ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037167
Parties:
| Complainant | Respondent |
Anonymised Parties | Bartender | Bar |
Representatives | Gareth Hayden B.L. | Paul Comiskey O’Keeffe B.L. |
Complaint:
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-00048494-001 | 06/02/2022 |
Date of Adjudication Hearing: 20/12/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of theEmployment 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.
In accordance with Section 13 and 14 of the Workplace Relations Act 2015, I decided that due to special circumstances, those being the mental health issues identified in relation to the Complainant, that the proceedings should be held otherwise than in public and that the parties should not be identified on the Commission Website. The relevant sections of the Act are:
13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.
(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.
(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.
Background:
The complaint is that the Respondent discriminated against the Complainant on the ground of disability and that the Complainant was discriminatorily dismissed and that the Respondent failed to provide the Complainant with reasonable accommodation.
Summary of Complainant’s Case:
The Complainant gave written submissions summarised below, and gave sworn evidence also summarised below. Written submission Discriminatory Dismissal The Claimant commenced work with the Respondent in or about November,20l9. The Claimant was paid cash in hand. She continued to work until the outbreak of the Covid l9 Pandemic in March of 2020. Thereafter the Claimant resumed working in or about July of 2021 and from this point was paid "on the books" rather than "off the books". The Claimant's duties were those of a bar tender in general (the Respondent being the operator of a licensed premises) and her hours of work generally involved opening the pub several days per week and also closing the pub one day per week, the latter usually being on a Sunday evening. The Applicant suffers from stress and anxiety with underlying depression and has suffered from those difficulties, and been treated for them by her General Practitioner, for several years. In or about 2013 the Claimant was prescribed medication to treat her stress and anxiety and also to treat related insomnia. This prescription was resumed at intervals through the following years and the Claimant was prescribed and was taking such medication prior to the commencement of her employment with the Respondent and continued to take such medication during her employment with the Respondent. The Claimant's direct manager / supervisor was Ms B and the Claimant made her aware of her difficulties, and the treatment which she was receiving for same, shortly after she commenced employment in 2019. While the Claimant told Ms B of her difficulties she did ask that her condition not be made known generally and Ms B reassured the Claimant that her condition would be accommodated and that she would not break the Claimant's confidences with regard to her condition. The Claimant attended a meeting in or about mid-2020 between management and employees of the Respondent. At this meeting arrangements regarding re-opening of the premises, following Covid lockdowns of licensed premises, were discussed. The Claimant was told that she would work primarily from l0:00am to 4:00pm on Friday, Saturday and Monday. On Sunday the Claimant was to work from 5:00pm to closing time, after I lpm. The Claimant indicated to the Respondent's manager Mr A that she would be anxious about closing alone on Sundays and asked whether some security could be provided. He stated "No", as security would cost approximately €20.00 per hour. The Claimant asked could a security worker be sent from a nearby pub owned by the same group of companies and the Claimant was told that this would be done approximately half an hour prior to closing time on Sunday. On or about the l3th of August, 2021 (a Friday) the Claimant was suffering with her mental health condition, though not overly so. She completed her work shift that day and after finishing her shift she sent a text message to Ms B explaining that she was feeling low in mood and that if Ms B had noticed that the Claimant appeared quiet this was to do with her condition and not due to anything else. Ms B then asked was the Claimant ok to open the pub the following morning (a Saturday) and the Claimant responded that she was and that she looked forward to going to work. The Claimant asked Ms B to keep the matter between the two of them as she was somewhat embarrassed regarding her condition and did not want people in general to know about it. On the morning of the 14th of August the Claimant went to work and opened the pub. Unfortunately the Claimant felt worse than she had done on the previous day and soon felt an attack of anxiety / panic coming on. She felt her hands shaking, she felt overwhelmed and extremely low and could feel her heart racing. The Claimant sent a text message to Ms B telling her that she could not continue her work that day and asking her whether it was possible that somebody else could cover for the Claimant due to her condition. Ms B telephoned the Claimant and the Claimant provided more detail to her and stated that she was sorry to have to ask, but whether somebody could