DEC-E2013-122

The Equality Tribunal

Employment Equality Acts

Decision DEC-E2013-122

PARTIES

Ms S
(Represented by Tiernan Lowey, B.L.,
Instructed by MS Solicitors)

- V -

A Food Preparation Company
(Represented by Peninsula Business Services (Ireland) Ltd.)

File reference: EE/2011/571
Date of issue: 2 October 2013

Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Failure to provide reasonable accommodation - Age - Disability - Race - Prima Facie case - Appropriate measures

1. DISPUTE

1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment, discriminatory dismissal, and a failure to provide reasonable accommodation by the respondent on the ground of age, disability and race in terms of Sections 6(2), and 16 of the Employment Equality Acts, and contrary to Section 8 of those Acts.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 3 August 2011 under the Employment Equality Acts. On 4 March 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 14 and 20 May 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

2 PRELIMINARY ISSUE - Time limits

2.1 The respondent submitted that the complainant had submitted her complaint form on 3 August 2011 but had not indicated a date for the final act of discrimination on that form. The respondent submitted that it had issued the dismissal letter to the complainant on 2 February 2011, that the complainant had not sought an extension of the timeframe permitted in the Acts, as allowed for in Section 77(5), that the complaint was out of time and should be dealt with accordingly.

2.2 The complainant stated that the dismissal only took effect on 18 February 2011 and therefore the complaint is within time.

2.3 Having considered the matter, I am satisfied that the decision to dismiss the complainant was taken on or before 2 February 2011. However, the decision communicated to the complainant indicated that the decision would take effect on 18 February 2011 thereby bringing the dismissal procedure within the 6 month period envisaged by Section 77(5) of the Acts.

PRELIMINARY ISSUE - Grounds cited
2.4 The complainant cited the grounds of Disability, Race and Age in the complaint form submitted to the tribunal. At the oral hearing, the complainant's representative confirmed that the complainant would not be making submissions on either the Race or Age grounds, and as such that they would neither be pursuing nor withdrawing these grounds.

2.5 In the circumstances, I find that the complainant has not established a prima facie case of discrimination on either the Race and Age grounds and accordingly these elements of the complaint fail.

3. SUMMARY OF THE COMPLAINANT'S CASE

3.1 The complainant submitted that she is a Latvian national and was originally employed by the respondent as a general operative on 17 December 2005. In March 2007 she was provided with a contract as a supervisor. The complainant submitted that she reluctantly agreed to take on the role of supervisor only after she had been informed that her agreement to the promotion was a prerequisite to her continued employment with the respondent.

3.2 The complainant submitted that the respondent wrote to her on 2 February 2011 notifying her of her dismissal and stating that it would take effect two weeks later. The complainant submitted that she was discriminated against in relation to her dismissal but also over an extended period preceding her dismissal on the basis of how they treated her in relation to her disability and race.

3.3 The complainant submitted that she initially worked a five day week but would also work overtime on Saturdays. She worked on a conveyor belt which carried vegetables which were required to be cleaned, cut and packed. Before being packaged, the products were thoroughly treated in a series of specially designed whirlpool baths. When the products were loaded, chlorine-containing chemicals were added and mixed with the vegetables.

3.4 The complainant submitted that owing to inadequate ventilation, the workers wellbeing was affected. When this happened, the complainant as supervisor would have to do their work herself, and in doing so, would wear a gas mask when packing the products.

3.5 The complainant submitted that in early 2008, she started to notice a bitter taste in her mouth and for the first time experienced considerable stomach aches. By May 2008 her condition had deteriorated so much that she had to attend a doctor and was unable to work. The complainant further submitted that she went on sick leave from May 2008 until February 2010. She provided regular sick certificates to her employer and submitted to three-monthly medical checks at the respondent's request.

3.6 The complainant submitted that at the end of 2009, the respondent suggested that she return to work and she consulted her consultant physician, Dr A, and gastro-enterologist, Dr B, who advised that she was only in a position to return to work on a part-time basis and that she should avoid long shifts. The complainant submitted that subsequently Dr A specified that she should not work more than three days per week with a maximum shift of 8 hours with appropriate breaks.

3.7 The complainant submitted that she ultimately returned to work in February 2010 and a schedule was prepared for her on the doctor's recommendations whereby she was required to work 20 - 24 hours per week. The complainant submitted that the respondent failed to adhere to that schedule and that the was required to work a 30 hour week and was required to undertake up to 14 hour shifts.

