EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 - 169
PARTIES
Ms Vivienne Smyth
(represented by Kevin Higgins & Co., solicitors)
and
Datapac Consumables Ltd.
(represented by Brian Conroy, B.L., instructed by Redmond & co., solicitors)
File Reference: EE/2009/648
Date of Issue: 7th December, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(g), Disability - Section 16(3), Reasonable Accommodation - Section 8(6)(c), Dismissal - whether complainant dismissed because of issues arising from her disability
1. Dispute
1.1. This case concerns a complaint by Ms Vivienne Smyth (hereinafter referred to as "the complainant") that she was discriminated against by Datapac Consumables Ltd., (hereinafter referred to as "the respondent") on the ground of disability, contrary to section 6(2)(g) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to (i) a failure to provide reasonable accommodation and (ii) dismissal, contrary to Section 16(3) and 8(6)(c) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 1st September, 2009, alleging that the respondent had discriminated against her on the ground of disability.
2.2. Written submissions were received from both parties. On 10th February, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was arranged for 11th May, 2012, but was adjourned in light of exceptional circumstances outlined by the complainant. The hearing was rescheduled for 26th June, 2012. Further information was sought from the parties and final correspondence in this respect was received on 10th September, 2012.
3. Summary of the Complainant's case
3.1. The complainant stated that she worked for the respondent from June 2008 to March 2009 as a Business Process Manager. She described her role in the organisation, which involved various administrative roles at a managerial level. She submitted that she had a congenital back problem. She stated that she informed the respondent of her disability a couple of months after she started working for it. In particular, she stated that, while participating in a training course, she told Mr X, the in-house instructor of the training course, that she was missing a disc and was in a car crash. She said that he told her that she should speak to Ms A about it. She submitted that she was absent for a week in December 2008 due to her disability. She submitted that when she returned she had to get some assistance in putting on a security jacket because of her disability.
3.2. The complainant said that she was asked by Ms A to lift some items in the warehouse sometime before January 2009. She said that she told Ms A that she could not do so due to her disability and Ms A responded by saying "what do you expect me to do about it?" She said that it came up on another occasion after that and Ms A said that there were plenty of people in the warehouse to assist. However, she said that it was very seldom that there was someone readily available to assist her in doing so, in which case she said that she had no choice but to do it herself. She said that it was hard to tell anyone of the difficulties she was experiencing in that respect as she was new in the job, but she did ultimately raise it with named members of staff although admitted she had not included this in her submissions. She stated that it was easier for Ms A, who also had back problems, to get someone to assist her in the warehouse as she was the General Manager.
3.3. The complainant stated that she was also absent from work from January to March 2009 after a fall at home. She stated that, when she returned to work on 3rd March, 2009, Ms A met with her along with another Manager, asked her how her back was and then told her that her position was being made redundant due to the downturn. She said that the respondent told her she could work her notice period or else take her last months salary as a redundancy payment, even though she was not entitled to a redundancy. She said that she agreed to this and Ms A went down to her office with her as she collected her stuff and then walked her out to her car. The complainant said that she was shocked and it was not until later that it hit her that she was out of a job.
3.4. The complainant stated that she was aware of drops in sales, but was also aware that the respondent had received other contracts to replace the losses it had incurred in that respect. She said that she never thought that the drop in sales would lead anyone to lose their job. She said that she was aware of some of the cost-cutting measures outlined by the respondent but not others.
3.5. The complainant said that the decision to make her redundant was made on 2nd February whereas she did not return to work until 3rd March. She said that she had spoken to Mr A in the meantime but she did not mention redundancy to her. She added that, according to the respondent, if she had been offered redundancy at the end of February 2009 she would have been provided with an alternative post. She said that other people's positions had been made redundant but the people concerned were redeployed, giving examples of same. She said that she became aware after she was made redundant that another person was offered an alternative position but turned it down in favour of redundancy. She stated that this was the only other person made redundant at the time in question. She said no other person lost their job. She added that the respondent was part of a group of companies and she could have been redeployed to one of the other companies. She also stated that another named person replaced her with respect to the accounting work.
3.6. The complainant said that her record of being out for six weeks was seen as something of a liability on the basis of her disability and she made her back problems known. She submitted that she was out for a week in December because of those back problems. She accepted it was not likely that she would fall down the stairs again and said she did not know if it would be ridiculous for the employer to think she might be. While she also accepted that she did not have an unusually large non-attendance record, she said that the respondent might still think there would be an ongoing problem when she was out for such a long time. She stated that she was regarded as a liability and this was the major if not the decisive element in terminating her employment.
