Complainant

Respondent

Anonymised Parties

A complainant

A pharmacy

Representatives

Seamus Maher W. X. White Solicitors

Don Garry

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00047478-001

03/12/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under affirmation, the two witnesses for the respondent took the oath and affirmation but only one witness presented testimony. Cross examination of the complainant and the witness for the respondent took place.

Apart from the grounding complaint, no written submissions were made by either party.

At the hearing, the complainant sought to have the matter anonymised as it revolved around a hidden disability that she suffered, the respondent did not object to the anonymisation of the decision.

The complainant’s weekly wage amounted to €330 gross.

The complainant submitted a case under the Employment Equality Act stating that she had been discriminated against in relation to her employment based on a disability.

The complainant submitted that she was working for the respondent for seven years when he called her aside and asked her to reduce her hours.  The complainant indicated that the reason for this was that the respondent wanted to give hours to the daughter of a friend. 

The complainant submitted that when the Covid pandemic impacted on the business she was not on the Covid payment as the company’s turnover hadn’t reduced sufficiently.  The complainant submitted that when she remained at home, the respondent paid her for her first week, but she returned the payment.

The complainant submitted that at some point during the summer she sought to return to work but that there was a change in her role in that it now included washing floors and carrying loads.  She submitted that this change in her role put pressure upon her because of her disability – Rheumatoid Arthritis.

The complainant submitted that she sought a copy of her contract and the employee handbook in October 2020 via her solicitor, however the respondent replied seeking the solicitor’s authority to act on behalf of the complainant.  Thereafter the respondent failed to or would not engage with the nominated representative.

The complainant submitted that she sought to initiate a grievance via her solicitor but that the respondent did not initiate the procedure.

The complainant submitted that her treatment in the workplace was related to her disability.

The respondent submitted that the complainant’s condition, Rheumatoid Arthritis, does not qualify as a disability under the Employment Equality Act.  The respondent submitted that although he was aware that the complainant had “some kind of an autoimmune disease” but submitted that he was not aware of the nature of the disease.

The respondent denied that he wanted to give hours to a daughter of a friend.  He suggested that he was informally aware that the complainant had an autoimmune disease and that prior to lockdown he was aware that the retail environment was dangerous to the complainant and raised the matter with the complainant.  The respondent submitted that the complainant agreed that just prior to the announcement of the Covid pandemic was a dangerous time for her and she agreed to remain at home.

The respondent submitted that there were over five phone calls between the parties discussing the complainant return to work, but that they had not gotten as far as a discussion of redundancy.  The respondent denied that her role had changed or that he said as much to the complainant.  

The respondent submitted that the retail operations moved location to the outskirts of the town and that the complainant indicated that she was not interested in working at that location.  He submitted that he “offered her a return-to-work interview to see if there were any residual medical issues”.

The respondent submitted that the complainant was an honourable, loyal employee.  He submitted that he doesn’t know about ‘legal stuff’ but did not accept that he excluded the complainant from the workplace due to a disability.

The respondent submitted that the complaint is vexatious, as it doesn’t come within the remit of the Act, and that it doesn’t meet the test to be brought under Section 77 of the Act.

The complainant sought the decision in this case be anonymised based on the existence of a hidden disability.  The respondent supported the request.  Having regard to the special circumstances outlined during the hearing, I am satisfied that this case is one where regard needs to be had to the special circumstances.  The decision is therefore anonymised.

Having regard to the respondent witness testimony, I note the respondent’s admission that he was “informally aware” of the existence of an autoimmune disease and his suggestion that Rheumatoid Arthritis does not qualify as a disability under the Act, as well as noting his admission that he “doesn’t know about legal stuff”.