cover the Claimant's shift even for a couple of hours as she was feeling overwhelmed and her heart was racing. Ms B stated that she would be at the pub in 45 minutes and would let the Claimant leave at that point. The Claimant waited in the pub and a short while later she received a "Voice Note" message on WhatsApp from Ms B. The Plaintiff began to listen to the Voice Note and it quickly became apparent that the Voice Note was intended for somebody other than the Claimant and that it had been sent to the Claimant in error. The content of the Voice Note is as follows: "Well girl, [the claimant] is fucking killed with her nerves so she's over there in a panic attack now. So I have to go over and I'm waiting for one of the other girls to come in, in an hour or so, so it's extra hours for me and I can go home and have a wash and get ready...and come over to work tonight. So I have to get rid of her now. Fucking hates doing it but [Mr A] said "look, she has to go". So they're paying me extra to do it so just say like...that it's not really suiting her at the moment and when she gets better she can come back, her job is always here for her. Okay". The Claimant was in shock on hearing the message. She had just finished hearing the message when Ms B arrived at the pub. The Claimant did not know what to say about the Voice Note and so she did not refer to it at all. Ms B did not refer to the Voice Note either and it was clear that Ms B was unaware that she had mistakenly sent the Voice Note to the Claimant, rather than to the intended recipient. The Claimant left the premises. A short time later she sent a text message to Ms B letting her know that she had received the Voice Note which had clearly been intended for some other recipient. Ms B replied apologising for what she had said to [another employee] about the Claimant in the Voice Note, and stating that she never intended to hurt the Claimant. The Claimant received further text messages from Ms B stating that the Claimant could return to work when she felt ready to come back to work. The Claimant was highly sceptical as to these later communications from the Respondent. In the first instance the Respondent had shown no inclination to make any accommodation for the Claimant's disability. Secondly, the relevant parts of the Voice Note which was inadvertently sent to the Claimant on the l4th of August, 2021 made clear, on any reasonable view of that Voice Note, that the intention was to simply end the Claimant's employment (to "let her go", to "get rid of her"). While the Claimant might have been told by the Respondent that her job was open for her the tone and content of the Voice Note which the Claimant received made it clear that there was no intention to retain the Claimant in her employment. It was clear to the Claimant that the Respondent had made the decision that she was not suitable for her employment and that this decision had been taken on foot of the Claimant's disability. The Respondent made representations that it wished to have the Claimant return to working with the Respondent. It is submitted that these representations ring hollow in light of the matters accidentally informed by Ms B to the Claimant as the Claimant's panic attack was in train. The Claimant does not accept that the Respondent genuinely wanted her to come back to work. The Claimant strongly believes that the Respondent, having accidentally made clear its approach to the Claimant in the Voice Note from Ms B, was taking steps to 'mend its hand' vis a vis the Claimant. The Claimant's manager, Ms B, made clear in the Voice Note that "...I have to get rid of her now". This is not the language of a person who has been asked to give an employee time off work for medical reasons - rather it is the language of a person who has been tasked with dismissing another employee. This is then followed up by Ms B stating "Fucking hates (sic) doing it but [Mr A] said "look, she has to go". If there was any ambiguity in the earlier parts of the Voice Note this part of the Voice Note makes entirely clear what the intention and the planned course of action was. This is evidenced by the fact that Ms B states that she "hates doing it" - to hate doing this clearly did not arise from the fact that the Claimant was to be afforded sick leave, rather Ms B’s dread arose from the fact that she had clearly been tasked with ending the Claimant's employment. This is borne out by Ms Bs' statement that "...[Mr A] said 'Look, she has to go' ". Again it is clear that the decision has been made to get rid of the Claimant and that there is no willingness to consider, much less to offer, any reasonable accommodation to the Claimant. Ms B states that she is "being paid extra to do it" - this cannot on any reasonable analysis equate to Ms B being paid extra simply to tell the Claimant that the Claimant could arrange sick leave. It is clear from the Voice Note which the Claimant received from Ms B that the Claimant was to all intents and purposes being dismissed from her employment as of the l4th of August,2O2l, and that this dismissal was solely on the basis of her disability. Ultimately the Claimant acknowledged the Respondent's effective dismissal of her by way of letter in December of 2021 by way of letter. This was due to the fact that it was clear to the Claimant that the Respondent never intended to afford her reasonable