EQUALITY OFFICER'S DECISION NO: DEC-E/2012/167
PARTIES
An Employee
Vs
A Restaurant
FILE NO: EE/2010/633
DATE OF ISSUE: 4 December, 2012
1. Dispute
This dispute involves a claim by An Employee that he was discriminated against by A Restaurant on the grounds of his disability in terms of section 6 (2)(g) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to promotion, training, conditions of employment and other. The complainant has also made claims in relation to failure to provide reasonable accommodation and harassment. A claim of victimisation was also submitted but was withdrawn at the hearing.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 16th August, 2010.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 11th of September, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 19th of October, 2012.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, as a Kitchen Porter, from 27th of July 2007 and still remains an employee of the company though he has not attended work since 8th of May 2010. The complainant submits that he has been out on stress related sick leave since that date.
3.2 The complainant submits that he was employed by the respondent on a full time basis initially but that from March 2009 his hours became erratic and he was only assigned part time hours. It is submitted that the complainant returned to full time work from June to September 2009 until he went on sick leave. It is submitted that on his return from sick leave in October 2009 he was only allowed to work part time as it was claimed by the respondent that he was unfit for work. Following this, the complainant then provided a doctors certificate of fitness to return to work but that he was still not allowed to return to full time work. The complainant's mother on his behalf contacted the respondent in October 2009 challenging the respondent on the assertion that the complainant was not fit for work. An exchange of emails took place between the complainant's mother and the respondent. It is submitted that following this the complainant returned to full time work in November 2009 and continued until May 2010.
3.3 It is submitted that the exchange of emails between the complainant's mother and the respondent in October -November, 2009 also raised the issue that the complainant's rate of pay was below the minimum wage for his job. It is submitted that following this exchange the complainant's salary was increased by the respondent.
3.4 It is submitted that, from November 2009 the complainant's duties were changed frequently and that a campaign of constant complaints about his work ensued. It is submitted that the complainant was bullied harassed and demeaned and that a list outlining the complainant's duties was put above his workstation. No list was placed at the workstation of any other employee. It is submitted that this constitutes discrimination on grounds of his disability.
3.5 It is submitted that the complainant was fully competent to undertake the duties of his position in the respondent's restaurant. It is however submitted that he would have been fully competent and fully capable of undertaking the duties attached to his position if the respondent had done all that was reasonable to accommodate his needs in accordance with Section 16(3) of the Employment Equality Acts, 1998-2007.
3.6 It is submitted that the treatment of the complainant constitutes harassment as a result of his mothers email of the 7th of November, 2009.
3.7 The respondent's manager, Mr. G typed a list of rules entitled "Dave's rules for work". The list included the following:
Control Temper/anger
BREAK ABSOLUTELY NOTHING
Never lie/disrespect people
NO TIME FOR BULLSHIT DURING SERVICE
It is submitted that the complainant was embarrassed and demeaned by this list and that no one else had a written list of duties at their workstation. The complainant on 5th May 2010 asked the manager for a copy of this list of rules and was refused.
3.8 The complainant on 6th of May 2010 was accused of lying by Ms. S. These accusations humiliated and upset him. The complainant's mother phoned and spoke to the proprietor, Ms. T to advise her of the complainant's distress and harassment by Ms. S and Mr. G. Ms. T then met with the complainant and stated that the rules about "lying and bullshit" should not have been written. She then spoke to Mr. G and Ms. S and got each to sign a copy of a report of the incident. The complainant asked for a copy but was refused.
3.9 The complainant on 8th of May 2010 was called to the office by Mr. T, proprietor. He told the complainant that there was an issue regarding the fact that he was holding knives the wrong way and stated that "you could stab someone accidentally or people might think you were going to stab them". He told the complainant if he was caught doing this again he was gone. It is submitted that following this exchange the complainant was upset and felt bullied and harassed with the result that he became ill and unable to attend work. He was certified as suffering from work-related stress.
