EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-085
(Represented by Kingsford Solicitors) Complainant
(Represented by IBEC) Respondent
File references: ET-156844-EE-15 and ET-158189-EE-15
Date of issue: 13 December 2017
1.1 On the 30th May 2015 and 10th June 2015, the complainant referred complaints regarding discrimination, harassment and victimisation. On the 15th March 2016, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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.
1.2 The complaints were scheduled for hearing together on the 31st March 2016 and the 18th May 2016. The complainant attended and was represented by Kingsford Solicitors. IBEC represented the respondent, a retail department chain and part of a UK public limited company. The HR advisor attended as a witness on the first day and the HR advisor, the Disciplinary Manager and the Current Store Manager attended as witnesses on the second day. The report also refers to the Former Store Manager.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act.
2. Summary of the complainant’s evidence and submissions:
2.1 The complainant commenced employment with a predecessor of the respondent in November 2004. The store was in Cork and she worked initially as a night packer. She became a weekend staff member and was then promoted to the role of full-time sales adviser. In or around 2008, a leading UK department store acquired the Irish company and the complainant was further promoted to the role of supervisor. She explained that the role of supervisor involving “running the floor” and included such tasks as managing lunches, rotas, stock and sending emails to other business units within the respondent. The complainant outlined that in these years, she performed well in these roles. She was put forward for the Sales Manager Designate post within the respondent organisation. She attended an assessment and interview, as well as being required to give a presentation. She was successful with her application and was later also successful in being appointed to a “SMD” role in a respondent store in Dublin. The then store manager interviewed the complainant for the appointment and subsequently approved it. The complainant outlined that to take the SMD role in this store, she had to move to a new contract of employment with the respondent, relinquishing the more generous contract that dated from the time of the respondent’s predecessor.
2.2 In respect of appraisals, the complainant said that the respondent brought in more formal procedures when it was taken over by the UK firm. She was also subject to more frequent appraisals following her appointment to the post of supervisor in 2009. She outlined that she successfully integrated into the team and the manager was very happy with her performance. This manager transferred to a respondent store in a neighbouring county and replaced by another manager (referred to in this report as the Former Store Manager). The complainant said that, for the first month, her relationship with the Former Store Manager was good. The Former Store Manager carried out a performance appraisal of the complainant in July 2014. This marked the complainant as underperforming and put her on a performance improvement plan for a period of six months. Despite there being a six-month period for the performance improvement plan, the Former Store Manager carried out a review in October 2014. This raised spelling mistakes made by the complainant in emails and the Former Store Manager offered to proofread the complainant’s emails. The Former Store Manager raised issues regarding the management of the shop floor. The complainant outlined that these were common issues on all floors and she sought to actively address them.
2.3 The complainant outlined that she later learnt that the Former Store Manager was going on a year-long career break in early 2015. Their last day working together was the 7th January 2015. The complainant said that she met with the Former Store Manager on this day and was surprised to be handed a long and detailed assessment of her performance, including her spelling. The letter ends by offering the complainant a transfer to the post of supervisor at another store or to enter the disciplinary process. The complainant said that she had given up a better contract of employment as supervisor in Cork to avail of the SMD opportunity, so she would not take the demotion back to a supervisor position on worse terms. During the discussion on the 7th January 2015, the complainant was surprised when the Former Store Manager said that she was not aware of the complainant’s dyslexia. They had discussed this at the earlier meeting. The complainant said that the other issues raised in the 7th January 2015 were “fluff” around the issues of her dyslexia and her spelling. She said that the issues raised about two colleagues were not accurately portrayed. One staff member was a longstanding supervisor who then faced difficult personal issues. The complainant sought to manage them as best she could as a trainee manager. This person had since moved to different floor and had the same relationship with her new line manager, but no action had been taken against this line manager. The other colleague was a law student and not interested in progressing in the respondent. She outlined that the issues raised regarding the rosters occurred on every floor.