accommodation and only intended to "get rid" of her due to her disability and for no other reason. In the circumstances the Claimant could not be expected to return to employment with the Respondent. In fact, a person having the disability which the Claimant had could well be placing themselves at risk of deterioration in their condition if they returned to a workplace where it was clear that there had been an intention to dismiss them on the basis of their disability, and further where the disability in question was clearly the subject of discussion between fellow employees. A return to such a work environment could only lead to deterioration in the Claimant's disability and quite possibly precipitate the onset of further panic attacks, anxiety and depression. The Claimant submits that the decision to dismiss her was taken immediately upon the occurrence of her panic attack on the 14h of August, 2021 and that this represents treatment of the Claimant based directly on her disability. Such treatment is clearly less favourable than another person without the Claimant's disability would have been treated. The Law - Disability: Section 6 (l) of the Employment Equality Acts, 1998 to 201I provides that "...discrimination will be taken to have occurred 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) (in this Act referred to as the discriminatory grounds)... " Section 6 (2) (g) of the Acts defines the discriminatory ground of dismissal as follows: "As between any 2 persons (g) that one is a person with a disability and that the other either is not or is a person a different disability..." Disability is defined in Section 2 of the Acts as follows: "Disability means (a) The total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour." It is clear that the Claimant's condition falls within both of these alternative conditions. The Claimant had been treated for her condition since in or around 2013 by her GP. It is submitted that it is clear from the factual circumstances of this case that the Claimant was treated less favourably than an employee without a disability, or an employee without the Claimant's disability, would have been treated. The reasons set out in the Voice Note, sent in error to the Claimant were that the Claimant was "killed with her nerves" and was "over there in a panic attack now" and that this was the reason why the Claimant had to be 'gotten rid of and why it was decided by [Mr A] that "she has to go". On hearing the Voice Note in question there is no other logical reason for the decision reached by the Respondent, nor for the Respondent's decision to "pay extra" to Ms B, the Claimant's supervisor, for her to 'get rid’ of the Claimant. The less favourable treatment is in the Respondent making the decision to let the Claimant go and to get rid of her in circumstances where the Claimant's disability had been made known to the Claimant's boss / supervisor and had for the first time impacted upon the Claimant's ability to carry out her work duties on the l4th of August 2O2l, being the same day that the Claimant found out that she 'had to go' as the Respondent had decided to 'get rid of her. Failure to Make Reasonable Accommodation Section 16 of the 1998 Act sets out the responsibility on an employer to make reasonable accommodation for an employee with a disability: "(3) (a) For the purposes of this section, a person with 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. (b) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability (i) to have access to employment (ii) To participate and advance in employment (iii) To undergo training unless the measures would impose a disproportionate burden on the employer (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of- (i) The financial and other costs entailed, (ii) The scale and financial resources of the employer's business, and (iii) The possibility of obtaining public funding or other assistance. 'appropriate measures', in relation to a person with a disability (a) Means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned, (b) 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 (c) Does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself'. Case law ln the Supreme Court decision of Nano Nagle School v Marie Daly it was held that for the purposes of the entirety of Section l6 of the 1998 Act; "a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance' . After extensive discussion of the obligations on employers arising pursuant to Section l6 of the 1998 Act, McMenamin J summarised by stating that the fundamental criterion is "to consider -whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. None of the principles set out above were applied in the Claimant's case and instead the decision was taken to dismiss the Claimant without assessing the situation, without gathering any evidence and without giving any consideration to appropriate measures / reasonable accommodations to allow the Claimant to continue in her employment. Remedy The Claimant seeks compensation for her employer's discriminatory treatment of her, and for her effective dismissal from her employer, as mistakenly communicated to her by her boss / supervisor. Evidence The Complainant gave sworn evidence summarised as follows: She has been on medication since 2013 for anxiety and depression. She suffered from panic attacks. She told her supervisor Ms B and Manager