EDA143

• Having considered all the written and oral evidence presented to me, I find that the complainant has not established that the respondent has failed to provide appropriate measures (reasonable accommodation) and this element of the complaint fails.
  
  Having considered all the written and oral evidence presented to me, I find that the complainant has not established that she was subjected to harassment as defined in the Acts and this element of the complaint fails.
  
  Having considered all the written and oral evidence presented to me, I find that the complainant has not established that she was subjected to discriminatory treatment/dismissal and this element of the complaint fails.
  
  Having considered all the written and oral evidence presented to me, I find that the complainant has not established that she was subjected to victimisatory treatment

• Dear Michael and Susan,
  
  As you both know for some time now I have been completely unhappy, stressed and nervous about coming into my workplace because of Rodents.
  
  I have previously sent a letter explaining my phobia to which you agreed on putting down mouse traps in office & a plug in on loan from Clare. However this has not stopped the problem.
  
  As you are both aware there was a mouse on my desk on Monday 26^thMay while I was sitting at it talking to Ben. On Friday 30^thof May a mouse strolled by the photocopier & under Michael’s chest of drawers.
  
  Rats have been an ongoing & worsening problem over the past year which is not helped by them been fed from the bird feeders. The NO Go areas for me are growing i.e the front Gate, Bin, Shed, Container & Walk way from back gate. I walk through the barn as I feel there is more space to run if I spot rats there but if I come across a rat in the barn my way to the office is blocked and then I’ll be back to square one upset stressed out & writing to you yet again.
  
  Ben & I had Rentokill out to survey the property around 22 May. Ben dealt with Rentokill & from my understanding they recommended minimum of 14 boxes. It made sense financially & for Health & Safety to get this as an ongoing service on a yearly basis as opposed to short term similar cost and the problem can reoccur – the poison is kept in boxes that only rats Mice can get into they eat poison go back to nest & die if any other animal eats the rodent they wont be harmed as the poison dissolves. They also have boxes that rodent enters and is trapped inside & dies. They may also have other solutions if your interested give them a call. The boxes are checked by rentokill on a regular basis. This would be satisfactory to me as a solution.
  
  Ben informed me on Monday 2^ndJune that you were against Rentokill but would agree to a Plug in Sonar device from an add in the Radio times. He told me to source this via the web. When I looked into this the company were unsure if they could deliver to Ireland from the UK & I sent an email to their customer service dept requesting information.
  
  Louise rang me as I was on way out to Bin to go over to her in the container as she was freaked out & I asked her to come to the bin with me for moral support against rats. However Michael reared up at me, as we entered the porch to the office, which is completely out of character. We exchanged heated words. Michael you have apologised & of course I forgive you.
  
  I left the office as this was upsetting & basically the final straw for me. I went to the Doctor as I’m so stressed out & the problem is starting to affect my home life now.
  
  I asked Colm to go up to represent me & to let you know I wouldn’t be in work for 1 week or until issues having been resolved. I rang the office this morning 9^thof June 2008 I spoke with Ben & got details I need for social welfare, i.e. company reg. no & dates of employment.
  
  I asked Ben if we could have a meeting with regards to this issue. He told me to meet with Michael & Susan as He has no control over this issue. He also told me that he is stressed by the work build up & the problems in the office. I have offered to work from home until the issues have been resolved. However Ben does not envisage this working.
  
  Ben said he’d pass a message for Michael to ring me.
  
  I require a safe working environment.
  
  At the very least I expect the office to be free of rodents and back gate through barn and into the office & bathroom free of rodents. I also expect proper canteen facilities. & bathroom facilities.
  
  I have worked with Sea & Shore over the past 14 years.
  
  I have not ever experienced a problem with rodents until the past year with Sea & Shore.
  
  I have always had a phobia with rodents my whole life. It has not just developed.
  
  If I was in the Zoo looking at Lions etc I may look & not feel threatened because I know I’m safe. The same applies with rodents.
  
