Equality Officer Decision No: DEC-E/2009/081
Parties
Dunne
(Represented by SIPTU)
And
Dunnes Stores Ltd.
(Represented by BCM Hanby Wallace - Solicitors)
File No: EE/2006/343
Date of issue:16 September, 2009
Headnotes: Employment Equality Acts, 1998 & 2004, sections 6, and 77 – discriminatory dismissal - disability – whether employee at relevant time -reasonable accommodation - termination of employment - burden of proof.
1. DISPUTE
This dispute involves a claim by Ms. Anne Dunne that she was dismissed by Dunnes Stores Ltd in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts, when she was refused permission to resume her duties in June, 2006 after a period of absence due to an injury sustained whilst at work.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a Shop Assistant at its store in Cavan since October, 1993. In February, 2003 she sustained an injury to her back whilst at work which resulted in her being unfit for duty from then until June, 2006 when she states she was certified as fit to return to work. She states that when she contacted the respondent to make arrangements for her to resume her duties she was informed by the Store Manager that she had terminated her employment with the respondent on compromising her personal injury claim in the High Court. The complainant asserts that the respondent imputed a disability to her, that it failed to investigate what reasonable accommodation it could afford her and that its unilateral decision not to permit her to return to work constitutes discriminatory dismissal of her on grounds of disability contrary to the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 26 September, 2006. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 29 January, 2009, the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing took place on 22 June, 2009.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that she commenced employment with the respondent as a Shop Assistant at its store in Cavan in 1993. She adds that in February, 2003 she sustained an injury to her back whilst at work as a result of which she was unfit for work from then until mid June, 2006. She states that following an examination by her General Practitioner in later May, 2006 she was certified as fit to return to work from 12 June, 2006. She adds that she spoke with the Store Manager on 26 May, 2006 advising him of her intention to return to work on 12 June, 2006. She states that he wrote to her on 1 June, 2006 stating that she had terminated her employment on compromising her personal injury claim in the High Court on the basis that in settling that claim it had been indicated on her behalf that she was permanently incapacitated. The complainant rejects this assertion and states that it was always her intention to return to work. She adds that the amount of the settlement clearly just reflects her loss of earnings for the three years she was absent from work, it did not encompass any future losses. She further states that her Statement of Claim to the High Court makes no reference to future losses and she submits that in the circumstances, she continued to be an employee of the respondent and was therefore entitled to seek resumption of her duties, once she was certified fit for work by her General Practitioner. She further submits that a letter from the solicitor representing her at that time (which is dated 3 December, 2007) clearly indicates that his understanding of the situation at that time was that the complainant had not terminated her employment on settlement of her personal injury claim.
3.2 The complainant states that following the respondent's refusal to allow her return to work she sought the assistance of her trade union and a campaign of correspondence between the parties followed. She adds that her trade union wrote to the respondent on 25 September, 2006 advising that it considered it to have imputed a disability to the complainant, that it had failed to seek independent medical opinion on the matter, that it was seeking her re-instatement and it was prepared to refer a complaint to the Equality Tribunal if necessary. She states that the respondent replied by letter dated 28 November, 2006 indicating that it required an independent up to date medical report on the complainant and it would revert to SIPTU. The complainant adds that her trade union responded on 30 November, 2006, inter alia, enquiring why it had taken six months for the respondent to seek such medical opinion. She states that the respondent wrote to SIPTU on 1 December, 2006 advising that it had arranged a medical examination for her at a local General Practitioner on 11 December, 2006. The complainant states that her trade union replied on 11 December, 2006 stating that it was “singularly inappropriate and unacceptable” for the respondent to “require a medical report on an ex-employee” given that her union was of the view that the complainant had been dismissed on 12 June, 2006 and advising the respondent that “any requirement” would be complied with so long as the complainant was re-instated. The complainant states that the respondent wrote to her trade union on 17 January, 2007 indicating that the purpose of the medical examination was to obtain information in advance of her recommencing employment with it and asking her to reconsider her position. The complainant states that her trade union responded on 24 January, 2007 re-iterating her position that she would reconsider the matter if she was reinstated. This did not happen and the complainant never attended for a medical examination.
3.3 In summary the complainant submits that she never terminated her employment with the respondent at any time. She was entitled to return to work and made efforts to do so on 26 May, 2006 as she had been medically certified to resume duties from 12 June, 2006. She further submits that the respondent’s refusal to permit her return to work on that date constitutes discriminatory dismissal of her on grounds of disability contrary to the Acts and that the respondent should have sought independent medical opinion on her capability to resume duties before it rejected her attempts out of hand.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the assertion that it dismissed the complainant in circumstances amounting to discrimination on grounds of disability contrary to the Acts. It argues, in the first instance, that the complainant had terminated her employment with it on settlement of a personal injury claim in the High Court which was compromised in early February, 2006. It submits therefore that the complainant had no entitlement to seek to return to work and that the Store Manager's initial response to her in his letter of 1 June, 2006 was appropriate, given that he understood the settlement of the complainant's personal injury claim was premised on the fact that the solicitor representing her in those proceedings had stated in a letter dated 19 January, 2006 that the complainant was "permanently incapacitated". The respondent adds that a previous letter from the same solicitors (dated 28 November, 2005) supports its understanding of the situation at that time and that a subsequent letter (dated 3 December, 2007) is inconsistent with its previous correspondence. The respondent contends therefore that the complainant was not dismissed at all and that she terminated her employment of her own volition.
