ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012795
A Large Retailer
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 16/08/2018
Workplace Relations Commission Adjudication Officer: Gerry Rooney
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant, a Sales Representative for a large retail company, submitted that Contrary to Section 6 of the Employment Equality Acts, 1998- 2015 (the Acts) he was discriminated against by reason of his disability following a disciplinary sanction that was imposed upon him in October 2017 without regard to his disability.
The Respondent has denied that the Complainant was discriminated against. The Respondent maintained that it imposed a proportionate disciplinary sanction on the Complainant following its investigation of allegations that at a Christmas party the Complainant entered the ladies’ toilets, lifted up a female colleague and tried to kiss her, and that he later got into a physical assault with a group of people where he had to be stopped by security. In light of the actions of the Complainant it maintained its disciplinary action was reasonable.
Summary of Complainant’s Case:
The Complainant has been employed by the Respondent since 30th September 2008 as a Sales Representative. The Complainant advised he has a disability with a history of depression and mental health. He submitted that following an incident at the Respondent’s Christmas party on 3rd December 2016, which he could not recall due to a psychotic condition, he was subject to a disciplinary procedure. Whilst the Complainant did not enter a defence regarding any specific allegations of wrongdoing, he contended that following a period of sick leave when he returned to work on 18th September 2017 he was suspended and the allegations arising from the events of 3rd December 2016 were put to him at a disciplinary hearing on 3rd October 2017. The Complainant maintained that the disciplinary sanction imposed on him, which was a final written warning and a relocation to another store, failed to provide him with reasonable accommodation due to his disability.
The Complainant maintained that as he had a disability the Respondent should have obtained a medical opinion to get a fuller understanding of his condition before imposing the disciplinary sanction to move him to another store. As such he argued that he had a prima facia case of discrimination.
The Complainant submitted that the disciplinary action has been a further setback to his disability, and the decision to remove him from a close circle of friends and support that he had in his workplace was not reasonable and amounts to discrimination by reason of his disability. The Complainant argued that the Respondent has failed to meet its obligations as set out in the 1995 Schumacker Judgement of the ECJ (C-279/93), in that discrimination has occurred because the Respondent applied similar rules to the Complainant in its disciplinary sanction as it would apply to a person without disability.
The Complainant is seeking compensation and requested that a back to work plan which involves occupational health be introduced to facilitate a return of the Complainant to his former work location.
Summary of Respondent’s Case:
The Respondent submitted that following the staff Christmas party on 3rd December 2016, various incidents involving the Complainant were reported to its Store Manager. As a consequence of these incidents the Store Manager commenced an investigation on 5th December 2016. The allegations included a report that the Complainant had seriously assaulted a female colleague; that he was engaging in aggressive behaviour towards other customers in the venue that the Christmas party was held in such that he was rejected and barred from the premises; and there was a complaint from the publican of an adjoining venue about aggressive behaviour on the night of the Christmas party by the Complainant.
The Respondent advised that on 5th December 2016 the Complainant lodged a written grievance where he alleged that his character was been the defamed by the colleague who was telling people that he had assaulted another colleague at the Christmas party. In this written grievance the Complainant had stated they were all getting a bit giddy, and joking, where he picked up a female colleague messing and maintained it was horseplay and that the female colleague was laughing about it. The Complainant submitted in his grievance that the allegations were completely fabricated and blown out of proportion.
The Respondent submitted that the Investigating Officer for the complaint met with the female colleague who described how the Complainant had assaulted her and that she followed this up with a formal written grievance on 8th December 2016. In this complaint the female colleague advised the Complainant had come into the hallway of the toilet, picked her up and brought her into the disabled toilet and pushed her against the wall and tried to kiss her. She told him to stop and to put her down. She advised that she had a horrible fright and was very shaken.
