THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC – E2015-055
Ms Bernie Clavin
(represented by Mary Paula Guinness B.L instructed by M.E Hanahoe Solicitors)
versus
Marks and Spencers (Ireland) Ltd
(represented by David Farrell, IBEC)
File reference: EE/2012/368
Date of issue: 28th July 2015
Keywords: Employment Equality Acts, Disability, Discriminatory dismissal, reasonable accommodation
Dispute
1.1 The case concerns a claim by Ms Clavin against Marks and Spencers (Ireland) Ltd. Her claim is that she was discriminated against on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’] leading to dismissal.
1.2 Through her solicitor, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 6th July 2012. On 7th October 2014 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 26th November 2014 as required by Section 79(1) of the Acts. The last piece of information requested by me was received on 11th December 2015.
Summary of the complainant’s case
2.1 The complainant commenced employment as a Sales Advisor with the respondent in their Dundrum store on 15th March 2005. Ms Clavin submits that she enjoyed her work. However, in March 2011 she suffered an injury outside of work and was diagnosed with severe tendonitis. It required an operation and following that she was in a cast from her knees to her toes. She had to learn to walk again. At all times from then until her dismissal, she submitted medical certificates and kept her employer informed of the situation.
2.2 Ms Clavin was referred to the respondent’s Occupational Health Advisor (OHA) in line with the respondent’s policy. On 5th June 2011 she received a call from the OHA – a nurse based in the UK. Ms Clavin advised that she had been referred to a specialist due to the complications with her condition. At no time was Ms Clavin requested to attend a meeting or a medical examination with the OHA. The OHA said that they would seek a medical report from this Consultant Physician and Ms Clavin readily gave permission for her medical records to be shared with the OHA. That report arrived on 27th August 2011. In this report, the Consultant Orthopaedic Surgeon stated that Ms Clavin intended attending an other consultant in the Mater Private. In this letter he did not comment on whether Ms Clavin would or would not be able to attend work in the future.
2.3 On 15th September 2011 Ms B (HR Manager) wrote to the complainant calling her to a meeting. In this letter Ms B misquoted the orthopaedic consultant that the complainant attended: ‘In view of this I am unable to advise on a likely date of return to work in the short term foreseeable future’. Ms Clavin’s consultant did not write this. Both documents are submitted as evidence. Ms B’s letter went on to say ‘As there is no likely date for your return to work can you please attend a meeting to discuss your current situation’ Ms Clavin did not attend the meeting as she did not receive the letter in time before the meeting. This was because she had undergone surgery regarding her condition in the Mater Private the previous week and was recuperating at her sister’s home following the operation.
2.4 She phoned Ms B as soon as she returned to her own home to explain the situation. She was phoned by the respondent on 2nd January 2012 to attend a meeting on 4th January 2012 which she did. Even though the letter did not specify the bringing of medical reports, Ms Clavin rang her consultant surgeon (i.e. the one who had operated on her foot) but he had not returned from his Christmas break. The respondent did not inform her that she could bring anybody to attend the meeting with her. However, the complainant prudently brought her Trade Union Shop Steward to the meeting with her. Extracts of the notes (compiled by the company) are included below:
Ms Clavin: I went back to my surgeon and he said that it was a very intense operation. He removed a ligament and repaired two [ligaments] and that was quite severe. I had to learn to walk again. It still wasn’t right and he has given me pain patches for the pain. I have to go back to him in the New Year. …..
Ms B: The difficulty I have now is that you do not have a return to work date and that I can’t keep your job open and that you do not have a potential return to work date. I can’t keep the position open. If you can’t give me a return to work date I will have to dismiss you under ill health
Ms Clavin: I can’t say that I will be back next week as I don’t know if I could stand.
Ms B: It’s not that I disbelieve you; just the company cannot keep the job open
Ms Clavin If I say that I will be back to work next month it is only delaying the process
Ms B: Yes you might but it is your health. But we could not keep the job open. I will be honest. I will not be having another meeting with you. I will have to dismiss you if you do not provide a return to work date. I can’t keep your job open. And I have been quite upfront with you. On 4/10/11 we got a report to say that you be fit in 3 months.
Ms Clavin: Everybody is different
Ms B@ What did you see happening?
Ms Clavin: I am not costing you anything
Ms B: What did you want to see out of this? I am being quite honest. I can’t keep your job open unless you give me a return to work date.
