Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-061
PARTIES
An Employee
Represented by Ms. Niamh McGowan BL on the instructions of Maguire McErlean Solicitors)
- V -
A Grocery Store
(With Byrne Wallace Solicitors)
File references: EE/2008/101
Date of issue: 4 May 2010
Keywords
Employment Equality Acts - Discriminatory Treatment - Promotion/re-grading - Conditions of employment - Disability - Appropriate measures - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by An Employee (hereafter "the complainant") that she was subjected to discriminatory treatment contrary to section 6 and 8 of the Employment Equality Acts by A Grocery Store (hereafter "the respondent") on the grounds of her disability. The complainant stated that during her employment between May 2005 and 19 October 2007 she was constantly subjected to discrimination because of her disability. The complainant submitted that she had to constantly explain her disability to her supervisors in front of customers.
1.2. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 18 February 2008 under the Employment Equality Acts. This claim was made on the disability ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - on 30 November 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 26 February 2010.
3. Case for the complainant
3.1. The complainant submitted that she commenced employment with the respondent in September 2004. It was submitted that initially the complainant enjoyed her employment but that in and around May 2005, as a result of continuous management changes, the complainant found herself continuously having to explain her disability and limitations on an on-going basis. The complainant, who has had cerebral palsy since birth, submitted that this treatment has left her degraded and humiliated.
3.2. The complainant submitted that she wrote to the respondent on 8 October 2007, making a formal complaint about a named personnel manager. The complainant submitted that due to the fact that there where numerous staff changes in the store, she found herself having to explain her disability and the related limitations to her new managers. She particularly needed to explain why she could not work on the shop floor. The complainant stated that because she had to explain her disability she felt degraded and suffered from low self esteem.
3.3. The complainant submitted that on 7 October 2007 a named manager instructed the complainant to work on the larger belted till. The complainant submitted that she explained that she found these larger tills very uncomfortable and that she found it embarrassing to having to ask another member of staff to assist her with the cash drawer. It was submitted that on this day in question the complainant was ordered to work on the larger checkout and that a named manager grabbed the cash box from the complainant and told her to go to the belted checkout in front of staff. The complainant submitted that she felt humiliated and was crying in front of customers. She submitted that she then made her way to the office area where she insisted on talking with the manager. She stated that when the manager finally came over and spoke to her rudely. The complainant stated that she told the manager she was sick of such degrading treatment and clocked out. The complainant went on stress related sick leave after this incident.
3.4. It was submitted that on 8 October 2007 the complainant reported the incident to a named employee in the head office. The report was also sent to the employee in the mail. It was submitted that following this complaint the respondent immediately insisted that the complainant undergo a medical examination It was submitted that prior to this complaint the respondent had never requested the complainant to undertake any medical examination. It was submitted that the respondent's immediate insistence that the complainant undertake a medical examination arouse from the complainant's complaint to the respondent citing discrimination. It was submitted that in light of the complainant's complaint, such an approach was insensitive.
3.5. It was submitted that the complainant's complaint of bullying, harassment and discrimination was not properly investigated. It was submitted that this is contrary to the respondents Policy on Dignity and Respect in the Workplace. The complainant resigned from her role on 18 December 2007 citing her disappointment with the manner in which the respondent was dealing with her complaint.
4. Case for the respondent
4.1. The respondent submitted that in accordance with section 77(5) the complainant's claim, which was submitted on 18 February 2008, is limited to any instances of alleged discrimination which occurred prior to 18 August 2007 as they are outside the period provided for by the Act and no extension of time has been sought or granted. It was respectfully submitted that the Tribunal has no jurisdiction to proceed with an investigation of these claims. It was submitted by the respondent that the complainant's submission refers to a number of incidents that she alleges took place prior to 18 August 2007. It was submitted that since these incidents occurred prior to this date, the Tribunal cannot consider these incidents in making a determination as to whether there has been a breach of the Acts or consider them as an incidents of alleged discriminatory behaviour. It was submitted that only matters between 18 August 2007 and 18 February 2008 can be properly before the Tribunal.
4.2. The respondent denies that the complainant has been subjected to discrimination on the grounds of her disability contrary to section 6 of the Acts. It was submitted that the respondent maintains that the complainant was lawfully and properly treated at all times and at no time did her disability form the basis of any of her treatment by the respondent, its servants or agents.
4.3. It is submitted that the complainant had disclosed in her application form that she has a 'mild touch of cerebral palsy'. It was accepted that the complainant disclosed at the interview that she could not work in excess of 20 hours per week due to her being in receipt of a disability allowance. The complainant commenced her employment on flexible, part-time basis, her hours being between 15-20 hours per week.
4.4. It is denied that the respondent failed to act on foot of the complainant's complaint.
4.5. It is denied that the respondent discriminated against the complainant as alleged or at all.
4.6. It was submitted that the complainant's complaint was fully investigated. The complainant did not give the respondent an opportunity to address her complaints locally in accordance with the respondent's policies. The company's head office responded to the complainant's complaint almost immediately and undertook to investigate. The respondent reverted back to the complainant and proposed that the complainant attend a medical in order to assess any assistance which the complainant may have required in order to facilitate her in her conditions at work.
4.7. It was submitted that the complainant had never been sent for a medical assessment as she had never previously been unable to perform her duties due to her disability. In circumstances where the complainant maintains that she was unable operate a belt checkout due to her disability notwithstanding, that she had operated one before, it was essential that the respondent had the complainant medically assessed so as to ascertain what measures (if any) needed to be implemented for her in order to assist her in carrying out her duties.