  I know they are out there but I can’t cope when they are looking at me from my desk & I’m jumpy in case I walk on a rat or one falls out of a tree etc.
  
  I have given a lot to Sea & Shore & Michael & Susan as close friends & love you dearly. I am so sad that this issue escalated to this.
  
  I enjoy working with Sea & Shore. Like most young couples we have a large amount of outgoings which means I have to work. But working in an unsuitable environment is totally unacceptable. For my employer to expect me to work in such an environment is putting undue stress & pressure upon me.
  
  Ben has informed me that you have plugged in a (woodies) sonar device at my desk in the office and that he has not seen any rodents in the office this week.
  
  I also require the area I have to enter in order to get to the office be made safe before I’ll be happy to return to the office perhaps a plug in device in the barn area?. I feel if this is not done I’ll be back to square one in a few weeks.
  
  Apart from my phobia rodents carry diseases, Weils disease can kill animals & humans alike. Animals can pass this onto humans if they scratch a person of if a person has a cut/graze, which in turn they can contract Weils diseases.
  
  Thank you for committing to getting sonar device for barn area on Thursday if the sonar device doesn’t work will you then agree to Rentokill?
  
  I hope to return to work on Monday 16^thJune on the condition that the areas concerned are free from Rodents and procedures put in place as agreed.

• 
  We have received you email in relation to out telephone conversation.
  
  We appreciate that you have a problem with rodents and subsequent to the appearance of a mouse on your desk the traps in the office have been re-baited and are checked regularly.
  
  Since your departure on June 3^rd, we have purchased a powerful untrasonic rodent repeller – which uses electromagnetic technology – which we have installed in the office. Since its installation we have not seen or heard any rodents, or other pests either, in the kitchen or anywhere else in the building.
  
  We have also installed a similar one in the barn area, which will cover the approaches to the office from the rear entrance through and beside the barn.
  
  We consider that these steps are perfectly reasonable to solve the problem and the matter will be kept under review at all times.
  
  As you are aware our office is located in a country area and despite this, you must appreciate – having worked here for 14 years – that there has been no noticeable rodent problem until the major building works started in this area which totally disrupted the habitat of the local wildlife.
  
  It should also be borne in mind that rodents normally reside outside buildings amongst trees and bushes. They do not normally come indoors unless they are attracted by food or other edible scraps and thus it beholds us all to keep the office area clear of such attractions by sealing food in tins and disposing of rubbish in outside rubbish bins.
  
  I regret that there is absolutely no way that we can give you a guarantee that you will never see a rodent again on the premises. All we can do is take every appropriate step to deter them.
  
  I would also mention that we have not heard or seen traces of a rodent in our own house or near the bird feeders since we returned home.
  
  To move the situation on we wish to make the following proposal to you regarding leave of absence:
  
  Sick note to cover you until Friday 13^thJune (Social Welfare payments I understand have been applied for to cover this period)
  16 – 30 June as paid leave of absence from company
  1 – 11 July annual leave as already applied for.
  14 – 21 July as paid leave from company.
  22 July to 6 August leave as already applied for.
  Return to work Thursday 7^thAugust.
  
  Those periods of paid leave of absence we are offering are in consideration of the stress caused to you on this occasion. It also allows us to have time to check the effectiveness of the repellents. Again I must report that we are not in a position to guarantee that the area will be rodent free.
  
  We are sure that you will appreciate that these periods off are at a considerable expense to us but will be worthwhile if it allows us to get back to normal operations.

• Implement a pest prevention strategy
• Document the strategy
• Risk assess the work environment
• Monitor that strategy is working correctly.

