THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2011-152
Mr F
(represented by Sheehan and Co. Solicitors)
versus
A Supermarket
(represented by IBEC)
File reference: EE/2008/466 and 467
Date of issue: 17th August 2011
Keywords: Employment Equality Acts, Disability, Failure to provide reasonable accommodation, Discriminatory Dismissal, No prima facie case
Dispute
1.1 The case concerns a claim by Mr F against a supermarket. His claim is that he was discriminated against regarding training leading to discriminatory dismissal on the grounds of disability in terms of 6(2) (g) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. He also claims that the respondent failed to provide appropriate measures that would allow him to continue to be employed by them.
1.2 Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on the 11th July 2008. On 6th May 2011, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 12th May 2011 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant has a learning disability. Throughout his education, he was in a remedial class. He left school after his Junior Certificate and since then he had accumulated six years of experience working as a storeperson and shop assistant in various warehouses and supermarkets. The complainant submits a report by an educational psychologist who categorises Mr F's learning profile as 'Mild and Generalised Learning Difficulty'. At the hearing, the educational psychologist gave evidence that Mr F's scores are below average which show marginal difficulty in understanding what is read and is slightly slower to process oral instructions.
2.2 Mr F applied for and was employed as a General Assistant in one of the respondent's supermarkets. On taking up employment on 21st May 2007, the complainant submits that he informed Mr A, Store Manager that he was claiming Disability Allowance. Therefore would only be available to work minimum hours so that his entitlement would not be affected. He states that Mr A said this suited the company also. Mr F's hours were 18:00 to 00:00 three days a week which was changed later to four days a week. The complainant understood that Mr B, Employment Facilitator with Galway Supported Employment Consortium (an initiative to assist jobseekers with a disability to find employment), contacted Mr A to say that Mr F had a learning disability.
2.3 The complainant satisfactorily completed his probationary period (6 months). During the course of his employment, Mr F had undergone three appraisals all of which confirmed that he was performing well.
2.4 On 14th February 2008 the complainant was called into the office of Mr A. Mr C, Deputy Manager, was also present. Mr A told Mr F that he was seen clocking in to work at 17:00 and then entering the canteen and was interrogated as to why he did this. The complainant submits that he felt intimidated and froze not realising that he had done anything wrong. His initial reaction was to deny the allegations put to him. He was instructed to clock in again and advised that his wages would be adjusted.
2.5 On 18th February the complainant attended for work as usual. He was immediately called into a meeting with Mr C and Ms D, Supervisor with HR responsibilities. Mr F was asked whether he wanted to bring along a work colleague and a co-worker did accompany him. Mr F was informed that the Company was invoking its disciplinary procedure and that he was being suspended with pay until a disciplinary hearing was held on 21st February.
2.6 He attended the disciplinary hearing. Again he brought a colleague. Mr C and Ms D were conducting the meeting. The complainant was advised that the respondent was in possession of CCTV footage. However, the complainant was not given an opportunity to view this footage. Mr F apologised saying that it was always his understanding that he work from 18:00 to 00:00 and that he was paid for those hours only. He said he thought the clocking-in system was a mere formality to confirm that he attended for work. He said he did not understand that what he did was gross misconduct.
2.7 Mr F submits that he felt Mr B and Ms C had made up their minds to terminate his employment before the meeting stated. He submits he got the impression that they were consulting Mr A when they took breaks.
2.8 At this meeting, Mr F was dismissed for gross misconduct without pay in lieu of notice. The complainant submits that this came as a great shock to him. He maintains he was not advised either of his right to appeal then or in his dismissal letter.
2.9 Nevertheless the complainant sent a letter to Mr A requesting an appeal of this decision. He asked Mr B, Employment Facilitator with Galway Supported Employment Consortium, to attend the meeting with him. Mr A heard the appeal. At the appeal, Mr A said that the company could not be seen to be bending he rules for anyone as it would set a precedent. Mr A also said that he placed a particular emphasis on honesty with all employees. The complainant submits that Mr A was an inappropriate person to hear the appeal as he had been involved at an earlier stage of the investigation.