The Respondent advised that the Complainant was invited to an investigation meeting on 8th December 2016 and was placed on paid suspension during the investigation process. At the meeting the Complainant was accompanied by his Shop Steward, and in response to the allegations he denied being in the disabled toilet and said he did not remember anything after he picked the female colleague up. However, the Respondent maintained the Complainant did further comment that he had bear hugged the female colleague and that his hands could have been close to her buttocks but he still thought it was only horseplay. He advised he would apologise if he had to. The Respondent submitted that in response to the subsequent altercation with other patrons at the party, the Complainant said that they were trying to get involved in his business and he reacted. The Complainant also advised the Respondent that he did not remember the events in the neighbouring pub.
The Respondent advised that following the investigation the Complainant was invited to an investigation outcome meeting to be held on 12th December 2016. On 12th December 2016 the Complainant submitted a medical certificate citing stress and anxiety as the reason for being unfit for work. The Respondent submitted that the Complainant remained absent on certified sick leave for until 15th September 2017. He returned to work on 18th September 2017 with a certificate stating he was suffering from an anxiety disorder, and was fit to work
The Respondent invited the Complainant to the reconvened investigation outcome meeting on 18th September 2017 where he attended with his Shop Steward. The Respondent advised the Complainant that the Investigation Officer was satisfied that the three alleged incidents of the 3rd December 2017 were upheld and that the Complainant was suspended on pay until a disciplinary hearing was convened.
The Complainant attended a disciplinary hearing on 2nd October 2017 where the Complainant was accompanied by his Union Official and the Shop Steward. The Complainant advised the Respondent that he would not be submitting any defence to the allegations but that there was new medical evidence he wanted to be considered. The Complainant submitted a medical report which said the Complainant had symptoms of anxiety and that he had been under the care of a mental health team since November 2016. Whilst the Respondent advised it had not been informed about this condition at the time of the incident it had learnt of his condition as part of the ongoing confidential welfare meetings with HR manager during the Complainant’s absence. At the hearing the Complainant contended that he was not responsible in any way for the actions outlined in the investigation due to his condition. The Complainant also confirmed to the Respondent at the meeting on 2 October 2017 that he had not told the Investigating Officer about this treatment or diagnosis at the time of the investigation hearings.
The Respondent submitted that the Complainant attended a disciplinary outcome meeting on the 27th October 2017. At this meeting the Complainant was informed that due to clear breaches of serious misconduct including abusive, threatening and insubordinate behaviour towards other staff, conduct which brought the company’s good name into this disrepute, and dignity at work breaches that the sanction of a final written warning for 12 months, and a relocation to another store was being imposed. The Complainant was advised of his right to appeal, and an appeal was lodged on 2nd November 2017.The Respondent informed the hearing that the Complainant went on sick leave and on 21st November 2017 and a decision was made to defer the appeal hearing once the Complainant’s doctor certified his fitness to attend the meeting.
On 12th December 2017 the Complainant submitted a medical certificate confirming his fitness to attend an appeal hearing. The appeal hearing was held on 9th January 2018. The Complainant attended the appeal hearing with his Union Official and advised that the he was appealing the written warning and the relocation to a different store on the basis that due to his medical condition at the time of the Christmas party the Complainant could not be held responsible for his actions. The Complainant submitted to the Respondent at the appeal hearing that he believed reasonable accommodation would have obliged the employer to take on board the professional advice provided to them from the Complainant’s doctor and that no sanction should have issued. The Respondent submitted that the Complainant’s representative argued at the appeal hearing that the company should have organised a care plan taking on board all the circumstances and options involved in this case that would have allowed the Complainant to return to work. The Complainant also put forward medical evidence as part of his appeal.
The Respondent further submitted that the Appeals Officer met with the Investigating Officer who confirmed that he took into account the defence offered by the Complainant and his union representative about his mental health issues, and also took into consideration the Complainant’s doctor’s report. The Investigating Officer advised the Appeals Officer that it was the defence of the mental health issues that led him to recommending a sanction of a final written warning and a relocation rather than the ultimate sanction of dismissal.
On 19th February 2018 the Respondent’s Appeals Officer issued an outcome of the appeal were the Respondent upheld the final written warning with a relocation of the Complainant to another store. In coming to this conclusion, the Appeals Officer had satisfied himself that the medical evidence had been considered and where consideration of that medical evidence had directly resulted in a lesser sanction than dismissal being applied.
