The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-038
PARTIES
Piet Hagemen
(Represented by Mr Patrick O’Brien B.L,
Instructed by Patrick Tallan &Co. Solicitors)
AND
Best Ltd & Best Menswear.
(Represented by IBEC)
File reference: EE/2012/396
Date of issue: 26 June 2015
HEADNOTES: Employment Equality Acts, – Age - Discriminatory Dismissal,.
1.DISPUTE
1.1. This dispute concerns a claim by Mr Piet Hagemen (hereinafter referred to as “the complainant”) that he was discriminated against by Best Ltd & Best Menswear (hereinafter referred to as “the respondent”) on the ground of age contrary to section 6(2)(f) of the Employment Equality Acts (hereinafter referred to as “the Acts”) in terms of harassment and on the ground of disability when they failed to provide reasonable accommodation leading to dismissal in accordance with section 8 of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal 25 July 2012 under the Employment Equality Acts. On 28 January 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 14 April 2015.
2. SUMMARY OF COMPLAINANT'S WRITTEN SUBMISSION
2.1. The complainant commenced employment with the respondent as a senior salesman in October 1999 and was subsequently promoted to store manager. The complainant resigned in September 2002 for health reasons. He re-commenced employment with the respondent in 2005 was appointed as Drogheda store manager in November 2006.
2.2. The complainant submits that his age became an issue for the respondent from 2011 onwards, at which time he was 51 years of age. He submits that the respondent began to discriminate against him on the basis of his age and he submits the following as examples of this discrimination.
Specific examples of harassment.
2.3. In January 2011, Ms A was appointed by the respondent as the Area Manger covering the store managed by the complainant. The complainant submits that Ms A visited the complainants store and told him that the shop looked old and dated. The complainant does not agree with Ms A’s assessment.
2.4. In mid 2011, following on from the negative consequences of Ms A’s visit, the complainant submits that he was told during a personal review, by a senior manager for the respondent (Mr S) that a younger person could do the complainants job for less. Thereafter, the complainant submits that Ms A would talk to younger staff members about merchandising.
2.5. The complainant submits that on one occasion Ms A visited his store with two other younger employees for the purpose of re-merchandising and that he was completely side-lined during this process.
2.6. Later in 2011 the complainant submits that he had to discipline a member of his staff for poor performance but that the respondent’s failure to support him in this matter resulted in the complainant’s authority being undermined.
2.7. The complainant submits that during his second performance review of 2011, on the 20th of October, that management were unfairly critical of him and that a particular manager Mr J made a very personal remark regarding the complaints security of employment with the respondent and the effect unemployment would have on his financial position. The complaint submits he felt sick later that day.
Circumstances leading to resignation.
2.8. The complainant submits that over the following days he experienced intermittent chest pains. On the 26th of October the complainant’s doctor confirmed high blood pressure and Crohns disease which had been in remission up to that point. The complaint returned to work.
2.9. The complainant submits that on the 27th October that Ms A contacted him to say that “his management skills were being watched.” The complainant’s medical condition became worse and he went on extended certified sick leave.
2.10. On the 10th April 2012, the complaint wrote to the respondent enclosing a letter from his doctor stating that due to health reasons the complainant was not in a position to work in the retail sector. The same letter requested his P45 and P60 and raised the issue of a redundancy package.
2.11. The complainant submits that the respondent did not have a policy in place in respect of harassment and that as a result of the treatment received by the complainant at the hands of the respondent that his health suffered to the point that had to take sick leave.
3. RESPONDENT'S SUBMISSION
3.1. The respondent rejects all aspects of the complaint. The respondent categorically denies that it discriminated against or treated the complainant less favorably in relation to conditions of employment and all other matters alleged by the complainant in relation to the grounds of his age. The respondent submits that they employ people of all ages as they believe that it is of greater benefit to have a wide variety of age groups within the business.
3.2. The respondent argues that I have no jurisdiction to hear the complaint as instances of harassment put forward by the complainant were not referred within the statutory time limits.
3.3. The respondent emphasizes that it was Mr J who rehired the complainant in 2005 following the complaints first absence due to ill health indicating an overall positive attitude by Mr. J to the complainant in full knowledge of his age and medical condition.
3.4. The respondent submits that the at no time did the complainant make them aware that he was suffering from a disability that would require accommodation and that at no time did he make them aware of any detail of the complaint now before the Tribunal
3.5. The respondent submits that on receipt of the letter of 10th April 2012 that they had no option but to issue a P45 and that the issue of reasonable accommodation never arose. Regardless, the complaint submits that as their business is purely retail based no suitable alternative could have been identified.