Evidence

The Complainant

The Complainant stated in evidence that she had a very good working relationship with the Company until the rodent problem started to emerge. She states that she brought her concerns to the attention of the Company and explicitly notified them that she had a phobia concerning rats. She says that the Respondent took measures to address the problem the first time it appeared. It seemed to work in so far as it kept the rats out of the work and office areas. However over the following months the situation got progressively worse. She says that the frequency of sightings was increasing at a significant rate. She says that the problem was compounded by the proprietor’s tendency to leave bird seed freely accessible in close proximity to the house. She said that from her office window she could see rats climb trees to access food left for birds. She said that rat droppings could be seen in storage containers. She said that rats were visible in the area surrounding the office, yard and car park. She said that on arriving at work one morning a rat walked down the hall into the office area. She said that she could not cope with that and left the premises immediately. She said that on another occasion she saw a rat walk across the car park. She said she was terrified to walk from her car to the office. She said that the company accommodated her by allowing her to park closer to the house. However on her way from that car park to the office she saw a rat enter the passageway between the house and the office. She said that she could not come to terms with that. She said that when she returned to work after that incident she was met by the proprietor. She said that as she entered the office area she was met by a foul smell. She said that the proprietor snapped at her that that was the result of her demand that poison be laid to kill the rats which he described as “your little friends”. She said that the smell was foul and unbearable and that the proprietor was aggressive and intimidating towards her. She said she left and did not return to work. She said that she was subsequently dismissed by reason of redundancy. She disputes that the redundancy was genuine. She said that she believed that she was dismissed because she raised the issue and had her representatives write to the company seeking to vindicate her rights.

Mr A’s evidence

Mr A is a local land manager with extensive experience in the management of infestation problems. He was working an allotment on land owned by the Respondent. He said that he was consulted by the Proprietor regarding the infestation problem. He said that he agreed to manage the problem for the company. He accepted that there was a rodent problem on the premises and outlined the measures it had taken to deal with this matter. He said that the Company had installed sonic devices and traps to control the problem. As the property was also a family home with pets and other wildlife he was asked by the proprietor not to lay poison. He said that the proprietor was concerned that the laying of poison might affect other domestic animals and birds and that it should be a last resort option when other measures failed. He said that he was laying poison however in May 2010 and that the problem was resolved by June/July that year

He said that he had been asked to try to control the problem with ferret droppings. He said that evidence for this as an effective treatment was weak. However he said that he laid the droppings as he had been requested to do so by one of the directors of the company. He said he had no confidence in this treatment. He said that he was laying poison from early May 2010 and that the problem was resolved by June of that year. Ultimately, he said he was given permission by the Proprietor to lay poison. He said that this had the desired effect. He said that the problem was easily containable but not avoidable. He said that once the earthworks on the adjacent sites commenced one would expect that the rodent population would be disturbed and that management of the problem with poison was the only effective way of dealing with it.

He said that he was not paid for this work. He said that he undertook it as a good neighbour and as a support for the proprietor from whom he had some land that he operated as an allotment.

He said that whilst laying poison killed the rats, it also gave rise to another problem in that some of the decaying corpses began to smell but could not be found and on the occasion when a rat walked past the complainant, it was already dying. He said that this was a normal by product of laying poison.

He said that initially he did not keep a record of the traps he laid or of sightings. He said that after the Complainant’s representative wrote to the Company formally raising her concerns he was asked to keep a record of trap inspections. He said that he kept the record then at the request of Mr Pluck the General Manager.

Mr Ben Pluck the General Manager gave evidence.

He said that there was a rodent problem in the company as early as 2008. He said that the problem commenced around the time earth works associated with a local large scale building development commenced. He said that the Company consulted Rentokill to determine the cost of dealing with the rodent problem. He said the Company did not receive a written estimate of costs from the Rentokill. He said that it had received an oral quotation approaching two thousand pounds which it considered too high. He said the Company in 2008 installed sonic alarms and laid traps and that the problem abated for a period of time.

He said the problem re-emerged in 2010. He said the Complainant encountered rodents and rodent droppings in various areas of the company premises. He said that the Directors were unwilling to lay poison to deal with the problem. He said that they tried various measures including laying ferret droppings to deter the rodents. He said these had minimal effect.

