Ms. Dorothy Finnane
(Represented by MANDATE)
vs
Dunnes Stores
(Represented by BCM Hanby Wallace, Solicitors)
SUMMARY
Ms. Finnane (complainant) Represented by MANDATE vs Dunnes Stores (respondent) Represented by BCM Hanby Wallace, Solicitors:
Equality Officer Decision DEC-E2006-0?? (Coyle G.) 23rd November, 2006
Employment Equality Acts, 1998-2004 Sections 6, 8, 16, 74(2) and 77 - Employment - Disability - Discriminatory Treatment - Reasonable Accommodation - Victimisation - Discriminatory Dismissal
Background:
The complainant commenced employment as a Sales Assistant with the respondent organisation in November, 2000. In March, 2003 she was diagnosed with diabetes which she submits is a disability under the Employment Equality Act, 1998-2004. The complainant alleges that she was discriminated against by the respondent because of her disability in relation to her work hours and her breaks. She also alleges that she was not provided with reasonable accommodation in terms of Section 16(3) of the 1998-2004 Acts. The complainant further alleges that she was subjected to victimisation by the Section Manager who was acting on behalf of the respondent organisation. The complainant terminated her employment in July, 2005 and contends that she was constructively dismissed. The respondent has denies all the allegations.
Conclusions and Decision:
The Equality Officer noted that during the course of her employment with the respondent organisation the complainant was absent on sick leave on a total of 18 occasions and only three of these related to her diabetes. On the basis of the evidence the Equality Officer concluded that the complainant was not discriminated against on the grounds of her disability and that the respondent did not fail to provide her with reasonable accommodation. The Equality Officer did find that the complainant was subject to some victimisation by the Section Manager and she awarded her compensation in the amount of €2,000. The Equality Officer found no evidence to support the contention that the termination by the complainant of her employment amounted to constructive dismissal under the Acts.
1. DISPUTE
1.1 The dispute concerns a claim by MANDATE on behalf of Ms. Finnane that she has been discriminated against Dunnes Stores on the grounds of disability within the meaning of Sections 6(1) and 6(2)(g) of the Employment Equality Acts, 1998-2004 and in contravention of Section 77(2) of those Acts when she was dismissed. The complainant further claims that she was not reasonably accommodated in contravention of Section 16(3) of the 1998-2004 Acts. She also alleges that she was subjected to victimisation within the meaning of Section 74(2) of the 1998-2004 Acts.
2. BACKGROUND
2.1 The complainant commenced employment as a Sales Assistant with the respondent organisation in November, 2000. In March, 2003 she was diagnosed with diabetes which she submits is a disability under the Employment Equality Act, 1998-2004. The complainant alleges that she was discriminated against by the respondent because of her disability in relation to her work hours and her breaks. She also alleges that she was not provided with reasonable accommodation in terms of Section 16(3) of the 1998-2004 Acts. The complainant further alleges that she was subjected to victimisation by the Section Manager who was acting on behalf of the respondent organisation. The complainant terminated her employment in July, 2005 and contends that she was constructively dismissed. The respondent has denies all the allegations.
2.2 Consequently the complainant referred her complaint of discriminatory dismissal, failure to provide reasonable accommodation and victimisation to the Director of Equality Investigations on 30th August, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 12th September, 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 19th October, 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant commenced employment with the respondent organisation on 7th November, 2000 as a Sales Assistant working a minimum of 15 hours with one Sunday off in four. She worked an average of 28 hours per week and sometimes in excess of this. It is the complainant's submission that in late 2002 she was ill and out on certified sick leave on two occasions prior to Christmas 2002. According to the complainant the Personnel Manager informed her that she had no alternative but to take disciplinary action against her for her absenteeism. The complainant states that she sought a reduction in her hours to 15 hours per week but this request was not facilitated. In March, 20003 she was diagnosed with diabetes, prescribed medication and advised about her diet including the necessity of having her meals at regular times. According to the complainant she was sick for 3 weeks with an additional 3 weeks of monitoring by her medical team before she was deemed fit to return to work. In August, 2003 the complainant's Union wrote to the respondent outlining the complainant's medical condition and asking the respondent to provide support for her.