4.8. It was submitted that the complainant's resignation was premature. The complainant did not exhaust the internal procedures that were available to her. Furthermore, it was submitted that the respondent wrote to the complaint asking her to withdraw her resignation and to meet with a named servant of the respondent.
4.9. It was submitted that the respondent company has an equal opportunities policy and is committed to providing a work environment free from discrimination in accordance with the Acts.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. Firstly, the issue of time limits. Section 77(5)(a) clearly indicates that complaint must be made within a period of 6 months of the from the date of the occurrence of the discrimination or as the case may be, the date of its most recent occurrence. By applying the literal, plain and ordinary meaning to the language used in this section, it is clear that the Tribunal has jurisdiction to extend the investigation to a broader timeline provided that there is a chain of events and that the respondent has appropriate notice of such claims. I am satisfied that the principles of natural justice were adhered to and that the respondent was aware of the entire complaint against it and was afforded appropriate opportunity to respond to the all the allegations made by the complainant.
4.3. I note that it was submitted by the complainant that the respondent had recommended at the interview stage that the complainant could exclusively carry out her work on an express till. On the balance of probabilities I do not accept this statement. I find it more probable that in so far as any discussion about the complainant's disability took place, the complainant may have been reassured that she would not have work on the shop floor. It is clear that the 'office use' section of her staff application form refers to the complainant's department as 'checkouts'. I do not accept that the person interviewing the complainant nor the complainant herself, having never worked with the respondent before, would have been in a position to identify such a specific issue as to whether it would be unduly difficult or impossible for the complainant to work behind a belted checkout. This is supported by the fact that the complainant submitted that she had, subsequent to the interview, tried 'a couple of times' to work on the belted tills but that she had found out that she preferred to work on the basket till.
4.4. I have no reason to doubt that the smaller tills were the complainant's preferred work station. I note that she stated in direct evidence that she had more space to move and that the express tills were not as heavy as the larger belted tills. I have not been presented with any evidence to suggest that it is impossible or unduly difficult for the complainant to work behind an express till in any capacity or for a period of time. I note that the complainant repeatedly stated that she prefers working on the express tills and that this is where she has always worked. I accept that the respondent had until this moment facilitated the complainant preference of a work station. However, I also note that the complainant had recently changed to full time hours and was working different shifts. I note that it was submitted that on the 7 October 2007 the store, which mainly serves basket customers (who use express tills), was busy with trolley shoppers. I note that the respondent submitted that there was a commercial need for someone to be serving at the belted check out. I have been presented with no evidence to support an allegation that by requesting that the complainant would work at the belted till the respondent treated her any less favourably than a person without a disability would have been treated. It is clear that the complainant is stating that she was treated less favourably because she was been treated like any other member of staff who worked on checkouts. I am satisfied that the complainant's complaint refers to appropriate measures.
4.5. It is clear from the facts that as soon as the complainant made a formal complaint concerning her condition, the respondent initiated an investigation. I also note that the complainant was given an undertaking that she could work on an express checkout pending a medical assessment. In these circumstances I have to agree with the respondent that the complainant's resignation was premature. It is clear from existing case law that in situations where a person with a disability seeks appropriate measures to enable to carry out their duties the employer has onus to:
1. obtain a prognosis of then complainant's condition,
2. discuss the situation with the employee before taking a decision on the employee's future,
3. seek professional advice or assessment of risks associated with his/her condition.
It is clear that if an employee wishes to establish that, because of their disability, they cannot be as flexible as other employees are expected to be, then there is legitimate reason for an employer to seek medical opinion in this matter. This examination is not intended to humiliate or embarrass the person. The purpose of such an examination is to protect both the employee and the employer.
4.6. I note that the complainant took issue with the fact that due to staff changes she felt that she had to explain her disability and the restrictions it imposes on the type of work she can engage in. I note that one such example was when a named manager asked for a member of staff to help out on the floor. I note that the complainant immediately informed the manager, new to the store, why she could not do it. I also note that the manager stated in direct evidence that indeed she had asked such a question but that she had directed the question to a number of staff, not specifically to the complainant. It was accepted that the named member of staff had not known the complainant and after the incident, the manager had ensured that the complainant would not be approached about working on the floor again. The complainant agreed that after this incident she was not asked to work on the floor again.
4.7. I am satisfied that the issue of absenteeism and sick leave mentioned at the hearing are not a matter for this investigation. I note that her manager had mistakenly believed that the complainant has commenced on a new contract of employment when she changed from her part-time hours to full-time. I accept that the employee made a mistake and that this mistake was rectified as soon as it was discovered. I have been presented with no evidence to support an argument that such a mistake was made because the complainant has a disability. I appreciate that all these issues have been upsetting for the complainant. I also note that this upsets combined with the stress of having experienced a number of raids have left the complainant feeling that she is not receiving the respect that she deserves. However, the respondent cannot be held responsible for difficulties that arise in the workplace because of the complainant's disability, particularly when they are not aware that such difficulties exist. While I appreciate that this may at times mean that the complainant has to explain her disability - when she would prefer not to - it is necessary consequence of seeking special treatment, facilities or assistance.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. The complainant has failed to establish a prima facie case of discrimination. Therefore, the complaint fails.
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Tara Coogan
Equality Officer
4 May 2010