THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2013- 158
PARTIES
A Sales Advisor
-V-
A Department Store
(represented by IBEC)
File Reference: EE/2011/743
Date of Issue: 26th November 2013
Keywords: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment -, Section 6(2)(a)-gender (b) marital status) (g) - disability ground, Section 8(1) - conditions of employment, Section 16- appropriate measures (reasonable accommodation), prima facie case.
1. Dispute
This dispute involves a claim by a complainant that he was discriminated against by the above named respondent on the gender, marital status and disability grounds, in terms of section 6(1) & 6(2)(a), (b) and (g) and contrary to section 8 of the Employment Equality Acts, in relation to his conditions of employment. The complainant said that the respondent failed to provide him with appropriate measures in terms of section 16 of the Acts.
The complainant referred a complaint under the Employment Equality Acts 1998 - 2011 to the Equality Tribunal on the 3rd November 2011 alleging that the respondent discriminated against him in relation to his conditions of employment in the course of his employment and failed to provide him with reasonable accommodation in accordance with the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, as amended, the Director delegated the case on the 13th of June, 2013 to me, Marian Duffy, 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 the complainant on the 3rd of April 2012 and the 27th of June 2012 and from the respondent on the 3rd July 2012. A hearing on the complaint was held on the 28th of June 2013 and the final correspondence was received on the 24th of October 2013.
2 Summary of the Complainant's case
2.1 The complainant was employed as sales advisor by the respondent in February 2007 having transferred, on a new contract of employment, from a British branch of the store and he worked in the food section. He submits that he was harassed and bullied by his manager and outlined a number of incidents where this occurred. He said that he had been granted the 17th of March 2007 off and he was telephoned at home a few days before the holiday and informed that he would have to come in to work on that day as there was a shortage of staff. The complainant said that he had arranged to have visitors on the day and the conversation between himself and the section manager became heated. He also submits that he was subject to different working conditions than the employees who transferred over to the respondent company after the respondent took over the department (RS) store. He said that he was paid monthly while these staff were paid weekly and they also got priority in relation to overtime and annual leave. On one occasion he had to change his annual leave because one of the RS staff had booked the same holiday period. For the Christmas period 2007 his hours changed without proper notice. He said that he felt he was being treated badly and he got panic attacks and pains in his chest. The complainant said that he suffers from angina and he thought he was having an attack. He went out with a stress related illness. He explained to his GP what happened and he wanted the difficulties with his manager resolved before he returned to work. In March 2008 there was a meeting with him and his shop steward together with HR and his manager and he agreed to put the difficulties he was having with his manager behind him. It was also agreed at this meeting that he would be offered the first position in menswear that was suitable but this did not happen and an RS staff member was transferred to menswear ahead of him.
2.2 The complainant said that in January 2010 he fell in the snow and hurt his back and was out sick for about 3 weeks. He was certified by his doctor as fit to return to work on light duties. He said his manager agreed to the light work. In June 2010 he was at work putting out stock and the manager was putting pressure on him to get the job done and he felt his back hurting. He took pain killers and finished his shift. He went to his GP that evening and was signed off work sick. He said that his GP advised he could not return to work until he got light duties. The complainant said that he sought light duties from the respondent but the HR manager told him that there was none available. He asked to see OH but he was not referred. He said that he had several meetings with the respondent in relation to getting back to work but the respondent refused to provide him with light duties. In November 2011 on reaching the age of 65 he was retired.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against on any of the grounds referred to by the complainant. In relation to the complainant’s complaints about harassment and bullying against his manager, the respondent said that the complaints were not upheld and the complainant had accepted in his own evidence and in his submission to the Tribunal that the matter was resolved. It is the respondent’s position that the issues were dealt with appropriately and they had been resolved. The respondent submitted that they took over the RS department stores under the Transfer of Undertakings (Protection of Employees) Regulations 2003 and were therefore obliged to maintain the terms and conditions of these employees under the Regulations. This was explained to the complainant at the meeting in March 2008 and he was given the reasons these workers had different working conditions.