2.4 The complainant met with the Disciplinary Manager on the 10th February 2015. This meeting centred on the complainant’s dyslexia. It adjourned to allow the complainant supply documentation relating to her dyslexia. Addressing her disability, the complainant outlined that she had obtained a psychological assessment as a child diagnosing her as having dyslexia. She received a spelling concession for her Junior Certificate. She sought the same level of support when doing the Leaving Certificate, but following an assessment, she was offered both a spelling concession and a scribe. She supplied documentation from the State Examination Commission to the respondent, when requested after the first, adjourned disciplinary meeting. She also supplied a letter from her GP, stating that the complainant has mild dyslexia. Throughout her career with the respondent, the complainant said that she always let it be known that she had problems with spelling and had dyslexia. She would ask colleagues to review draft emails and later used a spelling app to check emails sent from her phone. She said that a spell check was not always enough as it could not pick up on words, correctly spelt, being misplaced in a sentence. She gave an example of “sugary” and “surgery” being mixed up in one particular email. The complainant outlined that she was not aware of any contractual obligation to attend an occupational health assessment. She was not happy with the contents of the letter from the HR advisor as it referred to her future return to work, despite her still being at work and that she had never missed a day of work through work. She also did not believe that dyslexia was a medical condition and there was nothing required of the respondent, except not to pick up on some spelling errors. She said that she had worked hard to overcome dyslexia and to avoid errors. She said that the request was invasive and insulting. The letter was a pro forma letter that was not relevant to her situation, referring to her being out of work and to being a sales adviser. She commented that the respondent made such basic mistakes, while picking up on her spelling errors. The complainant did not give consent to the referral to the occupational health assessment and explained this in an email. This refers to the documentation she has already supplied.
2.5 The complainant attended a further disciplinary meeting of the 15th April 2015, after which received a letter dated 22nd April 2015, giving a verbal warning for a period of six months. Addressing the interview notes and the contents of the letter, the complainant commented on the “drives results” section by saying that her role was a trainee manager and during the busy Christmas period had prioritised the re-stocking of items performing well. Commenting on the reference to “evidence” in the finding of the letter of 22nd April 2015, the complainant said that the Disciplinary Manager had not asked for evidence of an improvement in this area. The letter refers to there being no evidence of improvement. Addressing the comments in relation to “planning”, the complainant said that there had been two mistakes with days off on rotas over Christmas. Hers was not the only floor with errors. There had been no errors since then. In relation to training, the complainant said that she had attended two courses and shadowed a senior colleague in another store. It was not always feasible to take the time to attend courses and she was not clear on the number of relevant courses on offer in the second half of 2014. She had since been better at asking senior managers for support. In relation to the finding in relation to “people”, the complainant said that she had informed the Disciplinary Manager of the steps she had taken to address performance issues of the supervisor. There had been no discussion of what evidence the complainant needed to provide to prove her interaction with the supervisor. A finding is made in the letter that no such evidence was provided.
2.6 The complainant appealed the decision to impose a disciplinary sanction upon her. The appeal meeting was held on the 27th May 2015 and the appeal finding issued on the 3rd June 2015. She said that the references in the opening two sections of the appeal letter to her not providing evidence are inaccurate. She had given her account of what she had said to the Former Store Manager to dispute the findings about her performance and the points contained in the action plan. The complainant outlined that the Appeal Manager did not explain his conclusion that her performance justified the bringing forward of the review to October 2014. The Appeal Manager said that he would talk with the Store Manager but he did not follow up on this. In relation to the dyslexia portion of the report, the complainant said that her former managers in Cork were still in the employment of the respondent. They never complained of her spelling and she had sought their assistance in relation to her draft emails. The complainant acknowledged that the conclusion of the appeal was the lifting of the six-month verbal warning, but she was retained in performance management. She had not seen any company document regarding performance management.
2.7 In relation to her post as an SMD, the complainant said that she did not accept the comment made by the Former Store Manager that the performance management was necessary because of the length of time that the complainant had held the trainee post and the fact that this was a promotional opportunity in the respondent store. The complainant said that there were SMDs of longer standing. She outlined that she had attended a session for all SMDs where each gave a presentation on the business. Senior members of the respondent also attended. This had been successful. The complainant outlined that she was subject to two-monthly reviews by the Current Store Manager. In these subsequent reviews, one specific issue was raised over two leave days in rotas over the Christmas of 2015, but no issues had arisen since then. She disputed the other findings, saying that she had gained the confidence of staff and had built relationships with management across the respondent.