Ms Clavin: If I got back to my specialist and see what he has to say
Ms B: If you go back to him and he say that you can be back in 6 months I would not be holding your job open. If it’s 4/6 weeks I will absolutely support you and rehabilitate you back.
Ms Clavin What support would I get?
Ms B: Reduced hours, different days
Five minute Break taken as Ms Clavin was upset
Ms Clavin: I can go to my specialist but four weeks is not long enough. What grounds are you letting me go on?
Ms B: Ill health dismissal. I can wait if you want to go and see your specialist and see if I can do something.
Ms Clavin: What is light duties?
Ms B: Bread/cakes it wouldn’t be for an indefinite period
Ms Clavin: You have an agenda here to get of me
Ms B: That is not the case. I want you back and will support you and if you feel that I am backing you into a corner I am not. You do not have a return to work date. The company will not keep your open as you have 172 shifts missed.
Ms Clavin: Say if I go back to my specialist and he says that I can’t.
Ms B: If he say that you can come back that’s fine. If he says no then we will not be having another meeting. I will put it in writing.
Ms Clavin: You are dragging this out.
Ms B: I am going to be honest; we are not going to keep the job open. But this needs to be confirmed. That you will be back in the next few weeks. If you can’t give me a return to work date then I will dismiss you under ill health. Will you come back to me by Friday?
Ms Clavin: yes
Ms B: have you any other questions. Your priority should be your health and there’s life outside M&S. And the company will not be keeping the job open for you or any other person. I reason I have offered you either you resign and you can apply again. If we dismiss you can’t [work here ever again]. Make a decision now, speak to your family and come back by Friday. [my emphasis]
2.4 The complainant points out that at no stage during this meeting was it proposed to refer her back to the Occupational Health department. The only assessment conducted by the Occupational Health department was by way of a telephone conversation with a nurse based in England six months previous to this meeting. No proper opportunity was given to the complainant to provide proper medical advice to support her case. Ms Clavin had changed consultants since the OHA report as the second one was willing to operate on her. He was not allowed to contribute in any way with his expertise prior to her dismissal.
2.5 Subsequent to the meeting Ms Clavin phoned Ms B and left a voicemail requesting more time to meet with her consultant as he had not returned from his Christmas break.
2.6 Neither Ms B nor any other servant or agent of the respondent returned her phone call. Her plea to allow her Consultant to provide a medical report was ignored. By letter on 10th January 2012 the complainant was dismissed on ill health grounds. Again the complainant submits that the respondent deliberately misquoted her in this letter ‘During our meeting on 4th January 2012 you advised that you were no longer attending your specialist and that you were attending your GP and a Pain Management doctor’. The complainant submits that the notes quoted above which were compiled by the respondent and are an accurate account of what was said. Ms Clavin clearly said in the meeting that she would be attending her consultant in the New Year. The complainant maintains that she subsequently made a good recovery and would have been able to return to work six months later (June 2012).
2.7 The complainant had significant issues with the respondent after her dismissal. She did not receive her payment in lieu of holidays and notice period for five months after the issuing of this letter of dismissal. The complainant was never informed by Ms B or any other servant or agent of Marks and Spencers that she could apply for an ill health pension from the respondent’s pension provider. On her own initiative, the complainant contacted the administrator of the scheme. They replied back that the HR Department of the respondent had informed them that she was a ‘leaver’ i.e. that she had resigned. This was patently not the case – Ms Clavin was dismissed on ill health grounds. Ms Clavin then approached a trustee of the pension scheme who confirmed that the HR Department had confirmed that Ms Clavin was a ‘leaver’. To date Ms Clavin has not had the benefit of this pension despite having made pension contributions towards this eventuality as well as other potential misfortunes.
2.8 Regarding legal argument, the complainant submits that the respondent failed to assess the complainant’s needs in respect of her employment, failed to consult adequately with the complainant regarding what appropriate measures the respondent could take so that the complainant could return to work. Cases cited were A Computer Component Company and A Worker where a complainant was not allowed to take a permanent position as she had (well-controlled) epilepsy where the Chairman of the Labour Court stated:
If the respondent did conclude that the complainant lacked full capacity to safely undertake the duties of her employment, it appeared to have done so precipitously. The decision was taken and implemented before the Doctor’s written report was received. As already observed, this written report does not definitively point to an insurmountable medical or safety impediment to the complainant’s continued employment and could be read as leaning to the opposite conclusion.