He said the respondent then engaged an experienced land manager to lay the traps and poison and started keeping a log regarding sightings and the levels of poison involved. He said the company tried to accommodate the complainant by moving her car parking space closer to the office. This relieved her of the need to walk through an area that had shown signs of rats and where the complainant had come across a rat as she came to work one morning. He said that the Complainant was facilitated by not being required to retrieve equipment from bins in which rodent droppings had been found.

He said that he had been keeping rough records of the pest control measures he had arranged over the summer months but that he began to keep more precise records and requested Mr A to do so after he received correspondence from the Complainant’s solicitors regarding the issues in dispute.

He said that the Company was losing business and that it was clear that costs had to be cut. He said that while the Complainant was out of work over the summer the Company became aware that it could dispense with her services as a way of reducing costs. He said that he was asked to prepare a report on cost reductions and that he recommended that the Complainant be made redundant as she was not fully occupied at work.

Mr Michael Langran, Managing Director gave evidence.

He said that his family accommodation was next to the office. He said that this was a country area and that rodents are a fact of life. He said that the problem became worse when the earth works began on the adjacent site. He said that he initially installed sonic devices to deal with the problem. He said these worked in the early stages. However as the works developed they proved inadequate. He said that he approached witness A and discussed the problem with him. He said that witness A agreed to manage the problem for him. He said that initially he did not permit witness A to use poison. However by June/July it was clear that poison was the only solution. He said that he went and bought traps for the site. He said that witness A laid the traps and that the problem abated. He said that no poison was laid until he gave his permission to do so.

He said that he was aware that the Complainant had a phobia concerning rats. He said that in retrospect the Company did not do enough to accommodate her in this regard.

He said that he accepted that he raised his voice at the Complainant when he met her in the yard after she returned to work on 3^rdAugust 2010. He said that this was out of character for him. He said that he accepted the Complainant’s version of events in this regard.

He said that the company was experiencing trading difficulties and that the complainant was dismissed by reason of redundancy.

The Law

Section 2 of the Acts defines disability as

(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 from a person without the condition or malfunction, or

(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, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

In the course of the hearing the Respondent accepted the Complainant’s contention that she suffered from a disability within the meaning of the Act. The Respondent also admitted into evidence without challenge the GP’s2013 report on the Complainant’s medical condition.

Section 8 1) Provides:-

In relation to—

(b)conditions of employment,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 14 A (7) (a) defines harassment as

(i)references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and dignity and creating an intimidating, hostile, degrading, humiliating or offensive being conduct which in either case has the purpose or effect of violating a person’s environment for the person.

(b)Without prejudice to the generality ofparagraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.

Section 16(3) (b) and (c) and subsection (4)of the Act provides for the following

(3)(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 ofparagraph (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 himself or herself;”.

Section 74(2) of the Act in relevant part defines victimisation as follows

For the purposes of this part victimisation occurs where dismissal or other adverse treatment of an Employee by his or her Employer occurs as a reaction to

(a) A complaint of discrimination made by the Employee to the Employer

Findings

It is common case that the Complainant had a phobia concerning rats. The Act in Section 2 includes amongst the definition of disability in subparagraph (e) the following

• (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, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

On the basis of the uncontested medical evidence before it the Court finds that the Complainant had a disability within the meaning of section 2(e) of the Act.

It is common case that there was an increasing rodent problem resulting from the earth works associated with the building work going on, on an adjacent site. Accordingly the first issue for the Court to decide is whether the complainant was, in light of her disability, afforded reasonable accommodation to perform her work.

The rodent problem was evident from as early as May 2008. The Respondent was aware from the incidents that occurred in 2008 and from the Complainant’s reaction to sightings of rodents that the she had a phobia concerning rodents. The Complainant sought reasonable accommodation from the Respondent to enable her to undertake her duties in the Company. The accommodation the complainant sought was for the Company to develop and institute a coherent and effective plan to deal with the rodent problem. She suggested the use of a professional pest extermination company for this purpose. The Company baulked at the cost of such a service. Instead it experimented with various measures to try to control the problem. These ad hoc solutions failed to address the problem. Eventually the Respondent engaged Mr A to professionally manage the problem.

