Employment Equality Acts 2000 to 2011
DECISION DEC-E2012-064
A Complainant
(Represented by Mr Peter Lenard BL on the instructions of Padraigh Murphy Solicitors)
V
A Food Processing Company Limited
(Represented by Mr John Barry of Management Support Services (Ireland) Limited)
File No. EE/2009/735
Date of Issue: 29 May 2012
File reference: EE/2009/735 - DEC-E2012-064
Keywords:
Employment Equality Acts - Discriminatory treatment - Discriminatory Dismissal - Disability - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a complaint by an complainant (hereafter "the complainant") that she was subjected to discriminatory treatment and discriminatory dismissal by a food processing company limited (hereafter "the respondent") on the ground of her disability. The complainant maintains that demoted from grade 3 to grade 1 in early 2009. The complainant had also accepted a 'bare minimum' redundancy package in 30 March 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal under the Employment Equality Acts on 29 September 2009. On 10 February 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 4 May 2012. The parties' names have been redacted to protect the complainant's privacy.
2. Case for the complainant
2.1. The complainant has been diagnosed with dyslexia. It was accepted that the respondent did not know about the diagnosis but it was submitted that the complainant had indicated to the respondent that she had difficulties reading.
2.2. The complainant began working with the respondent on 24 March 2003. She was initially employed as a grade 1 operative (packaging duties). Within two years, the complainant was promoted to grade 3 with extra responsibilities and pay. The complainant held that position, working initially on a formax19 machine, until June 2008. The complainant was then suddenly told that because she could not read she would have to revert back to grade 1.
2.3. The complainant stated that she enjoyed extra pay while working on the formax19 machine. She stated that she did not believe that reading was really important in that role. She was only expected to write in circumstances where the machine broke down. The complainant accepted that there were other roles also at grade 3 but stated that she believed that it was up to the person to put themselves forward if they wanted to carry out other jobs related to the grade. The complainant stated that she worked exclusively on the formax19 machine for 3 years. She stated that she had received no training and that she had only ever been asked to help out with the batching machine. The complainant had understood that she could remain at grade 3 only operating the formax19 machine.
2.4. The complainant's employment ceased on 30 March 2009 a week after she had been told that she was to be made redundant. The complainant stated that she was told by a manager that: "you may take the redundancy as you cannot read or write properly".
2.5. The complainant also stated that she felt bullied by the management. She received coaching notes in circumstances where, for example, she had exceeded the time allocated for a break. The complainant accepted that other employees also received such notes.
3. Case for the respondent
3.1. The company rejected the claim that it discriminated against the complainant on the ground of her disability. The respondent was not at any stage aware that the complainant had a diagnosis of dyslexia. The supporting evidence relating to her dyslexia diagnosis was received by the respondent some nine months after the complainant had left the complainant's employment.
3.2. It was submitted that the complainant's ability to write was actually viewed as being of a higher standard than that of many of her co-workers. The complainant was offered training and practical assistance by the respondent where required.
3.3. The respondent rejected the complainant's claim of bullying and/or harassment. The complainant had never raised such an issue with the respondent. The complainant was viewed as a conscientious employee and the respondent had never initiated the disciplinary procedure against the complainant. It was accepted that the complainant has been an excellent formax19 operator and, because of this, she had been asked to train other employees to use it too. However, all grade 3 operators must be able to carry out all the duties relevant to that grade in order for them to be able to provide cover when required. The fact that the complainant could not competently carry out some of the tasks required with grade 3 duties meant that the complainant had to be re-assigned to grade 1 duties. It was denied that the respondent had not trained the complainant and supporting documentation was forwarded to the investigation. The complainant received the same training as other staff.
3.4. The respondent relied on a Labour Court Determination (DEP995) in order to support its assertion that the grade 3 role has always involved a number of duties. The respondent submitted that if it had allowed the complainant only to work the formax19 machine it may have opened a door for a new equal pay claim. Furthermore, with the new 'Lean Manufacturing' procedures that had been introduced grade 3 operators had to be able to step into the role of another when required. Therefore all grade 3 operators needed to be fully capable of providing cover within the various tasks relating to the grade.
3.5. It was submitted that the working environment changed in 2008. 'Lean Manufacturing' principles were introduced in 2008 and these included the appointment of a training team leader whose role included the re-training based on agreed Standard Operating Procedures, performance assessments and coaching. The aim of this was to achieve better ways of doing business by seeking a significant improvement in production efficiencies. Despite all of the efficiency improvements the respondent lost a major contract. The evening shift had to be discontinued and the available work was distributed evenly between all staff. This resulted in less than 50% of normal hours being available to staff.
3.6. A number of employees, across the grades, had accepted the same redundancy terms as the complainant.
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 EDA0917 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. Nothing in these Acts imposes an obligation on an employer to maintain a person in a job if that person is not able to do the work that they are employed to do. In circumstances where disability may be an issue, a respondent has a clear obligation to engage in a process to determine whether reasonable accommodation could rectify the issue. Such an onus rests on a respondent only in circumstances where they are on notice that a disability within the meaning of these Acts exists. I note that it was the common case of the parties that the complainant had not, during her employment, informed the respondent of her disability.
4.3. I find that the establishment that en employee has indicated to her employer that she had difficulties with reading and writing is not sufficient evidence to establish an inference that a respondent is under notice of an existing disability. Many people, for various reasons, have difficulties with reading and writing. The complainant's own evidence indicated that she did not perceive her difficulties with reading and/or writing to be an issue in the workplace.
4.4. Therefore, I do not find that there is an inference that the complainant's disability was an influencing factor for her re-grading. The complainant could not independently carry out an aspect of the duties involved with the batching machine. I also accept that the respondent was examining efficiency and staff downtime matters in order to make the company more competitive. I also note that the complainant herself did not think that reading or writing was a relevant to her role and that she was capable of doing the paperwork where required. The complainant's difficulties with a grade three related duty was not about the complainant's ability to read or write. The complainant had failed to independently and efficiently adjust fat content in a batching machine.
4.5. I note that the complainant submitted that her inability to read and write fluently had been referred to in both the re-grading situation and the redundancy. I do not accept the complainant's account in relation to these allegations. While I accept that the complainant has in good faith subsequently formed the view that her literacy was somehow a deciding factor in these matters. I found her recollection at the hearing in relation to the above matters to be confused or poor. There is nothing that the complainant submitted that supports a view that her literacy was in anyway an issue with the respondent.
4.6. I further note that the complainant had availed of her right to an appeal in relation to the re-grading matter. I also note that she had been represented by her trade union. I fully accept that the complainant had formed the view that she could continue working on the formax19 machine indefinitely. I note that it is regrettable that the working environment undoubtedly changed in or around 2008 and the respondent needed to ensure more flexibility in its workforce.
4.7. I note that the complainant had availed of her right to apply for statutory redundancy under Lay Off and Short Time Procedure. As the respondent could not provide the complainant with full work for a 13 week period, it had no option but to accede to the complainant's request to be made redundant. While I accept that the complainant may have felt that the changes in her duties and salary that had taken place were unfair, I have found no evidence to support an assertion that the fact the complainant elected to avail of a redundancy was discriminatory on the ground that the complainant had a disability.
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. I find that the complainant has not established a prima facie case of discriminatory treatment or dismissal on the disability ground.
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Tara Coogan
Equality Officer
29 May 2012