3.8 The complainant submitted that on 14 July 2010, she received a document seeking her agreement to a demotion and a consequent reduction in her hourly rate of pay. She refused to sign the document. The complainant submitted that this constitutes discriminatory treatment.

3.9 The complainant submitted that her refusal to agree to a pay reduction resulted in her being sent for a medical assessment. The complainant further submitted that by letter of 21 October 2010, the respondent sought the opinion of Dr B as to when the complainant would be in a position to return to full-time duties and any measures that could be taken by the company to facilitate her return to full-time duties. Dr B responded, confirming that the complainant was seriously ill with ulcerative colitis.

3.10 The complainant submitted that on foot of this exchange, she was required to attend for another medical examination, with a doctor on behalf of the respondent, Dr C. Dr C reported in December 2010 that he saw no possibility of her return to full-time duties. He confirmed that with the right medication, diet and the regime suggested by Doctors A & B, the complainant could cope with both the disease and work.

3.11 The complainant submitted that shortly thereafter, the respondent requested that she attend a meeting to discuss her continued absence and the likelihood of her return to full-time work. In its letter calling the meeting, the respondent referred to the possibility of termination of the working relationship should the circumstances warrant it. The complainant further submitted that during the meeting it was clear that the respondent was already considering the complainants dismissal owing to her sickness-related absence. The complainant submitted that on foot of this meeting she suffered a breakdown.

3.12 The complainant submitted that in January 2011 she was called to a meeting. At that meeting, she reminded her employers that she was on a course of medication and that once the course was completed she was due to return to her doctor for a further assessment of her progress and the possibility of a return to work. Additionally, the complainant submitted that she was informed that the respondent only had a full-time role for her and that it was not going to be in a position to give her another job. She submitted that in the circumstances, with no alternative, and against medical advice she started working again on a full-time basis. She submitted that she informed the respondent that she did not know how long she would be able to do this for.

3.13 The complainant submitted that on 2 February 2011, she was informed that her employment would be terminated on 18 February.

3.14 The complainant submitted that any 'accommodation' provided to her was accompanied by direct discrimination and amounts to an unseemly demotion in status and an unjustifiable reduction in her wages.

3.15 The complainant submitted that the dismissal letter refers to regulations and the related restrictions imposed on persons suffering from diarrhoea. The complainant submitted that she did not suffer from diarrhoea at any stage and that the regulations mentioned in the dismissal letter were never brought to her attention prior to her dismissal. In addition, the complainant submitted that the dismissal letter stated that she agreed that there was no prospect of her returning to work on a full-time basis, however, she disputes this version of events.

3.16 The complainant submitted that during the short period when she was employed on a part-time basis, she was demoted from the position of supervisor to factory operative.

4. SUMMARY OF THE RESPONDENT'S CASE

4.1 The respondent submitted that complainant was employed from 17 December 2005 until 18 February 2011, initially as a general operative but from March 2006 she was employed as a supervisor.

4.2 The respondent denied that the complainant was told that if she didn't take the position of supervisor there would be no position for her within the company. It submitted that there were other employees who could have taken on the role (and the resulting increase in wages) if the respondent had refused the offer of this position.

4.3 The respondent denied that the workplace was badly ventilated and refuted the complainant's suggestion that either the complainant or anybody else wore a gas mask while on the factory floor. Furthermore, the respondent submitted that gas masks are not retained on its premises for any purpose. In addition, the respondent submitted that it is regulated by a number of bodies in relation to health, safety and welfare at work and that the complainant did not note anything in its Hazard Log which is maintained in accordance with its safety procedures.

4.4 The respondent submitted that the complainant went out on sick leave from May 2008 until mid-January 2010 and submitted regular medical certificates as she was required to do. The respondent submitted that it did not request the complainant to attend medical checks during this period and furthermore that the complainant did not attend work during this period (over 18 months).

4.5 The respondent submitted that it did contact the complainant towards the end of 2009 to ascertain if she was in a position to return to work. The respondent submitted that it was unaware that the complainant was suffering specifically from ulcerative colitis until December 2009 when the complainant submitted a report for her GP outlining her condition.

4.6 The respondent submitted that it was agreed that she would return to work in accordance with her doctor's advice, namely that "it would be reasonable in the first instance if she returned to work part-time perhaps half time for a month or two and then building up to full-time".

4.7 The respondent submitted that the complainant recommenced work on 15 January 2010 and that a new temporary role was created for her and was a role that had not existed before. The new role was part-time (three days per week) specifically making boxes and packing vegetables in a specific area of the factory and comprised very light duties. The respondent submitted that it was not informed that the complainant should not work long shifts until March 2010 and also that there were not informed that she was not to work more than eight hours per shift until June 2010.