Mr A of her anxiety and she told Mr A at a meeting that her anxiety would “go through the roof” if she had to lock up at closing time. She was employed in the Pub since November 2019 and was not “on the books” until mid 2020 so she could not avail of the PUP when the premises closed during lockdown. On 14th August 2021 she was feeling very anxious, having a panic attack, and she texted Ms B her supervisor to tell her she was having a panic attack. Ms B came in to the workplace and told her to come into the back for a private word. Ms B told the Complainant that Mr A the Manager told Ms B to tell the Complainant to go home. Ms B told the Complainant “you’re sick, you’re not suited to the job” or words to that effect. She said [Mr A] wanted to come and tell you himself, but she thought it would be better coming from a woman. The Complainant agreed that Ms B said to her at one point that she should take a break for a few weeks. When the Complainant received the voice note in error she was shocked. She met with Mr A in another of the Respondent’s pubs in or around 8th September 2021 and she showed him the voice note. He told her he never said such a thing (that she has to go) and that ’she had to go’ meant she had to go that day. He said ‘this isn’t good for the company, I never told her to say this’. She agreed that she received a message from Mr A on 14th August 2021 at 12.01 telling her she could take whatever time she needed to get better. She did receive messages asking her to return but she believed the damage was done by the voice note. |
Summary of Respondent’s Case:
S.6 (1) of the Employment Equality Act 1998 provides the definition of discrimination. The relevant element is “discrimination shall be taken to occur where…one person is treated less favourably than another is”. [emphasis added]. There are 2 matters of import arising from the words “treated lass favourably”; the first, the concept of a comparator, this is of no relevance to these submissions, and secondly, the concept of treatment. The principal submission on behalf of the employer is that discrimination is a matter of conduct. It is accepted thatdiscrimination can occur by inaction, as opposed to action, for example failing to promote on discriminatory grounds. By the allegation that discrimination has occurred by reason of termination of employment, the Complainant alleges that there has been positive conduct, action taken by the employer. The action complained of is an alleged decision to terminate the Complainant’s employment. This is stated categorically in the Complainant’s submission: “The less favourable treatment is in the Respondent making the decision to let the Claimant go..” It is obvious from the facts asserted by the Complainant that the WhatsApp Voice message from [Ms B] was sent through inadvertence. The Respondent submits that no decision to terminate nor termination occurred as a matter of fact. There is a reference to Mr A in the voice note but Mr A had no authority to terminate the employment of any employee. In the circumstances, it is submitted that the Complainant has failed to demonstrate a prima facie case. It is accepted that the Complainant commenced employment in or about November 2019. It is denied that the Complainant was paid “cash in hand”. She was paid in a manner compliant with all legal and Revenue obligations of the employer. There is little or no factual dispute as to the events of 14th August 2021. The fundamental contest between the parties is as to the interpretation of the WhatsApp Voicemail. The evidence from Ms B will show that her reference to being “paid extra to do it” was in relation to working the shift vacated by the Complainant’s absence. It is denied that there was a failure to make reasonable accommodation for the Complainant’s illness, at her request, her working hours were adjusted to mitigate the impact on her mental health. The Respondent agrees that the Complainant’s illness meets the definition of disability in Section 2 of the Employment Equality Acts 1998-2011. It is submitted that having considered the chronology of the engagement of legal advice, the provision of medical records and the timing of the letter of resignation, that the appropriate remedy for the Complainant, where she alleges termination of employment, is a claim for Constructive Dismissal. It is obvious that any such claim is unsustainable on the facts alleged and the Complainant has contrived a discrimination claim by unilaterally terminating her employment on 20th December 2021. Sworn evidence was given by Ms B, Supervisor/Manager of the Complainant, summarised as follows: She received the message from the Complainant that she was unwell, and she told the Manager Mr A, and he asked her to go over to let the Complainant go home. Ms B met with the Complainant on the premises on the day in question. She asked her did she want to take time off and the Complainant said yes, she would take around a month off. Ms B said that once she knew that the voice message was sent to the Complainant in error, she apologised to her. She did not intend to offend her and by stating she was getting extra did not mean she was getting extra to let the Complainant go from her job. There was no intention of letting her go from her job. Sworn evidence was given by Mr A, Manager of the pub, summarised as follows: He stated that he manages 3 