With regard to whether the Complainant had been discriminated, the Respondent submitted that the burden of proof lies with the Complainant to establish a prima facie case of discrimination under the Employment Equality Acts (the Acts). The Respondent maintained that the Complainant has failed to establish any facts which would infer that any form of discrimination on the grounds of disability had occurred and which would allow for the burden of proof to shift to the Respondent to defend the claim. The Respondent also maintained that the Complainant had not identified any comparator in relation to whom he was allegedly treated less favourably than.
The Respondent advised that a serious allegation regarding the Complainant’s behaviour at the staff Christmas party on 3rd December 2016 had been upheld in its disciplinary process. The Complainant had seriously assaulted a female colleague, he had engaged in aggressive behaviour towards other customers in the venue such that he was rejected and barred from the premises, and he had been aggressive at another premises that night.
The Respondent contended that a prima facie casedid not exist on this occasion. It maintained that the well-established practice of the Equality Tribunal and the Labour Court is to require the claimant present in the first instance facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminated ground cited, which in this case was a disability. Referring to the Southern Health Board v Mitchell, DEE 011 ELR 201, the Respondent argued that the first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to the Complainant. This it argued required that the Complainant must prove, on the balance of probabilities, the primary facts on which the Complainant was relying upon in seeking to raise a presumption of unlawful discrimination. The Respondent maintained that it is only if those primary facts are established can they be regarded as being of sufficient significance to raise a presumption of discrimination.
The Respondent further referred to Margetts v Graham Anthony & Co Ltd, EDA 038 which found that the mere fact that a complaint falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. In this regard the Respondent argued that Complainant must the adduce other facts from which it may be inferred, on the balance of probabilities that, an act of discrimination has occurred.
Referring to Valpeters v Melbury Developments Ltd (EDA 0917), the Respondent advised that Section 85A of the Act 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 significant significance to raise a presumption of discrimination. Quoting from the above case, the Respondent argued however, they must be established as facts with 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. The Respondent argued that section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant. The Respondent therefore submitted that it is only when the Complainant has discharged this burden that the burden shifts to the Respondent to rebut the influence of discrimination. The Respondent submitted that the Complainant had failed to discharge this burden of proof and, consequently, the claim cannot succeed.
The Respondent further argued that the Complainant had failed to provide any evidence that he has been treated less favourably than another person is, has or would be treated in a comparable situation. It also contended that the Complainant had failed to cite any comparators within the Respondent’s company against whom it could be established that the Complainant was treated less favourably. In addition it submitted that no evidence existed to support a complaint of discrimination or that there was a hypothetical comparator. The Respondent pleaded that accordingly the Complainant has failed to establish any discrimination as defined by the Act.
The Respondent also maintained that the Act clearly sets out that discrimination is defined as occurring where “a person is treated less favourably than another person is, has been, or would be treated in a comparable situation” and where the other person does not have a disability or has a different disability. On that basis the Respondent argued that the Complainant can only succeed if he establishes that he received a harsher disciplinary outcome than somebody with a different or no disability would have received and who had committed equally serious offences
In response to the protection the Complainant was seeking under the Schumacker case, the Respondent strongly refuted the fact that it did not consider or ignored that the Complainant was suffering from mental health issues at the time of the incident. The Respondent contended that it did apply its disciplinary rules differently to the Complainant due to his medical situation. In this regard the Respondent submitted that a serious sexual assault had occurred and where such an offence warrants summary dismissal in its disciplinary procedures. It maintained that even in incidents involving physical assault and no element of sexual harassment would generally result in a dismissal, however such incidents are rare it is employment. The Respondent also advised that much less serious incidents involving abuse of colleagues than in the current case have resulted in dismissals. It further maintained that its rules make it clear that work social events are covered by the company’s disciplinary and dignity at work policy. It maintained that violence and sexual assault has no place in the workplace and would not be tolerated by the Respondent. It also advised that the primary concern and overriding duty was to the female employee subject to the assault.
