ADJUDICATION OFFICER DECISION/RECOMMENDATION
A retail worker
A retail chain.
Did not attend.
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, and/or Section 79 of the Employment Equality Acts, 1998 – 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The Complainant is a sales assistant and commenced employment with the Respondent on 03rd February 2014, she is currently still employed by the Respondent although she has been on sick leave for some time.
She had been working approximately 23 hours per week.
Summary of Complainant’s Case:
The Complainant has a history of lower back pain. She underwent spinal surgery in Croatia in 2011 for the removal of a spinal disc. The Complainant commenced work as a sales assistant at the Respondent’s store on 3 February 2014, working 20 hours a week.
At the beginning of 2016 the Complainant complained of back pain to her employer. Following a welfare meeting with the Respondent, the Complainant was moved to the children’s wear department, on the grounds that the items she would be lifting there would be lighter. She was also moved to morning shifts of four hours in duration, five days a week.
Sick leave due to back pain November 2016 to April 2017
In or around November 2016 the Plaintiff’s experienced further severe back pain and went on sick leave. Due to the constant pain in her back, she underwent an MRI Scan in Beaumont Hospital in December 2016.
She was seen by a specialist at Beaumont hospital who concluded that she was suffering severe mechanical lower back pain. He advised that she should not work long hours on her feet. He further advised that she was not to lift weights heavier than 2-3 kilos at a time or bend forward to lift heavy objects as this would cause significant worsening of her already present lower back muscular spasms. These conclusions were all noted in a letter dated 9 December 2016 which was subsequently transmitted to the Respondent.
Welfare Meeting 12 December 2016
The Respondent held a welfare meeting in respect of same with the Complainant on 19 December 2016. At this meeting, the Respondent HR Manager, offered to furnish the Complainant with a low disability table from which to work whilst at the till, so that she would no longer have to lift heavy bags for customers.
The Respondent HR Manager also asked the Complainant whether she thought being given a different chair to use at the cash desk would make a difference to her? Prior to this the Complainant had been using a chair from the in-store changing rooms. The Complainant said that she thought a taller chair would be better. The Respondent HR Manager concluded this discussion by saying that when she returned from sick leave, that she thought that they would get her a higher chair. She emphasised that the Complainant had to follow what the doctor said, and not carry anything too heavy. The Complainant was asked twice at this meeting whether she wished to reduce her hours but said that she needed to work. She was out on sick leave due to severe back pain from November 2016- April 2017.
The disability table discussed at the Welfare Meeting on 12 December 2016 was in situ when the Complainant returned to work in April 2017. Without any further ergonomic or medical assessment the Respondent’s Health and Safety department had declined the request for a taller chair on the grounds that the request was counter-productive and could further damage her spine.
Return to work late March 2017 and request for change of shifts
The Complainant returned to work in late March 2017. As she was the only person on the cash desk in the children’s wear department during this period, she was unable to take the frequent breaks she required for her back pain. She approached then head Cashier who was in charge of rosters. She handed all the letters from her doctor to him. These letters said that the Complainant needed more frequent breaks so that she could stretch her back, as the doctor didn’t recommend that the Complainant remain standing for long periods of time. She requested to work the same number of hours over 3 days a week, as the doctor had said that this would allow her a longer continuous rest period each week. She also stated that on the days on which she was working she would require a break of 2-2.5 hours. The head cashier agreed that the Complainant would work three long shifts of 8 hours, 8 hours and seven hours (including lunch breaks) on consecutive, quieter days in the week, when it was more likely that she would be able to take breaks to rest her back. The Complainant was given longer shifts but was only succeeded in being rostered for consecutive days early in the week for a couple of weeks in October 2017.
Due to understaffing, and despite her severe back pain, her Department Manager, continued to ask her to carry stock around the department, and change hangers. The Complainant was generally able to carry out these tasks without difficulty and was all too willing to help.
Incident October 2017
On one particular day in October 2017 however, she lifted a lot of heavy winter jackets and suffered severe back pain afterwards. She went to work the following day but had to leave the shop floor after half-an-hour, as the pain in her back was so severe. She retired to the staff kitchen where she sat in pain and crying.
She was ignored by two managers who were present in the room until her Department Manager, asked her was she okay. The Complainant felt that she had risked her own health and well-being in the past to do a good job for the Respondent and was extremely hurt by this attitude. She felt worthless despite having worked for the Respondent for four years.