2.8 In cross-examination, the complainant said that she had mentioned her dyslexia to the Former Store Manager when they discussed her emails. She agreed that dyslexia was a disability. It was put to the complainant that you could not “unring a bell” when she disclosed her disability to the respondent and that she had tied the company’s hands in not doing the occupational health. The complainant said that she was only asking that her typos not be picked up. She acknowledged that the respondent had raised performance issues. In relation to the two colleagues, she said that it was her evidence that she managed the two colleagues and that the line manager of her former supervisor was not challenged as she was. It was put to the complainant that it was the respondent’s objective to assess the gravity of her dyslexia; she replied that she had been a supervisor since 2008 and no issue had been raised, for example when she asked colleagues to check her emails. She described the referral to occupational health as an invasion of privacy. She had raised the issue of her dyslexia as her spelling was being used against her. It was put to her that the respondent could have put other measures in place; she replied that there was never any discussion of other options. She based her reaction to the letter asking her to consent to an occupational health assessment on the basis of the forms she received. There was little consideration in the letter to her as an employee. It was put to the complainant that she was a valued employee and there was nothing punitive about the performance management. It was put to the complainant that the respondent’s approach was the opposite to discrimination. The complainant disagreed with this statement, saying that the respondent had adopted an aggressive approach, pointing to a part of the meeting of the 15th April 2015 where the Disciplinary Manager had asked her if she used spell check and then produced an email to say she did not. She said that this was to undermine her and that there was no actual spelling mistake in the email, even though a word was misplaced. A statement made by the union representative referring to reasonable accommodation was put to the complainant; she replied that the respondent should not take a hard stance on spelling. She said that she had been highly embarrassed over the typos, but that she had endeavoured over years to remedy this. She said that the line of questioning of the Disciplinary Manager was harsh, not fair and not nice. It was put to the complainant that this line of questioning was to assess the reasonable accommodation required and her disability. She agreed that she had stopped the respondent making further enquiries via the occupational health assessment.
2.9 In reply to the respondent, the complainant said that she should have been given 48 hours’ notice of the commencement of the action plan and of the formal review. The respondent’s process in relation to her disability had been flawed as she was not permitted to submit her own information. There had been some discussions regarding her performance with the in-store orders. She said that personal care items were on her floor and performed well, but they were recorded on a different floor. This was a huge influence on how the Christmas 2014 performance was assessed. This was a matter discussed at the meeting on the 15th April 2015. She outlined that this had been very stressful for her and that she was placed under enormous pressure. She had done her best and acknowledged some roster errors. She said that she had not responded to all emails. The complainant outlined that she should have been transferred to Cork. The performance management document would provide for the opportunity to transfer to the Cork supervisor role and this role had been advertised across the company.
2.10 In closing comments, the complainant outlined that a breach of the Employment Equality Acts had taken place arising from the letter of the 7th January 2015. How the respondent managed what followed was also a breach. The respondent had been excessively interested in the complainant’s dyslexia. The disciplinary process had proceeded on the basis that everything the Former Store Manager had said was true. The complainant was not afforded her right to submit her own information. While the verbal warning was withdrawn, the performance management process continued for 18 months. The complainant had been subject of discrimination and victimisation by the respondent. The complainant had been treated differently because of her disability. The complainant was excluded as the performance management process was in being. She had been marked out from others. She submitted that the complaint was made on the 29th May 2015 and the victimisation occurred after that date. The complainant referred to the concept of the fruit of the poison tree in how the discrimination impacted on later performance issues.
3. Summary of the respondent’s evidence and submissions:
3.1 The respondent denies the claims. It outlined that the performance management process was put in place to allow the complainant achieve work standards required as a Sales Manager Designate. It had not been aware of the complainant’s disability and once it became aware of her dyslexia, it requested the complainant attend an occupational health specialist. The complainant refused to consent to the referral and as a result, she frustrated the respondent’s efforts to accommodate her working optimally.
3.2 In evidence on the first day, the HR advisor that her involvement was to issue the letter to the complainant to ask her attend an occupational health assessment. She acknowledged that this was a pro forma letter and did not reflect the complainant’s circumstances. She acknowledged that one of the statutes referred to in the letter was a UK statute and not an Irish one. On the second day, the HR advisor outlined that in this case, an action plan and training support had been provided. It had been hard to provide a solution at the time. There were job descriptions for all roles, including the SMD role. In reply to the complainant, the HR advisor said that the Cork supervisor role was filled internally in October 2015.