4.8 The respondent denied that the complainant had to work a 14 hour shift or a 30 hour week in her first week back and indicated that she worked 7.15 hours on day 1, 9 hours on day 2 and 12.15 hours on day 3 totaling 28.3 hours. The respondent further submitted that from June 2010, the complainant was only given three 8 hour shifts per week in accordance with the doctor's recommendations despite the fact that it currently does not take on part-time workers and requires considerable flexibility in roles and working hours from other employees.

4.9 The respondent submitted that it was decided that the complainant would not carry out supervisory functions and that the complainant agreed to this in a meeting on 18 January 2010. This position was kept under review and was reviewed on a number of occasions, e.g. in March, April, July and August of that year. At no date did the complainant request to be put back on supervisory duties. The respondent further submitted that given that this was a temporary measure, it continued to pay her the higher, supervisor's rate. When the arrangement, as agreed in accordance with the doctors advice, continued beyond the 'month or two', the complainant was asked to agree to a reduction in her hourly rate. She did not agree to the reduction and accordingly her rate of pay was left unchanged.

4.10 The respondent submitted that on 17 November 2010, the complainant's doctor sent a report confirming that she was not capable of working a full week. Arising from this the complainant was sent to a independent GP for assessment. That GP concluded that at that time he saw no sign of her being able to work on a full-time basis. The respondent submitted that the complainant was invited to attend a meeting on 13 December 2010 to assess her medical capability to carry out the work she was employed to do. The respondent submitted that in the invitation to this meeting, it indicated to the complainant that there was a possibility that her employment would be terminated.

4.11 The respondent submitted that it met with the complainant on 24 January 2011 and at that meeting she was unable to provide further evidence that she would be able to return to full-time work.

4.12 The respondent submitted that given that the complainant had been in receipt of medical care for two and a half years at this point, that she had been given light duties and had been on restricted duties for eight months in excess of the indication given to it by her medical advisor, that it had received multiple medical reports none of which showed signs of her condition improving or giving a time-frame for recovery, it cannot be said that it was over-eager to dismiss the complainant

4.13 The respondent submitted that her dismissal on grounds of her disability was a possibility of the 13 December meeting, but not a predetermined outcome.

4.14 The respondent submitted that it provided her with an alternative role on a temporary basis. It also submitted that there was no other work that she could do, as any other role involved food preparation and since the revelation of her symptomatic diarrhoea, this was not an option. The respondent further submitted that the complainant consistently indicated that she was not ready to return to full-time work and therefore she could not actually perform the work she was hired to perform. In the circumstances where there is no suitable alternative role for the complainant, they were left with no option but to let the complainant go.

4.15 The respondent submitted that the right to appeal its decision was set out in the letter of dismissal sent to the complainant, and that she was given seven days to appeal the decision to dismiss her. The complainant indicated an intention to appeal the decision on 24 February 2011 and the grounds of appeal were sought from her by letter dated 1 March 2011. The complainant withdrew her appeal by letter dated 28 March 2011 on the basis that it would only amount to 'lip service' and would be a sham. The respondent submitted that it is in the dark as to how such a conclusion was reached. The respondent noted that the complainant was informed that she could bring her solicitor with her to the appeal, not the normal course for employers when dealing with internal matters.

4.16 The respondent submitted that under the Health Analysis and Critical Control Point (HACCP) Guidelines, persons suffering from diarrhoea cannot work with food. These guidelines were brought to the attention of every employee through documentation displayed and communicated to them. The respondent submitted that during its investigation, it became clear that she suffered regular bouts of diarrhoea from the medical reports and from the complainant herself. The guidelines on this are posted in the factory and are in both the company handbook and the safety handbook issued to the complainant.

5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The issue for decision by me is whether or not the complainant was subjected to discriminatory treatment and discriminatory dismissal by the respondent on grounds of disability, in terms of sections 6 and 14 of the Employment Equality Acts, and contrary to section 77 of those Acts; and whether the respondent failed to provide appropriate measures under Section 16 of the Acts.

5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.