She had expected some compassion and support for her condition but did not get this from anyone. She was told to go home, but felt that no-one cared whether she was okay, or whether she was even in any condition to get home on her own. She was unable to work the following day.
Complainant’s request for Welfare Meeting, October 2017
In or around 26 October 2017 the Complainant requested a meeting with her supervisors to discuss the upcoming busy December and Christmas period as she was worried that this might impact negatively on her condition if not handled correctly.
Welfare Meeting, 13 November 2017
On foot of this request, the Respondent arranged a welfare meeting on 13 November 2017 with the General Manager of the Branch, and her Department Manager, in the branch. At this meeting, the Complainant explained that there had been no change in her condition, and that standing for too long was painful. She expressed her fears that the busy Christmas period was coming, and that she knew it was going to be hard for her. General Manager asked her whether it would suit her to continue to be rostered for longer daily shifts on the quieter days of Monday, Tuesday and Wednesday each week. The Complainant confirmed that this would suit her. It would allow her to work three consecutive days with breaks and have four rest days thereafter.
At the welfare meeting in November 2017 the Complainant confirmed that whilst the disability table was helpful, she was still required to lift heavy bags- especially in menswear- and that this was putting a strain on her back. She further confirmed that she was still doing pins and tags, which were also heavy. The General Manager asked whether she was asking others to help. The Complainant stated that she was asking for help on occasion but didn’t feel comfortable to ask every time. The General Manager emphasised that she needed to do what the doctors advised and not lift heavy objects. The Complainant asked about the possibility of getting a high chair. The General Manager said this had been proven to be counter-productive, and that it was not something the Company could offer.
The General Manager asked whether there was any other reasonable adjustment the company could offer her? The Complainant asked about the possibility of a sitting-job at head office, perhaps in online sales. The General Manager said that the Complainant could check the application that she must download, and that she would follow up on this. The General Manager re-emphasised that the Complainant would have to ask others for help with pins, tags or bags. She said that the Complainant must ask for help, and that the customers would have to wait. She was asked again whether she had considered a smaller contract. The Complainant replied that she couldn’t afford a smaller contract.
A letter dated 21 November 2017 from the Respondent’s HR Department to the Complainant entitled ‘Welfare Visit Outcome’ purported to summarize the contents of this meeting. In respect of the Complainant’s request for a sitting job, the letter explained that she would have to consult the vacancies section on the INET app. In accordance with company policy, the Complainant could apply for any such job once she secured the approval of her line manager. The letter also referred to the fact that the Complainant has been working morning shifts and that she had previously confirmed that this was helping her and that she would like to keep having morning shifts- but made no mention of the agreement at the meeting that the Complainant could work longer shifts on the quieter days at the beginning of the week.
December 2017 rostering
Despite the discussion about longer shifts at her welfare meeting with the General Manager and the previous Head Cashier’s agreement that she could work two eight hour shifts and one seven hour shift, the Complainant was subsequently rostered for the usual five days of 4-hour morning shifts. When she complained about this to the Head Cashier and explained that it had been agreed that she would work three consecutive long shifts with breaks on the quieter days earlier the week. The Head Cashier said he hadn’t been informed of this. He subsequently rostered her for the busier times for the whole of December. This was exactly the opposite of the reasonable accommodation which the Complainant had agreed with her employer to give her longer shifts on quieter days so that she would be able to take the breaks she needed, and which her doctor had stipulated that she required for her medical condition.
Incident November 2017
Following the welfare meeting on 13 November 2017, at which the General Manager had emphasised the importance of doing as her doctor had directed and not lifting unsuitable objects, the Complainant was asked to change the hangers on the shop floor. The Complainant explained that, unfortunately, she could not do so... A manager asked ‘What? Do you just plan on standing there and doing nothing then?’ The Complainant was extremely hurt by this comment, as the said manager was well aware of how hard she worked and could see that she was already engaged in putting away perfumes.
Anxiety Attack 7 December 2017
In or around 7 December 2017 the Complainant experienced an acute attack of anxiety which was triggered by a work-related incident during the course of her employment as a sales assistant. The Complainant was operating the till in her section during the 9a.m to 6p.m shift on a busy Thursday in the run-up to Christmas. She had asked on multiple occasions for someone to assist her in emptying the heavy security-tag drawer as she suffered from severe back-pain and could not empty it herself. By 5p.m. there was a long line of customers in the queue. The security tag drawer was overflowing, and tags were falling on the floor. In accordance with the advice given at the Welfare Meeting in November 2017 the Complainant asked her Department Manager, to find someone to help her empty the drawer.