3.2 The complainant states that she sought a reduction in work on a number of occasions from the Store Manager and the Personnel Manager but to no avail. Rather she had more hours allocated to her with a change in her roster. According to the complainant she was constantly approaching management for a reduction in her hours and for the need for regular breaks and she would have to explain about her diabetes to all new members of management. By the end of 2004 the situation had again deteriorated and the complainant approached the Personnel Manager. The complainant's Union also wrote to the respondent in relation to the matter. The respondent undertook to look at her work schedule in January, 2005 and as a result her hours were reduced but her work pattern contained an excessive number of shifts which required her to work from 4p.m.-10p.m. and 2p.m.-8p.m. which was the close of business. It is the complainant's submission that, as she was a cashier on the tills, she often had difficulty getting relief to let her off for a break and she would often be delayed with late customers.
3.3 According to the complainant she worked the hours she was rostered but she was regularly attending her G.P. as she encountered a difficulty with blurred vision due to a lack of food and the length of time she had to spend on the tills. The complainant says that she explained this to the Section Manager who laughed at her and said "you can't see". It is the complainant's submission that she had to approach management (sometimes on a daily basis) stressing that she needed regularly timed meal breaks. She reported these problems to the Personnel Manager and the complainant alleges that the Section Manager victimised her for reporting same by endeavouring to put her down in front of customers, would not accommodate breaks and constantly changed her to busy tills. For instance on a 12-8 or 12-9 roster the Section Manager would put her on a 4p.m.-5p.m. lunch hour and would refuse to change it. She then would have to try to swop her lunch hour with a colleague for an earlier one. The complainant says that the Section Manager refused to give her notice of her hours when she phoned in for same and without this information the complainant could not plan her meal breaks for the following week. On one occasion the complainant states that she rang in for her work hours and a staff member was told by the Section Manager not to give them to her. A witness to the incident states that the Section Manager stated that the complainant could get her hours of work when she came in because if you tell her she will go sick and not come in.
3.4 In June, 2005 the complainant says that she was rostered to work seven days in a row and she found this very difficult. She felt that she had no alternative but to terminate her employment on 3rd July, 2005. The complainant says that she had no intention of leaving the employment of the respondent organisation and she had joined the respondent's pension scheme a month or two prior to this date.
3.5 The complainant notes that her contract of employment outlines minimum rest periods as per the Organisation of Working Time Act and she states that the respondent uses this Act to the maximum benefit of their operational business needs but it does not reasonably accommodate a staff member with diabetes. According to the complainant the respondent failed to make itself available for a meeting with the complainant's Union which had been requested. Had this meeting taken place and the matters resolved the complainant submits that she could still be in employment. The complainant notes that she has a letter from her doctor who states in relation to her that "Diabetic recurrent attendances due to exhaustion related to work practices. Long unbroken weeks work, etc."
3.6 The complainant seeks a finding that the respondent discriminated against her in relation to discriminatory treatment in her conditions of employment, discriminatory dismissal, victimisation and a failure to provide reasonable accommodation. In making such a finding the complainant seeks an award of compensation for the loss of her employment plus the unfair treatment during her employment.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent alleges that the first occurrence of discrimination was in April, 2003 and the most recent occurrence was in July, 2005. According to the respondent the complainant accepts that it was not until August, 2003 that she made the respondent aware of her diabetes. In these circumstances the respondent submits that, where it was not even aware of her disability, it could not have discriminated against her in the period from April to August, 2003 as is alleged nor could it have provided reasonable accommodation in that period. The respondent also submits that the Equality Officer only has jurisdiction in respect of the complaint relating to the period six months prior to the lodging of her complaint i.e. the period from the end of February to the end of August, 2005.
4.2 The respondent states that it accepts the complainant's assertion that she cannot work the same number of hours as other employees because of her disability. It further accepts that the complainant did, on occasion, speak with members of management with regard to a reduction in her hours of work. However the respondent does not accept that the complainant advised that the reduction in her work hours was because of her disability. According to the respondent a number of employees seek a reduction in their hours of work at various times especially at Christmas. These requests can be for a variety of reasons but where the reason is linked to a disability which is not obvious then the respondent submits that the onus is on the person making the request to clearly state that the reason for the request is related to a disability. The respondent states that this is particularly so in circumstances where no medical, or any other, evidence was given to the respondent with regard to the type of diabetes or its effects on the complainant's ability to carry out her duties. According to the respondent the letter from the complainant's Union dated 15th December, 2004 does not state that the complainant required a reduction in her hours because of her diabetes. Rather it focussed on the number of late finishes the complainant was required to work and stated that the complainant did not object to working the hours she was rostered. The respondent notes that the hours worked by the complainant in December, 2004 (being an average of 25 hours per week) continued at the same level in 2005 up to the date of her resignation. The number of hours worked by the complainant between 2003 and 2005 did reduce, according to the respondent, where in 2003 her hours were approximately 27 hours per week.
