DEC-E2014-038

DECISION NO: DEC-E/2014/038

PARTIES

Ilona Latvenaite

(Represented by Paul W. Tracey Solicitors)

Vs

Rocliffe Ltd.

and

ABP (Anglo Beef Processors Ireland t/a ABP)

(Represented by Purdy Fitzgerald Solicitors)

FILE NO: EE/2010/842

Date of issue: 26TH of May, 2014

1. Dispute

1.1 This dispute involves a claim by Ms. Ilona Latvenaite against Anglo Beef Processors Ireland t/a ABP and Rocliffe Ltd., that she was discriminated against on grounds of disability in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to her dismissal. There is also a complaint of Harassment.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 11th of November 2010 alleging that the above named respondents had discriminated against her on grounds of disability when she was dismissed from her job following a period of sick leave.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case, on the 8th of July 2013 to me, Orla Jones, 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 both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 14th of February, 2014. The second named respondent ABP was present at the hearing but the first named respondent Rocliffe Ltd was not in attendance. Final correspondence in relation to this matter took place on 22nd of May, 2014.

3. Summary of complainant’s case

3.1 The complainant states that she is a Lithuanian National and submits that she was employed by the second named respondent (ABP) at its factory in Clones from October, 2009.

3.2 It is submitted that the complainant in April, 2010 was absent from work on sick leave.

3.3 It is submitted that the complainant attended her GP and was advised that she had developed dermatitis and was unfit for work due to the condition of her hands.

3.4 It is submitted that the complainant submitted a medical certificate to the second named respondent indicating that she was unfit for work due to dermatitis.

3.5 The complainant submits that she returned to work on 17th of May 2010 and worked for a full week and was paid for same. On the 25th of May 2010 the complainant was approached by a manager Kevin who told her that she was dismissed as he stated that she had not submitted and medical certificates for her absence.

3.6 The complainant submits that while working at the factory the management refused to issue her with gloves when she advised them of the problem with her hands.

3.7 It is submitted that the complainant asked for a change of work to ensure less exposure for her hands but was refused as no one else would do that work.

3.8 It is submitted that others who requested a different job were permitted to move.

3.9 It is submitted that the complainant has not been furnished with a P45 since she left the job.

4. Summary of Respondent’s case

4.1 It is submitted that the complainant was employed by the Employment Agency, Rocliffe Limited and following her employment was placed by the agency in the Clones Plant of ABP from 15th of December 2009 until 24th of April, 2010.

4.2 It is submitted that on 24th of April, 2010 the complainant did not turn up for work and made no contact with any supervisory or management staff of ABP or with the Rocliffe representative at the plant.

4.3 The complainant remained absent without contact until 17th of May 2010 when she turned up for work.

4.4 During her absence period ABP sought clarification from Rocliffe Ltd. regarding the complainant’s absence but Rocliffe were unable to offer same.

4.5 The complainant re attended for work on 17th of May 2010 and was asked about the reason for her absence without notice. Following this Rocliffe Ltd removed the complainant from the plant.

4.6 Following this incident the complainant later attended the Clones plant and attempted to hand in medical certificates to ABP’’s supervisors. The complainant was advised that she must deal with Rocliffe Ltd in this matter as they were her employers.

4.7 ABP received no further contact from the complainant until notification of the claim from the Equality Tribunal. Following notification of the claim ABP made contact with Rocliffe Ltd who furnished them with the following documents

• Claimants P45 dated 26th of April, 2012
• Letter from Rocliffe Ltd to complainant dated, 17th of May 2010 requesting the reason for her absence from work since 23rd of April, 2010
• Letter from Rocliffe Ltd to complainant dated 1st of June 2010 requesting the reason for her absence from work since 22nd of May 2010
• Letter from Rocliffe Ltd to complainant dated 12th of July 2010 requesting that she contact Rocliffe as soon as possible and supply sick notes
• Letter from Rocliffe Ltd to complainant dated 6th of June 2011 referring to her long term absenteeism and requesting that she contact Rocliffe as soon as possible.
• Letter from Rocliffe Ltd to complainant dated 11th of April, 2012 referring to her complaint and to previous attempts to contact her and again asking her to contact them

4.8 It is submitted by the second named respondent, ABP, that there is no record of any claim of harassment made by the complainant during the 4 month period of her placement at ABP’s Clones plant.