The engagement of Mr A or the plans he proposed were never discussed with the Complainant. As far as she was concerned she was of the view that the Company continued muddling through the problem. When she returned to work she saw no signs of a plan or a management policy to deal with the issue.

The first occasion on which the Respondent sought to advise the Complainant of the steps it had taken is indicated in the letter of 25 August 2010. That letter indicated that measures had been taken but did not set out the details of those measures. Thereafter relations between the Complainant and the Company took a turn that would ultimately lead to a termination of her employment.

It would appear therefore that the Respondent did not communicate to the Complainant the steps it had taken to put in place the reasonable accommodation she sought.

The accommodation the Complainant sought consisted of 1) the development of a pest prevention strategy, 2) Documentation of the Strategy 3) Risk Assessment of the Work Environment and 4) Monitor that the strategy was working correctly.

From the evidence it would appear that the measures taken by the Company amounted to engaging Mr A to address the problem. He was provided with no terms of reference. He was not asked to prepare or document a strategy for dealing with the problem. He was belatedly asked to keep records after the Complainant’s solicitors wrote to the Company in August 2010. The records he kept are, by his own admission, inadequate and incomplete. He acknowledged in evidence that the records he kept were insufficient to enable one to determine the extent of the problem or the extent to which it had been dealt with. No evidence was presented to the Court that the Respondent at any time carried out a risk assessment of the work environment. Finally Mr Pluck acknowledged that there was no systematic review of the effectiveness of the strategy undertaken.

The Court finds therefore that the Company did not assess the reasonable accommodation sought by the Complainant. Accordingly it came to no conclusion as to whether the accommodation sought was reasonable. From the evidence the Court finds that the facts reveal that that the professional management of the problem would have been inexpensive and easy to document had the Respondent been willing to do so. Mr A told the Court that the problem was quickly resolved at a cost he estimated at €100. However his engagement or the plan he proposed was never discussed with the Complainant and she remained unaware of these developments until after she had been dismissed. In this regard the Respondent failed to provide the Complainant with reasonable accommodation within the meaning of the Act.

. The Complaint is well founded. The appeal is allowed. The decision of the Equality Officer is set aside.

Harassment

Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The complainant submits that she was harassed on 3 August 2010 when Mr Langran shouted, screamed and raised his voice to her regarding the smell of dead rodents. During oral testimony, the Director stated that although it was 'not in his nature', but stated that he “may have raised his voice at her”. He did not contest her evidence that he referred to the rats as “her little friends” in the course of that conversation. He accepted the Complainant’s version of events. He said that it was not his intention to so treat her.

On the evidence before it the Court finds that the Respondent created a hostile and intimidating environment through his behaviour towards the Complainant on her return to work on 3 August 2010. The hostile environment was connected with the rodent problem the Complainant had raised with the Company and was thereby connect with her disability. The incident led to the complainant leaving work to which she never returned thereafter. In those circumstances the Court finds that the Complaint is well founded.

Victimisation

The complainant submits that she was victimised for making a complaint on 2 September 2010 to the Respondent regarding a breach of the Acts. She argues that her sick pay was stopped on 13 September 2010 partly as a consequence of that complaint.

Section 74(2) of the Acts defines victimisation as follows:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

In the letter of the 25 August 2010, the respondent indicated to the complainant that it would have to place her on unpaid sick-leave and gave her two week’s notice of this fact. The Court takes the view that the purpose of the letter was to bring the Complainant’s absence from work to an end. The letter gives the Complainant two week’s notice of the action it intends to take. At the same time it states that the Company hopes the Complainant will be in a position to return to work before that date. It would appear that that was the real purpose of the letter and the threat of the removal of sick pay was the means by which it intended to bring this about. This letter cannot be read in isolation however. It is a response to the circumstances in which the Complainant found herself. She suffered from a phobia. She identified the reasonable accommodation she sought. The Company failed to engage with her to assess and or address her needs. Yet it nevertheless threatened to remove her income from her without providing her with any accommodation that would enable her to return to work.