In front of the queue of customers, the Department Manager said, ‘what does that have to do with me?’ She then told the Complainant to call the head cashier, to get a cashier to help her and walked away. The Complainant became upset at this lack of understanding and some customers tried to comfort her. A few minutes later the Complainant had to call the Department Manager again to obtain an authorisation. She was on the verge of tears and requested permission from the Department Manager to go on a short break.
Instead of helping her, the Department Manager turned her back and walked away without replying to her request. The Complainant could no longer hold back her tears. She apologised to the customers and left the till. She ran to a corridor shaking and in tears and suffered an acute panic attack.
Once she had recovered sufficiently, the Complainant left work sobbing and made her way home. She was unable to sleep. She attended her doctor the following day who gave her an antihistamine to help her sleep. Due to her continued distress the following week the doctor prescribed an anti-depressant to address the anxiety which had been triggered by the work related stress. The Complainant subsequently left work on stress-related leave of absence, from which she has not returned.
Letter from Complainant to Respondent 18 December 2017
By letter dated 18 December 2017 the Complainant wrote to the Respondent to say that, unfortunately, she had not read over the notes of the meeting dated 17 November 2017 before signing then. She then proceeded to set out the facts surrounding her back pain. She outlined that on 12 December 2016 she had been called into the office to discuss her condition. She had emphasized that she was still in pain, was forbidden to lift objects weighing more than 2-3 kg and should not be standing up for long periods. This was why she has asked to be furnished with a chair. The Respondent had offered her a desk to reduce lifting of heavy bags but had refused to give her a high chair on the grounds that it was bad for the spine. She went out on sick leave until April 2017. Upon her return there was a desk waiting for her.
In this letter the Complainant refuted the Respondent’s claim that they had another meeting thereafter. She said that she had supplied all letters from her doctor to the then head cashier. She had outlined her need for more frequent breaks to stretch her back, and that it was not recommended that she stand for long periods. She had been rostered in the children’s clothing department. As she was the only one person on the cashier’s desk there she was frequently unable to go on breaks. This was in contravention of the medical advice she had received, and which she had conveyed to the Respondent via the then head cashier.
The Complainant made a request to the then head cashier to work 3 days a week on the less busy days of the week. Her doctor had confirmed that it would be better to work for three days and then have 4 consecutive rest-days. She also informed the Respondent that she required a break every 2 - 2.5 hours.
By December 2017 she has been working in children’s wear for 7-8 months and was still required to lift unsuitable items. Whilst the desk supplied in April 2017 had facilitated her in not having to lift every single heavy bag, she was still required to lift jackets and coats, and remove tags from same. She also complained that she had to empty the drawer full of security tags alone, which was very heavy. The store was frequently busy and understaffed. She was often working alone, meaning that there was no-one whom she could ask for help. In this letter she outlined how she was often asked her to help carry goods from the stock room around the Department and how this had led to a back pain incident in October 2017. She also outlined the problem with getting the till manager to change her shifts. She said that she had been made feel guilty about her back pain.
The letter concluded by outlining the incident leading to the Complainant’s anxiety attack- outlined above. The Complainant stated that in the immediate aftermath of this event the General Manager had told her that this incident with the Department Manager should not have happened, and that she would speak to her about it. The Complainant tearfully told the General Manager that she didn’t see how she could return to work in this atmosphere. The General Manager responded immediately by asking her whether she was handing in her notice? The Complainant replied that of course she was not doing that. However, she felt that this was what everyone would have preferred her to do.
Contact with HR Manager
On 18 December 2017, the day after e-mailing this letter, the Complainant received an e-mail from the HR Manager who asked her to confirm what she felt was the best solution. Did she want to address the issues with the Managers in her statement informally, or would she prefer to meet with her to discuss the issues in detail, and allow her to proceed with formal investigations? She also assured the Complainant of confidentiality.
On 20 December 2017, the Complainant responded to say that she had really enjoyed working or the Respondent and had asked her direct-line managers to make some adaptations so that she could continue to enjoy her work there. This had not been facilitated. She had not managed to resolve things by raising issues informally and sought to sit-down to discuss matters with the HR Manager.