5. Conclusions of the Equality Officer

5.1 Preliminary Jurisdictional Issue- Correct respondents

5.1.1 The first matter I must determine is whether the claim is correctly taken against both respondents. It is submitted on behalf of the complainant that both respondents are correctly as named respondent to her claim. The complainant in her complaint to the Tribunal named both Rocliffe Ltd and ABP as respondents to her claims. The complainant advised the hearing that she had worked for the second named respondent at their plant in Clones. The complainant advised the hearing that she wasn’t sure whether her contract of employment was with Rocliffe Limited or with ABP. She stated that she had filled in an application form for the job and was then employed at the second named respondent’s plant in Clones. The first named respondent Rocliffe Ltd was not present at the hearing and did not engage with or reply to any correspondence issued to them by the Tribunal. The second named respondent ABP was present at the hearing and stated that the complainant was employed as an agency worker by Rocliffe Ltd. ABP advised the hearing that the complainant’s contract of employment was with Rocliffe Ltd and that her terms and conditions were provided by Rocliffe Ltd.

5.1.2 ABP submitted a copy of the complainant’s contract with Rocliffe Ltd and advised the hearing that Rocliffe Ltd provides them with staff and that these staff are employed by Rocliffe Ltd and that contacts and terms and conditions are governed by Rocliffe Ltd (copy of signed contract and letter of offer of employment between the complainant and Rocliffe Ltd were submitted to the Tribunal). The complainant at the hearing agreed that she had applied to Rocliffe Ltd for a job as she had been advised to do so by a Lithuanian friend that but could not remember whether he was employed by ABP or by Rocliffe Ltd. The complainant advised the hearing that she had filled in a job application and signed a contract but couldn’t remember who they were from.

5.1.3 ABP advised the hearing that the complainant was at all times an employee of Rocliffe Ltd and that Rocliffe Ltd paid her salary. The complainant at the hearing stated that she couldn’t remember who her salary cheques came from. ABP advised the hearing that Rocliffe Ltd had a supervisor on site at its Clones plant to deal with the agency staff as part of its agreement with the agency and stated that it paid Rocliffe Ltd a certain amount plus 23% to provide staff to the plant. ABP stated that all staffing matters in relation to the agency staff were dealt with by Rocliffe Ltd and that all staff were governed by Rocliffe’s contract and terms and conditions. The complainant at the hearing did not dispute this and acknowledged that she had signed the contract in question.

5.1.4 It is submitted on behalf of the complainant that either or both respondents are correctly named as respondent’s to her claim. The terms ‘employer’ and ‘employee’ are defined by Section 2 of the Employment Equality Acts, 1998-2008 as follows –

" 'employee'...means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment",

" 'employer'..... means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employment has ceased, entered into or worked under) a contract of employment",

" 'contract of employment' means....

(a) a contract of service or apprenticeship......

whether the contract is or implied and, if express, whether oral or written".

5.1.5 It is clear from the evidence adduced that the complainant entered into a contract of employment with the First named respondent, Rocliffe Ltd and that her terms and condition were set out by Rocliffe Ltd. I am thus satisfied that Rocliffe Ltd, as the person with whom she has entered into that contract, is to be regarded as her employer for the purposes of the Act.

5.1.6 In addition, it is clear from the evidence adduced at the hearing that Rocliffe Ltd were responsible for the payment of the complainant’s salary. Thus, having evaluated all of the evidence adduced by the parties I find, on balance, that the first named respondent Rocliffe Ltd was the complainant's ‘employer’, in terms of Section 2 of the Acts, for the period encompassed by her complaint.

5.1.7 The complainant has also named ABP as respondent to her claims and in advancing this refers to the Labour Court decision in A Worker Vs Two Respondents EDA1129- which concluded that if liability towards the complainant was established both Respondents could be “regarded as being in the position of concurrent wrongdoers”.

5.1.8 In examining the reasoning applied in that case it is clear from the evidence adduced here that Rocliffe Ltd is an employment agency within the meaning of the Employment Agency Act 1971. I am satisfied from the evidence adduced here that the complainant had entered into a contract with Rocliffe Ltd and that Rocliffe Ltd was the complainant’s employer for the purposes of that contract. However, it has also been advanced in evidence that the complainant was also an ‘agency worker’ and for the purposes of Section 2 (1) of the Employment Equality Acts, 1998-2008 an agency worker is defined as follows:

“agency worker” means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;

The Employment Equality Acts also apply to ‘ providers of agency work’. This term is defined by s.2(5) of the Act as follows: -

“A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act 1971 , obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the “provider of agency work”.

