ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014091
Laura Reidy The HR Suite
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: 02/11/2018
Workplace Relations Commission Adjudication Officer: Orla Jones
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.
Given the sensitive nature of the complainant’s disability I have decided to anonymise the names of the parties to this dispute.
This dispute involves a claim by a complainant that he was discriminated against by the respondent on the grounds of disability, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of a failure to provide him with reasonable accommodation for a disability.
The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Workplace Relations Commission on the 13th of April 2018. In accordance with powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 2nd of November 2018.
Summary of Complainant’s Case:
The complainant submits that
He was employed by the respondent from 26th of February 2018 to 28th of February 2018,
he advised a colleague on 27th of February 2018 that he was too tired to work a roster which required him to work through breakfast lunch and dinner shifts and that he had assumed that he would be rostered to work two out of three of those shifts and not all three,
he was called to a meeting with the Restaurant Manager Ms. L on 28th of February 2018 where he told her he was too tired to work such long hours an that he early mornings and late night were too difficult for him due to a disability,
he advised Ms. L that working such long hours meant that he was unable to take his medication properly,
He was informed by Ms. L that those were the shifts and that they could not make any exceptions.
Summary of Respondent’s Case:
The complainant commenced employment with them on 26th of February 2018 and resigned on 28th of February 2018,
His reason for resigning was that he was not able for the hours he found the shifts too long and the early mornings and late nights were too difficult for him,
The complainant left the respondent’s employment as the role did not suit him,
At the end of the meeting he stated that the hours were affecting his medicine routine and told Ms. L as she was about to leave the room that he was HIV positive.
Findings and Conclusions:
Disability Ground and Notification of Disability
It is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability” is defined in Section 2 of the Acts as meaning –
“(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”.
The complainant advised the hearing that he was diagnosed as being HIV positive and that he is receiving treatment and must take regular medication because of this disability. He submitted evidence of this disability to the WRC.
The complainant advised the hearing that he did not initially notify the respondent of his disability as he was too embarrassed. He stated that he only advised them of his disability after he had discovered that he was required to work breakfast lunch and dinner shifts which he found very tiring and which meant that he had difficulty taking his medication while working these shifts. He also stated that he was too tired to work these hours and so felt he had to explain to Ms. L the reason for this tiredness and his difficulty with working early morning and late evening shifts with only a short break in-between.
Witness for the respondent Ms. L agreed that the complainant did not disclose his disability prior to his employment and stated that he only mentioned it after he had told her that he was too tired to work the hours for which he was rostered and then added in that he was HIV positive.
There is a dispute between the complainant and respondent regarding the disclosure of the complainant’s disability and the timing of same but both parties agree that he disclosed his disability to Ms. L on the 28th of February 2018.
I am satisfied that the complainant is a person with a disability for the purpose of the acts and that he notified the respondent of this disability on the 28th of February 2018. The matter in dispute relates to whether the disclosure took place before or he advised the respondent that he was not able for the hours and thus ended his employment.
Discrimination on grounds of disability
The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of his disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to a failure to provide him with reasonable accommodation for his disability. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
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. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.
Section 6(1) of the Employment Equality Acts, 1998 to 2008 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 is not or is a person with a different disability”.
Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club .
In the case of A Health and Fitness Club -v- A Worker the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.
The complainant advised the hearing that he commenced working for the respondent as a waiter on the 26th of February 2018.
He stated that he was aware that he would be required to cover shifts during breakfast lunch and dinner but that he did not realise that he would be rostered to work all three shifts which meant that he started at 7.30 am or 9 am and didn’t finish until 11pm with only a short four-hour break in between.
The complainant stated that he found this work roster very tiring due to his disability and stated also that the work pattern meant that he would struggle to take his medication at the required times.
The complainant told the hearing that he had on the 27th of February 2018 complained to the Restaurant Supervisor Mr. C about the number of hours he was rostered to work he stated that he had started at 7.30 am and had a four hour break in the middle of the day but when he was still working at 10.40 pm he told Mr. C that he was finding the hours too long and very tiring. The complainant stated that Mr. C gave him permission to go home before his shift ended and advised him that he could talk to the Restaurant Manager Ms. L about his concerns regarding the hours the next day.
The complainant stated that he was told to come in to work the next day at 9.00 am which he did and stated that he was called to a meeting with Ms. L Restaurant Manager that morning as Mr. C had notified her that the complainant had some concerns about his ability to work the rostered hours.
The complainant advised the hearing that the Restaurant Supervisor Mr. C was also present at the meeting and that he felt uncomfortable and embarrassed having to discuss issues regarding his employment in front of Mr. C.
There is a dispute between the complainant and respondent regarding the disclosure of the complainant’s disability and the timing of same.
The complainant submits that Ms. L opened the conversation by stating that she had been made aware by Mr. C that the complainant had expressed that he was having difficulty with working the rostered hours and that he was finding the shifts too tiring.