2.10 At group induction training, the complainant was asked to sign a contract of employment as well as an acknowledgement that he received the company handbook. However, he was not given a copy of either document nor was he given an opportunity to examine the contents of same. Given the nature of his disability, which the complainant submits that they were aware of, Mr F would not have been in a position to understand the terms and conditions of his employment nor the company rules. As a result, the complainant submits that he, without male fides, breached a company rule. At the disciplinary hearing and subsequent appeal, Mr F was contrite and asked that they accommodate him in the circumstances. In his letter of appeal, he offered to pay the company what money they lost. According to the complainant, they instead ignored the fact of his disability.
2.11 Cases cited by the complainant are Mark Kehoe v Convertec Ltd, An Employee and a Local Authority, Mr A and a Third Level Institutionand A Health and Fitness Club and A Worker.
2.12 Mr F submits that the above cases are authority to support his contention that the following should have been applied in his situation:
(i) that his employer should have examined the extent of his disability and its impact on his conduct
(ii) that his employer should have put in places measures to ensure he was capable of understanding the company rules and procedures
(ii) that his employer should have allowed the complainant an opportunity to participate and proffer medical evidence
(iv) that his employer should have made adequate enquiries so as to be in possession of all material information concerning his needs before taking decisions which were to his detriment
Summary of the respondent's case
3.1 In April 2007 the respondent was setting up an evening shift to cope with increasing trade. An advertisement was placed in the local newspaper and candidates were selected for interview. Mr A interviewed the complainant. He was impressed that the complainant was polite and answered the questions competently.
3.2 The respondent submits that Mr F and the four other new employees received extensive induction training which explained the terms and conditions of employment as well as what was contained in the company handbook. Significant attention is given to the clocking-in system so that mistakes are not made regarding wages.
3.3 Mr A denies that the complainant told him he was claiming disability allowance or that Mr B contacted him to say Mr F had a learning disability. On 21st May 2007, Mr F received instruction in manual handling training. As part of that instruction, he was asked to fill out a medical status form. Mr F did not tick the disability box. The respondent vehemently denies that they were aware at any stage of his employment that the complainant had a disability.
3.4 The respondent currently employs 8 employees with various disabilities. In each case, these employees have a liaison officer who maintains regular contact with the respondent. No such arrangement existed for the complainant.
3.5 On 14th February Mr A noticed Mr F sitting in the canteen at 17.45. When he checked the clock-in machine, he saw that the complainant had been clocked in at 17.10. Mr A checked with Mr C (Deputy Manager) to see whether Mr F had been asked to start his shift early. Mr A submits he did this because he did not want to be falsely accusing Mr F. When Mr C informed him that the complainant was not due to start until 18:00, Mr A called Mr F into his office. Mr C was also there. He asked the complainant was he aware that he was clocked in. The complainant replied that he was not clocked in. Mr A pressed him on this and emphasised the importance of honesty, Mr F said somebody else must have clocked him in. The respondent contends that the tone of the meeting was not aggressive.
3.6 The following day Mr A checked the surveillance camera over the machine and found that the complainant had indeed clocked in at 17:10. He also saw that previous clock-ins by the complainant were at 17.02 on 4th February and 17.26 on 6th February.
3.7 On 18th February Mr C called the complainant to a meeting and advised him that the matter was a serious one and that he should bring a colleague. Ms D asked the complainant to explain exactly what happened when he came into work on 14th February. This time he admitted clocking in shortly after 17:00. The respondent submits that she asked him if he understood the clocking procedure. According to the respondent, he said that you clock in when you start work, when you go and return from break and when you go home. Ms C explained that his behaviour was regarded as serious misconduct and handed him a photocopy of the section of the staff handbook dealing with misconduct. Mr F was suspended with pay subject to a disciplinary hearing on 21st February.
3.8 At the disciplinary hearing on 21st February Mr F was accompanied by an other colleague. Mr B submits that he asked the complainant he wanted to say anything. According to the respondent, the complainant said he would like to apologise for a stupid mistake. Mr F said he had a job previously where was paid for the hours he was rostered. He went on to say he did not understand the clock-in procedure. The respondent points out that this was at odds to what he said at the meeting of 18th February. The complainant did not ask to see the CCTV footage and he admitted his mistake at this meeting. Mr C and Ms D took a break to consider his evidence and then dismissed him. They submit that Mr A was not consulted as he was out of the country.