4. Summary of respondent's case
4.1 The respondent, agrees that the complainant was employed with them from 27th July, 2010 as a Kitchen Porter, but that he was employed on a part-time basis. It is submitted that the complainant was given the job as a result of a request from his sister, Ms. H, who was also employed by the respondent at the time. It is submitted that Ms. H asked the respondent to give the complainant a chance as he was "a little bit different".
4.2 It is submitted that the respondent proprietor Ms. T had a background in working with people with special need having previously worked with the National Rehabilitation Board for 16 years. It is submitted that Ms. T was willing to give the complainant a chance due to her knowledge and experience of the difficulties faced by people with disabilities in finding and retaining employment.
4.3 It is submitted that the complainant was offered the position of part-time kitchen porter and that full time hours would be available to him when the restaurant was particularly busy. It is submitted that Ms. H was grateful for the opportunity given to her brother and the leniency shown towards him in relation to the non performance of his duties. It is submitted that the complainant's contract and terms were discussed with him and that this contract was amended in August 2009 when the complainant received a salary increase. The complainant completed a Staff Details form (submitted) at the commencement of his employment and this specifies that his position was Kitchen Porter part-time.
4.4 It is submitted that the complainant had difficulties working with other staff and often failed to carry out his duties adequately. However, it is submitted that the complainant was continuously encouraged and assisted in the performance of his duties and that he was shown an extraordinary level of leniency in relation to discipline.
4.5 It is submitted that many complaints were brought to the respondent's attention regarding the complainant and the performance of his duties including that
He was rude and spoke angrily inappropriately to staff
He lied to staff and management
He displayed outbursts of aggression
He engaged in incidents of serious misconduct
The complainant was involved in an incident where he brandished a large kitchen knife in a crowded elevator and said he was going to stab someone
It is submitted that the complainant was spoken to about these complaints and that he agreed to address the problems.
4.6 It is submitted that in October 2009 the complainant's sister (who no longer worked for the respondent) and his mother contacted the respondent by phone in an aggressive manner. These calls were received by Ms. S, Front of House Manager and Mr. G, Manager. During these phonecalls it was alleged that the complainant's working roster was illegal. It is submitted that Ms. S was subjected to a litany of abuse and aggression by Mrs. H and was extremely upset by these phonecalls.
4.7 It is submitted that Mrs. H phoned the respondent following the complainant's return to work following his holidays. It is submitted that he returned to a 3 day week (as had occurred several times before) and that his mother phoned to say she intended pursuing the complainant's entitlements.
4.8 Ms. T phoned Mrs. H to address her concerns. Mrs H was extremely aggressive during this conversation and told Ms. T that she knew her rights in relation to the complainant's disability and stated to Ms. T "we can do this the easy way or the hard way". Ms T pointed out that her relationship was with the complainant but nonetheless suggested a meeting with Mrs. H to discuss her concerns. A meeting was arranged but Mrs. H cancelled at the last minute.
4.9 It is submitted that from the time of the intervention by Mrs. H the complainant's attitude in work changed. He began making and keeping notes of numbers of guests and of other staff duties and hours. He was also antagonistic with other staff members. Following the phonecalls and emails from Mrs. H the respondent Ms. T began keeping a log of events relating to the complainant (submitted).
4.10 It is submitted that the complainant had an aggressive and threatening outburst on 16th December, 2009. He screamed and shouted and could be heard in the restaurant. Ms. T spoke to the complainant about the incident and sent him home to calm down. He accepted that he had lost his temper with his work colleague Mr. R and apologised. Ms. T issued a final written warning to the complainant in relation to the incident.
4.11 On 15th April, 2010 the complainant asked Mr. G to copy and update his list of duties as his other one was 'manky'. The list included 'post its' with handwritten items, written by the complainant, such as "do not lie" and "No bullshit during work". Ms. T investigated this issue and wrote a report of the incident which was signed by the three parties involved.
4.12 On 11th of May the complainant phoned in sick due to a sick stomach. On 12th May he emailed work saying he would be out for the week. On 14th of May the first of his sick notes citing stress reaction was submitted to the respondent.