The two had an official meeting at head office on 12 January 2018.
The Complainant wrote to the HR Manager on 18 January 2018 to say that she wished to inform her about her current medical condition, stating that she was not well, as stress had caused a lot of damage. She was due to undergo six months of medical treatment and had a medical examination scheduled for 28 February 2018.
The HR Manager responded the following day, 19 January 2018 by e-mail to say that she would organize a welfare meeting for February, and send her an invitation letter. She also sought a copy of an updated sick note.
The Complainant responded by e-mail dated 22 January 2018 to say that her husband had dropped a medical certificate into the branch on 18 January 2018. She further stated that the HR Manager was fully familiar with her situation following their meeting on 12 January 2018, and that she was not in a position to attend any meeting until after her medical examination on 28 February 2018. She concluded by asking the HR Manager to help her by giving her some options to solve the on-going issues. She needed an opportunity to consider these options in advance of any meeting.
The HR Manager responded the same day, by e-mail dated 22 January 2018 to say that she could not offer her any options for her return to work until after she held the welfare meeting with the Complainant ‘ to discuss the doctors[sic] recommendations to any reasonable adjustments into your work pattern, in order for facilitation back in to the work place.’ She said that she would send an invitation to a welfare meeting at the end of February, following the medical examination.
By letter dated 7 February 2018 the Complainant received a holding letter in respect of the investigation into her complaints.
Grievance Outcome, 16 May 2018
The HR Manager finally wrote to the Complainant with a Grievance Outcome by letter and e-mail dated 16 May 2018, nearly six months after the Complainant had first raised her grievance. This letter recorded that the Complainant had raised grievances in respect of unacceptable, unprofessional and disrespectful treatment by( 4 managers were named) Whilst the Complainant’s Grievance was set out in terms of complaints of unacceptable, unprofessional and disrespectful treatment, at all material times the Complainant’s grievance arose from, and was directly related to, the Respondent’s failure to provide reasonable accommodation and the discrimination against the Complainant due to her disability.
The HR Manager concluded by saying that, based on her investigation, she did uphold some of the grievances raised. Whilst the outcome in respect of the individuals involved was strictly confidential, she assured the Complainant that the Respondent had taken necessary measures to make sure that ‘these conducts’ are not repeated, and that, when dealing with sensitive issues, the correct conduct is always maintained. The Complainant was informed of her right to appeal the decision within 7 days of receipt of the letter to the Employee Relations, UK.
Appeal of Grievance Outcome
The Complainant, being dissatisfied with these findings, exercised her right to appeal as set out in the Grievance Outcome letter. By letter dated 2 July 2018 Catherine Ardagh Solicitors wrote to the Employee Relations Manager informing her of the Complainant’s desire to appeal the Grievance Outcome. The Complainant ultimately met with the Emloyee Relations Manager on 29 August 2018 for the purposes of the appeal. At the conclusion of this meeting the Employee Relations Manager informed the Complainant that she would receive a list of recommendations from the Respondent within seven days of the hearing date.
The complainant having received no list of Recommendations some two weeks later, Sinead McCabe of Ardagh Solicitors wrote to the Employee Relations Manager by e-mail dated 19 September 2018 asking her to furnish same as a matter of urgency.
Having received no further correspondence from the Employee Relations Manager, Ms. McCabe wrote again by e-mail dated 25 September 2018. This e-mail stated that Ms. McCabe had yet to receive any response to her e-mail of 19 September 2018, and that failing receipt of a full response by 28 September 2018 she would be forced to refer the matter to the WRC.
To date neither the Complainant, nor her solicitors, has yet to receive any such list of recommendations from the Respondent, despite having participated in the appeal hearing over four months ago.
It is submitted that the Complainant has been discriminated against on the grounds of disability under section 6(2)(g) of the Employment Equality Acts 1998-2015, on the grounds that the Respondent failed to provide her with reasonable accommodation as required by section 16 of the Equality Acts.
Disability is very broadly defined under Section 2 of the Employment Equality Acts. S2(1)(a)provided that disability includes ‘the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,’
In the Complainant case, she underwent spinal surgery to remove a disc from her back in 2011. It is submitted that this absence of a part of her body clearly constitutes a disability within the meaning of the Acts.