The respondent did not consider undertaking any form of safety assessment which could have identified the extent, if any, to which the working environment presented a danger to the complainant, and how any such danger could be ameliorated. Further, the respondent did not discuss its concerns with the complainant and did not advise her to obtain a second opinion from a neurologist as had been suggested by the Doctor.[1]
2.9 The complainant also cites A Health and a Fitness Club v A Worker[2]. The complainant submits that there is a positive duty on the employer to appraise themselves of the complainant’s medical condition. The Complainant suffered a severe injury and underwent surgery in Step ember 2011. Indeed one for the meetings which the complainant was to attend with Ms B had to be rescheduled because of this surgery. The complainant submits that it is clear from the respondent’s notes of the meeting (which the complainant accepts are a true recording of what occurred) that she was not given an adequate opportunity to provide further medical evidence regarding the timescale of her return to work. Neither was she independently medically assessed. In fact the respondent relied on a report from a doctor from 4 months prior to Ms Clavin’s dismissal and one who did not operate on her foot. When the complainant requested an extension of time, her employer of 8 years did not even have the courtesy to return her phonecall. No right of appeal of the dismissal was offered.
Summary of the respondent’s case
3.1 Marks and Spencers Ireland (Ltd) was established in Ireland in 1979. It has 21 stores throughout the country. The complainant was employed as a Sales Assistant on the express checkouts. She worked a 34.5 hour week and earned €14.50 @ hour. It submits that is an equal opportunities employer and a copy of its Equal Opportunities statement is submitted as evidence.
3.2 On 7th March 2011 Ms Clavin commenced a period of sick leave. As per company policy she sent in the relevant medical certificates which stated she was suffering from tendonitis. She had an informal meeting with Ms B on 19th May 2011 to discuss her fitness to work. Ms C was then referred to an Occupational Health Advisor on 14th June 2011. The report form the OHA was received on 12th September 2011. Based on the report from the first specialist the complainant attended, the OHA stated in this report ‘I am unable to advise on a likely date of return to work in the short term foreseeable future’.
3.3 The respondent acknowledges that the reason the complainant did not attend the meetings of 21st September and 28th September is that she was recuperating from an operation in her sister’s house and did not receive the letters on time. Ms Clavin rang Ms B to explain the situation and that she would be out of work for a further 2-3 months.
3.4 The respondent wrote to the complainant that they would be unable to keep her role open indefinitely. They submit that they were generous to postpone the final meeting untill 4th January 2012. At that stage, Ms Clavin had been out of work for nearly 9 months. The respondent submits that while the complainant phoned on 6th January, she was unable to provide contradictory medical evidence other than what was received.
3.5 The respondent submits that it is entirely reasonable to dismiss an employee who was no longer able to fulfil duties for which they were employed to undertake.
3.6 The complainant was accompanied by her trade union representative to this meeting. Regarding the ill-health payment, the respondent submits that this complaint is taken under the wrong legislation. Section 2(4) of the Employment Equality Acts 1998-2012 states that ‘a reference to conditions of employment does not include remuneration or pension rights’. Regarding her pension the respondent provided evidence that she ‘cashed out’ her pension. Ms B states the reason that she did not inform the complainant about the ill-health pension is that she could not say whether tendonitis is a long-term disability or not.
3.7 The respondent submits that it did examine potential reasonable accommodations but Ms Clavin was not fit to return to work in the short-term. It is not in dispute that she had tendonitis. Marks and Spencers submit that they did make adequate enquiries as to whether Ms Clavin was able to return to work. She was dismissed for incapacity. The respondent allowed the complainant 9 months to provide a back-to-work date but the complainant failed to do so.
3.8 The respondent cites Noonan Services Ltd and A Worker:
The Court is fully satisfied that a reasonable level of competence in English was an essential requirement for work in that area of the plant. The Court is also satisfied that the Respondent came to the view that the Complainant did not meet the minimum standard of competence required. Whether or not the Respondent acted fairly in reaching that decision is not what is in issue in this case. It is only if the decision was tainted by discrimination, in the sense that it was influence by considerations of the Complainant’s medical condition, that it could be rendered unlawful on the disability ground. There is no evidence whatsoever to show that the decision to reassign the Complainant to general day work was in any way related to her medical condition, whether or not the Respondent was aware of the nature of that condition.[3]
An other case referred to by the respondent was Department of Justice, Equality and Law Reform v William Kavanagh:
The purpose of Section 16(3) is to provide a person with a disability with “appropriate measures” or “reasonable accommodation” in order to render that person fully capable to undertake the full range of duties associated with their posts.[4]
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the respondent discriminatorily dismissed Ms Clavin and/or whether marks and Spencers Ireland (Ltd) are entitled to avail of the Section 16 defence. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 Disability is defined in Section 2 of the Acts:
‘‘disability’’ means—
(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;
It is worth noting that this definition includes temporary disabilities. It is not in dispute that severe tendonitis requiring an operation is a disability within the meaning of the Acts. Neither is it in dispute that the complainant made the respondent aware of her disability.