4.2 The respondent accepts the chronological sequence and content of the correspondence between it and the complainant from June, 2006 to January, 2007 as detailed at paragraph 3.2 above. It states that whilst its initial position (June, 2006) was that she was not an employee and was not therefore entitled to return to work, this position had changed somewhat by 28 November, 2006 when the Store Manager wrote to her advising that the respondent was considering the matter and that in that regard it would be seeking an up to date medical report on her. It submits that its actions in this regard was entirely reasonable given that the complainant had been absent from work for over three years during which time her legal representatives had advised the respondent she was permanently incapacitated. It states that it did not seek such medical opinion sooner because the complainant was not an employee at the time. It further states that the complainant refused to attend for such a medical examination and it could not therefore process the matter further.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, made by the parties as well as the evidence given by witnesses at the Hearing.
5.2 Before proceeding to deal with the substantive aspects of the complaint I must first decide if the complainant was an employee of the respondent in June, 2006 or whether, as submitted by the respondent, she had terminated her employment of her own volition when she compromised her personal injury claim in early February, 2006. The respondent relies on a letter from the solicitor who represented the complainant in those personal injury proceedings dated 19 January, 2006 which states that the complainant was "permanently incapacitated" and the evidence of the Store Manager at the time (who was still Store Manager in June, 2006 and the author of the letter of 1 June, 2006) that the complainant had terminated her employment with it on compromising her personal injury claim. It did not however, adduce any documentary evidence such as a P45 or a written agreement as to what the personal injury settlement terms were or what they covered. In addition, it confirmed at the Hearing that it would be normal practice to confirm an employee’s cessation of employment in some shape or form. It is clear from the personal injury Statement of Claim that it does not encompass any future loss of earnings for the complainant. In addition, I note that the settlement terms broadly reflect three times the complainant’s annual gross salary - which corresponds with the period she was absent from work. The complainant’s direct evidence at the Hearing, which she stated was the same as the evidence she gave under oath in the High Court, an assertion not disputed by the respondent, was that she always intended to return to work. Finally, no medical evidence was adduced which included an opinion that the complainant was permanently incapacitated. Indeed, the opposite is the case. An opinion of an Occupational Injury Consultant in August, 2004 stated that the complainant’s “back symptoms have subsided and overall I feel she has essentially recovered from the effects of the fall”. Having carefully considered all of the foregoing I find, on balance, that the complainant did not terminate her employment with the respondent on settling her personal injury claim and that she was an employee of the respondent in June, 2006.
5.3 I will now examine whether or not the respondent discriminatorily dismissed the complainant in June, 2006. Section 85A of the Employment Equality Acts 1998 - 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment on the ground specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.4 The respondent accepts that the complainant spoke with the Store Manager on 26 May, 2006 and that she informed him she was fit to resume work from 12 June. The Store Manager wrote to the complainant on 1 June, 2006 advising her that she had terminated her employment with the respondent when she settled her personal injury claim – which had occurred about four months previously. I have read this letter and whilst the language used is far from ideal and could be described as emotive and aggressive, it is not discriminatory. At the Hearing the Store Manager who wrote this letter gave evidence that he had been involved in the complainant’s personal injury claim and it was his understanding at that time, as a result of discussions with the solicitor representing the respondent in those proceedings, that the complainant had terminated her employment in settling the claim. Therefore, whilst he could have chosen more suitable language to convey the respondent’s position to the complainant, it is understandable how he held the opinion he did at that time. Whatever influenced his decision to write along the lines he did to the complainant, and I note he did not clear the contents of the letter with the respondent’s HR Department prior to issue, I am not satisfied that it was influenced in any way whatsoever by any disability the complainant may have had, then or previously. I find therefore that the complainant was not dismissed by the respondent in circumstances amounting to discrimination on grounds of disability contrary to the Acts.
5.5 In light of my conclusion in the previous paragraph I do not consider it necessary to fully address the other aspects of the complainant’s arguments. However, I feel it is appropriate to make some comment on the events that followed June 2006. The complainant took the view that the respondent’s decision not to allow her return to work was unlawful as it did not seek independent medical advice as to her capability to resume her duties prior to making that decision, yet when the respondent subsequently changed its mind about employing the complainant and requested her to undergo such an independent medical assessment, she refused to do so and placed the precondition of her being re-instated before engaging with that process. I am of the view that it was entirely reasonable for the respondent, in light of the foregoing and the fact that the complainant had been absent for a considerable period with a back injury, for it to suggest the course of action it did.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the complainant has failed to establish a prima facie case that she was dismissed in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 77 of those Acts and her complaint therefore fails.
_______________________________
Vivian Jackson
Equality Officer