A Sales Executive
(represented by John Gerrard Cullen Solicitors)
-v-
A Hotel
(represented by Mc Govern & Associates Solicitors)
1. CLAIM
1.1 The case concerns a claim by a Sales Executive that a Hotel in Leitrim, directly discriminated against her on the grounds of gender and disability in terms of section 6(2)(a) and (g) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to her conditions of employment. She also claims that she was dismissed on the disability ground contrary to section 8 of the Act.
2. BACKGROUND
2.1 The complainant claims that the respondent refused to take account of her disability and accommodate her in terms of the provision of adequate accommodation. She submits that she was discriminated against on the gender and disability grounds in relation to her conditions of employment and that she was dismissed on the disability ground. The respondent denies the allegations of discrimination and submits that it was the complainant who suggested that she would not be able to work under the conditions to which she originally agreed. It submits that the respondent never at any stage moved the parameters.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 6 July 2005. On 21 February 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from the complainant on 6 July 2005 and 3 April 2006. Submissions were received from the respondent on 29 July 2005 and 14 June 2006. A joint hearing of the claim was held on 14 August 2006.
3. SUMMARY OF THE COMPLAINANT'S FIRST SUBMISSION
3.1 The complainant commenced employment as a Sales Executive at the hotel on 30 May 2005. The hotel had been in operation for approximately eighteen months.
3.2 The selection process for the competition was based on three interviews. The first interview was with the General Manager, the second was with the Sales Director and the third was with the General Manager again. During the complainant's interviews with the General Manager, it was revealed that there had been two sales staff employed in the position during the previous 18 month period. The complainant submits that when she expressed concern about this turnover, she was assured that everything in the hotel was fine and that they treated their staff in a professional manner. The complainant expressed concern over this and was told that some candidates were not very presentable and had been let go. The complainant stated that she suffered from knee problems and the General Manager said that it was no problem and that nothing was a problem and that problems were only challenges.
3.3 When the complainant arrived at her new place of work, the General Manager showed her to her office which was located 22 steps up with no lift facility. When the complainant pointed out that there was no lift, he ignored her statement. She submits that four senior staff were packed into the small room and that there was no ventilation. Staff from various departments trailed through the office to make telephone calls or to access a store room which was located at the back of the office. The complainant was informed that other staff members could use the P.C. and telephone at her desk and access all her documents. The physical environment of the office, the constant traffic of other hotel personnel, the heat and the overcrowding were extremely stressful.
3.4 The complainant submits that on her second day in the position, she repeated to the General Manger that she had osteoarthritis of the right knee and that constant ascending and descending on the stairs would aggravate the condition causing considerable pain. She asked him if it were possible to relocate her to a downstairs office. She reminded him that he had already advised her at the interview stage that there was no such thing as a problem only a challenge. He responded by saying that you women have good memories. The General Manager said he would give the matter some thought. The next morning, the General Manager called her to the customer conference room and advised her that he had thought about the situation and that he could not find a solution.
3.5 The complainant reminded the General Manager that when he interviewed her, he did not show her around the hotel or shown her the office. She advised him that whilst she did not expect to have a lift installed for her, she considered that she should be provided with a workspace that she could access. She also pointed out that the Customer Conference room that they were in at that time was not accessible for any customers using wheelchairs or who could not negotiate stairs. The complainant asked if it would be possible to use the Reservations Manager's office located behind the Front Reception desk at lobby level when this Manager was not on shift. The Reservations Manager was rostered at busy periods, i.e week-ends and late shifts after 4pm, Monday-Friday. He was usually rostered three out of the five business days, i.e Monday - Friday. The complainant's working week commenced at 9am and finished at 5.30pm. The complainant suggested that if there was a lap-over of time, there were always ample sales calls to complete after 4pm which would take her out of the office or she could commence work earlier and finish at 5pm thereby reducing the lap-over time.
3.6 The General Manager stated that it was his stepson's office and such an arrangement would not be reasonable. He seemed to get annoyed when she pointed out that the equipment was communal for female employees but that there seemed to be another rule for male employees. She said that she found it difficult to believe that the office which was left idle for much of the week could not have been used or that some other alternative could not be found. The General Manager did not show any concern and was quite dismissive. He informed her that she could collect her P45.