The Respondent accepted that relevant medical evidence should be considered as a potential mitigating factor in deciding on what is an appropriate disciplinary sanction. It submitted that it did in fact make such considerations in the current case and where it maintained it has demonstrated that the Disciplinary Officer’s thinking moved from considering a decision to dismiss the Complainant to a lesser sanction because of the medical evidence presented by the Complainant. Furthermore, the Respondent refuted that the medical evidence presented by the Complainant meant that an employee could not be held responsible for their actions to the extent that the disciplinary process should be abandoned.
The Respondent accepted the Complainant’s medical evidence as presented at the disciplinary hearing and advised that the doctor treating the Complainant did not state or even imply that the Complainant was so ill as to be absolved of all responsibilities for his action. The Respondent advised that the medical report had been commissioned by the Complainant and it was willing to accept that medical report.
Accordingly, the Respondent strongly refuted that discrimination by the Respondent had formed any part of its decision making. It maintained there was clear evidence of a serious assault by the Complainant against a female colleague, and where that female colleague continues to work in the store where the Complainant was employed. The Respondent submitted that it would be unconscionable to place the Complainant back into the same store as the victim of the assault, and it would be unacceptable to transfer her rather than the Complainant. The Respondent submitted that the outcome of the disciplinary process meant that the Complainant still had a job despite his extremely serious misconduct, with no reduction in his terms and conditions of employment. The relocation wasth only option open to it unless it required the victim of the assault to be relocated.
In response to its obligation to reasonably accommodate a person with a disability, the Respondent referred to section 16(3)(a) of the Act which states for the purposes of this act a person who has a disability is fully competence to undertake, and fully capable of undertaking, any duties if the person will be so fully competent and capable on reasonable accommodation (in this subsection referred to as ’appropriate measures’) being provided by the person’s employer. In accordance with section 16(3)(b) of the Act the Respondent advised that an employershall do all that was reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities so as to render the employee ‘fully competent to undertake, and be fully capable of undertaking duties’ in accordance with section16(3)(a) of the Act. In this regard the Respondent submitted that reasonable accommodation is about taking appropriate measures by the employer to allow a person with a disability to perform their core duties on an equal footing with other employees, and is not a means to mitigate an employee’s actions, conduct or behaviour.
Whilst acknowledging that the Complainant has remained unfit to work since the disciplinary hearing, the Respondent accepted that they have responsibility to provide reasonable accommodation to facilitate the Complainant’s return to work if such accommodation is required. However, as the Complainant has been medically certified as unfit for work since the conclusion of the disciplinary process the Respondent argued it cannot provide reasonable accommodation for an employee who is unable to work, or is unfit to attend the workplace at all. The Respondent advised that it had continued to engage with the Complainant through his absence and that he has never indicated at monthly welfare meetings that he was able to start a return to work process. The Respondent maintained that it had established a return to work plan for the Complainant which will be implemented once the Complainant’s doctor indicates a possible date for return to work. It had yet to share this process with the Complainant.
The Respondent therefore submitted that the complaint within is entirety was misconceived within the terms of the Act and submitted that it should be dismissed in accordance with section 77 A(1) of the Act.
With regard to the Complainant’s return to work plan, the Respondent advised that once the Complainant’s own physicians indicate there is a possibility of a return to work the Respondent will consider any recommendations that the doctors may wish to put forward. The Respondent also intends to refer the Complainant to the company’s medical advisers for advice and recommendations to assist with a return to work. It maintains that it would provide the Complainant with support from its Employee Assistance Program, and subject to any medical advice the Respondent will facilitate the Complainant’s return to work, but that he must accept transfer to another store in light of the serious events that occurred in December 2016.
Findings and Conclusions:
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.
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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
In the case of Melbury Developments v Arturs Valpetters[EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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……the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. With reference to the case within, I am satisfied the Complainant had a disability and was subject to disciplinary sanction for his behaviour, and where the Complainant has maintained that the Respondent did not reasonably consider his disability before imposing its disciplinary sanction.
Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".
The Complainant claims that he was suffering from a disability related to his mental health. This is not disputed by the Respondent. In addition, the Complainant has not contended the incidents that occurred on 3rd December 2016. What the Complainant has maintained is that the outcome of the disciplinary process, which issued him with a written warning and a relocation to another store, amounts to discrimination because it did not consider his disability before imposing the sanction. It has been argued by the Complainant that the Respondent in particular has disregarded the medical impact that the relocation to another store would have on his disability. It was because of this relocation and the impact it will have on his disability that the Complainant maintained he could not return to work.
It was not contested that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts. Accordingly, the issue for decision in this case is whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts; and whether he was discriminated against by the Respondent in relation to his conditions of employment on the grounds of his disability. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
The first element of the complaint to be considered relates to the claim that the Respondent failed to provide the Complainant with reasonable accommodation in terms of taking into consideration that the Complainant suffers from a mental health illness when it imposed a disciplinary sanction of a written warning and relocation to another store.
I find the incidents which occurred on 3rd December 2016 were properly investigated and were upheld within that investigation. The evidence provided also supports that consideration was given to the Complainant’s medical situation when the disciplinary sanction was being decided upon, and also when the matter of the Appeal was being considered.
There is no doubt that the act of assault committed by the Complainant would ordinarily amount to a summary dismissal. The fact that dismissal did not occur demonstrates that the Respondent had carefully considered the Complainant’s medical situation and imposed a lesser sanction that fell short of dismissal. The Respondent then had to consider the impact of a return to work by the Complainant to the same workplace where the female colleague who had been assaulted by the Complainant was still working. In light of this factor the Respondent decided to relocate the Complainant to a different store. It is in this decision that the Complainant has submitted he is not being reasonably accommodated and that a reasonable accommodation should take into consideration a medical opinion that would set conditions to allow him to return to his original place of work.
With regard to reasonable accommodation, the provisions of Section 16(3)(b) of the Acts provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer. The fact remains in this case that it is not his disability that is preventing the employer from accommodating a return of the Complaint to his former workplace, but the fact that another work colleague was assaulted by him and the very evident duty of care the Respondent has to that employee under these circumstances. It is an unenviable situation the Respondent finds itself in. However, it has in place a return to work plan, and under these circumstances it appears willing to reasonably accommodate the needs of the Complainant but in another work location. I am satisfied that the decision to relocate the Complainant is based on clear and objective criteria and not on his disability, and therefore I do not find this decision is discriminatory under the circumstances.
The Complainant’s has also raised an important legal authority for consideration by referring to Finanzam Koln-Alstadt v. Schumacker C-279/93  E.C.R.1-225 where the ECJ held “It is settled law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations.” In applying this principle, the Complainant has maintained that the Respondent in imposing a disciplinary sanction against the Complainant treated him similarly to a person who does not have a disability. As such the Complainant submitted the Respondent has discriminated him due to his disability.
I am satisfied from the evidence adduced that the Complainant committed a grave or acts act that would normally lead to a summary dismissal. It is clear the Respondent did not dismiss the Complainant but instead issued a final written warning and a relocation of the Complainant to a different store. I am satisfied the Respondent in making this decision has considered the medical circumstances presented by the Complainant and by his own doctor. The evidence therefore supports that the Respondent whilst applying the disciplinary policy to the Complainant did apply reasonable decision making which differed markedly to how it would have applied a decision to a person without a disability in similar circumstances. On that basis I do not uphold that the Respondent is in breach of the precedent established in the Schumacker case.
I therefore do not find the Complainant was discriminated against, or that the Respondent has failed to reasonably accommodate the Complainant.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
As I have not found that either discrimination or a failure to reasonably accommodate the Complainant has occurred I do not find in favour of the Complainant. I therefore decide that the complaint fails.
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words: Employment Equality Acts, Discrimination, Reasonable Accommodation, Disciplinary Procedures, Schumacker Judgement of the ECJ (C-279/93)