DEC-E2013-149

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC – E2013-149

Ms B

(represented by Rachel O’Flynn B.L. instructed by Ken Murray & Co Solicitors)

versus

A Newsagents & Deli

(represented by Aiden Desmond, Desmond Solicitors

File reference: EE/2011/367

Date of issue: 13th November 2013

Keywords: Employment Equality Acts, Disability, Discriminatory Dismissal, Anorexia Nervosa, Definition of employee

Dispute

1.1 The case concerns a complaint by Ms B against a Newsagents/Deli. Her claim is that she was discriminated regarding her conditions of employment leading to dismissal on the grounds of disability in terms of 6(2) (g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’]. She also claims that the respondent failed to provide reasonable accommodation to her within the meaning of the Acts.

1.2 Through her legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on the 1st April 2011. On 10th April 2013, 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 15th April 2013 as required by Section 79(1) of the Acts. The last piece of information requested by me was received on 7th November 2013.

Summary of the complainant’s case

2.1 The complainant worked for Mr Z and Mr Y ( his business partner) for four years in a newsagents and deli – first as a Sales Assistant and then as an Assistant Manager. On 13th February 2011 she was offered employment by Mr Z in a different premises. Although working in a different location within the same town Mr Z remained her manager – he gave instructions as to what work needed to be done (which was similar) and he paid her. It was a stressful environment. Mr Z and Mr Y’s business relationship was breaking down and Ms B submits that she ‘got caught in the crossfire’. She submits that Mr Z asked her to act as a spy on Mr Y as he believed he was being defrauded by Mr Y. She began getting panic attacks, insomnia and a recurrence of anorexia nervosa (a condition that she had as an adolescent). She attended her General Practitioner on 2nd March 2011 and he certified her as being unfit to work due to work-related stress. She was prescribed an anxioltic drug (anti-anxiety) as well as sleeping tablets. The complainant’s husband attempted to give the medical certificate to Mr Z at the complainant’s workplace but Mr Z refused to accept it. The complainant’s husband submits that Mr Z said ‘Sorry I can’t take that off you. It has to be herself. I need to see her anyway. I need to have a word with her’. Ms B’s husband submits that he heard Mr Z’s wife (Director of the respondent) screaming in the background not to accept the medical certificate. The medical certificate stated that the complainant was suffering from ‘work-related stress’. Ms B’s medical certificate (and subsequent ones) was then sent by registered post. She was attending her GP on a weekly basis. He referred her to a Consultant Psychiatrist but because she is a public patient, she was put on a waiting list. On 9th March a voicemail was left on the complainant’s phone asking her to contact Mr Z. On 10th March a contract of employment and an employment handbook was sent to her, for signature. She did not sign it as she submits that she was not feeling well enough to study paperwork and as far as she was concerned her employment status had not changed i.e. she was still working for the same person. By letter on 23rd March she was dismissed with immediate effect. Prior to this letter, Ms B submits that she received no warning that her future employment was in jeopardy by reason of her absence.

2.2 The complainant cites A Heath and Fitness Club and A Worker[1], A Government Department and an Employer[2] and Bus Éireann v Mr C[3]. The complainant points out that the respondent did not obtain a medical evaluation as envisaged by the Labour Court in these decisions. She also points out that she was only absent three weeks from work (medically certified) before she was summarily dismissed.

2.3 Her symptoms disimproved following the loss of her job. She is currently under the care of a psychiatrist and remains on anti-depressant medication.

2.4 Her salary was €9.38 an hour and she worked 19 hours per week.

Summary of the respondent’s case

3.1 The respondent submits that ‘work-related stress’ is not a disability within the meaning of the Acts and therefore the test in A Health and Fitness Club and A Worker does not apply. The complainant did not seek reasonable accommodation. They submit that her employment was terminated because she did not counter-sign her letter of employment. Therefore, the respondent maintains that that she is not an employee within the meaning of the Acts. The respondent also maintains that she was incapable of doing her job while she was on sick leave. They also submit that the following letter was sent 9th march 2011:

Dear [Ms B]

Re. Medical Certificate

I am writing to acknowledge receipt of your medical certificate today.

I would like you to clarify what the stress factors are and I will have an investigation carried out to resolve these.

I await your response to the above matter.

