Complainant

Respondent

Parties

Sandra Jackson

K F Moda Ltd

Representatives

Self-represented

None in attendance

Act

Complaint Reference No.

Date of Receipt

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

CA-00068789-001

22/01/2025

The complainant was employed by the respondent as a sales assistant from 17 April 2024 to 21 October 2024.

The complainant worked on a part-time basis, initially paid €13.00 per hour and from June 2024 was paid €14.50 per hour.

The case referred to the Workplace Relations Commission concerned a claim of discriminatory dismissal on grounds of disability.

The complainant commenced employment on 17 April 2024, initially working 16 hours per week on two days and also providing cover for holiday hours when required. 

The hours and days of work changed with the complainant rostered to work 16 hours over 4 days.    The complainant contacted the secretary of the respondent company, Mahmood Khan, on 16 October 2024 and advised that being rostered over 4 days was causing her difficulty.  The complainant understood from her conversation with Mr Khan that he would resolve the roster issue.    The complainant followed up on the telephone call by sending Mr Khan two letters on 16 October which explained circumstances relating to the complainant’s health.   On 18 October 2024, Mr Khan telephoned the complainant and advised her that he did not think she was well enough to work in the shop.  The complainant queried this position.  In a further telephone call on 19 October 2024, Mr Khan told the complainant not to open the shop the following day.  On 21 October 2024, Mr Khan texted and emailed the complainant informing the complainant that her position was terminated and that she should return her keys to the shop. 

The complainant believed that the respondent terminated her employment on 21 October 2024 because of her illness.

Receipt of the Commission’s notification to the respondent of the case referral was acknowledged by the respondent company secretary, Mr Khan, and contact details confirmed. 

There was no attendance by or on behalf of the respondent at the hearing.  

The respondent was notified of the hearing arrangements for this case in accordance with the contact information provided.  There were no written submissions received from the respondent in relation to the case and no engagement by the respondent with the Commission on the substantive claim.

I am satisfied that the respondent was properly notified of the hearing arrangements.  There was no contact from the respondent before or after the hearing to indicate any difficulty on its part in attending the hearing.

The hearing proceeded as scheduled and the complainant’s evidence was undisputed.

The Legal Framework

The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in employment-related areas on nine protected grounds, of which disability is one. 

As per section 6(1) of the Acts, discrimination occurs where a person is treated less favourably than another on any of the protected grounds.

Section 8(1) of the Acts prohibits discrimination by an employer against an employee in conditions of employment generally, and section 8(6) provides:-

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one –

(a)   the same terms of employment (other than remuneration and pension rights),

(b)   the same working conditions, and

(c)    the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Section 85A of the Acts addresses the burden of proof under the Acts and provides as follows:- 

“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.”

Findings

Based on the following uncontested facts, I find that the termination of the complainant’s employment on 21 October 2024 was a discriminatory dismissal in contravention of section 8 of the Acts.

The complainant’s normal working hours were 16 hours per week, worked over 2 days from 9.30am to 6.00pm.  She also worked, when required, to cover the leave of other employees.  There was a change to the complainant’s days/hours of work due to the temporary closure for renovation in September and October 2024 of another of the respondent’s shops and the inclusion of an employee from that shop in the roster for the complainant’s workplace. 

On 16 October 2024, the complainant raised an issue with Mr Khan regarding her rostered days/hours of work and followed up by sending him two letters, namely a letter dated 15 October 2024 in which the complainant requested consideration be given when making changes to her roster and referred to health issues, and copy of a letter dated 9 October 2024 from the complainant’s consultant neurologist.  The consultant’s letter advised of the complainant’s epilepsy diagnosis, of medication and other medical conditions and symptoms.  The consultant set out how certain changes to work pattern may be debilitating due to ongoing medical symptoms and underlying conditions.  

The complainant’s last day at work was Friday, 18 October 2024. 

By letter dated 21 October 2024, Mr Khan notified the complainant in writing that her “probation employment” with the respondent was being terminated on that date and stated that “after a complete review of your job performance, we can no longer continue with your position with the Company”.

The complainant was paid one week’s pay and outstanding annual leave on termination of employment. 

The complainant was not on notice of any performance issues or any other issues the respondent may have had with her in employment, and there were no probationary meetings. 

Based on the information before me, I find that the complainant has a disability within the meaning of the Acts.  I further find that the complainant has established a prima facie case that her employment was terminated by reason of that disability on 21 October 2024.  There was nothing before me to the contrary.  

I therefore find in favour of the complainant’s claim that she was discriminated in contravention of the Acts and provide for redress as follows which I consider appropriate in the circumstances of the case:-

(a)    An order in accordance with section 82(1)(c) that the respondent pay to the complainant the sum of €15,000.00 by way of compensation for the effects of the discriminatory treatment, and

(b)   An order in accordance with section 82(1)(e) of the Acts that the respondent arrange for all persons in the respondent company with responsibility for staff and for making decisions in relation to their employment to receive appropriate training as regards employees with a disability/disabilities and employment equality legislation within six months of the date of this decision, and further to such training that the respondent review its employment policies and procedures, including its probationary policies and procedures.

In determining redress, I have taken account of the complainant’s hope that another person is not treated in the same way and the respondent’s apparent reliance in the letter of termination on a probationary period to terminate the complainant’s employment notwithstanding the complainant having been employed for over 6 months with no issues having been raised in relation to her suitability, performance or otherwise.    

The compensation ordered is for the effects of the discriminatory treatment on the complainant.  The complainant’s evidence was of being very upset by the way she was treated and the manner in which her employment was terminated.  The complainant had worked for over 40 years in the retail and hospitality sectors.  She was disheartened and discouraged at the treatment she experienced in relation to the termination of her employment.  The complainant detailed the personal impact of the dismissal, including the loss of earnings, and how she found the respondent’s treatment in dismissing her after she brought information concerning her health to their attention to have been disrespectful and damaging to her confidence. I have determined the amount of compensation having regard to section 82(1)(c) and 82(4) of the Acts, the complainant’s hourly rate of pay of €14.50 at the time of dismissal, normal weekly working hours, and the complainant’s evidence concerning the effects of the discriminatory treatment.    

My decision is that the claim of discriminatory dismissal in contravention of section 8 of the Acts is well founded and that it is appropriate in the circumstances of this case to provide for redress as follows:-

(i)               an order that the respondent pay to the complainant compensation for the effects of the discriminatory dismissal in the sum of €15,000.00; and

(ii)              an order that the respondent arrange for all persons in the respondent company with responsibility for staff and for making decisions in relation to their employment to receive appropriate training as regards employees with a disability/disabilities and employment equality legislation within six months of the date of this decision, and further to such training that the respondent review its employment policies and procedures, including its probationary policies and procedures.

Employment Equality Acts – Disability – Dismissal – Discrimination - Redress