5.1.9 It is accepted that ABP obtains the services of a number of agency workers pursuant to an agreement with Rocliffe. Once one of the services which Rocliffe provides to ABP is the supply of agency workers then it is clear that ABP is a provider of agency work for the purposes of the Act. Section 8 of the Act contains the general prohibition of discrimination. Section 8(1) provides: -

In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

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

5.1.10 The combined effect of these provisions is that both the first named respondent, Rocliffe Ltd and the second named respondent, ABP can be impleaded under the Act; the former as the complainant’s employer and the latter as the provider of the agency work for which the Complainant was employed. In these circumstances it would appear that if liability towards the Complainant is made out both respondents could be regarded as being responsible for any discrimination which may have occurred. I am thus satisfied that both respondents can potentially be held responsible for allegations of discrimination made by the complainant. In addition, I am satisfied that the complaint can in the current circumstances be taken against both respondents and I will assign responsibility as appropriate and contingent on my findings, for any individual breaches in the course of my decision.

6. Conclusions of the Equality Officer

6.1 The issue for decision by me now is whether or not the complainant was harassed on grounds of her disability in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 and whether she was discriminated against in relation to her dismissal. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

6.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.

6.3 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

6.4 Disability Ground

6.4.1 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts. Disability” is defined in Section 2 of the Acts as meaning –

“(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”.

6.4.2 It is submitted by the second named respondent that the complainant has not furnished any evidence of a disability within the meaning of the Acts and that the complainant did not at any time advise them of any disability. The second named respondent advised the hearing that the complainant had undergone a medical prior to being placed with them and stated that she had not at any time advised them that she suffered from any disability.

6.4.3 The complainant when questioned, at the hearing stated that she had not advised the first or second named respondent of any disability as she had only developed the condition as a result of working in the second named respondent’s meat plant. She stated that she had developed a skin condition on her hands which had been caused by a combination of handling raw meat and the constant use of disinfectant due to the type of work in which she was engaged at the meat plant. The complainant advised the hearing that she attended her GP in April 2010 due to the condition of her hands and that her GP had advised her at the time that she had developed dermatitis in her hands. The complainant submitted to the Tribunal numerous medical certificates from her GP indicating that she was unfit for work due to dermatitis. Based on the totality of the evidence presented I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.

6.5 Discriminatory dismissal

6.5.1 The complainant when questioned as to whether she had advised the second named respondent ABP of her condition stated that she had handed in medical certificates to the security guard on reception at the building during her absence from work in April 2010. The complainant could not recall the exact date on which she handed in the medical certs or the name of the person to whom she delivered the certs. The second named respondent advised the hearing that it had not received any medical certificates in respect of the complainant’s absence and stated that it only became aware of the existence of such certificates on 24th of May following an incident when the complainant returned to the plant and attempted to hand in medical certificates. The complainant when questioned at the hearing as to whether or not she had contacted the second named respondent by phone to explain the reason for her absence stated that she had not phoned them as her English was not very good. I note that the complainant has advanced her claims only on grounds of disability. The complainant stated that she had dropped in medical certificates to the security guard at reception. The complainant at the hearing could not provide any specific details regarding the date or date son which she allegedly handed in the medical certificates to security. The second named respondent advised the hearing that security was provided by a contract company and that the security guards at the reception desk are not employees of ABP and stated that the security personnel had not at any stage provided it with any medical documentation in relation to the complainant. The complainant advised the hearing that she had returned to work on 17th of May, 2010 and had worked for a week before being dismissed on 25th of May 2010.

