seek redress in respect of occurrences during the one year period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. I must consider whether there is ongoing discrimination and whether all of the incidents were interlinked.
5.5 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.”
In the instant case, I consider all instances of the respondent’s treatment of the complainant with regard to her disability to be linked. I must decide if a continuum of discrimination exists following examination of those instances.
5.6 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
5.7 An employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.
However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(3) (a) For the purposes of this Act a person who has a disability
is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully
competent and capable on reasonable accommodation
(in this subsection referred to as ‘‘appropriate
measures’’) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(complainant) In determining whether the measures would impose such
a burden account shall be taken, in particular, of—
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s
business, and
(iii) the possibility of obtaining public funding or other
assistance.
5.8 In relation to the practical requirements and obligations placed on employers The Labour court has found in Humphreys v Westwood Fitness Club [2004] E.l.R. 296 that:
.
“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered.The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable.The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
5.9 In the instant case I accept the complainant’s direct evidence of the meeting in January 2009 with her line manager (Manager X). Specifically I accept that the complainant advised Manager X of the serious nature of her medical condition and her recent treatment. Manager X was not presented by the respondent and the respondent is in no position to refute the evidence of the complainant.
5.10 The respondent’s Human resources function was assigned to half of the time of one person (The HR/payroll manager). For an organisation with over 400 employees this was wholly inadequate. The HR-payroll manager attended the hearing and I found her to be a highly capable and professional person but she had no HR training and had no involvement with the events relating to the complainant in 2009. Ms A also attended the hearing but was unclear about any formal HR policy or procedure that would have allowed the respondent to deal with the complainant’s disability requirements under the Acts. There was no system in place for Manager X to communicate the complainant’s issues to a central HR department. No formal records were kept but apparently some managers kept files on employees in their offices which have since disappeared.
5.11 Taking into account the above I find that the respondent was on notice of the complainant’s disability from January 2009 and should have made proper enquires from that date inwards. The complainant submits that she had a good working relationship with Manager X and it is probable that manager X felt (in the absence of any procedure) that she would manage the complainant if problems arose.
Harassment.
5.12 However, it was the involvement of Ms A at the disciplinary meeting in June 2009 that exposed the failure of the duty of care to the complainant. Having heard all of the circumstances of the relationship between Ms A and the complainant and the details of the disciplinary meeting I find that there is no evidence that Ms A harassed the complainant as defined under the Acts. There is no evidence of overt mistreatment and Ms A very infrequently interacted with the complainant as she managed a number of stores but specifically, there is no evidence that Ms A was aware of the complainant’s disability.
Conditions of Employment.
5.13 It is probable that, had the respondent made proper enquiries from the outset they would not have exposed the complainant to the disciplinary meeting involving Ms A (a very senior manager). I accept that the disciplinary meeting triggered a very serious period of anxiety and depression for the complainant. The respondent submitted at the hearing that no medical certs were expected due to (in their view) the nature of the complainant’s illness, i.e. they knew she had something wrong with her but had not enquired as to what that was. On the 8th of April 2011 the respondent finally issued correspondence to the complainant. In that letter the respondent advises the complainant that she may have an entitlement under the respondent’s pension scheme.
5.14 Therefore it is clear that the respondent still considered the complainant to be an employee (on extended sick leave) as of the 8th of April 2011. There is still no evidence at this point that the respondent made any effort at enquiries regarding disability.
Issue of Resignation.
5.15 It is the respondent’s submission that the complainant resigned through a phone call on the 6th June 2012. The respondent can offer no evidence of the resignation of the respondent other than the testimony of Ms B which is directly contradicted by the complainant. At best having heard the direct testimony of both parties to the phone call on 6th June 2012, it can be said that there was some confusion. It is the position of the respondent that no account to the complainant’s disability was taken at this time. The respondent never followed up on the phone call or issued a P45. I find that the respondent did not take sufficient action to terminate the employment of the complainant.
Time Limits.
5.16 Evidence was given at the hearing by the respondent that it was during this phone call to Ms B in February 2013, that the and the issue of giving the complainant some hours of work was raised before the complainant went on to (for the first time) make allegations of bullying and harassment against Ms A. Evidence was given at the hearing by the respondent that after the phone call, a managerial discussion took place were it was officially decided that the complainant had resigned eight months earlier. I find that this decision is clearly due to the respondents perception that
· The complaint had some form of mental health issues.
· The complainant was now blaming Ms As behaviour for those issues.
Following the call the issue of offering the complainant some working hours was dropped. Therefore the decision to insist that the complainant had resigned (and was no longer on long term sick leave) was due to her disability. The effects of this decision, concerning a clear change to the complainant’s conditions of employment are ongoing.
Victimisation.
I do not find the circumstances of the phone call in February 2013 are sufficient to demonstrate that the complainant had (or intended to) initiate a complaint procedure. I also find that the fact of the complainants referral of a complaint to this Tribunal were not a motivating factor for the respondent. I therefore find no evidence of victimisation as provided for under the Acts.
5.17 The 28th February 2013 was the first instance of a written communication from the respondent to the complainant stating that she was no longer an employee. The respondent was fully aware of the complainant’s vulnerable position at this time. I find this is a further instance of the discrimination in the form of ignoring the disability and was taken within the statutory limitation imposed by the Acts.
5.18 Given the most serious nature of the complainant’s disability I accept her submission that her disability stopped her from initiating contact with the respondent. The failure of the respondent to make any enquires about complainants disability in 2009 has directly negatively affected the complainant to date.
5.19 Discriminatory Dismissal.
As the complainant is still an employee of the respondent the issue of discriminatory dismissal does not arise.
5.20 I find that,
• The respondent has never made any enquiries so as to establish fully the factual position in relation to the complainant’s capacity.
• The respondent decided to act on a misunderstanding in order to get rid of the complainant as soon as she raised the issue of harassment related to her disability.
• Unknown, to the respondent the complainant’s extreme suffering due to her disability was exacerbated by their failure to engage with her as required under the Acts.
5.21 Accordingly, I find that the complainant has established a prima facie case of discriminatory treatment in relation to her conditions of employment, on the grounds of her disability and the respondent has failed to rebut.
DECISION OF THE EQUALITY OFFICER.
6.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has discriminated against the complainant on the disability ground regarding her conditions of employment
(ii) the respondent has not discriminated against the complainant on the disability ground regarding harassment
(iii) the respondent has not victimised the complainant in terms of Section 74 of the Acts.
(iv) the complainant remains an employee of the respondent.
6.2 I hereby order, that
(i) the respondent pay the complainant the sum of €28,000 in compensation for the effects of the discrimination. This figure represents compensation for infringement of her rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.
(ii) the respondent engage with the complainant regarding reasonable accommodation of her disability as required by the Acts.
_______________________________
Peter Healy
Adjudication Officer/Equality Officer
21st December 2015