5. Preliminary Issues-Disability Ground and Time Limits
5.1 Disability Ground
5.1.1 It is submitted by the respondent that the complainant has not furnished any evidence of a disability within the meaning of the Acts. The respondent in support of this assertion has referred to two Equality Tribunal decisions A Worker -v- A Food Manufacturer DEC E 2010/187 and Mr. Michael Moloney -v- MJ Clarke & Sons DEC E 2010/140.
5.1.2 In the present case, it is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability" is defined in Section 2 of the Acts 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".
5.1.3 It is submitted that the complainant suffers from a mental disability which means that he has deficits in terms of the speed with which he processes receptive and expressive language, thus he does not have the ability to sufficiently express himself verbally and often results in him responding impulsively to something.
5.1.4 The complainant in direct evidence stated that he suffered from a language disorder. The complainant's sister Ms. H also gave evidence that the complainant had suffered a brain injury which meant he had problems with language as well as social and learning difficulties.
5.1.5 It was submitted that the complainant had applied for and taken part in a 3rd level course in Hotel and Restaurant Management for which he was accepted. The complainant stated that his acceptance for this course was via a special application process for people with disabilities and that it did not take account of Leaving Cert points.
5.1.6 It is submitted that the complainant was diagnosed by doctors when he was 2-3 years old and that medical evidence of same could be provided if necessary. It was also submitted that the complainant's parents had received a Domiciliary Handicapped Allowance in relation to the complainant throughout his childhood. A letter to this effect was submitted to the Tribunal.
5.1.7 It is submitted by the respondent that the complainant's sister had asked the respondent to give the complainant a chance as he was "a little bit different". The respondent in its submission stated that they had been willing to give the complainant a chance due to Mrs. T's background working with the NRB and the fact that she was aware that people with disabilities faced a challenge in securing and keeping jobs. It is undisputed by both parties that the complainant's sister was grateful to the respondent for giving her brother a job.
5.4.7 It is submitted by the respondent that the complainant often received assistance in carrying out his everyday duties and that he received continuous support and encouragement in the course of his employment. In addition it is submitted that the complainant was allowed an extraordinary level of leniency when it came to disciplinary matters.
5.1.8 Based on the totality of the evidence presented and having engaged with the complainant at length during the hearing I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008. I am also satisfied that the respondent was aware of this disability from the outset of the complainant's employment.
5.2 Time Limits
5.2.1 It is submitted that the Complainant can only seek redress in respect of occurrences during the 6 month period prior to the date on which the claim was received by the Equality Tribunal, thus only incidents between end January 2010 and 30 July 2010 can be examined for the purpose of establishing a case. I am asked to consider the Labour Court ruling in Dun Laoighaoire VEC -v- Joan Gallagher EDA/1220 in support of this submission. This relates to the circumstance where a claim was made outside of the 6 months time limit set out in Section 77(5) of the Acts. This is not relevant in the instant case as the claim was submitted on 16th August, 2010 and the last alleged incident took place on 8th of May, 2010, thus is within the 6 months time limit set out in the Acts.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to promotion, training, conditions of employment and other. Furthermore, I must also consider whether the respondent failed to provide the complainant with reasonable accommodation and whether the complainant was harassed contrary to Section 14A of the Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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".