3.7 The complainant submits that the respondent should have made reasonable efforts to accommodate her knee problem. She also believes that she was entitled to be provided with a half-decent workplace. She submits that she was discriminated against because of her gender and because of her disability.
4. SUMMARY OF THE RESPONDENT'S FIRST SUBMISSION
4.1 The hotel opened for business in September 2003 and was built in compliance with building regulations and planning permission. On the complainant's first day in employment, she was led to the office to meet the General Manager's Secretary from whom she would receive induction. The General Manager submitted that he does not specifically recall whether the complainant asked if there was another way of accessing the office.
4.2 The respondent submits that it was not until later in the day that the General Manager's Secretary alerted the General Manager to the fact that there might be a problem in that the complainant had intimated that she was unable to climb stairs and had asked where the elevator was located. Ms. B then explained that an elevator did not service that area of the building. At that stage, the complainant intimated that she had been off work before as a result of climbing staircases and that she was not prepared to aggravate the disability again.
4.3 The General Manager submits that he met with the complainant later in the evening and discussed her predicament. The complainant mentioned that it might have been sensible to mention the ailments. The General Manager submits that he asked her why she did not mention it and she submitted that as it was a modern hotel, she assumed that all offices would be on the ground floor or would be serviced by an elevator. The complainant did not at any stage during the interviews mention her disability and on her application form/CV, she listed walking as one of her hobbies.
4.4 The General Manager explained that it would not be possible to find alternative office space as there was none available at ground floor level and using an office 2 metres by 3 metres behind the reception desk was not a suitable alternative. At the end of the conversation, he submits that he suggested to the complainant that she should give the matter some thought overnight. He submits that he was not dismissive of her situation or of people with disability. He submits that they were both disappointed and he was astounded that the crucial point had not been brought into the discussion during the interview stage as clearly the location of office space in the complainant's case was crucial.
4.5 The General manager submits that if it is the case as the complainant suggests that he knew about her condition, he queries whether it would have made sense to offer a job knowing that he would incur high costs to restructure the hotel. He submits that whilst the complainant now suggests that she would have been able to make sales calls after 4pm to facilitate sharing an office, during the interview she initially broached the topic of sales calls with a significant amount of apprehension as her previous position had been largely hotel based. Whatever the situation, it must be said that making sales calls at 4pm or thereafter is far from best business practice.
4.6 The General Manager submits that on the morning of 31 May 2005, he met again with the complainant to discuss the situation. The complainant opened the conversation by informing him that she had found it necessary to rest her leg the entire previous evening, that her knee had been swollen and that she had to put ice-packs on her knee. She could not carry out her duties suffering such severe consequences. Once again, he submitted that he explained that he was not in a position to offer an alternative office. Her conclusion then was that there was no point in staying for the duration of the day and she went home.
4.7 The General Manager denies having made many of the statements attributed to him by the complainant and he refutes the gist of all of them. He submits that he feels that there
has to be acceptance of responsibility by job applicants to divulge crucial and pivotal information as withholding such information can have serious consequences.
5. SUMMARY OF THE COMPLAINANT'S SECOND SUBMISSION
5.1 The complainant submits that it is clear that the respondent refused to accommodate her in terms of the provision of adequate accommodation and to take account of her disability. It is clear that alternative arrangements could have been implemented by the management in order to ensure that her knee disability did not constitute a bar to her employment in the hotel. The respondent in effect states that if it had known that the complainant had a disability, that it would not have employed her in the first place.
5.2 The respondent further states that it is not going to introduce lifts in order to facilitate workers. However, it is quite clear that the introduction of lifts would not be necessary in order to accommodate the complainant's employment. The complainant submits that the respondent clearly expresses a discriminatory attitude when the General Manager submitted "I feel most fervently that there has to be acceptance of responsibility by job applicants to divulge crucial and pivotal information. Withholding such information can have serious consequences." On the contrary, there is an onus on employers to ensure so far as is practicable that such disabilities are accommodated within the work place.
5.3 The complainant submits that there is nothing inconsistent with walking and being able to climb stairs. The complainant submits that it is clear that the complainant was discriminated against on the basis of her gender and on the basis of her disability. The complainant submits that the General Manager is patronising towards women and dismissive of persons with disability.