3.2 It was submitted by the respondent that employees are not allow to return to work unless they are fully fit and the company does not provide light work. On the 24th of January 2010 the complainant returned to work following a period of absence for back pain and he was declared fully fit by his GP. As a gesture of goodwill his manager allowed him to work on the tills for a number of days. This was not an agreement for him to carry out light duties indefinitely as he was declared fully fit to carry our normal duties; it was an attempt to give him temporary accommodation following his absence. The complainant’s manager asked him on a number of occasions how he was feeling and he said that he was fine and he made no further complaints about his back. In June 2010 the complainant went out sick and submitted medical certificates that he was unable to attend work due to back pain. In response to his contention that he injured his back while putting out stock, the respondent states that he never indicated to any of the manager that he had injured his back and neither did he report it under the Health and Safety Procedures. It was submitted that the respondent has health and safety procedures in place to manage accidents in the workplace and staff are expected to report any accidents that occur immediately and no report was made.
3.3 The respondent stated that the complainant went out on long term sick in June 2010 and remained out of work due until he retired in December 2011. During this period the complainant was not certified fit to return to work and he never at any stage requested light duties so that he could return to work. The respondent rejects the contention that they delayed meetings and stalled any discussions with him in relation to returning to work because of his impending retirement. The respondent also denies that there was an agreement to move the complainant from the food department to menswear. He was advised at the meeting in March 2008 that if a vacancy arose there it would be advertised on the notice board and he would probably have to do an interview for it. One vacancy arose in menswear with fewer hours than the complainant worked and it did not suit him for financial reasons and no other vacancy arose which suited him.
3.4 The HR manager said in evidence that she had a lot of contact with the complainant during his sick leave. The complainant’s sick pay ran out after 4 weeks and as per company policy he was referred to the Occupational Health Adviser who is based in the UK. The complainant’s sick leave record was referred and he was not seen by OH. In a report to the respondent OH concluded that the complainant had an underlying ill health problem. The HR manager said that she telephoned the complainant on the 9th of November 2010 and he made her aware that he was suffering from a degenerative disk problem. He needed physiotherapy and was awaiting an appointment and also one for an MRI scan and as he had no private health cover and despite trying to get the appointment prioritised he was still on a waiting list. In response to a query, the complainant told her he was also awaiting a medical appointment for other health issues he had. She said that she asked him if there was anything that the company could do for him and the complainant said that he would like to get reduced hours or a temporary change in his contract to help him get back to work when he was sufficiently recovered. He went on to tell her that he was not fit to return to work at that time. The HR manager told him that she would keep in touch with him. She said that she spoke to the complainant again at the end of November and he was still not fit to return to work.
3.5 The HR manager wrote to him in March 2011 following attempts to contact him by telephone to arrange a meeting. She said she met the complainant on the 6th of April 2011and he indicated that he was still unfit for work and he did not expect to be able to return to work until at least September. The HR manager said that she would review the position in August. The complainant had an issue with his pay and the HR manager had a meeting with him and his trade union representative and a HR representative in May 2011 to explain the pay issue.
3.6 In August there was no change in the complainant’s medical condition and his medical certificates continued to come in stating that he was unfit for work. The HR manager spoke to the complainant on the 8th of November and she advised him that he was reaching the retirement age of 65 at his next birthday on the 2nd of December 2011 and she confirmed this date in a letter to him the following day. The complainant retired on this day.
4. Conclusions of the Equality Officer
4.1 In this case, I must consider the complainant's claim that the respondent directly discriminated against him on the disability ground race and age ground in terms of section 6(1)(a) and 6(2)(f), 6(2)(g) and 6(2)(h) of the Employment Equality Acts in contravention of section 8 of the Acts in relation to conditions of employment. I must also consider whether the complainant was provided with appropriate measures within the meaning of section 16 of the Acts. I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
4.2 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
4.3 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
Section 85A. of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
(1) Where in any proceedings facts are established by or
on behalf of a complainant from which it may be presumed that
there has been discrimination in relation to her or her, it is for the
respondent to prove the contrary.
4.4 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
4.5 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts provides:
"….. discrimination shall be taken to occur –
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) (in this Act referred to as the ‘discriminatory grounds’)"
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act
referred to as ‘‘the gender ground’’),
(b) that they are of different marital status (in this Act referred
to as ‘‘the marital status ground’’),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
4.6 The first matter I am considering is the complainant’s complaints regarding his conditions of employment at paragraph 2.1 above. The respondent submitted that any complaint the complainant has in respect of bullying/harassment and conditions of employment were referred outside the statutory time limits. The respondent submitted that, notwithstanding the fact that the complainant has failed to submit any facts which supports his claim of bullying/harassment that I have no jurisdiction in the matter.