6.5.2 The second named respondent ABP advised the hearing that the complainant had not turned up for work on 24th of April, 2010 and had made no contact with them in this regard. Witness for ABP, Mr. S advised the hearing that they had contacted the first named respondent Rocliffe Ltd when the complainant did not show up for work and advised them that the complainant had not shown up for work and had requested that a replacement be sent to the plant in her place. The second named respondent advised the hearing that Rocliffe Ltd had indicated to them that they had no knowledge of the complainant’s absence but that they had provided them with a replacement staff member. Mr. S advised the hearing that the replacement had continued in the complainant’s role and that they had assumed that the complainant had been removed from the plant by the agency, Rocliffe Ltd. Mr. S stated that ABP had not received any contact from the complainant during her absence and had not received any medical certificates from the complainant. Mr. S also advised the hearing that it had 320 staff and that he was not aware that the complainant had returned to work on 17th of May 2010 until he carried out a Labour Review the following week and discovered that they had an extra staff member in work on the week in question. Mr. S advised the hearing that he had, on discovering that the complainant had returned to work, contacted Rocliffe Ltd to ask about the complainant’s absence and her return. Mr. S stated that Rocliffe Ltd. indicated that they were not aware of the reason for her absence or that she had returned he stated that they never came back to him on this matter and he assumed that she had been removed from the plant and placed elsewhere. Mr. S stated that he had not made any decision to terminate the complainant’s employment and had not at any point been advised that she was suffering from dermatitis. Mr. S stated that ABP had no issue with the complainant’s absence as they had simply asked for and been granted a replacement by Rocliffe Ltd.

6.5.3 The complainant advised the hearing that she had approached one of the supervisors on 25th of May, 2010 regarding her absence from work. She stated that when she tried to give him her medical certificates she was told she was ‘finished’ there anyway and that she could ‘stick them up her a**’. The complainant at the hearing was not sure whether it was Gavin, Gordon or Kevin, one of whom is employed by Rocliffe Ltd and one of whom is employed by ABP, with whom this exchange had taken place. Witness for the second named respondent Mr. S advised the hearing that he was aware that the complainant had on that date been told that she had been replaced and stated that she was questioned as to why she had not supplied any reason for her absence. He stated that the complainant then left the premises but returned later that day with copies of medical certificates which she attempted to hand in. The second named respondent advised the hearing that the complainant was then told that she should deal directly with Rocliffe Ltd in relation to this matter. Mr. S added that ABP did not have any direct involvement in relation to employee sick leave issues apart from being advised by Rocliffe Ltd in such regard. Mr. S stated that ABP had no issue with the complainant’s absence as they had simply asked for and been granted a replacement by Rocliffe. Mr. S added that he had no knowledge of the comment allegedly made to the complainant by either Kevin, Gavin or Gordon. Mr. S stated that there was no manager called Kevin and stated that Gavin was employed by ABP but would have had no role in relation to the complainant, Mr. S stated that Gordon was an employee of Rocliffe Ltd and worked on site with some managerial duties. The complainant at the hearing could not say with any certainty which of the three individuals named had been responsible for the comment in question.

6.5.4 The complainant when questioned at the hearing as to whether she had notified the first named respondent, Rocliffe Ltd as to the reason for her absence replied that she had not. She also stated that she had not advised Rocliffe Ltd that she was suffering from dermatitis and had not submitted any medical certificates to them in this regard. The complainant when presented with the letters from Rocliffe Ltd inquiring as to the reasons for her absence, stated that she had not received such letters but acknowledged that she had changed address on a number of occasions and had lived at each of the addresses to which the Rocliffe correspondence was sent. The correspondence from Rocliffe had been sent to three different addresses at which the complainant had resided at during the period in question. In addition, I note that the earlier correspondence was sent to the address indicated by the complainant in her contract of employment. The complainant had at this stage been employed by the first named respondent for a period of 4 months so it is not unreasonable for the respondent to have issued correspondence to the address provided by her on her contract. Another letter was sent to an address which corresponded to an address on a number of the complainant’s medical certificates and the last one to an address which was the same as that given by the complainant in her dealings with the Tribunal. The complainant at the hearing acknowledged that she had resided at each of the addresses in question. I am thus satisfied that the correspondence from Rocliffe Ltd had issued to the complainant at addresses at which the complainant did reside during the period in question. In addition, I am satisfied that the complainant by her own admission did not at any time advise Rocliffe Ltd of her diagnosis of dermatitis and did not contact them to advise them of her absence from the plant where they had secured employment for her.