6. SUMMARY OF THE RESPONDENT'S SECOND SUBMISSION
6.1 The respondent denies that it discriminated against the complainant on the gender or disability grounds. The General Manager denies that he stated to the complainant that women have good memories.
6.2 The complainant's job at the hotel entailed a significant amount of mobility. It was by no means a "desk bound" job and this was made clear to the complainant at the interview. The position would have involved the complainant liaising with the General Manager, with reception and other locations in the hotel. The complainant would have had to travel to trade shows etc as part of her job description. The complainant's knee injury which she did not mention at any stage before engagement would have rendered her unavailable to undertake and be fully capable of undertaking the duties attached to her position.
6.3 There was no office available downstairs which could accommodate the complainant. To provide an additional office would place a disproportionate financial burden on the hotel and begs the question whether in any case that would be a reasonable expectation of any new employer. In any event, if there was an office available downstairs, the complainant would still have had difficulty undertaking her job as she would have had to engage in significant movement around the hotel which she herself has admitted would aggravate her injury.
6.4 It was the complainant who suggested that she would not be able to work under the conditions to which she originally agreed. The respondent never at any stage moved the parameters.
7. CONCLUSIONS OF THE EQUALITY OFFICER
7.1 The complainant alleges that the respondent discriminated against her on the gender and disability grounds in relation to her conditions of employment and that she was dismissed on the disability ground. In this case, I will consider whether the respondent directly discriminated against the complainant on the gender and disability grounds in terms of section 6(2)(a) and (g) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to her conditions of employment. I will also consider whether the respondent discriminated against the complainant on the disability ground in relation to dismissal contrary to section 8 of the Acts. I will consider (i) whether the complainant had a disability within the meaning of the Employment Equality Acts 1998 and 2004, (ii) whether she has established a prima facie case of discriminatory treatment and discriminatory dismissal and (iii) in the event that she has so established a case, whether the respondent has rebutted the complainant's claim. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Claim of discrimination on the disability ground:
7.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
"..... discrimination shall be taken to occur where-
(a) 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) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as the "gender ground"),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
7.3 "Disability" is defined in section 2 as meaning -
"(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".
Issue whether complainant's illnesses amounted to a disability
7.4 The complainant in any case of disability discrimination would firstly have to prove that she has/had a disability or one which may exist in the future or is imputed to a person within the meaning of the Act and I will consider this issue first. The complainant submitted that she has osteoarthritis of the knee which amounts to a disability within the meaning of the Act. The respondent did not dispute that the complainant had a disability.
Claim of discrimination on the disability ground
7.5 The Labour Court has clarified the burden of proof in cases concerning discrimination on the disability ground. It stated in a case concerning a dismissal on the disability ground:
"It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2001). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove on the contrary on the balance of probabilities." (1)
7.6 In relation to discrimination on the disability ground per se, the Labour Court stated in A Government Department v An Employee."(2) :
"The proscription of discrimination on grounds of disability is not absolute. If a person is, by reason of a disability, unable to fully undertake the duties of a position they may, in accordance with section 16(1) of the Act, be lawfully refused employment or promotion into that position (see A Worker v An Employer 16 [2005] ELR 159). The applicability of that qualification is itself restricted by the provision of Section 16(3) of the Act which, at the time material to the instant case provided: -
(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
7.7 The Labour Court continued:
Subsection (3), paragraph (b), of Section 16 of the Act imposes a duty on employers to accommodate the needs of an employee with a disability. As was pointed out by the Court in An Employer v A Worker, 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. The effect of an employer's failure to fulfil the duty imposed by Section 16(3)(b) of the Act is to negate any defence which they might otherwise have under Section 16(1) in a claim of discrimination on the disability ground. (see also A Worker (Mr. O) v An Employer 16 [2005] ELR 113).
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person's disability."
7.8 In An Employer v. A Worker (Mr. O) (Number 1) (3) referred to in the above case, the Labour Court referred to An Employer v. A Worker (4) where the Court stated in relation to section 16:
"Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed, they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.
Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if, with the benefit of special treatment, they would be fully capable and fully competent to do so. The section goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
7.9 The Court continued:
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 (see British Gas Services Ltd v Mc Caull [2001] IRLR 60).