4.3 The respondent accepts that the complainant did advise management that she required regular breaks because of her diabetes but it is entirely denied that she was refused such breaks. According to the respondent the complainant was advised by the Drapery Manager in the presence of the Security Manager that if she needed food or appropriate drink during her shift (and she could not locate the Department Manager) she had ongoing permission to leave the floor and to the canteen whenever this was necessary. The respondent submits that the complainant was given reasonable accommodation in this matter.
4.4 The respondent denies that the Section Manager victimised the complainant as alleged and denies that the incident which the complainant described with regard to the blurred vision took place. The respondent says that the incident described as an instruction by the Section Manager to a staff member not to give the complainant her hours of work has been taken totally out of context. According to the respondent when the complainant rang for her work hours there was a queue at the Service Desk. The staff member was busy serving customers and it was for this reason that she could not confirm the complainant's roster without leaving the floor to check the roster. The respondent accepts that the complainant did on one occasion work seven days in a row but this only arose due to the complainant's request for a particular Friday, Saturday and Sunday off out of rota.
4.5 The respondent notes that when the complainant advised the Personnel Manager that she intended to resign she said that she would like to spend more time with her family. In her letter of resignation the complainant states "there are a combination of reasons for leaving, mainly hours of work, roster, my health and her employment were interfering with my family life". The respondent says that, while it is apparent from this that the complainant was not happy with her hours and her roster and that her health and her employment were interfering with her family life, it is unclear that she was experiencing difficulties at work due to her diabetes and that she was not been accommodated by her employer in this context. According to the respondent the Store Manager (who was relatively new to the Store) also asked the complainant why she was leaving and he was told that the hours she had to work and the late nights were interfering with her family life and she wished to spend more time with her grandchildren. The respondent says that, yet again, there was no mention of her diabetes. Furthermore the respondent notes that the complainant did not bring a grievance or make a complaint in accordance with the respondent's policy on harassment and bullying in the workplace in respect of her alleged treatment.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of disability within the meaning of Sections 6(1) and 6(2)(g) of the Employment Equality Acts, 1998-2004 and did the respondent fail to provide reasonable accommodation in terms of Section 16(3) of the Acts. I must also decide if the complainant was subjected to victimisation within the meaning of Section 74(2) of the 1998-2004 Acts. Finally I must decide if the complainant was constructively dismissed under Section 77 of the 1998-2004 Acts on the grounds of her disability. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 The respondent has contended that the Equality Officer only has jurisdiction in respect of the complainant's complaint relating to the period of six months prior to the lodging of her complaint i.e. the period from the end of February, 2005 to the end of August, 2005. I do not accept this. The six months period cited in Section 77(5)(a) is the time limit within which claims can be referred to the Director for investigation. It is clearly stated in this Section of the Acts that the period of six months is from "the date of occurrence of the discrimination ...to which the case relates or ...the date of its most recent occurrence". The six months time limit from the date of the last occurrence of a discriminatory act is clearly a time limit for the referral of a claim to the Director for investigation under the Acts. It does not preclude the investigation of all allegations of discriminatory treatment to the date of the last such occurrence. In these circumstances all occurrences of alleged discriminatory treatment from the date of the first occurrence to the date of the last occurrence will be investigated.
5.3 The complainant commenced employment with the respondent in November, 2000. Towards the end of 2002 the complainant was absent from work on certified sick leave and then in March, 2003 she was diagnosed with diabetes. According to the complainant she was advised about her diet and the necessity of having meals at regular times. The complainant alleges that she regularly approached management for a reduction in her hours and the need for regular breaks to be put in place, but to no avail. She alleges that a named manager subjected her to victimisation and she ultimately considered that she had no option but to terminate her employment. The respondent has denied the allegations.