3.3 The Disciplinary Manager outlined that when appointed in this role, she received two set of notes regarding the investigation. They were the letter of the 7th January 2015 and the July 2014 notes. When she read through the notes, the issue of dyslexia arose was mentioned. There was no evidence that this matter had been raised prior to January 2015. The respondent then needed to find out the extent of the dyslexia and the complainant needed to confirm the nature of the disability. The Disciplinary Manager outlined that there were other issues regarding the complainant’s performance and the disciplinary process had been based on the contents of the letter. She acknowledged that she had received the correspondence from the State Examination Commission and the complainant’s GP, but there was a need to refer the complainant to occupational health. Such referrals were based on the circumstances.
3.4 The Disciplinary Manager referred to the complainant’s email where she acknowledged that the performance issues were not down to her dyslexia. In respect of the letter of the 22nd April 2015, the Disciplinary Manager said that she based her adverse findings on the complainant’s response to the Former Store Manager’s letter. She also referred to other information, such as loyalty data, which she had discussed with the complainant at the disciplinary hearing. She based her decision on the meetings with the Former Store Manager and the minutes of these meetings, which had been agreed. Her decision was based on performance and not on dyslexia.
3.5 In respect of the disciplinary hearing of the 15th April 2015, the Disciplinary Manager said that the complainant had asked for more training, but had not asked for training regarding her dyslexia. The Disciplinary Manager raised the issue of driving in-store offers and the complainant replied that she looked for it on the floor. She said that the complainant’s department was the only one to be in deficit. In respect of her loyalty performance, the Disciplinary Manager said that each manager had a target for the issue of loyalty cards. This was an area in which the complainant was also in deficit and they had not had to look at other managers. She said that the results in another store had been better.
3.6 In cross-examination, the Disciplinary Manager confirmed that she had attended training regarding disciplinary processes and back-up was available from HR. It was put to the Disciplinary Manager that the complainant had a right of reply to the email of the 7th January 2015; the Disciplinary Manager said that she was not aware of any procedural issue. It was put to the Disciplinary Manager that there was a prior awareness of the complainant’s dyslexia; she replied that there was no possibility that the Former Store Manager could have known of the complainant’s dyslexia prior to it being raised by the complainant. It was put to the Disciplinary Manager that the notes of the 7th January 2015 were held as the truth and it was for the complainant to rebut their contents; the Disciplinary Manager accepted this. The Disciplinary Manager also said that she stood over the approach taken. It was put to the Disciplinary Manager that the complainant had sought guidance regarding her dyslexia; she accepted this and said that she had to deal with the other issues. In respect of the possible referral to occupational health, the Disciplinary Manager said that when the complainant refused to attend such an assessment, the respondent continued with the disciplinary process. It was put to the Disciplinary Manager that there had been too much focus on the issue of the complainant’s dyslexia; she replied that the respondent had a duty of care to address dyslexia. It was put to the Disciplinary Manager that the correspondence submitted by the complainant should have been enough; she replied that a decision had been made that more was needed and so the referral to occupational health was made. The Disciplinary Manager said that based on the evidence, she believed that the complainant did not use spell check and that attention to detail was important. She accepted that other colleagues made spelling and grammatical errors. It was put to the Disciplinary Manager that the failure to provide information between the 7th January 2015 and the 15th April 2015 amount to an extension of the flawed process. It was put to the Disciplinary Manager that the complainant had been singled out in the respondent store for issues that arose across the store; she replied that she had no information about other colleagues in the store. It was put to the Disciplinary Manager that other SMDs may have similar issues; she said that this was maybe the case. In re-direction, the Disciplinary Manager said, in respect of the GP letter, as the complainant had said that dyslexia was not an issue, she was left to address the performance issues.