4.4 Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.
However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(3) (a) For the purposes of this Act a person who has a disability
is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully
competent and capable on reasonable accommodation
(in this subsection referred to as ‘‘appropriate
measures’’) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose a disproportionate burden:
(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.
4.5 The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court - A Health Club and A Worker (cited by the complainant and very familiar to the respondent’s representative). It is worthwhile to quote the relevant paragraphs:
This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered.The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [my emphasis][5]
Without doubt, this assessment is an onerous process for employers. It is worth bearing in mind why this burden is placed on them. Recital 16 of the relevant EU Directive states ‘the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination’.[6]
4.6 It is not denied that Marks and Spencers Ireland Ltd dismissed Ms Clavin on ill-health grounds. The respondent went through some of the motions necessary to defend a discriminatory dismissal claim i.e. referred to their Occupational Health Department; ensured notes were taken of the relevant meeting. However, it fell far short of best practice in many ways:
· Ms B misquoted Ms Clavin’s first specialist – see Paragraph 2.3 As well as being inaccurate, it indicates that this Ms B did not approach the possibility of retaining Ms Clavin as an employee with an open mind. The enquiries as to the factual position of the complainant’s prognosis were inadequate.
· That the decision to dismiss on ill-health grounds was mainly based on only one telephone conversation with a nurse six months previous to the dismissal significantly weakens the respondent’s defence. The OHA report was a ‘cookie-cutter’ response and not bespoke to the complainant’s condition. In the time that elapsed between then and the dismissal, Ms Clavin had changed consultants, had an operation but the complainant was not allowed to provide medical evidence from the relevant consultant i.e. the one that operated on her.
· In the circumstances of this case, two days’ notice for a meeting regarding the complainant’s dismissal is inadequate. No recommendation was made to bring medical evidence with her to the meeting. Neither was Ms Clavin informed that she could bring somebody to accompany her (as per company procedures) although no objection was made when she brought her shop steward with her. It is to the respondent’s credit that accurate notes were kept of this meeting. Ms Clavin clearly stated in the meeting that was due to attend her Consultant shortly but the respondent was not prepared to wait.
· It is profoundly discourteous to an employee of nearly seven years to ignore her request for an extension of time because her Consultant surgeon had not returned from his Christmas break. It is worth noting again that these events took place in early January. That this was not done also profoundly weakens the respondent’s defence
· No real explorations of reasonable accommodation were made. An appropriate measure in the circumstances of this case would have been to allow Ms Clavin recover from her operation and explore a return to work (based on medical expertise) in a few months subsequent to that meeting. Had Ms Clavin’s job been kept open for her for another six months, it is highly probable that she would have been able return to work as she has made a good recovery. Again it is worth noting that Ms Clavin was not in receipt of any payment from Marks and Spencers while she was on sick leave; therefore leaving her job open for her return would have been of nominal cost.
· No appeal of the dismissal was allowed which is not in line with fair procedures.
· By encouraging Ms Clavin to resign rather than be dismissed was asking the complainant to waive her rights as constructive discriminatory dismissal is harder to prove than an actual dismissal. It also is not in line with Marks and Spencers procedures which states: ‘On occasions an employee will, through no fault of their own, be unable to fulfil their contractual obligations. The company with the advice of Occupational Health will consider reasonably practicable ways to resolve the problem. In some case this may not be possible and the company may have to consider ill health dismissal. The HR manager will explore all available options with an employee prior to any decisions regarding ill health dismissal. The relevant trade union official will also be notified of any such cases. Where the options is to dismiss an employee on the grounds of incapability, the employee will be informed in writing of the reason and assured that should they make a recovery in the future the ill health dismissal will not be detrimental to their return to work with Marks and Spencer.’ [my emphasis] No such assurances were made to Ms Clavin (see final paragraph of notes of meeting in Paragraph 2.4. Clearly the respondent did not even follow their own procedures in relation to this dismissal.