Yours sincerely

_______________

[Director of the Respondent]

Conclusions of the Equality Officer

4.1 Before turning to the substantive issue, at the hearing the complainant vehemently denies receiving a letter on 10th March 2011 from the respondent offering to conduct an investigation into the stress factors in her employment. On the balance of probabilities, I am satisfied that the complainant is telling the truth. The respondent did not send this letter by registered post even though this would have been the prudent thing to do. Indeed they could have taken their cue from the complainant who was wise enough to send her medical certificates in this way. No mention whatsoever is made to this letter in the first submission by the respondent even though, logically, this should form the bulwark of their defence. Nor is it referred to in any of the subsequent correspondence to the complainant. The body language of the Director of the respondent when the issue was raised at the hearing would also indicate to me that the complainant is correct. Falsifying evidence does not assist the respondent’s case.

4.2 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. There are a number of issues for me to decide:

(i) whether the complainant suffered discriminatory treatment in relation to her conditions of employment

(ii) whether the respondent failed to provide reasonable accommodation in order to enable her to retain a position with the respondent

(iii) whether she was discriminatorily dismissed

In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.3 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.

Definition of employee

4.4 The definition of employee within Section 2 of the Employment Equality Acts is broad and inclusive. It covers any person who has entered into or works under a contract of employment whether the contract is express or implied and, if express, whether oral or written. It is clear that Ms B worked under a contract of service with the respondent in that she reported for work (until she was ill) and received remuneration for same. Whether or not a letter of acknowledgment of employment was signed or countersigned by her does not change this fact. Therefore, she is an employee with the meaning of the Acts.

Definition of disability

4.5 Disability is also defined in Section 2 of the Acts:

(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 form a person without the condition or malfunction

(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.

The respondent submits that ‘work-related stress’ is not a disability within the meaning of the Acts. In the context of these Acts, disability must be looked at ‘in the round’. It cannot be reduced to a game of bingo where a complainant’s doctor labels a condition on the medical certificate in a certain way and the disability provisions automatically apply and s(he) calls it something else and the disability provisions do not apply. The complainant gave cogent evidence at the hearing that, prior to the submission of the medical certificate, she told Mr Z that she was not sleeping and suffering panic attacks. Having received the medical certificate and in possession of this information, a prudent employer would have sought a second medical opinion before dismissing her. Indeed it later emerged that the sequelae of the complainant’s condition reflected a serious disorder – anorexia nervosa. She remains under the care of a psychiatrist. Therefore I am satisfied that the complainant’s condition is a disability within the meaning of Section 2 (e) of the Acts.

Conditions of Employment & Dismissal

4.6 The relevant section regarding retaining a person with a disability in employment is Section 16 (1) of the Acts which states:

Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….

(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.

However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

(3) (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—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate

burden on the employer.

(c) In determining whether the measures would impose such

a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s

business, and

(iii) the possibility of obtaining public funding or other

assistance.

4.7 The complainant has cited the seminal Labour Court case A Health Club and A Worker. It is worthwhile to quote the relevant paragraphs:

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [my emphasis]

4.8 Turning to conditions of employment, I am satisfied that the complainant was treated less favourably when she submitted a medical certificate to the respondent. The bizarre refusal to accept a sick cert., the sending of unnecessary documentation to be signed while she was on sick leave with work-related stress and not informing her that her job was in jeopardy constitutes discrimination in relation to her conditions of employment on the grounds of disability.

4.9 I do not accept that Ms B was dismissed because she did not sign a letter of acknowledgment of employment while on certified sick leave and in ignorance of the consequences of her refusal. It was conceded that she was a good employee for over four years. It was a working relationship that suited both parties until she submitted a medical certificate citing ‘work related stress’. Therefore, she has established a nexus between her disability and her dismissal. On being notified of her condition, the respondent did not conduct any of the steps discussed in the aforementioned Labour Court decision. It did not make adequate enquiries as to her condition, reasonable accommodation was never considered and it did not put her on notice that her job was in jeopardy. Therefore the respondent cannot avail of the defence in Section 16(3).

Decision

I have concluded my investigation of Ms B’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that

(i) the respondent has discriminated against the complainant regarding her conditions of employment on the ground of disability

(ii) the respondent hasfailed to provide appropriate measures that would allow the complainant to continue to be employed by them

(iii) discriminatorily dismissed the complainant on the ground of disability

Therefore, I find for the complainant.

Redress

In accordance with Section 82 of the Act, I order the respondent:

(a) pay the complainant €14,000 (the equivalent of 18 months salary) in compensation for the effects of the discrimination. The award is redress for the infringement of Ms B’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to how people with disabilities are treated.

_______________

Orlaith Mannion

Equality Officer

Footnotes:

[1] EED037

[2] EDA 094

[3] EDA08111