Between the time the letter of the 25^thAugust was written and the implementation of the decision to remove her from sick pay was implemented on 13 September 2010 the Complainant had her solicitors write to the Company setting out her concerns. No meetings with the Complainant were arranged in that time despite her willingness to meet the Company. Neither did the Company set out the terms of the accommodation it had put in place to enable her to return to work.

Accordingly the Court finds that the actual removal of the Complainant from sick pay arrangement on 13 September 2010 is part of the failure of the Company to engage with the Complainant and was a device to compel her to return to work without any effort to assess or accommodate her disability. It was influenced by the letter the Complainant’s Solicitor wrote to the Company on 2^ndSeptember. The Company did not write to or meet with the Complainant to outline the measures adopted by it to deal with the rodent problem. Instead it reacted to the letter from the Complainant’s solicitors with silence until it discontinued her sick pay on 13 September. Accordingly the Court finds that the manner in which that decision was given effect to was influenced by the letter the Complainant’s solicitors wrote to the Company on 2 September as it failed to follow through on the commitments set out in the letter of the 25^thAugust despite the Complainant’s willingness to engage on the matter. Accordingly the Court finds the Complaint well founded.

Dismissal

The complainant submits that her redundancy was a sham and that the Respondent dismissed her for making a complaint under the Acts (i.e. victimisation).

The respondent submits that the trading circumstances of the Company were deteriorating over a number of years. By August 2010 the financial circumstances of the Company had become acute. On 18 August, the directors charged the General Manager, Mr Pluck, with the task of undertaking a financial review of the Company to identify measures by which costs could be saved or sales increased. In that report the Respondent found that it was apparent that it did not have enough work clerical/admin to keep someone occupied in a full time capacity. Mr Pluck submits that making the Complainant redundant was a cost saving measure necessitated by the financial state of the Company.

An analysis of the timeline involved in this matter reveals that Mr Pluck was invited by the Directors on the 18 August to review the cost structure of the Company and to make proposals to reduce costs and increase sales. At that stage the Complainant is out of work and an agency person is employed to replace her on a part time basis. On the 25^thAugust Mr Pluck writes to the Complainant hoping that she will return to work within two weeks after which her sick pay will be discontinued. No reference is made in that letter to the prospect of redundancy or to financial or other cutbacks. On 2^ndSeptember the Complainant’s solicitors wrote to the Company asserting her rights under the Act. There is no substantive response to that letter. The Accounts for 2009 are signed off on 10 September. They are consistent with the letter sent to Mr Pluck by the directors on 18^thAugust. They show a decline in profits. However, while they show a decline in turnover of in excess of €60,000 that year they show administrative expenses remains virtually static. Administrative expenses were not opened to the Court. On 5 October Mr Pluck presents his report to the Directors. It deals with two issues 1) Use of Technology and 2) Cost Management. It makes no reference to increases in sales despite the remit given to him by the Directors. The Cost management section deals exclusively with the proposal to make the Complainant redundant. There is no breakdown of costs. Neither is there a breakdown of the effect the changes proposed will have on the profit and loss figures for the Company. Overall the report is quite brief and limited. The Directors accept it within one day of receiving it.

In this context the Court finds that the justification for the redundancy cannot be separated from the events that are taking place in the Company at that time. On the balance of probabilities the Court finds that the Company decided to dismiss the Complainant as a means of dealing with the Employment Equality issues she was raising. The Company did not engage either with the Complainant or with her representatives. Instead it decided to take the opportunity presented by the Company’s trading position to terminate the Complainant’s employment. In this respect the Court finds that this decision was influenced by the Complaint she had made regarding the Company’s failure to reasonably accommodate her disability. Accordingly the Court finds that the Complaint is well founded.

Determination

The Court finds that the Complaints are well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €20,000

The decision of the equality officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court







Signed on behalf of the Labour Court



Brendan Hayes
21st January, 2014______________________
CO'RDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.