of the 12 or so establishments in the Group. He was told on 14th August 2021 by Ms B that the Complainant was having a panic attack. Later he was told by Ms B that she had sent a voice message to the Complainant in error. He texted the Complainant at 12.01 by WhatsApp to tell her to take whatever time she needed to get better and they would arrange cover for her. He was not authorised to dismiss staff so he could not have told Ms B to “get rid” of the Complainant. The Complainant had expressed anxiety about working nights, so they accommodated her with day work. He met with the Complainant on 8th September 2021 and he asked her when she was coming back to work. Sworn evidence was given by the Employer, Mr C summarised as follows: He stated that he is the employer of over 100 staff in some 12 establishments in the hospitality group. He denied that there was any decision to terminate the employment of the Complainant. He became aware of the situation in relation to the Complainant in or around September 2021 but he had not seen the voice message referred to until he had sight of the Complainant’s submission. He emphatically denied that any “cash in hand” payments were paid to the Complainant and if some such payments were made, they predated him taking over the business in mid 2020. |
Findings and Conclusions:
It is common case that the Complainant suffered or suffers a disability. The questions for consideration in this investigation of the Complainant’s complaints are as follows:
Did the Respondent fail to offer the Complainant reasonable accommodation in relation to her disability? And was the Complainant discriminatorily dismissed from her employment, on ground of disability?
Reasonable Accommodation
Section 16 of the Act provides:
“(1) 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. ...
(3)(a) 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. (b) The employer shall take appropriate measures where needed in a particular case to enable a person who has a disability - (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training unless the measures would impose a disproportionate burden on the employer. (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of - (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer’s business, and (iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3) - “appropriate measures” in relation to a person with a disability - (a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned, (b) 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, ...”
I note in this instant case, that there was a meeting with staff and the Manager regarding arrangements for re-opening of the premises, following Covid lockdowns. From the Complainant’s own submission, she was put on days and when locking up on Sunday nights, a security worker from a nearby pub owned by the Group would be sent to the premises. I find that this constitutes reasonable accommodation and I do not uphold the complaint that the Respondent failed to provide reasonable accommodation to the Complainant.
Discriminatory Dismissal
In relation to the question, was the Complainant discriminatorily dismissed, I find as follows:
Section 2 of the Employment Equality Acts provide:
“”dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer), in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was, or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly”.
In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving. In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that:
‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).
In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.
There was much evidence and conflict of interpretation by the parties in relation to the WhatsApp voice message sent in error to the Complainant on 14th August 2021. The tone and language of the message would reasonably be considered to be deeply offensive to the Complainant. Wording such as “so I have to get rid of her now.. and {Manager Mr A] said "look, she has to go" would indicate that the intention was to dismiss the Complainant. I note the evidence from the Respondent’s witnesses given in the hearing that there was no intention to dismiss the Complainant. However the Complainant tendered her resignation in December 2021 citing the stress and humiliation suffered by her following on from the voice message sent on 14th August 2021. While in cases of constructive dismissal, there is usually an obligation on the Complainant to utilise the grievance procedures, in this case due to the mental health difficulties of the Complainant, I accept that it was not possible for her to do so. I also note that there was little follow up from the Respondent, in the context of their assertion that the Complainant would be available or welcome to come back to work if and when she recovered.
In the circumstances of this case, I find that the Complainant was discriminatorily constructively dismissed and I award her the sum of €10,000 compensation for the effects of the discrimination.
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Decision:
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 discriminatorily constructively dismissed and I award her the sum of €10,000 compensation for the effects of the discrimination.
Dated: 02/03/2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Discrimination on ground of disability, constructive dismissal |