The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent [sic] of a disabled employee." (5)
7.10 The Court further stated "This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee." (6) The Court then proceeded to refer to A Health and Fitness Club -v- A Worker (7), which was upheld by the Circuit Court and which considered the actions which might be taken by an employer. The Labour Court in that case which concerned discriminatory dismissal considered that the "nature and extent of the enquiries which an employer should make will depend on the circumstances of each case." It held:
"At a minimum, however, an employer, should ensure that he or she is 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 to present relevant medical evidence and submissions."
7.11 In the case of An Employer v. A Worker (Mr. O) (8), the Court stated that it could not accept:
"that the respondent gave any adequate consideration to providing the complainant with the type of special treatment which would have allowed him to resume work following his discharge from hospital. In these circumstances, the respondent cannot rely on section 16(1) of the Act in defending the complainant's claim. Consequently, the Court holds that the complainant was discriminated against on grounds of his disability when he was treated differently to employees without a disability, and an employee with a different disability, in not being allowed to resume work following his return from holidays on 9th July 2002. Accordingly the complainant is entitled to succeed."
7.12 As referred to at paragraph 7.6 above, there is no obligation on a person to appoint or promote an individual if the person is not fully competent and available to undertake and fully capable of undertaking the duties of a post having regard to the conditions under which the duties are to be performed - section 16(1)(b). However, section 16(3) imposes an obligation to do all that is reasonable to accommodate the needs of a person with a disability by taking appropriate measures subject to the burden not being disproportionate.
The Labour Court stated in An Employer v. A Worker (Mr. O) (9). in relation to the interaction between section 6 and section 16(3) of the Acts:
"Discrimination, for the purposes of the Act, is defined by section 6. That definition does not include any reference to a failure to fulfil the duty imposed by section 16(3). Further, there is nothing in the Act which gives an independent cause of action for an employer's failure to provide special treatment or facilities in accordance with that subsection."
More recently, the Labour Court in HSE - North Western Area v. A Worker" (10) similarly stated :
"The question of the nature and extent of an employer's duty to an employee with a disability was dealt with by a division of this Court in Determination EDA0419 - An Employer and A Worker, issued on 5th January 2005..... A claim cannot solely be founded on the claim that an employer failed to provide reasonable accommodation."
7.13 In accordance with the principles enunciated in A Health and Fitness Club -v- A Worker (11), the respondent in the case in issue should firstly have considered the factual position concerning the complainant's capability including the degree of impairment arising from the disability and the likely duration. This would involve looking at the medical evidence available to the respondent either from the employee's doctors or obtained independently. If at that stage, it was apparent that the complainant was not fully capable, the respondent should have proceeded to consider what special treatment or facilities were available by which the employee could become fully capable. The issue of disproportionate burden (formerly nominal cost) would come into play at that stage in considering the issue of appropriate measures (formerly reasonable accommodation).
7.14 The respondent in this case made no effort to obtain a medical prognosis of the complainant's condition. Whilst the complainant raised the possibility of using an office downstairs, the respondent did not thoroughly consider all options in relation to alternative office accommodation, the only action it appears to have taken was to immediately reject the office downstairs as not being suitable and it did not consider further options and discuss them in a meaningful manner with the complainant. The respondent in its written submission states "I did indeed explain that I would not be able to find alternative office space as we do not have such a thing at ground floor level. Using an office 2mtr by 3mtr behind the reception desk is not a suitable alternative. At the end of the conversation I suggested to Ms. [A] that she should give the matter thought over-night and that we should meet first thing the following morning." The General Manager submitted at the hearing that he stated at that meeting that he found it "difficult to envisage alternatives". The General Manager and the complainant met again the next morning (31 May 2005) and in the respondent's written submission, the General Manager submits that he stated "Once again I explained that I was not in a position to offer an alternative office." The respondent did not consider referring the complainant for medical opinion before considering the issue of appropriate measures and it only gave cursory consideration to alternative office accommodation when the complainant raised the matter. The respondent eventually came to a decision that the complainant could not be retained because of her disability without the benefit of any form of professional advice or assessment of the risks associated with her condition. I find that the respondent discriminated against the complainant in relation to her conditions of employment. As the respondent failed to consider in any meaningful way the issue of reasonable accommodation, it cannot avail of the defence provided in section 16(3) of the Act and it has therefore failed to rebut the complainant's claim of discrimination on the disability ground.