The complainant submits that Ms. L then told him that those are the hours and there are no exceptions. He stated that she also added that if you can do them then it’s not suitable for you. The complainant told the hearing that during this conversation he disclosed to Ms. L that the reason he was struggling with the shift patterns was due to the fact that he had a medical disability. He stated that he went on to say that starting at 9 00 am and finishing at 11 pm with only a four-hour break in between meant that he was very tired and was struggling to take his medication correctly. The complainant submits that he then advised Ms. L that his disability is that he is HIV positive. He stated that he felt he had to disclose the nature of his disability in the hopes that that the respondent would discuss reasonable adjustments which could be made to the work schedule to enable him to do the job. He stated that Ms. L did not offer any adjustments but instead stated that “those are the hours and we cannot make exceptions”. The complainant stated that he knew then that the conversation was over.
Witness for the respondent Restaurant Manager Ms. L advised the hearing that the complainant only disclosed his medical condition to her after stating that he was unable to work the required hours and thus after resigning his position. Ms. L stated that there was no need for her to discuss any adjustments as the complainant had already resigned his employment due to the fact that he had found the hours too tiring. Ms. L stated that she had been made aware by Mr. C Restaurant Supervisor that the complainant had found the hours too tiring the previous day and that Mr. C had allowed him to go home before the dinner shift had ended. Ms. L stated that Mr. C had told her this and advised her that the complainant wished to speak to her about this the next day. Ms. L stated that she called the complainant to a meeting the following morning and advised him that she was aware that he had raised concerns about the hours the previous day. Mr. C restaurant Supervisor also attended the meeting. Ms. L stated that she went through the required hours for the restaurant and the required shifts with the complainant again and reminded him that he had been advised about the split shifts at interview stage. She stated that she felt that the conversation had ended with an agreement that the complainant was not able for the hours as set out by Ms. L. Ms. L stated that it was only after Mr. C had left the meeting and as she was about to leave the meeting that the complainant mentioned that he had a disability and the nature of the disability. Ms. L stated that she wasn’t sure how to react but that she thanked the complainant for disclosing to her the reason why the role did not suit him.
Ms. L stated that she was about to leave again when the complainant asked her if he could give her some feedback in relation to the training he received for the job and proceeded to provide such feedback. She stated that this was after he had told her that he was leaving as he found the hours too tiring. Ms. L stated that she thanked him for his comments and left the room.
The complainant at the hearing stated that he did not wish to disclose his disability in front of Mr. C or at all but only did so after it became apparent that he would have to do so with a view to being provided with some reasonable adjustments to the work schedule.
Ms. L at the hearing and in giving her evidence appeared to be under the impression that a disclosure of a disability by the complainant at that point after he had stated that he was not able for the job absolved her from any duty or obligation to reasonably accommodate the complainant.
There was some dispute between the parties regarding whether the complainant notified the respondent about his disability before or after he resigned by stating that he was not able for the hours. In this regard I am satisfied that the complainant did notify the respondent of his disability in the same conversation in which he advised the respondent that he was not able for the hours and whether his disability was cited as a reason for this either before or after stating that he was not able for the hours both parties agree that it was disclosed as part of that conversation.
I am satisfied from the totality of the evidence adduced that the complainant ended his employment citing the fact that he was unable to work the hours due to tiredness which he attributed to the fact that he is HIV positive.
I am also satisfied that the respondent once notified that the reason for the complainant’s resignation, was related to the fact that he had a disability and whether that disclosure came before or after the resignation, the respondent was at that point under an obligation to make further enquiries to ascertain the extent of the complainant’s disability and to engage with the complainant to ascertain whether he would be fully capable of doing the job with the provision of reasonable accommodation measures. The complainant advised the hearing that he told the respondent he couldn’t do the hours and that she replied stating ‘those are the hours’. The respondent did not deny this and both parties agree that no offer was made to adjust the hours or to ascertain if the complainant could do the job if less hours or a different shift pattern was provided.
I am satisfied that the respondent once aware that the complainant’s reason for resigning was due to his disability and due to the tiredness he was experiencing which he attributed to his disability, was at that point obliged to make further enquiries into the extent of the disability and to ascertain whether he might be able to do the job if he was afforded reasonable accommodation for his disability. Accordingly, I am satisfied that the complainant was discriminated against by the respondent in respect of a failure to provide him with reasonable accommodation for his disability.
In making my award, I must ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant I consider an award of compensation in the sum of €3,000 to be just and equitable in the present circumstances and I order that the respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the discrimination.
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.
I find that the complainant was discriminated against by the respondent in respect of a failure to provide him with reasonable accommodation for his disability and I direct the respondent to pay the complainant €3,000 in compensation for the discrimination.
Dated: 26th March 2019
Workplace Relations Commission Adjudication Officer: Orla Jones