4. Summary of the Respondent's case
4.1. Ms A said that the complainant had told her that her back was sore but never identified this as a disability. She said that she told the complainant that she had to make sure the job got done and there were people in the warehouse who can do the work for her. The respondent submitted that physical lifting was not in her job description in any event. Ms A said that she was never made aware that the complainant was having difficulty in getting staff to do this. She added that she herself also has back problems and when she needs assistance in the warehouse she gets it. She stated that she could not recall saying "what do you expect me to do about it?" to the complainant. Two other witnesses stated that they were not aware of the complainant's disability at the time and added that they were not made aware by Mr X that she had a disability until after she had been made redundant.
4.2. Ms A gave an account of her meeting with the complainant on 3rd March, stating, in particular, that she went through the reasons for making her redundant and the options available to her and asked her how she felt. The respondent outlined its financial position at the time and gave an account of its loss of large accounts and consequent drop in sales. It said that the gravity of the situation would have been evident to the complainant from her attendance at meetings where these matters were discussed. It described the cost-cutting measures it took in that respect, including that two people who reported to the complainant were made redundant in late 2008/early 2009. It said that the majority of the people whose positions were made redundant at this time were redeployed, although two people chose redundancy instead. It said lots of other people had to take wage cuts.
4.3. The respondent said that it met in February to discuss the January trading figures, which were normal, but in the context that December was "not normal". It said that it discussed an extended need for redundancies, looked at the management team in that context and, having done so, gave an account of why it chose to make the complainant redundant. It provided documentary evidence to the Tribunal to support its submission in this respect, in particular minutes of a management meeting from February 2009 indicating that it had decided to make the complainant and one other Manager redundant. It said that it decided to wait until the complainant returned from sick leave before telling her and gave an account of the reasons why it did so.
4.4. The respondent said that there was no alternative to making the complainant redundant other than redeployment but said that there were no positions available that the complainant could fill. It said that the complainant had seen redundancies in her own team so could not have been surprised by it in that context. It said that no-one else was made redundant at this time but three people were made redundant earlier. Ms A agreed that the person referred to by the complainant (see par. 3.5 above) was offered an alternative to redundancy but that Ms A was informed, on 2nd March, not to offer alternatives to redundancy. The respondent said it was a coincidence that this instruction was given the day before the complainant was told of being made redundant. It said that if the complainant had been offered a position when the decision to make her redundant had been taken, she would have been told later that the position was not available. It stated that the complainant could not have been redeployed to one of the other companies in the group and gave an account of why that was the case.
4.5. The respondent stated that no one particular person did the complainant's job before she arrived. In that respect, it stated that it was a combination of managers who did her work before her. It stated that the complainant was effectively hired to free other managers up to do sales and distribution work. It stated that, when she left, most of her work was redistributed among the remaining managers except for the accounts work, which was given to an independent contractor.
4.6. In summary, the respondent stated that the complainant's dismissal arose from a fall in sales. It said that the people who made that decision were not aware of her disability. It said that the complainant's claim was that she was seen as a liability but her main sick leave was from falling down the stairs and it asked why would that be an ongoing issue. It said she was only absent for five days in seven months other than that, which was not excessive. In that context, it said it had no reason to believe that the complainant would be a liability. In any event, it reiterated the financial reasons for the redundancy. It also denied that it failed to provide her with reasonable accommodation.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they suffered discriminatory treatment. 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. The Labour Court has consistently stated in this context1 "that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to case and there is no closed category of facts which can be relied upon all that is required is that they be of sufficient significance to raise a presumption of discrimination".
5.2. Section 6(1) of the Acts 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..." Section 6(2)(c) of the Acts defines the discriminatory ground of disability as follows - "that one is a person with a disability and the other either is not or is a person with a different disability." Section 16(3) of the Acts state, inter alia, that "(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as 'appropriate measures') being provided by the person's employer. (b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -- ... (ii) to participate or advance in employment.."
5.3. The issues for me to decide in this case, then, are whether the respondent failed to provide the complainant with reasonable accommodation and/or discriminated against her on the disability ground with respect to her dismissal. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Reasonable accommodation
5.4. I have carefully evaluated all of the testimony proffered in the case by all the witnesses and I have taken account of the demeanour of the witnesses in giving this evidence. In so far as there are disputes about the facts of this case, I prefer the evidence of the respondent, and in particular that of Ms A, over that of the complainant.