6.5.7 The complainant when questioned in relation to her dismissal, stated that she wasn’t sure if the manager named either Kevin, Gavin or Gordon, whom she had spoken to on the 25th of May 2010, had said she was dismissed. The complainant then advised the hearing that she continued to hand in medical certificates in relation to her dermatitis up to the end of October 2011. The complainant advised the hearing that she delivered these certificates to the security guard on reception in the building. The complainant advised the hearing that she had made no other contact with and received no contact from ABP during this time. She also stated that she had received no documentation from Rocliffe in relation to her dismissal until she received her P45 in 2012. The complainant advised the hearing that she had been claiming Social Welfare disability benefit due to her dermatitis.

6.5.8 The complainant has submitted that she was dismissed by ABP and/or Rocliffe Ltd due to her absence from work due to dermatitis. In the first instance the complainant has advised the hearing that she made no contact with the first named respondent, Rocliffe Ltd at any time in relation to her diagnosis of dermatitis and did not provide them with any medical certificates to that effect. The complainant at the hearing stated that she did not contact any one at the second named respondent, ABP to advise them of the reason for her absence, but stated that she submitted medical certificates to the security guard on duty at reception. It emerged at the hearing that the complainant had returned to work unnoticed during the period in question but was approached by a supervisor who questioned her regarding her failure to contact the second named respondent and provide any reason for her absence and advised her that she had since been replaced. Following this the complainant states that she attempted to provide medical certificates but was told that she was finished. The complainant advised the hearing that following this incident she wasn’t sure if she had been dismissed and so continued to leave medical certificates with the security guard at reception.

6.5.9 The complainant in advancing a claim of discriminatory dismissal against the second named respondent has advised the hearing that she was told on 25th of May 2010 that she was already finished/dismissed. The complainant in her submission had indicated that this statement was made to her by Kevin. The complainant at the hearing initially stated that the comment was made by Gavin who was an employee of ABP but as the hearing progressed it emerged that the person to whom she was referring may have been Gordon, an employee of Rocliffe. The complainant also advised the hearing that she was not sure whether or not she was dismissed by the second named respondent in May 2010 and added that she continued to submit medical certificates to the security officer at ABP’s for a year and a half after her alleged dismissal. I find that it is not reasonable for the complainant to have continued to submit medical certificates to the security guard on duty in the hopes of them getting to the respondent having been advised on 25th of May 2010 that earlier certificates allegedly submitted to the same place had not been received by the second named respondent. The complainant in her evidence has stated that she was not sure whether or not she was dismissed and so continued to submit medical certificates stating that she was unfit to work.

6.5.10 The complainant’s case of discriminatory dismissal against the first named respondent Rocliffe Ltd seems to rely initially on whether the comment made by either Kevin, Gordon or Gavin was made by an employee of the first or second named respondent, but the complainant could not say with any certainty who had made this comment. The complainant when questioned also stated that she was not sure whether she was dismissed at this stage but continued to submit medical certificates to the second named respondent only after this date. The complainant when questioned as to when she had been dismissed by the first named respondent stated that she had contacted them and asked whether she was dismissed but had stated that they advised her that she had not been dismissed. The complainant advised the hearing that she was unable to work during the period in question and stated that she had been obtaining medical certificates from her GP in order to facilitate her in claiming social welfare benefits during this time.

6.5.11 In order for the complainant to pursue a claim of discriminatory dismissal it is necessary for a dismissal/termination to have taken place. The complainant in this case has stated that she wasn’t sure whether or not she had been dismissed and also was not sure as to who made the comment which allegedly constituted such dismissal.

I am satisfied based on the totality of the evidence adduced in relation to these matters that the complainant was not discriminated against by the first or second named respondent in relation to her dismissal.

6.6 Harassment on grounds of disability

6.6.1 The complainant had in her claim to the Tribunal submitted claim of harassment on grounds of disability. The complainant at the hearing did not adduce any evidence to substantiate the claim of harassment on grounds of disability.

6.7 Requests made by the complainant

6.7.1 The complainant advised the hearing that prior to her absence period commencing on the 24th of April, 2010 she had requested that the respondent move her to a different job. The complainant advised the hearing that the job she was doing was a job no one would do and stated that she knew of others who had asked to move from this job and had been moved. The complainant did not recall the date on which she had made this request but indicated that it was before going on sick leave on 24th of April, 2010. The complainant has advised the hearing that she was only diagnosed with dermatitis in April 2010 and her evidence of such disability is contained in a medical certificate dated 26th of April, 2010. The complainant also advised the hearing that she was only diagnosed with dermatitis on 26th of April, 2010 at which point she was already on sick leave. It is thus not clear on what basis the complainant is seeking to claim in respect of this matter as neither the complainant nor the first or second named respondent were aware of any disability at this point in time.