Employers have obligations to reasonably accommodate employees with disabilities (unless such measures would impose a disproportionate burden).
Section 16 (1) of the Employment Equality Acts provides that:
‘Nothing in this Act shall be construed as requiring any person to recruit or
promote an individual to a position, to retain an individual in a position, or to provide
training or experience to an individual in relation to a position, if the individual—
(b) is not (or, as the case may be, is no longer) fully competent and available to
undertake, and fully capable of undertaking, the duties attached to that
position, having regard to the conditions under which those duties are, or
may be required to be, performed.’
Section 16 (3) introduces the concept of reasonable accommodation.
Section 16(3)(a) provides that:
‘ For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.’
Section 16(3)(b)requires an employer to take appropriate measures where needed, unless these constitute a disproportionate burden on the employer. It states that:
The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—
to have access to employment,
to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
The factors to be taken into account in determining whether the measures taken would impose a disproportionate burden are set out in Section 16(3)(c) which provides that:
‘In determining whether the measures would impose such a burden account
shall be taken, in particular, of—
the financial and other costs entailed,
the scale and financial resources of the employer’s business, and
the possibility of obtaining public funding or other assistance.
The Acts then proceed to set out what is understood by the term ‘ appropriate measures’ in relation to a person with a disability. Section 16(4) provides that:
‘ In subsection (3)—
[‘appropriate measures’, in relation to a person with a disability—
means effective and practical measures, where needed in a particular case,
to adapt the employer’s place of business to the disability concerned,
without prejudice to the generality of paragraph (a), includes the adaptation
of premises and equipment, patterns of working time, distribution of tasks
or the provision of training or integration resources, but
does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;
The nature of the practical requirements and obligations placed on employers was outlined in Humphreys v Westwood Fitness Club  E.L.R. 296, which set out a two-stage enquiry.
“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level, and is allowed present relevant medical evidence and make submissions.’ (emphasis added)
As noted by the Labour Court in An Employer and A Worker,(EDA 0413) the reasonable accommodation test is an objective one.
‘The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.’
The Respondent did initially try to accommodate the Complainant’s disability through the adjustment of her shifts to early morning shifts; moving her to the Kidswear Department; and providing her with the low disability table onto which to place customer’s bags. However, the provision of special treatment or facilities is not an end to itself, and ultimately the Respondent failed toplace the Complainant in a position where she could participate properly in her employment.
Requests for high chair
The Complainant’s frequent requests for a high chair which would allow her to rest her back were refused on the basis of the Health and Safety Department’s conclusion that this would be bad for the Complainant’s back. This refusal was not based on any medical/ ergonomic assessment of the Complainant and was contrary to the Complainant’s wishes and the expectations of management representatives on the ground who were dealing directly with the case.
Transfer to Kidswear did not achieve end
Whilst the transfer of the Complainant to the Kidswear Department was done in an effort to alleviate her back pain, this transfer clearly failed to achieve this purpose. The Complainant was still required to lift heavy objects over 2-3 kg; could not take the breaks she required as she was the only cashier on duty in the department; and could not ask other members of staff for help as there was no-one available to help her. This was in contravention of the Complainant’s medical advice- of which the Respondent was aware- that she needed to take frequent breaks and should not lift heavy objects. It also defeated the purpose of this attempted reasonable accommodation.
Failure to adjust shifts
Following her return to work in late March 2017, the Complainant made pro-active efforts to adjust her rosters so as to work longer-shifts. The purpose of this was to enable her to take breaks during the working day, and to give her longer periods of consecutive time-off. This was in accordance with her medical advice, and the Respondent had been informed of same. However, between April 2017 and October 2017, and despite her agreement with the then main cashier to change her shifts, the Complainant was only rostered for three consecutive weeks of longer shifts early in the week. This was in contravention of her agreement that she would be transferred to longer shifts during quieter times. It is submitted that this constituted a failure to reasonably accommodate her disability.
In light of the Respondent’s failure to address these issues, and in an effort to pre-empt any potential worsening of her back condition during the busy December/ Christmas period in 2017, she pro-actively arranged a welfare meeting with the Respondent.