6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "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)....." Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
6.4 Harassment
6.4.1 It is submitted that the complainant was harassed by 2 members of staff, Ms. S whom he submits was the Receptionist and Mr. G, Assistant Manager. It emerged at the hearing that Ms. S was during the relevant period promoted to Assistant Manager and that she and Mr. G shared the responsibilities of Assistant Manager. The complainant's claim refers specifically to his treatment in relation to a list of duties. The complainant told the hearing that he had been given a list of duties, by Mr. G which was placed above his workstation and which included the following items
Control Temper/anger
BREAK ABSOLUTELY NOTHING
Never lie/disrespect people
NO TIME FOR BULLSHIT DURING SERVICE
When questioned about the list the complainant stated that the list was Mr. G's idea and that he had not asked for the list. He stated that Mr. G had typed the list. The respondent submits that the list was a copy of an old list which the complainant had above his workstation. The respondent submitted the old crumpled list to the hearing. Witness for the respondent Ms. S stated that she had retyped the list as Mr. G had not had time to do it. She advised the hearing that the complainant had asked for the list to be retyped as his old list was crumpled and 'manky'. Ms. S stated that the items re Never Lie etc had been written by the complainant on post it notes and attached to the original list. She stated that she was told by Mr. G that the complainant wanted to include these items on the new typed list. The respondent proprietor, Ms. T stated that once she became aware of this list she called a meeting to discuss the matter with the complainant and with Ms. S and Mr. G. The respondent stated that the complainant told her he wanted these items on the list as he needed to be reminded of them. The respondent when questioned said she would not normally allow such items on a list of duties but in the circumstances and as the complainant said he needed them as reminders, she allowed it. The respondent had then written up a report of the incident and it was read and signed by all three parties involved (signed document submitted in evidence). When questioned about these list items the complainant advised the hearing that he had a habit of lying at times, if he didn't know the answer to something or if he was afraid of getting into trouble. He stated that he knew it was bad to lie but sometimes needed to remind himself not to do it. The complainant then advised the hearing that he also needed to be reminded not to mess during service, he added that it was ok to mess before and after service but not during service. The complainant when questioned admitted that he had a list before this one and that he had asked Mr. G to retype it for him.
6.4.2 The complainant at the hearing stated that Ms. S had often had words with him for lying or for losing his temper and he was of the view that she was not entitled to do so as she was just a receptionist. The respondent, Ms. T stated that Ms. S was in fact an Assistant Manager and as such did have a role in relation to managing the complainant. The respondent when questioned as to whether the complainant might have been unaware of this fact, advised the hearing that there was an announcement made to staff and a celebration when Ms. S had been promoted. Ms. S in direct evidence also stated that she had told the complainant directly that she was his manager and that he had acknowledged this. Ms. S also advised the hearing that she had a very good working relationship with the complainant and they had regularly socialised together as part of a group. She advised the hearing that this had all changed after the complainant's mother had got involved and had contacted the respondent on several occasions claiming that the complainant was not being treated fairly. She advised the hearing that after this the complainant had not wanted to talk to her or other staff and had stopped socialising with them. Ms. S also advised the hearing that she had received several phonecalls from the complainant's mother who was extremely aggressive on the phone. Ms. S stated that she had suggested that she would meet with the complainant's mother, Mrs. H in order to talk over any issues she might have but that Mrs. H had not met with her.
6.4.3 It is submitted by the complainant that Ms. S had accused him of lying and that this was harassment. Ms. S advised the hearing that she had on a number of occasions spoken to the complainant about lying as he often lied and would always admit it to her after the fact. The complainant advised the hearing about an incident where he had mistakenly thrown out food which was being kept for staff and that he had when questioned about it blamed someone else for doing it. The complainant admitted that he was the culprit and that he had lied about it. Ms. S, who had travelled from Germany the night before the hearing in order to present her evidence, was visibly upset at the accusation that she had harassed and bullied the complainant. Ms. S stated that she could see no reason for the complainant's claims of harassment as they had always gotten on very well together and she had even arranged a night out and a cake for his birthday. She stated that she liked the complainant and after her evidence she had asked if she could say goodbye to him as she was returning to Germany that evening.