5.3 I note that the complainant suggests that she had a breakdown in early 2011 and further suggests that this contributed to her dismissal. I am not satisfied that the respondent was put on notice that complainant suffered from a breakdown and from the evidence before me I am satisfied that, notwithstanding the foregoing, the issue of a breakdown did not contribute to the respondents decision to dismiss the complainant to any degree. However, I note from the respondent's submissions and direct evidence that it accepts that the complainant was dismissed and that the dismissal was occasioned by the complainant's disability (i.e. Ulcerative Colitis). I find that Ulcerative Colitis falls within the definition of a disability as outlined in the Acts. Having regard to the complainant's submissions in light of the foregoing, I am satisfied that the complainant has established facts sufficient to raise an inference that her disability exerted a significant influence upon the respondent's decision to dismiss her. Accordingly, the onus shifts to the respondent to rebut the raised inference of discrimination.

5.4 In the recent case of Shannon Regional Fisheries Board and A Worker (Determination EDA1318) the Labour Court stated that
"The general principles set out in Humphries v Westwood Fitness Club require an employer to make a bona fide and informed decision concerning a disabled employee's capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive. "

5.5 In the instant case, the complainant was on sick leave for a prolonged period up to January 2010. Prior to returning to the work, the complainant provided a medical report, from Dr B, to the respondent indicating that she was fit to return to work, and suggesting that she return part-time for a "month or two". This was followed up in June 2010 with a medical report, from Dr B, supporting her continuing work on a part-time basis, but clarifying that she should work no more than three days per week and no more than eight hour shifts with appropriate breaks. Another medical report was written in August 2010 repeating the previous recommendations and mentioning for the first time that the complainant suffered from intermittent diarrhoea. This report was submitted along with a copy of the June report to the respondent from the complainant's GP, Dr A, in November 2010 following repeated attempts by the employer to ascertain the complainant's up-to-date medical position. In his opinion, Dr A concludes that the complainant "is physically unable to under-take a full 39 hour working week".

5.6 On foot of this correspondence, the respondent met with the complainant to clarify the medical report received and the symptoms of her illness on the date the letter was received, i.e. 17 November 2010. The complainant admitted that she suffers from diarrhoea 3 -6 times per day. On foot of this admission regarding the diarrhoea, the respondent indicated that in accordance with the health and safety regulations, she could not work with food preparation and would have to go on sick leave. Thereafter the respondent sent her to its GP, Dr C., for an assessment. In his report of 1 December 2010, Dr C concludes that "At the moment certainly I see no possibility of her working on a full-time basis." Arising from this the complainant was called to a meeting on 13 December 2010 by letter, to discuss her employment situation. In this letter, she was given a copy of Dr C's report and it was indicated that termination of her employment was a possible option. She was informed that she has a right to be accompanied to that meeting by a trade union official or another employee.

5.7 The meeting took place on 13 December 2010, however, the complainant did not exercise her right to be accompanied. During that meeting, the complainant confirmed that she suffers from intermittent diarrhoea. The complainant was shown both the EU legislation and FSAI guidelines stating that persons with these symptoms may not enter a food preparation area. Nonetheless, the complainant confirmed that she could perform light duties on a part-time basis, if she was on her own and not upset by anyone. The complainant also informed the respondent that it is her doctor's belief that she would be able to return to full-time work "at some time". Following this meeting the complainant remained out on sick leave.

5.8 The respondent met with the complainant again on 24 January 2011, wherein she was asked was she ready to return to full-time work. The complainant indicated that she was due to return to her doctor in March 2010 following a course of medication and that she would seek further information at that stage. The respondent pointed out that over a year previously, her doctor indicated that she would need to work part-time for one or two months but that she had not returned to full-time duties during that period. The complainant indicated that she would be returning to her doctor on March 16 and would then be in a position to let them know the up-to-date situation. The respondent indicated that the complainant should contact them again when she had seen her doctor on 16 March 2011.

5.9 On 2 February 2011, the respondent dismissed the complainant on the basis that she was not in a position to return to work on a full time basis on the basis of her disability. In its letter, the respondent pointed out that the complainant she suffers from diarrhoea (as stated by her) five or six times per day and under the current regulations cannot work in food preparations areas, and that she was not in a position to indicate when, or if, she could return to work on a full time basis. The letter also stated that the complainant had become unable to perform the work which she was employed to do. In addition the respondent noted that alternative work was discussed with the complainant but that it was not acceptable to her and that the option of part-time work, given to her on a trial basis, was no longer sustainable.

5.10 The complainant was afforded the opportunity to appeal the decision and asked to give reasons as to why the course of action was either too severe or inappropriate. The complainant did not appeal the decision.