· Ms Clavin was misquoted in the letter of dismissal by Ms B to her.
· While insufficient on its own to shift the burden of proof to the respondent, the failure to pay the complainant her statutory entitlements (notice pay and annual leave) is indicative of the callous approach the respondent took to the complainant.
4.7 To avail of the Section 16(3) defence an employer must show genuine engagement with the process of finding effective and practical measures to allow an employee to return to work. As per A Health Club and a Worker the respondent did not make adequate enquiries nor was it in full possession of the material facts regarding the complainant’s disability before it dismissed her. Neither was the complainant allowed to influence this decision – specifically she was not allowed enough time to provide medical evidence from the relevant Consultant Physician. The appropriate measure in this case would have been to extend Ms Clavin’s recuperation period. This was not explored. As Ms Clavin was not in receipt of any payment from Marks and Spencers (Ireland) Ltd while on sick leave, I am satisfied that would not be a disproportionate burden on a company whose revenue was £10.3 billion for the year ending 28th March 2015[7]. Therefore the complainant has established a case of discriminatory dismissal on the grounds of disability and the respondent is not entitled to avail of the statutory defence
4.8 Regarding the issue regarding Ms Clavin’s pension, I accept the respondent’s contention that it is a pension rather than an occupational benefits scheme as defined in Section 34 (3) (a) of the Acts:
‘‘occupational benefits scheme’’ includes any scheme (whether statutory
or non-statutory) providing for benefits to employees or any
category of employees on their becoming ill, incapacitated or redundant
but does not include any occupational pension scheme providing
for pensions, gratuities or other allowances payable on retirement
or death;
.
Therefore, this issue would be more appropriately taken as a complaint under the Pensions Acts 1990 to 2014. I also accept that being described as a ‘leaver’ does not necessarily mean that somebody resigned rather than was dismissed However, because Marks and Spencers did not adequately examine the likely duration of Ms Clavin’s absence from work, they could not advise the Pensions Administrator on whether an ill-health pension would or would not have been appropriate. However, I am not awarding any redress on this issue.
4.9 Because of the effluxion of time since the complainant lodged this complaint, I find that compensation is the appropriate form of redress. I must take cognisance of the effect a dismissal has on a person including the financial and social implications. Ms Clavin was in her 50s when this dismissal occurred - a time of life when her employment opportunities are lessened. I am also cognisant that Marks and Spencers lost a discriminatory dismissal on the grounds of disability case in this Tribunal where the facts mirror this one as recently as 2013. In that case, the Equality Officer ordered that ‘I recommend that the respondent ensure than all staff, in particular, those employed in human resource functions receive relevant training in Equality matters’.[8] Ms B admitted that this had not occurred. Penalties are required to be effective, proportionate and dissuasive. In a recent disability dismissal case, the Labour Court awarded the maximum allowed under the legislation i.e. two years of salary.[9] In this case, I think 18 months of salary to be appropriate as the respondent complied with some aspects of its obligations under the Acts.
Decision
5.1 I have concluded my investigation of Ms Clavin’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has discriminatorily dismissed the complainant on the ground of disability
(ii) the respondent hasfailed to provide appropriate measures that would allow the complainant to continue to be employed by them
Therefore, I find for the complainant.
5.2 In accordance with Section 82 of the Act, I order the respondent:
(a) pay the complainant €40,000 (the approximate equivalent of 18 months of salary) in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms Clavin’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(b) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct a review of its policies and procedures in relation to its employment policies to ensure that they are in compliance with these Acts with particular reference to the disability ground. Unless this decision is overturned on appeal, a report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year of the date of this decision. If this is not done, the Irish Human Rights and Equality Commission may (with the consent of the complainant) apply to the Circuit Court for enforcement of this order under Section 91(4)(b) of the Acts.
_______________
Orlaith Mannion
Equality Officer
Footnotes
[1] Determination No. EED013
[2] Labour Court Determination No. EED037 It was upheld in the Circuit court
[3] Labour Court Determination No. EDA1126
[4] Labour Court Determination No. EDA1120
[5] Determination No. EED037
[6] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation Official Journal L 303, 02/12/2000 P.0016 -0022
[7] Marks and Spencers Group plc Annual Report 2015. No specific figure for Ireland only was included in the Annual Report
[8] DEC-E2013-032 Gillian Donaldson v Marks and Spencer (Ireland) Ltd
[9] Labour Court Determination No. EDA1318 Shannon Regional Fisheries Board and A Worker