She was stressed about being able to cope, and the Respondent, its servants and agents were well aware that she had already burst into tears in work October 2017 due to pain and stress. She agreed with the General Manager that she could continue to work three longer shifts during the earlier, quieter days of the week. This reasonable accommodation, which was agreed was not recorded in the minutes of the welfare meeting. Nor was this agreement communicated to the head Cashier. It is submitted that the failure of the Respondent to record the agreement in relation to the shifts, and the subsequent failure to communicate this agreement constituted a further failure to provide reasonable accommodation in respect of her disability.
In the circumstances the Complainant became further distressed about her work situation when she saw that, in contravention of her agreement with the Respondent, she had been rostered on five mornings a week, and was un-contactable for two days thereafter. In further contravention of her agreement with the Respondent, she was subsequently rostered for consecutive daily shifts of 9 hours, 9 hours and 4 hours on the busier days of the week. In lieu of working longer shifts during consecutive quieter days of the week- which would have enabled her to take breaks and rest and stretch her back- as she had arranged with the Respondent, she ended up working long, busy shifts on the busiest days. This was precisely the opposite of the reasonable accommodation which the Complainant had sought, and which had been agreed with the Respondent.
In this regard it should be noted that section 16(4) of the Acts specifically refers to the adaptation of patterns of working time as exemplifying the type of adequate measure envisaged by the legislation. It is submitted that the Respondent cannot be said to have afforded reasonable accommodation of the Complainant’s disability in the circumstances.
Failure to instruct other employees to assist the Complainant with her disability
It is submitted that the Respondent failed to reasonably accommodate the Complainant’s disability in not instructing other employees to assist the Complainant with her disability. During the Welfare Meeting on 13 November 2017 the General Manager, repeatedly emphasized to the Complainant that she must ask other staff members for help. The Complainant informed her that she wasn’t comfortable asking for help every time, but the General Manager was firm that she would have to do so. The letter dated 21 November 2017 from the HR Department also stated ‘you will need to ask another member of staff to help you with heavy items.’
The General Manager had instructed the Complainant on 13 November 2017 that she would have to ask fellow staff members for help, and was aware that the Complainant had gone home in tears due to back pain in October 2017. In these circumstances, it is submitted that the Respondent’s failure to instruct other staff members about the need to render assistance to the Complaint constituted a failure to provide reasonable accommodation. It is further submitted that the Department Manager might have treated the Complainant more compassionately had she been made aware that she was suffering from a disability.
Throughout the grievance procedure and the subsequent appeal the Respondent has continually failed to give the Complainant reasonable accommodation for her disability. The Respondent’s failure to do so constitutes an ongoing act of discrimination against the Complainant on the grounds of disability.
Section 74(2) of the Employment Equality Acts defines victimization as dismissal or other adverse treatment as a reaction to, inter alia:
‘(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,…
(g) an employee having given notice of an intention to take any of the actions
mentioned in the preceding paragraphs.’
In Watters Garden World Ltd v. Panuta EDA 8/2009 the Labour Court was satisfied that the decision of the Court of Justice in Case C-185/97 Coote v Granada Hospitality Ltd  E.C.R. 1-5199 was authority for the proposition that ‘the concept of victimization’ should be ‘construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker for having committed a protected act.’
It is submitted that the Respondent’s ongoing refusal to furnish the Complainant with a list of recommendations arising from the Appeal hearing on 29 August 2018 constitutes adverse treatment of the Complainant.
The Employee Relations Manager (UK Based) of the Respondent was aware that the Complainant had solicitors on record when met with the Complainant on 29 August 2018. The Employee Relations Manager has failed, refused and/or neglected to issue the Complainant with a list of recommendations, in contravention of her assurances to the Complainant that she would receive same within seven days of the hearing.
Having failed to furnish the list of recommendations, the Respondent was informed by e-mail dated 25 September 2018 from Sinead McCabe of Ardagh Solicitors that the Complainant intended to issue WRC proceedings should the Respondent continue to refuse to furnish the recommendations. Neither the Complainant nor her solicitors have received any correspondence in respect of the Appeal since before the hearing date of 29 August 2018.
It is submitted that the refusal to furnish the Complainant with a list of recommendations is directly related to her decision to take proceedings against the Respondent. It is further submitted that the refusal to furnish the Complainant with the outcome of an appeal process is in clear breach of fair procedures and constitutes adverse treatment within the meaning of section 74(2) of the Acts.