5.5. It is common case that the complainant informed Mr. X that she had a disability and outlined the nature of that disability to him. It is also accepted that he told her to tell Ms A, which she proceeded to do. I am satisfied that she was not as clear in outlining the nature of that disability to Ms A as she was to Mr X as all she told Ms. A was that she had a sore back and would require assistance to move and lift boxes in the warehouse. I am not satisfied that Ms A ever said to her "what do you expect me to do about it". I am satisfied that the only conversation between them in that respect was the conversation in which Ms A told the complainant that she could, and should, ask for assistance in the warehouse in that context.
5.6. The complainant maintains that she was unable to obtain such assistance. I am not satisfied that she sought to do so. In particular, I am not satisfied that she ever told anyone in the warehouse of her difficulties. She certainly never went back to Ms A to discuss the problems she is alleged to have encountered. In that context, I am satisfied that the provision to the complainant of assistance from someone who could move and lift boxes for her is more than sufficient to meet the respondent's obligation to provide appropriate measures to her. I am satisfied that if she sought that assistance, she would have obtained it. The respondent cannot be held responsible for the complainant's failure to avail of the offer it made in that respect. In all the circumstances of the present complaint, then, I am not satisfied that the respondent failed to provide the complainant with reasonable accommodation.
Dismissal
5.7. There are certainly questions to be answered with respect to the validity of the redundancy of the complainant. For example, it is clearly inconsistent that the complainant was hired to carry out a new job just as the economic crisis is alleged to have been having an impact on the respondent's business. I would also be concerned that the decision not to offer other positions to those whose positions were being made redundant was communicated to Ms A the day before the complainant returned from sick leave, and that the coincidence of the two dates facilitated the alleged redundancy. It is also clear the complainant was the only person affected by this decision and that anyone else who accepted a redundancy did so having had a choice to take a different position instead.
5.8. Nonetheless, this is a case of discrimination not Unfair Dismissals. In that context, even if the redundancy was not genuine (a point upon which I am not making a determination at this stage), the complainant must show that it was related to her disability if she is to succeed with her complaint. In that respect, she need only show that her disability was more than a trivial factor in the decision to make her redundant, but she must do so on foot of facts which are of sufficient significance to raise a presumption of discrimination. I will now proceed to consider whether this is the case.
5.9. In that respect, I would certainly have concerns about the fact that the complainant was dismissed immediately upon returning from an extended period of sick leave. On the other hand, I note that the documentary evidence provided by the respondent clearly shows that the decision to make her redundant was made a month earlier. This was also the evidence of Ms A. While the complainant suggested that I do so, I have no reason to doubt either piece of evidence. I am also satisfied from the evidence of the respondent, both oral and written, that the reason for delaying the decision to tell her of the redundancy was based on its genuine and reasonable belief that imparting this information to her might have a negative impact on her recuperation from a fall.
5.10. I also note the complainant's submission that the respondent made her redundant because it considered that her disability made her a liability to the organisation. In particular, she submitted that her absences from work, the extent of the reasonable accommodation it was required to provide to her and the future difficulties it would encounter in accommodating her disability informed the respondent's view in that respect.
5.11. This submission presupposes that the people making the decision were aware of her disability and/or took it into account in making its decision with respect to making her redundant. However, I am not satisfied that either Ms A or Mr X spoke to anyone else about the complainant's disability. Furthermore, and while Ms A was present at least some of the meetings at which her redundancy was discussed, I am not satisfied that she ever raised it as a reason for making the complainant redundant, nor am I satisfied that it motivated her in any way with respect to the decision to make her redundant. Indeed, it is clear that she was not directly involved in that decision.
5.12. I would add that there is no evidence to indicate that the complainant's disability had any impact on her work performance in any way. Indeed, it has already been seen in the context of the reasonable accommodation issue that she lifted boxes and carried out tasks that she should not have carried out in the context of her medical condition. I also note that most of the sick leave that she took was related to a fall down the stairs, which was not related to her disability.
5.13. On balance, then, I am not satisfied that there is evidence of sufficient significance that would indicate that the decision to make the complainant redundant was related to her disability in any way. Therefore, she has failed to establish a prima facie case of discrimination with respect to her dismissal by the respondent and I do not need to consider the matter any further.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the disability ground pursuant to section 6(2)(g) of the Acts in terms of dismissal and/or a failure to provide reasonable accommodation, contrary to s.8(6)(c) and Section 16(3), respectively, of the Acts
6.3. Consequently, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
7th December, 2012
1 E.g. Melbury -v- Valpeters, Labour Court Determination No. EDA0917