Section 2 of the Employment Equality Act, 1998, provides various interpretations and includes an interpretation of disability for the purposes of the Act.  This states that:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Having regard to the foregoing, I am satisfied that Rheumatoid Arthritis, may properly fall within the definition of disability.  I note however, that in the instant case, no medical evidence whatsoever has been provided to the WRC nor at any time to the Respondent. The complainant did note that she got her prescriptions filled at the respondent pharmacy.  The respondent stated that he mentioned to the complainant at one point that it was ‘probably better that she didn’t come into work’ and indicated that the complainant agreed with the suggestion.  The respondent accepted that he was aware, on an “informal basis”, that the complainant had a medical condition and that he “offered her a return-to-work interview to see if there were any residual medical issues”.  On the basis of the foregoing, I am satisfied that the respondent was aware of the existence of a medical condition likely to impact upon the complainant’s ability to work.

The complainant gave her evidence in a straightforward manner, noting issues such as giving back a week’s pay to the respondent when she remained at home because she didn’t work for that week, and providing reasons for the actions of the respondent which undermine the extend of her complaint.  The respondent noted that the complaint was honourable, and I accept the complainant’s evidence as credible.

The complainant referred to a reduction in hours to facilitate a friend’s daughter and suggested that perhaps on another occasion that the respondent indicated in at least one conversation that she had with him the that she couldn’t go back as ‘she was less able’.  She also noted that the respondent indicated to her that if she returned to work that the job would be more physical.

The complainant outlined that she sought a copy of her contract from the respondent but that this was not forthcoming.  She also sought to register a grievance with the respondent, but he would not accept it as it came from her legal representative.

The complainant also noted that her role had changed to include more manual aspects, in terms of mopping, hovering and moving things around.  The respondent denied that the role had changed.

Section 85A of the Act deals with the burden of proof in employment equality cases, and subsection (1) states that

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

In relation to the reduced hours, the complainant indicated that these related to the respondent seeking to offer work to a friend’s daughter.  Accordingly, I do not consider that this has been linked to the disability ground. 

The respondent submitted that the complainant did not want to work at its new premises, and this was not disputed by the complainant. Accordingly, I do not consider that this element has been linked to the disability ground. 

The complainant submitted that her treatment in the workplace was related to the disability ground.  She outlined that she sought a copy of her contract from the respondent but that this was not forthcoming.  She also sought to register a grievance with the respondent, but he would not accept it as it came from her legal representative.  This ongoing refusal to accept communication from the complainant’s nominated representative continued for a number of months.  The complainant also stated that in any of their dealings, it was she who initiated the communication.  She also noted that the respondent indicated in at least one conversation that she had with him the that she couldn’t go back as ‘she was less able’.  She also noted that the respondent indicated to her that if she returned to work that the job would be more physical.

Having regard to the treatment complained of, the ongoing delays in dealing with the complainant and a failure to engage with her, I am satisfied that the complainant has established facts from which discrimination may be inferred and accordingly the burden of proof shifts onto the respondent to rebut the inference of discrimination.

In his evidence the respondent noted that he was happy to give the complainant a copy of her contract of employment and yet refused to do so for several months, if at all.  In addition, the respondent refused to accept a grievance for, or on behalf of the complainant, and upon receipt did not see fit to progress matters any further.

The respondent gave no valid reason that would account for the delay in, or failure to engage with the complainant other than to indicate that he didn’t know about ‘legal stuff’.  He noted that the authorisation he sought from the complainant’s representative was delayed but indicated that it didn’t occur to him to send the information requested directly to the complainant.

Having regard to the ongoing delays in dealing with the complainant and a failure to engage with her, I am satisfied that the complainant has demonstrated that they relate to the disability ground and that the respondent has not rebutted the presumption of discrimination.  Accordingly, I find that the complainant was discriminated against. However, I am satisfied that the discrimination is on the lower end of the scale and consider that an award of ten weeks wages which I consider to be appropriate in all the circumstances of this complaint.  

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was discriminated against, and I award her €3300 in compensation.

Employment Equality Act – definition of disability - discrimination established – award of compensation