5.4 Having examined all the evidence in this case I note that the complainant was absent from work on certified sick leave on nine occasions between the commencement of her employment and March, 2003 when she was diagnosed with diabetes. She alleges that she was absent from work on certified sick leave for a period of 6 weeks in March, 2003 when she was first diagnosed with diabetes. However I note from the medical certificates submitted by the respondent that there is no medical certificate for the complainant in March, 2003. She was medically certified unfit for work for two days in early April, 2003 as she was suffering from diabetes which was noted as "new". The complainant was absent on certified sick leave again at the end of April, 2003 for the purpose of stabilising her diabetes. Between that time and the complainant leaving the respondent organisation (July, 2005) I note that she had seven medically certified absences and only one of which related to her diabetes.
5.5 First and foremost I am satisfied that diabetes does fall within the definition of disability as defined in Section 2 of the 1998-2004 Acts. The complainant is arguing that the long hours she had to work and the failure to get regular breaks adversely impacted on her health because of her diabetes. She alleges that she was constantly approaching management seeking a reduction in her hours of work and the need for her to have regular breaks but to no avail. In August, 2003 the Union, on her behalf, wrote to the respondent asking that she receive every support given her serious medical condition (namely diabetes). The respondent said that it spoke to the complainant on foot of this letter and assured her that she would be given time off for any planned doctor's appointments and this would not affect her absenteeism.
5.6 I am satisfied that the respondent became aware that the complainant was suffering from diabetes through a medical certificate in April, 2003. It is accepted that the complainant did look for regular breaks because of her diabetes and the Manager in charge of the area at the time indicated that he advised the complainant that she had ongoing permission to go on a break whenever she wished. The complainant, while employed as a Sales Assistant, was working as a cashier. I note that she did not deny that this permission had been granted to her but she said that it was not always possible to get the desired breaks. There was no evidence that she reverted to this particular manager in this regard and he indicated that he was not aware of any problems with the permission he had granted. This manager left the store in March, 2004 and was replaced. There is no evidence that the hours the complainant worked or the breaks she received adversely impacted on her disability as much of her certified sick leave was unrelated to her diabetes. I note that in December, 2004 the Union, on behalf of the complainant, wrote to the respondent about the number of late rosters she had been assigned. The concern expressed was about the equitable basis on which late finishes were rostered in the store and it was specifically stated that the complainant had no objection to working these hours. At the hearing of this claim the complainant stated that she approached the Personnel Manager in June, 2005 about various issues e.g. dinner breaks and a number of incidences with the Section Manager. The Personnel Manager denied that this approach was made. If this alleged approach was made to management it makes no sense that it was first raised at the hearing of this claim and was not referred to by the complainant in her submission.
5.7 Taking account of all the evidence I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of disability. I further find that the allegation that the respondent failed to provide her with reasonable accommodation within the meaning of Section 16(3) of the 1998-2004 Acts cannot be sustained.
5.8 The complainant has alleged that she was subjected to victimisation because of her disability by the Section Manager. In this regard she stated in her submission that
in November, 2004 he mocked her when she complained of blurred vision (which can result from her diabetes);
he put her down in front of customers e.g. he accepted club vouchers being handed in by one customer but which had been made out to another customer. According to the complainant she was abused by the customer for not taking them and again abused by the customer after the Section Manager had accepted them;
he refused to accommodate her breaks or to facilitate toilet breaks;
he constantly changed her to busy tills;
he refused to give her notice of her hours when she rang in for them.
I note that the respondent has denied these allegations.