7.15 The complainant also claims that she was dismissed because of her disability. The respondent denies the dismissal and submits that the complainant left of her own accord. In any case, it is irrelevant whether the complainant left of her own accord or was forced to leave. "Dismissal" as defined in section 2 of the Act 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" The Labour Court stated in relation to a complainant in A Company v. A Worker (12) :
"In a situation where she found herself unsupported by management and her colleagues, and the problems were continuing to exist, the Court is of the view that it was reasonable in those circumstances for the complainant to terminate her own contract and to seek an alternative position. The Court is satisfied that the constructive dismissal occurred due to circumstances amounting to discrimination contrary to Section 77(2) of the Employment Equality Act, 1998." Similarly, in An Employer v. A Worker (Mr. O) (Number 2) (13), which concerned a claim of discrimination on the disability ground by being constructively dismissed from employment, the Labour Court was satisfied that the complainant's employment with the respondent came to an end in circumstances amounting to a dismissal within the meaning of section 2(1) of the Act.
7.16 In the case of McCrory Scaffolding (N.I.) Limited v. A Worker (14), the Labour Court in that case considered that it was "unclear how the respondent arrived at the conclusion that the Complainant lacked full capacity to safely undertake the duties of his employment. The Respondent Company made no attempt to ascertain the exact nature of the Complainant's disability. The Respondent acted precipitously and made no attempt to have the Complainant independently examined. In fact, the Respondent adduced no medical evidence and did not request access to the opinion or advice of the Complainant's own medical advisors. No consideration was given to undertaking a safety assessment of any kind and the Respondent made no attempt to discuss its concerns with the Complainant." The Court proceeded to find that the complainant had been dismissed on the disability ground.
7.17 Similarly, the respondent in this case made no effort to ascertain the exact nature of the complainant's disability and its implications and it did not discuss the situation with her in a meaningful way before taking a decision on her future. It came to a decision that she could not be retained because of her disability without the benefit of any form of professional advice or assessment of the risks associated with her condition. The General Manager submitted at the hearing that he considered that even if there was a lift in that part of the building, the serious nature of the complainant's affliction would still have given her difficulties carrying out her duties. That statement and the respondent's decision in relation to the complainant were made without the benefit of any form of medical advice in respect of the complainant. In the circumstances of the instant case, I find that the complainant was dismissed on the disability ground.
Claim on the gender ground
7.18 The complainant in this case submits that the General Manager stated to her that "You women have good memories." which she submits is discriminatory on the gender ground. The General Manager denied having made the statement. I consider that the statement if it was made, in the absence of other factors, is insufficient to establish a prima facie case of discrimination on the gender ground.
8. DECISION
8.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Act in relation to her conditions of employment. I also find that the complainant was dismissed on the disability ground contrary to section 8 of the Acts.
8.2 I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in relation to her conditions of employment.
8.3 In accordance with section 82(1) of the Employment Equality Acts 1998 and 2004, I hereby order that the respondent:
1. pay the complainant the sum of €5,000.00 compensation for the effects of the discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
2. pay the complainant the sum of €5,000.00 compensation in respect of economic loss;
3. pay the complainant the sum of €5,000.00 compensation for the effects of the discriminatory dismissal (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income).
_______________________
Mary Rogerson
Equality Officer
15 September 2006
notes
(1) Valerie Cascella and Antonio Cascella t/a Donatellos Restaurant v. A Worker EED043 9 February 2004
(2) ADE/05/16 Determination No: EDA061 30 January 2006
(3) EDA0419 5 January 2005
(4) ADE/04/8 Determination No: EDA0413 15 November 2004
(5) ADE/04/8 Determination No: EDA0413 15 November 2004
(6) An Employer v. A Worker ADE/04/8 Determination No. EDA0413
(7) EED037 18 February 2003
(8) EDA0419 5 January 2005
(9) EDA0419 5 January 2005
(10) EDA0610 3 August 2006
(11) ED/02/59 Determination No: 037 18 February 2003
(12) ED/01/11 Determination No. 021 23 January 2002
(13) ED/02/57 Determination No. EED0410 5 January 2005
(14) ED/04/12 Determination No. EED055 16 March 2005