3.9 Mr A heard the appeal. The respondent understood that Mr B accompanied the complainant as a friend. The decision to dismiss him was upheld. Mr A, in particular, emphasised his need that staff working to him can be relied on to be honest at all times. At the appeal, Mr A asked did either of them wish to comment. Mr B said he felt the decision was fair and that his experience dealing with the respondent was that it treated staff in a reasonable way. Mr A said that the respondent would be happy to give the complainant a reference as he was courteous and his performance was satisfactory apart from these incidents.
3.10 The respondent is adamant that at no time before or during his employment did the complainant notify the respondent of a learning disability nor was there any way of discerning such from his interview, induction training or employment reviews.
Conclusions of the Equality Officer
Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issues for me to decide are:
(i) whether the complainant suffered discriminatory treatment in relation to training
(ii) whether he was discriminatorily dismissed on the grounds of disability
(iii) whether the respondent failed to provide appropriate measures so that the complainant can continue in their employment.
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 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 Act. 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.
4.3 First of all I am satisfied that a Learning Difficulty is a disability within the meaning of Section 2 of the Acts as it is a 'condition or malfunction which results in a person learning differently from a person without the condition or malfunction'.
4.4 It is common case that Mr F was a competent employee and that he was dismissed following the normal disciplinary procedures for a breach of the company policy. Where there is a major conflict of evidence is whether the respondent was aware before or during Mr F's employment that he had a disability. The complainant said that he applied for the position with the help of Mr B - his former job coach. He also said that Mr B informed the respondent that he had a learning disability. The respondent brought Mr B as a witness to the hearing. Mr B was adamant that the first contact he had with the respondent regarding Mr F was when the complainant asked him to attend the disciplinary meeting. Mr B said he attended that meeting in an unofficial capacity as he knew the complainant for years because of his role as an Employment Facilitator. There was no mention of Mr F's disability in the letter of appeal or any of respondent's records. Nor is his disability obvious; I found the complainant to be an articulate witness. Therefore, no evidence was presented to me that would lead me to conclude that the respondent was aware that the complainant had a disability until the complainant submitted a complaint to this Tribunal. This fact is important as the respondent was aware of the respective complainant's disability in all of the other cases cited by Mr F.
Training/Failure to provide appropriate measures
4.5 The complainant did not identify any special needs regarding the provision of training to the respondent either before or during his employment. The educational psychologist, whom the complainant brought as a witness, stated that Mr F's ability to read and write was slightly below average but not such that it would be categorised as a 'serious' disability. The induction training entailed an oral explanation of the important aspects of the company procedures including clocking-in requirements. This training included an opportunity to ask questions. At the hearing, I asked the complainant and the educational psychologist what other effective and practical measures could have been introduced that would have prevented the complainant from clocking-in inappropriately. None were identified. Therefore, the complainant has failed to establish a prima facie case of discrimination regarding training or failure of the respondent to provide reasonable accommodation.
Discriminatory Dismissal
4.6 It is not for me to decide whether dismissal was an unduly harsh sanction for the transgressions that occurred. Nor do I have any jurisdiction under the Unfair Dismissal Acts. My function is to decide whether the respondent would have treated a person without a disability or a person with a different disability in a more favourable way. I am satisfied that the termination of Mr F's employment was unconnected with his disability. The respondent was not aware of the complainant's learning difficulty. Mr F was dismissed because, inadvertently or not, he broke a company rule and initially lied about it. Therefore, the complainant has failed to establish a prima facie case that he was discriminatorily dismissed.
Decision
5.1 I have concluded my investigation of Mr F's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the grounds of disability in relation to training
(ii) the respondent has not failed to provide reasonable accommodation to the complainant
(iii) the complainant has failed to establish the facts from which it may be presumed that she was discriminatorily dismissed on the grounds of disability.
Therefore, I find against the complainant.
________________
Orlaith Mannion
Equality Officer