In A Complainant v. A Department Store DEC-E2002-017 the Equality Officer emphasized that ‘victimization’ is a matter which must be considered ‘very seriously’ and that ‘significant compensation’ should be awarded to successful complainants. It is submitted that this approach should be adopted in the Complainant’s case.
It is submitted that it is apparent from the foregoing that the Complainant has been discriminated against on the grounds of disability under section 6(2)(g) of the Employment Equality Acts 1998-2015, on the grounds that the Respondent failed to provide her with reasonable accommodation as required by section 16 of the Equality Acts.
It is further submitted that, having given notice of her intention to bring proceedings, the Complainant has been victimized by the Respondent in that the Respondent has refused to furnish the Complainant with the outcome of her appeal.
The Complainant seeks the following reliefs:
1. An Order for compensation for the effects of acts of discrimination.
2. An Order for compensation for victimization.
3. A Recommendation pursuant to s.13 of the Industrial Relations Act.
Summary of Respondent’s Case:
The Respond did not attend the hearing of this complaint on 27th March 2019 and also failed to provide any explanation regarding their non-attendance at the hearing on this date.
This was the second scheduling of this hearing, previously it had been scheduled for 21st February 2019, the Respondent also failed to attend on this date and offered no explanation for their non-attendance.
On 21st February 2019 I emailed the Respondent’s Employee Relations Manager (UK based) mentioning my surprise over their non-attendance and asked for confirmation that they would be in attendance on the re-scheduled date. The following is an extract from this email:
“Can you please confirm to me that you will be in attendance at the re-scheduled hearing. Should you not attend I will hear the complaint in your absence”.
Findings and Conclusions:
The Complainant in this case has a disability and this fact is not in dispute.
After a grievance hearing held on Friday 12th January 2018 the Complainant received a letter dated 16th May 2018, this letter is under the heading of Grievance outcome. It is obvious when one reads this letter that the Complainant received very little support, if any at all, from her Department Manager. In relation to the rosters issued by the Head Cashier it appears that he was not aware of any difficulties the Complainant had in relation to the duration of work shiftsand the General Manager appeared to adopt a very uncaring approach when she witnessed the Complainant in a distressed state. These are the outcomes from the grievance meeting and are not in dispute.
The outcome of the grievance process was appealed by the Complainant via her solicitor by letter dated 2nd July 2018, the appeal was heard by the UK based Employee Relations Manager on 29th August 2018 – at the conclusion of this meeting the Complainant was informed that she would receive a list of recommendations from the Respondent within seven days of the hearing date.
The complainant having received no list of Recommendations some two weeks later, had her solicitors write to the Employee Relations Manager by e-mail dated 19 September 2018 asking her to furnish same as a matter of urgency.
Having received no further correspondence from the Employee Relations Manager, the solicitor wrote again by e-mail dated 25 September 2018. This e-mail stated that the Complainant through her representative had yet to receive any response to her e-mail of 19 September 2018, and that failing receipt of a full response by 28 September 2018 she would be forced to refer the matter to the WRC.
To date neither the Complainant, nor her solicitors, has yet to receive any such list of recommendations from the Respondent, despite having participated in the appeal hearing several months ago.
The Respondent’s failure to respond with the outcome of the appeal and list of recommendations is totally unacceptable and most unfair to the Complainant.
The Complainant informed the hearing that the following were agreed at the meeting:
1. When the Complainant is fit to return to work she will be transferred to another department store chain also owned by the Respondent.
2. The Respondent would arrange and pay for therapy on her back.
3. Reasonable accommodation would be provided.
I now order the Respondent to take the following steps:
To comply with points 1 – 3 shown above and agreed at the meeting of 29th August 2018.
The Complainant is seeking compensation for the following:
1. An Order for compensation for the effects of acts of discrimination.
2. An Order for compensation for victimization.
3. A Recommendation pursuant to s.13 of the Industrial Relations Act.
The Respondent is ordered to pay compensation of €7,500 to the Complainant under the Employment Equality Act 1998 and in full and final settlement of the complaint.
In relation to the complaint submitted under the Industrial Relations Act 1969, I find that the actions of the Respondent’s managers, at times, constituted bullying and recommend a payment of compensation in the sum of €2,500.
This payment should be made within 42 days from the date of this recommendation.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute
As outlined above.
Workplace Relations Commission Adjudication Officer:
Reasonable Accommodation; Employment Equality; Industrial Relations Act.