Section 77(5)(a) provides
(5) (a) Subject to paragraph (b), a claim for redress in respect of
discrimination or victimisation may not be referred under
this section after the end of the period of 6 months from
the date of occurrence of the discrimination or victimisation
to which the case relates or, as the case may be, the
date of its most recent occurrence.
4.7 Firstly I note that these matters occurring in 2008 appears to have been resolved between the parties and the complainant accepts that he agreed to put these complaints behind him both in his submission and in his evidence to the Tribunal. The only outstanding matter in relation to this aspect of his case appears to relate to the transfer to menswear. I also note that the complainant is complaining about discriminatory treatment in relation to matters which occurred in work however he went out sick in June 2010 and he did not return to work from that date until he retired on the 2nd of December 2011. He referred his complaint to the Tribunal on the 3rd of November 2011. I note the complainant has not referred to any incidents concerning his conditions of his employment from the time he went out sick until he referred the case. The incidents of alleged discriminatory treatment which the complainant has referred to occurred more than a year before the complaint was referred therefore I have no jurisdiction in relation to this aspect of the complaint.
4.8 Disability/Reasonable Accommodation
The next matter I have to consider is whether the respondent failed to provide the complainant with reasonable accommodation in relation to his back injury and allow him to return to work on light duties. The complainant submits that he was certified by his doctor to return to work on light duties in January 2010 following a back injury as a result of falling on ice. The respondent states that the complainant was certified as fully fit to return to work and returned on the 24th of January 2010 and his manager as a gesture of goodwill allowed to do mainly seated for the first few days after his return. The respondent stressed that the light duties only applied for a couple of days and there was no question that it applied permanently and submitted that the complainant never made them aware that he had an ongoing back problem.
4.9 Section 16 of the Acts provides:
"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) In subsection (3)—
‘‘appropriate measures’’ in relation to a person with a disability—
(a) means effective and practical measures, where needed in a
particular case, to adapt the employer’s place of business
to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes
the adaptation of premises and equipment, patterns of
working time, distribution of tasks or the provision of
training or integration resources, but
(c) does not include any treatment, facility or thing that the person
might ordinarily or reasonably provide for herself or
herself;"
I am satisfied that the respondent put appropriate measures in place for the complainant on a temporary basis when he returned to work in January after his return from the fall on ice. The complainant produced no evidence that his doctor certified fit on a long term basis for only light duties or that he was not fit to carry out his full range of duties.
4.10 The complainant went out sick again with a back pain in June 2010. He submits that the respondent failed to allow him to return to work and delayed and stalled discussing the issue with him because he was due to retire. He also states that HR failed to accommodate him per the recommendations of Occupational Health Report. It is clear from the evidence that the complainant was not fit to return to work and any recommendation made by OH was in the context of him returning to work. I note that the complainant continued to send in medical certificates saying that he was unfit for work due to back pain. I also note that the HR manager was in telephone contact with him and had meetings with him during the period June 2010 until he retired in December 2011 and while he asked to return to work on reduced hours when he was certified fit, he never indicated or provided a certificate that he was fit to return to work. I am satisfied that the provision of reasonable accommodation never arose because the complainant was not medically fit to return to work before his retirement. Therefore I find no evidence of discriminatory treatment on the disability ground. The complainant also claimed discrimination on the gender and marital status grounds but he produced no evidence to support such complaints. I find therefore the complainant has not established a prima facie case of discrimination on either the gender marital status or disability grounds.
4.11 Following the hearing of the case the complainant raised a number of issues in correspondence including one in relation to the operation of Occupational Health. I am satisfied that these matters do not come within my jurisdiction. The complainant also raised the retirement age in very recent correspondence with the Tribunal. I note that he did not raise any issues about retiring with the respondent in December 2011 nor did he refer a complaint to the Tribunal within the statutory time frame as set out above. Any complaint about his retirement is now statute barred.
5. Decision
5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:
(i) the respondent did not discriminate against the complainant on the gender, marital status and disability grounds pursuant to sections 6(2)(a), (b) and (h) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts;
(ii) 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 appropriate measures (reasonable accommodation) to the complainant in accordance with section 16 of the Acts.
(iii) the complaints in respect of matters which occurred in 2008 concerning conditions of employment and harassment on the gender, marital status and disability grounds were referred outside the statutory time limits in accordance with Section 77.,
____________________
Marian Duffy
Equality Officer
26th November 2013