6.4.4 The complainant submits that there were numerous complaints about his work and that this constitutes harassment. The respondent stated that these complaints related to incident such as lying or losing his temper. Ms. T described incidents where the complainant had lost his temper including one where she had sent the complainant home to calm down as he had lost his temper with another staff member and could be heard shouting in the dining area. The complainant admitted that he had lost his temper as the other staff member had annoyed him. Following this incident the complainant was issued with a final written warning. This happened in December 2009, but the complainant remained in employment until and after he went out on sick leave in May 2010. When questioned on this matter, the respondent stated that she was always keen to help and assist the complainant and to give him a chance whenever possible. She stated that he was usually apologetic and contrite after he had done something wrong but that his attitude changed following his mother's intervention in October-November 2009. Ms. T advised the hearing that the complainant began keeping notes of volume of customers and of incidents in the restaurants. She stated that she too had received aggressive phonecalls from the complainant's mother stating that she knew her sons rights and that Mrs. H had told the respondent that "we can do this the easy way or the hard way" which the respondent took as a threat with "the hard way" being a reference to the legal route. The respondent stated that she then began keeping a log of incidents herself and presented these as evidence.
6.4.5 It is submitted that the complainant was called to the office on 8th of May 2010 by Mr. T and told that there was an issue regarding his holding knives the wrong way. The respondent at the hearing stated that the complainant had been reprimanded regarding an incident in which he had pretended to stab another staff member in a crowded lift. This incident was reported by Ms. H who had been in the lift at the time and who had later, written a letter (submitted to the Tribunal) detailing the incident. The complainant, at the hearing stated that this incident had taken place but that he was pretending to be the "masked killer from scream" and so had pretended to stab another staff member, whom he knew well, with a knife. He then proceeded to talk about not concentrating on the knife eventhough he knew the correct way to hold a knife was at this side. The respondent stated that this incident took place in a crowded lift and was inappropriate and that the complainant was spoken to about it. I am satisfied that any employer would in the circumstances have reprimanded any employee over such an incident and in the circumstances I can find no evidence of less favourable treatment. It is submitted that the complainant went out on sick leave after being reprimanded over this incident and has not to date returned to work and has not been dismissed from his employment.
From the totality of the evidence presented on these matters I find that the complainant has not established a prima facie case of harassment on the grounds of his disability contrary to section 14(A) of the Acts.
6.5 Conditions of Employment
6.5.1 The complainant submits that he was employed by the respondent on a full time basis and worked 5 days a week initially but that from March 2009 his hours became erratic and he was only assigned part time hours. It is submitted that the complainant returned to full time work from June to September 2009 until he went on sick leave in May 2010. The complainant advised the hearing that he had worked 5 days a week initially and then sometimes 3 days a week. The respondent advised the hearing that the complainant was employed on part time basis. The respondent produced the complainant's contract which indicated that his post was that of a part time Kitchen Porter. The respondent advised the hearing that the complainant worked variable hours and when the restaurant was busy or when he was needed he was given more hours. The respondent produced a Staff Details sheet which was completed by the complainant in his own handwriting and which stated that his position was Kitchen Porter (part-time).
6.5.2 It is submitted that the complainant returned to full time work from June to September 2009 until he went on sick leave. It is submitted that on his return from sick leave in October 2009 he was only allowed to work part time as it was claimed by the respondent that he was unfit for work. The complainant advised the hearing that he had been on sick leave as he had hurt his back at work. He also stated that when he returned to work he was only allowed to work 3 days. The complainant advised the hearing that following a request from the respondent he went to his doctor and obtained a fitness to return to work certificate. He stated that he was still only allowed to work 3 days a week despite furnishing this cert. The respondent told the hearing that the fitness to return to work certificate was requested as they were concerned as to whether the complainant having suffered a back injury at work was in fact fit to return to his duties. The respondent stated that he returned to a 3 day week as was his usual working pattern at the time. The respondent stated that he was called in to work extra hours over and above the 3 days when he was needed and that he was given full time hours when business picked up.
6.5.3 It is submitted that the complainant's mother on his behalf contacted the respondent in October 2009 challenging the respondent on the assertion that the complainant was not fit for work. An exchange of emails took place between the complainant's mother and the respondent during which the respondent outlined the fact that the complainant was employed on a part time basis and that his hours were dependant on volume of customers. The complainant's mother in her emails challenged this assertion and has quoted dates and volumes of customers during which she is alleging there was a large no of customers but the complainant did not receive additional hours. It is submitted that the complainant returned to full time hours during November 2009 and continued until May 2010. It appears from the evidence provided in relation to this matter that the complainant whom I am satisfied was employed on a part time basis was rostered to work 3 days a week during the period March-June 2009 and again during September -October 2009 before and after which he worked full time hours.