3.7 The Current Store Manager gave evidence. She had been the manager of the store in which the complainant worked and had since moved to another high-profile store of the respondent. She had set out an action plan for the complainant. She was aware of the disciplinary process involving the complainant and of the performance plan. There was no issue arising with her dyslexia. The action plan had been based on KPIs and she worked with the complainant since January 2015. There had been performance reviews in January, August, October and December 2015 and February and May 2016. She said that there had been some improvements on certain issues, but there remained issues. There were huge concerns regarding the need for follow-up and communication. Offers were being missed and she had to chase for stuff to be done. She was never confident of the follow-up. They would communicate by email and there was no reply from the complainant at all. While there had been issues with visual standards and merchandising, these had improved. The Store Manager gave the example that no-one had been rostered to work on the cosmetics floor on the 23rd December 2015, so the store could not open for a period of 15 minutes. This also occurred on the 27th December 2015. This arose because of errors in the rota. In February and March 2016, there were significant issues with the rotas and there was no feedback from the SMD process. She told the complainant that she would form her own opinion of the complainant. The performance process was not used to manage people out; it was used to get people off the process. She said that when small things happen consistently, this becomes a big issue. The issues had been the same as the Former Store Manager’s and the small things were basic stuff.
3.8 In cross-examination, the Current Store Manager agreed that she had been supplied with paperwork from the Former Store Manager in a handover. She did not accept that she took on her views and while she was aware of the disciplinary process, she formed her own views. She said that the first issues arose in February or March 2015. She did not accept that other colleagues had issues, but no-one was perfect. The complainant had been put into a process. She accepted that there was an atmosphere of scrutiny around the complainant. Commenting on action plan of the 7th January 2015, the Current Store Manager said that she would also have put the complainant on performance management. The Current Store Manager said that she has been fair to the complainant and had let some things go. She had spoken to the complainant regarding a role in a named store and she was aware that the complainant had attended an interview. Asked how the complainant could get off performance management, the Current Store Manager replied that the biggest issue was that she did not acknowledge the need for performance management, with the follow-through on communication being the biggest issue. The Current Store Manager said that she could have availed of the disciplinary process but had not done so. In re-direction, she said that she had never put anyone through a disciplinary process.
3.9 In closing comments, the respondent submitted that it found itself between a rock and a hard place when the complainant revealed her dyslexia. The letter from the GP confirmed her dyslexia, but the respondent needed to explore reasonable accommodation. The respondent was entitled to continue to address performance issues and the dyslexia was dealt with at arm’s length. The Current Store Manager had given cogent evidence of dealing with ongoing issues. The complainant had not been treated differently on these issues, other than her dyslexia.
4. Findings and conclusions:
4.1 The complainant referred two complaints for adjudication, date the 30th May 2015 and the 10th June 2015. The complainant raises discrimination, harassment and victimisation as well as the failure to provide reasonable accommodation. The complainant was a longstanding employee of the respondent (and its predecessor). She commenced in 2004 and progressed to a supervisor role in 2009. She was later selected for the SMD programme, which I understand to be a programme provided by the respondent across the organisation to develop staff and supervisors to more senior management positions. The evidence in the case provided diametrically opposing accounts of the complainant’s overall performance in the respondent. She referred to positive work assessments in her previous roles as well as compliments given to her during the SMD process. The complainant named the senior managers who gave these positive appraisals. The respondent did not challenge the veracity of this evidence. The witnesses who attended for the respondent presented a different account of the complainant’s performance. The Current Store Manager painted a picture of ongoing performance and communication issues, which were addressed through an action plan. The respondent also relied on the letter of the 7th January 2015 drafted by the Former Store Manager. This is a four-page landscape document, where the Former Store Manager raises issues regarding the complainant, including email mistakes and incorrect reads. It refers to the complainant not being able to progress on the SMD programme and that she should return to a supervisor role, or else face a disciplinary process. The Former Store Manager went on career-break on the day of issuing the letter. In effect, it was the Former Store Manager’s parting shot.
4.2 The Employment Equality Act define disability as follows:
“ disability” means—
(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.”
I find that dyslexia, as a learning difficulty related to reading, writing and spelling, falls with the definition of disability provided in subsection d).