6.7.2 In addition the complainant has submitted that she had requested that she be provided with gloves in order to help alleviate her condition. The complainant in her submission stated that she asked the second named respondent for more gloves in order to help with the condition of her hands, but she stated that the respondent had refused this request. The complainant when questioned at the hearing regarding when she had asked for additional gloves could not recall if she had in fact asked anyone for additional gloves but stated that she had on occasion brought her own gloves in from home as she stated that the gloves supplied by the respondent often split and stated that they sometimes run out of gloves. Mr. S witness for the second named respondent advised the hearing that the respondent insists that all staff wear disposable gloves at all times. Mr. S stated that this is of vital importance to the respondent as hygiene is a paramount concern given that they are working with raw meat products. Mr. S stated that there are dispensers containing disposable gloves at many points around the plant and that all employees are instructed to wear gloves at all times. The complainant at the hearing did not deny this but stated that the gloves often split and that they sometimes run out of gloves. She then added that she often brought in her own gloves from home as they were stronger than those provided by the respondent on the floor. Mr. S stated that he would never refuse an employee a pair of gloves and added that it is in the company’s interest that all staff maintain the highest standards of hygiene which means wearing gloves at all times. Mr. S also stated that such gloves only cost about 1c per pair and stated that there would be no reason why anyone would be refused extra gloves. The complainant at the hearing could not state with any certainty whether or when she had been refused additional gloves or when gloves had not been made available to her. It emerged from the evidence given that the alleged shortage of gloves occurred prior to the complainant’s diagnosis with dermatitis and so the allegation relates to a time period when the second respondent could not have had any knowledge of the complainants diagnosis. It is thus clear from the evidence adduced that any perceived shortage of gloves experienced by the complainant or any failure on the part of the respondent to replenish glove supply would have taken place prior to complainants diagnosis of dermatitis and thus at a time when the respondent would not have been aware of the complainant’s disability.

6.7.3 For the avoidance of doubt, and for the sake of completeness I will also examine these allegations in light of Section 16 of the Acts. Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[1].

6.7.4 I am satisfied from the totality of the evidence adduced above that neither the first or second named respondent in this case was not at the time in question aware that the complainant was a person with a disability for the purposes of the Act. It is also clear from the evidence provided by the complainant that she had not at this time been diagnosed with dermatitis. Thus the respondents could not at that time have been obliged to provide special measures in accordance with Section 16 of the Acts for an employee with a disability when the respondents had not at that time been aware of the existence of a disability. I am thus satisfied from the totality of the evidence adduced here that the complainant was not subjected to any discrimination on grounds of disability by either the first or second named respondent in relation to these matters. In addition, and for the avoidance of doubt I am satisfied based on the totality of the evidence adduced in relation to these matters that the complainant was not subjected to discrimination by either the first or second named respondent on the disability ground in relation to the provision of appropriate measures within the meaning of section 16 of the Acts.

6. DECISION OF THE EQUALITY OFFICER.

6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -

(i) the complainant was not discriminated against by the first named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to her alleged dismissal, and

(ii) the complainant was not harassed by the first named respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to Section 14A (7) of those Acts, and

(iii) the complainant was not discriminated against by the first named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to the allegations made at pgh 6.7 in respect of the requests by the complainant to move to a different job and in relation to the provision of gloves, and

(iv) the complainant was not discriminated against by the first named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the in relation to the provision of “appropriate measures” within the meaning of section 16 of the Acts.

(v) the complainant was not discriminated against by the second named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to her alleged dismissal, and

(vi) the complainant was not harassed by the second named respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to Section 14A (7) of those Acts, and

(vii) the complainant was not discriminated against by the second named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to the allegations made at pgh 6.7 in respect of the requests by the complainant to move to a different job and in relation to the provision of gloves, and

(viii) the complainant was not discriminated against by the second named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the in relation to the provision of “appropriate measures” within the meaning of section 16 of the Acts.

____________________

Orla Jones

Equality Officer

26th of May 2014

Footnotes:

[1] [2004] 15 ELR 296

DEC-E2014-038