6.5.4 I have not been presented with any evidence to show that this is in any way related to the complainant's disability or that someone without a disability or with a different disability was treated differently in the same circumstances. Based on the totality of the evidence provided on this matter I am not satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of disability in relation to his conditions of employment.
6.5.5 It is submitted that the emails from the complainant's mother in October -November, 2009 also raised the issue that the complainant's rate of pay was below the minimum wage for his job and that following this exchange the complainant's salary was increased by the respondent. The respondent advised the hearing that the complainant's salary was set out in his contract and that it also stated that he would receive credit card tips. The respondent also stated that this was the same rate as that paid to another part time Kitchen Porter. The respondent advised the hearing that the tips element of the wages would fluctuate according to hours worked and volume of business. The respondent also advised the hearing that the complainants salary was increased in August 2009 at which time the complainant was issued with a new contract (submitted in evidence) which outlined this new rate of pay. The respondent stated that the complainant was given this raise as he had been there a log time and she felt he deserved a raise. She also stated that the other part time kitchen porter did not get this raise as he had not been there as long as the complainant. It is clear to me therefore that the complainant's increase in salary occurred in August 2009 prior to the exchange of emails from the complainant's mother and was made independently of any allegations contained therein. I have not been presented with any evidence to show that the complainant was treated less favourably on grounds of his disability in relation to the salary paid to him by the respondent. Accordingly based on the totality of the evidence provided I am not satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of disability in relation to his salary.
6.6 Promotion
The complainant did not produce any evidence to substantiate the claim that he was discriminated against on grounds of his disability in relation to promotion. Accordingly I find that the complainant has failed to establish a prima facie case of discrimination on grounds of disability in relation to this matter.
6.7 Training
The complainant did not produce any evidence to substantiate the claim that he was discriminated against on grounds of his disability in relation to training. Accordingly I find that the complainant has failed to establish a prima facie case of discrimination on grounds of disability in relation to this matter.
6.8 Reasonable accommodation
6.8.1 It is submitted that the complainant was fully competent to undertake the duties of his position in the respondent's restaurant. It is however submitted that he would have been fully competent and fully capable of undertaking the duties attached to his position if the respondent had done all that was reasonable to accommodate his needs in accordance with Section 16(3) of the Employment Equality Acts, 1998-2007
6.8.2 Section 16(3) of the Acts, sets out the obligations and requirement on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability (my emphasis) - this approach was endorsed in Humphries v Westwood Fitness Club1.
6.8.3 The complainant in the present case stated that he was not dismissed and that he was in fact still employed by the respondent. The complainant advised the hearing that he had been out on sick leave since May 2010 but had not been dismissed. The respondent, agreed that the complainant was still in their employment and that that he had not been dismissed. Therefore, as the respondent did not at any point take a decision which was to the detriment of the complainant, there was no necessity to consider the provision of appropriate measures. The complainant did not provide any evidence of any request for appropriate measures or reasonable accommodation.
6.8.4 In addition it was never brought to the respondent's attention nor was it apparent to the respondent that the complainant was not fully capable of performing his duties when he was at work. Indeed, following the complainant's sick leave due to his back injury he informed the respondent that he was fully competent to perform his duties and submitted a fitness to work certificate to that effect. His capability was never questioned as the matter was never raised. Therefore I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of disability in relation to the allegation of a failure to provide reasonable accommodation.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(ii) that the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to promotion, training, or his conditions of employment .
(i) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
(iii) the respondent did not harass the complainant on the disability ground within the meaning of Section 14 (A) of the Acts.
__________________
Orla Jones
Equality Officer
4 December, 2012
1 [2004] 15 ELR 296