3.6. The respondent submits that the co-ordination of the merchandising function within their business was centralized and that it was the practice at that time for Ms. A to visit a number of stores while he was accompanied by two other store managers for merchandising reasons. They submit that it was completely normal, or even expected that Ms. A would speak with all staff at the store regardless of the fact that they were younger then the complainant.
3.7. In relation to the incident of the complainant disciplining a staff member the respondent says that the complainant did not follow proper company procedure.
3.8. The respondent rejects that the alleged remarks by Mr. J and Mr. S were made and both managers attended the hearing to give evidence to that effect and that they had no knowledge of any unhappiness on the part of the complainant. The respondent submits that a good personal relationship continued between Mr. S and the complaint following his resignation and have provided the Tribunal with written correspondence in this regard.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against in terms of harassment in relation to his age and in terms of failure to provide reasonable accommodation due to a disability. I must also decide if either or both of these grounds where a motivating factor for the respondent in their treatment on the complainant leading to his dismissal. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me by both parties in the course of my investigation as well as his direct evidence presented at the hearing.
Reasonable accommodation.
4.2. In the instant case I find that the complainant voluntarily resigned through his letter of the 10th April 2012 without ever raising the issue of a disability with the respondent. It is agreed by the parties that the complainant never raised any issues regarding his health, age or any alleged incidents of mistreatment with the respondent. I find that, in the circumstances, that the respondent was not on notice that the complainant had a disability, had no choice but to accept the complainant’s resignation and that the issue of reasonable accommodation does not arise. I find no evidence to support allegations of constructive dismissal.
Time Limits
4.3. The next matter I have to consider is whether the complaints were referred within the statutory time limits. Section 77(5) of the Acts provides as follows:
(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".
Section 77(6A) of the Acts provides as follows:
For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
period"
The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. I must consider whether there was ongoing discrimination and whether all of the incidents were interlinked.
4.4. In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.”
In the instant case, I consider all instances of the respondent’s treatment of the complainant with regard to his age or disability may be linked. I must decide if a continuum of discrimination exists following examination of those instances.
4.5. Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.6. In Melbury Developments v Arturs Valpetters [1] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and thise is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd [2]that one of the facts which a complainant must establish is that thise was a difference in treatment between him/his and anothis person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)
Harassment
4.7. In relation to the allegations of discrimination the complainant has offered very little evidence other then the specific instances as at 2.3 to 2.9 above. I have allowed the complainant to present evidence preceding the six month time frame allowed under the acts in order to ascertain if a continuum of discrimination existed. I have examined each of the alleged incidents and find the following,
· The complainant alleges that Ms A stated that his store looked “old” in the manner that it was merchandised. At the hearing Ms A denies ever using the word “old” but rather she says she would have emphasised the need to refresh and update the stores appearance. It is agreed that by both parties that the comments were always about the store rather than the complainant and I find no evidence of harassment in regards to this incident.
· The complainant alleges he was side-lined due to his age and younger people were brought in. I accept the respondent’s submission that they are entitled to merchandise their stores according to a central policy and that the two other managers were chosen because of their skillset. It’s agreed that the Ms A did not think merchandising was one of the complainant’s strengths. As the same process was applied to a number of stores I can find no evidence of less favourable treatment.
· In relation to the two alleged discriminatory remarks made by Mr J and Mr S, I prefer the account put forward by the respondent specifically considering the continuing good relationship between the complainant and both managers.
· In relation to the allegation of lack of support when disciplining a subordinate the complainant has offered no evidence where as there is evidence that the respondent had genuine concerns that proper procedures were not followed.
4.8 I have considered all examples of discrimination put forward by the complainant and find that none of them individually of taken as a whole demonstrate that he was subjected to less favourable treatment due to his age.
4.9 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has established facts from which if can be shown that he was treated in a less favourable manner than others on the ground of age.
5. DECISION OF THE EQUALITY OFFICER.
5.1 Having considered all of the written and oral evidence presented to me. I find that that,
a. a prima facie case of discriminatory dismissal on grounds of age or disability has not been established and the complaint fails.
b. a prima facie case of failure to provide reasonable accommodation has not been established and the complaint fails.
c. a prima facie case of harassment on grounds of age or disability has not been established and the complaint fails.
___________________
Peter Healy
Equality Officer
26 June 2015
Footnotes
[1] EDA 0917
[2] Arturas Businkas v Eupat Ltd (In Liquidation) EDA103