4.3 Before considering the claims made pursuant to the Employment Equality Act, the relevant legal tests for discrimination on the disability ground, harassment and victimisation are as follows. In respect of harassment, section 14A(7) of the Employment Equality Act defines harassment as:
“(a) In this section —
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,being conduct which in either case has the purpose or effect of violating a person’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
4.4 Victimisation is defined in section 74(2) as:
“(2) For the purposes of this Part 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,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
4.5 Section 85A of the Employment Equality Acts sets out the burden of proof in relation to complaints made pursuant to the Employment Equality Act. It requires the complainant prove the primary facts upon which she relies in seeking to raise an inference of discrimination. If the complainant can establish the necessary facts, and they are of such significance to raise the presumption of discrimination, the burden of proof then falls to the respondent. Addressing the issue of the burden of proof in Valpeters v.Melbury Developments Ltd  E.L.R. 64, the Labour Court held, at page 68, as follows:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”
4.6 Having considered the evidence, it is clear that the complaints of harassment and victimisation cannot succeed. There is no evidence of unwanted conduct that violate a person’s dignity or the creation of a degrading environment. Similarly, there is insufficient evidence to find that victimisation has occurred. While the complainant raised the issue of her dyslexia and was asked to attend an occupational health assessment, this, of itself, does not amount to victimisation. The complaints of victimisation and harassment, therefore, are not well-founded.
4.7 Discrimination occurs where a person receives less favourable treatment on one of the discriminatory grounds. In this case, the complainant asserts that discrimination arose in the manner in which spelling issues were raised by her line manager, as well as the referral to occupational health. The respondent replies that it sought to manage the complainant’s performance and to refer her to occupational health so that reasonable accommodation could be considered. Of relevance to this case is that discrimination can arise not only due to the application of different rules to comparable situations but also by the application of the same rule to different situations (see Campbell Catering Ltd v Rasaq (EED 048)). In respect of the temporal scope of the claim, it is clear that redress may only be awarded for incidents of discrimination, where proven, which occurred prior to the date of each complaint. Applying County Cork VEC v Hurley EDA 1124, evidence regarding an incident that occurred after the submission of a complaint may be considered where relevant and probative to incidents of alleged discrimination within the limitation period prior to the complaint being made.
4.8 I make the following findings and comments in relation to the complaints. The complainant is a longstanding employee of the respondent and its predecessor. She progressed through levels of management to the SMD role. There is no evidence to suggest any previous performance issues relating to the complainant in the years of her employment. A Store Manager initiated a performance review process in July 2014. This assessment states that the complainant is underperforming and raises communication as a significant weakness. It states that the complainant “needs to watch her spelling and punctuation when sending emails as she often sends them with mistakes which looks unprofessional.” Later, this Store Manager writes to the complainant on the 7th January 2015 to invoke the disciplinary procedure arising out of the performance issues. This is this Store Manager’s last act as she then goes on a career break. Included in the criticisms of the complainant are her spelling and grammatical errors because “sending professional and concise emails is an integral part of your job.” It acknowledges that the complainant raised her dyslexia. The letter also states that the complainant could not continue in the SMD role where there remained underperformance. The respondent proceeded with the disciplinary process, despite the fact that this Store Manager was not available to participate in the process. This placed the complainant in a very difficult position in circumstances where the respondent accepted all the findings of the Store Manager as accurate (this was confirmed by the Disciplinary Manager in her evidence). It also led to an unfairness. The complainant had to rebut the findings made by the now-departed Store Manager and was subject to questioning by the Disciplinary Manager. The complainant was not given the same opportunity to challenge the findings made against her. This is especially the case as there is a significant subjective element to the performance criticisms of the complainant. I also note that the emails the Store Manager criticises were not included in the disciplinary process, so that they might be judged independently of the Store Manager. Instead, the disciplinary process accepted the Store Manager’s assessment of the emails as correct or the “truth”. While I find that there was a significant unfairness in how the disciplinary process was initiated, such unfairness does not, of course, mean that the claim of discrimination is made out. The treatment must be related to the grounds of disability.