Appropriate Measures (reasonable accommodation)
5.11 Having considered all the evidence presented to me, I note that the respondent afforded the complainant appropriate measures (reasonable accommodation) of her disability in accordance with her medical practitioners advice. This accommodation was extended from the two months originally mentioned in the medical report to nine months and when the medical advice changed, the respondent changed its practices immediately upon receipt of such advice. I note that the respondent monitored the complainants proposed return to full-time work from June 2010 onwards in line with the medical reports received. Therefore, I cannot conclude that the respondent failed to provide appropriate measures to the complainant.

Discriminatory Treatment
5.12 The complainant suggested that the respondent's attempts to reduce her pay amounted to discriminatory treatment. The complainant was paid at a supervisor's rate, but when she came back on a part-time basis as a general operative, she continued to be paid at the supervisor's rate. During this time, the respondent paid another employee who was carrying out supervisor's duties at the supervisor's rate. In July 2010, it became clear that the complainant would be continuing on light duties and would not be undertaking supervisor's duties. In July 2010 the respondent asked her to accept the general operative's rate of pay. The complainant refused to accept a lower rate of pay. Accordingly, the respondent never reduced her rate of pay. Having considered the evidence from both parties in relation to this, I do not consider that this amounts to less favourable treatment and this element of the complaint fails.

Discriminatory Dismissal
5.13 I note that the complainant was only removed from the work environment when it received information from the complainant's medical practitioner. I further note that the second medical report, that indicated that the complainant suffered from diarrhoea (and was the first such indication), which occasioned her removal from the workplace under the health and safety regulations, was not given to the respondent when it was issued. The respondent had to press the complainant repeatedly to get access to her up-to-date medical position, which it is obliged to do as laid out in the Labour Court's decision in the case of 'A Health & Fitness Club and A Worker' (Determination No EED037, ED/02/59).

5.14 In that case the Court's approach is outlined as follows:

"However a dismissal which appears to be discriminatory within the meaning of Section 8 of the Act may be saved by Section 16. This section provides, as follows:

16. -- (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual --
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(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.

(2) [Not relevant]
(3)(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.

(c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

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."

5.15 Having regard to the foregoing, I consider that it is incumbent on an employee seeking to rely on the existence of a disability, to provide the employer with any relevant information that is in their possession which may have a material impact upon the employer's decision. At the very least there is an onus on employees not to obstruct the employers attempts to "ensure that he or she in full possession of all the material facts concerning the employee's condition"

5.16 I have considered the evidence given by both parties in relation to the dismissal. I note that the respondent indicated to the complainant that she should revert following the forthcoming meeting with her medical practitioner on 16 March 2011 but that they did not wait to ascertain what the then current situation was but forged ahead with the dismissal on 18 February 2011. I consider that the respondent acted in a peremptory manner at this time when waiting another month would have clarified the situation and not incurred any additional cost to the respondent. Accordingly I consider that the dismissal was technically tainted by discrimination on the disability ground and the complainant is entitled to succeed.

5.17 I note that the respondent indicated to the complainant that she could appeal the matter if she felt that the dismissal was too severe or inappropriate. I further note that the complainant indicated to the respondent that she did not wish to pursue her appeal on the basis that she believed that the process was a sham and that it would simply be doing 'lip service' to the process. She did not at that time, or at a later time, indicate that her medical condition had changed, that her prognosis had changed or indeed that she had an update from her medical practitioner following her 16 March 2010 meeting with him for the respondent to consider.

6. DECISION

6.1 Having considered all the written and oral evidence presented to me, I find that the respondent has not established a prima facie case of discriminatory treatment on either the age, race or disability grounds and, therefore, this element of the complaint fails.

6.2 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case that the respondent failed to provide appropriate measures and, therefore, this element of the complaint fails.

6.3 Having considered all the written and oral evidence presented to me, I find that the respondent has not established a prima facie case that her dismissal was related to the age or race grounds and, therefore, this element of the complaint fails.

6.4 Having considered all the written and oral evidence presented to me, I find that the complainant has established that her dismissal was tainted by discrimination on the disability ground and therefore, she is entitled to succeed in relation to this element of the complaint.

6.5 On the basis of the foregoing I find that the respondent did subject the complainant discriminatory dismissal on the grounds of disability in terms of section 6(2) of the Employment Equality Acts. In accordance with section 82 of those Acts, I award the complainant €1,000 in compensation for the discriminatory treatment suffered. This award reflects the technical nature of the discrimination suffered by the complainant. However, as this award does not include any element of remuneration, it is not subject to income tax.

Conor Stokes
Equality Officer
2 October 2013