5.9 At the hearing of this claim the Section Manager stated that he could not recall the incident of the "blurred vision". Another member of staff present at the hearing on behalf of the respondent and hereinafter to be referred to as Ms. A stated that the complainant had suffered with blurred vision on a number of occasions. I am satisfied that this alleged incident, in all probability, did happen and, therefore, on this occasion the complainant was victimised on account of her disability. Again the Section Manager could not recall the alleged incident with the club vouchers. The complainant said that she had mentioned the incident to the Security Manager who confirmed this. I am satisfied that the complainant acted correctly in refusing to accept the club vouchers. The Section Manager in his capacity as Manager could agree to accept them which he did. However the manner in which he handled the issue clearly upset the complainant and I am satisfied that his approach was clearly designed to put her down in front of customers. I have no evidence that the Section Manager refused to accommodate the complainant's breaks or toilet breaks. The complainant has alleged that the Section Manager constantly changed her to busy tills. I note that the complainant was generally assigned to the tills in the Mens Department. It was clear from the evidence that the tills in the Mens Department were very quiet and very often the complainant was asked to transfer to tills in the Homeware Department which were busier. I am satisfied that this redirection of the complainant to busier tills was in the context of the business needs of the organisation and for no other reason. The complainant alleged that the Section Manager instructed a staff member not to give the complainant her work roster for the following week when she rang in for her hours. Three versions of that incident were outlined to me by the complainant's daughter-in-law who chanced being there when the complainant rang in, the Section Manager and the staff member who took the complainant's call (Ms. A). The complainant rang the Customer Service Desk requesting her hours for the next week. All three agree that the Customer Service Desk was busy at the time. According to the complainant's daughter-in-law Ms. A told the complainant to ring back in an hour whereas Ms. A and the Section Manager stated that the complainant was told that Ms. A would ring her back with her work hours within an hour. The Manager stated that he checked the clipboard to see if the complainant's hours were there but they were not and he left. I note that the complainant's daughter-in-law was the next person to be dealt with by Ms. A. It is her evidence that the Section Manager was present when she asked for the complainant's hours but he denies this. He also denies that he made any reference to the complainant going sick if she knew her hours as was alleged by the complainant's daughter-in-law. Given the impact of this incident on each of these three persons I find the version of events by the complainant's daughter-in-law to be more compelling. I note that throughout the complainant's employment she was absent on certified sick leave on 18 occasions, 3 of which related to her diabetes. While I am satisfied that the Section Manager's attitude to her was influenced by her sick leave record I do not find it was entirely (but it was partly) due to her disability as much of her certified sick leave was for reasons other than her disability.
5.10 The final issue for consideration is whether or not the complainant was constructively dismissed in terms of Section 77 of the 1998-2004 Acts on the grounds of disability. The complainant alleges that she had great difficulty in working the hours assigned to her and despite requests for a reduction in her hours, which were not facilitated, she decided that she had no option but to terminate her employment. The respondent denies that the complainant was constructively dismissed. In her letter of resignation I note that the complainant cites a number of reasons for her resignation in July, 2005 mainly her hours, her roster, her health and her employment were interfering with her family life. The complainant alleges that she sought a reduction in her hours on a number of occasions. Given the nature of the business I am satisfied that the respondent encountered many staff members with similar requests. There is no evidence that the complainant sought the reduction in her hours in the context of the adverse effect the hours she worked had on her disability and I note that the complainant did not produce any evidence from her doctor which supported her contention that the number of hours she worked was adversely impacting on her disability. In the period from when the complainant was diagnosed with diabetes she was absent from work on certified sick leave on 9 occasions and only 3 of which related to her disability. I am satisfied that the complainant had difficulties with her rostered hours but there is no evidence that this had anything to do with her disability. In December, 2004 the Union, on behalf of the complainant, wrote to the respondent about the complainant's rostered hours. In its letter the Union states "[the complainant] has advised me that recently the roster hours which [the complainant] has worked requires a number of late finishes. [The complainant] is not objecting to working these rosters but has concern regarding the equitable basis on which late finishes are rostered in the store". It is reasonable to conclude to that the complainant's health was a matter of concern for her given the number of certified sick leave absences she had while she worked in the respondent organisation. However there is no evidence that her work negatively impacted on her disability. The complainant has said that a combination of factors interfered with her family life. There is no evidence, let alone indication, that these factors adversely impacted on her disability necessitating the need to terminate her employment. I, therefore, find that the complainant was not constructively dismissed because of her disability as alleged.
6. DECISION
6.1 In view of the foregoing I find that Dunnes Stores did not discriminate against Ms. Finnane on the grounds of disability in terms of Section 6 of the Employment Equality Acts, 1998-2004 and in contravention of Section 8 of those Acts.
6.2 I find that Dunnes Stores did not fail to provide reasonable accommodation as alleged within the meaning of Section 16(3) of the Employment Equality Acts, 1998-2004.
6.3 I find that Ms. Finnane was subjected to victimisation on account of her disability by the Section Manager in terms of Section 74(2) of the Employment Equality Acts, 1998-2004.
6.4 I find that Ms. Finnance was not constructively dismissed by Dunnes Stores under Section 77 of the Employment Equality Acts, 1998-2004 on the grounds of her disability.
6.5 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order:
(a) Dunnes Stores to pay Ms. Finnane the sum of €2,000 by way of compensation for stress suffered as a result of the victimisation;
and
(b) Dunnes Stores to provide all staff in Staff Management positions with training on all aspects of the Employment Equality Acts, 1998-2004.
______________________
Gerardine Coyle
Equality Officer
23rd November, 2006