4.9 It is clear that the complainant’s written communication skills were front and centre of the disciplinary process. It is the first issue raised by the Disciplinary Manager at the meetings of the 10th February and the 15th April 2015. The first disciplinary meeting was adjourned for further information regarding the complainant’s dyslexia. The complainant provides a letter from her doctor, which states that she has mild dyslexia and information from the State Examination Commission about an accommodation provided to the complainant. The respondent sought to refer the complainant to occupational health, which she declined to give consent to. The respondent asserts that this tied its hands. In respect of these issues, I note how the Former Store Manager and the Disciplinary Manager criticised errors in documents produced by the complainant. The Former Store Manager criticised her spelling and the Disciplinary Manager raises the issue of an out-of-office message the complainant added to her email that referred to the date of the 31st April (the Disciplinary Manager points out that there are only 30 days in the month.) I have already stated that the complainant’s mistaken emails were not presented at the hearing and there was no evidence of any loss incurred. During the hearing, there was discussion of errors in the respondent’s own documents, for example spelling mistakes in minutes. The letter inviting the complainant to occupational health refers to the complainant being out of work, when she was in work. The occupational health documentation refers to a UK statute, which has no application in this jurisdiction. The purpose in raising these issues was not to criticise anybody, but to demonstrate how easy it is to find fault in documentation. In the disciplinary process, fault was found with the complainant’s written fluency and this was used against her. I note that it was both the first issue raised and also provided objective support to later, more subjective performance criticisms (for example, her interaction with juniors). Even if there were other performance issues, the honing in on the complainant’s written skills was an act of discrimination.
4.10 The outcome of the disciplinary process was the issue of a verbal warning. The complainant’s appeal was heard by a senior store manager. The first issued considered was the complainant’s dyslexia. He states that there was no evidence that the complainant had previously informed the respondent of her dyslexia. He bases this finding on reviewing her file. He acknowledges that the complainant stated that she informed a named senior manager; the appeal manager does not appear to verify this with the named manager. While the outcome of the appeal was to overturn the disciplinary sanction, the senior store manager determined that performance management continue. The Current Store Manager gave evidence of her actions in this regard. As stated by the respondent, she gave cogent evidence. I, however, agree with the submission of the complainant that the fact of continuing with a performance management process initiated in a discriminatory fashion is also tainted. While the Current Store Manager said she would have initiated a performance process in these circumstances, this does not take account of the facts that the first issue on the agenda of both the Former Store Manager and in the disciplinary process was the complainant’s written fluency, in turn her disability.
4.11 I find that the complainant was subject to discriminatory treatment in the manner in which her written fluency was honed in on during the performance review and disciplinary process. It is the first issue raised by the Former Store Manager in her letter of the 7th January 2015. It is the first issue dealt with by the Disciplinary Manager at both disciplinary meetings. It is part of the reasoning for the issue of the verbal warning. This had the significant effect of weakening the complainant’s response to the wider performance issue. It was undeniable that there were errors in the complainant’s emails and documents. This was objective support for the other, much more subjective criticisms of the complainant during the initial performance review and subsequent disciplinary process. While the complainant succeeded in getting the warning overturned, she had to endure the disciplinary process, including being at odds with her employer over the referral to occupational health. The complainant wanted leeway in relation to spelling, in particular words not picked up on spell check (for example very similar words). Despite the success of her appeal, she continued to be the subject of a performance review process. It is not clear what loss or risk the respondent ever faced as a result of the complainant’s written errors. I have not seen the emails for which she is criticised. It is, of course, also unsatisfactory that the respondent proceeded with a disciplinary process in circumstances where the Former Senior Manager was not available to stand over her statement. Instead, the allegations were taken as true. A final comment is that the complainant gave uncontradicted evidence of her telling senior respondent management of her dyslexia, and of her good relationship with them. She also refers to positive appraisals from the SMD process. All this is absent from the respondent’s assessment of the complainant’s performance and her prospects in the SMD process. The fact of performance management and the disciplinary process threatened her participation in the SMD process and her advancement in the respondent (as evidenced by the letter of the 7th January 2015).
4.12 Having found that the complainant was subject to discrimination in the terms outlined above, and not subject to harassment and victimisation, I make the following findings in relation to redress. She is a longstanding employee of the respondent, and previously its predecessor. As noted, she gave uncontradicted evidence of previous good standing in the respondent, including in management positions and in the SMD process. I have found that discrimination occurred in the setting up of the disciplinary process, where her written communication was honed in on as the first criticism of her performance. I note that the complainant endured the disciplinary process, including being at odds with her employer regarding an occupational health assessment. I also note the evidence of the Current Store Manager. Taking these factors into account, I award redress of €13,000.
5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was not the subject of acts of victimisation or harassment, but was the subject of discriminatory treatment on grounds of disability.
5.2 In accordance with Section 82 of the Act, I order the respondent pay to the complainant €13,000 in compensation. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).
Adjudication Officer / Equality Officer
13 December 2017