Equality Officer’s Decision No: DEC-E2015-118
Parties
Skoneczna-Nowak
(Represented by Mr. William Kelly BL
Instructed by E.M. O’Hanrahan - Solicitors)
-v-
EMart Ltd – Conor and Gay Jones
(Represented by Porter Morris - Solicitors)
File No: EE/2010/154
Date of issue:10 November, 2015
Employment Equality Acts, 1998-2051 – Sections 6 and –discriminatory treatment – dismissal – gender- miscarriage – disability- return to work.
1. DISPUTE
This dispute involves a claim by Ms. Danuta Skoneczna-Nowak (“the complainant”) that she was (i) discriminated against by EMart Ltd – Conor and Gay Jones (“the respondent”) on grounds of gender, disability and race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, disability and race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts and (iii) dismissed by the respondent in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998–2008. The respondent rejects the complainant’s assertions in their entirety and notwithstanding this position it submits that proceedings cannot be maintained against EMart Ltd as that company was dissolved in January, 2008 and that the complainant was never employed at any stage by Conor and/or Gay Jones. For ease of reference throughout this Decision I shall use the phrases “first named respondent” to denote EMart Ltd., “second named respondent” to denote Mr. Conor Jones and “third named respondent” to denote Ms. Gay Jones.
2. BACKGROUND
2.1 The complainant states that she commenced employment as a Catering Assistant with the first named respondent in March, 2005 and was promoted to the position of Store Manager in January, 2006. The complainant further states that she became pregnant in January, 2009 and that after five weeks of her pregnancy she was certified as unfit for work due to a high risk pregnancy with complications and she remained on sick leave until January, 2010. She adds that when she attempted to return to work at this time the second and third named respondents refused to allow her resume and it is submitted that this amounts to discrimination of her on grounds of gender, race and disability contrary to the Acts. She adds that subsequently she engaged in discussion with the second and third named respondents about a return to work. She states that during these discussions she was furnished with revised terms of employment which she considered to be less favourable to those she had enjoyed prior to her absence and she refused to accept them. The complainant adds that she made efforts to resolve the differences between her and the second and third named respondents over the following three months but the matter could not be resolved. She states that she eventually resigned her employment on 17 April, 2010. It is submitted on her behalf that she was entitled to do so as a result of the actions of the second and third named respondents and that this amounts to constructive dismissal of her amounting to discrimination of her on grounds of gender, disability and race contrary to the Acts. It is submitted, in the alternative, that this alleged dismissal amounts to victimisation of her contrary to section 74(2) of the Acts.
2.2 The complainant referred two complaints under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal - the first on 3 March, 2010 and the second on 27 July, 2010. In accordance with his powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015 and I issue this Decision as an Adjudication Officer who was an Equality Officer prior to that date in accordance with section 83(3) of the Workplace Relations Act, 2015. My investigation of the complaints commenced on 20 May, 2013 - the date the complaints were delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 12 July, 2013 and 29 October, 2013. A number of points which emerged at the second Hearing required further clarification and gave rise to correspondence between the Equality Officer and the parties subsequent to the Hearing. In the course of the first Hearing the allegation of victimisatory dismissal was withdrawn by the complainant’s representative.
2.3 Prior to the first Hearing I became aware that the first named respondent, which was a limited liability company, was “dissolved” in January, 2008 and the question of whether or not the Tribunal had jurisdiction to investigate the complaints arose. I decided to investigate this question as a preliminary matter in accordance with my powers under section 79(3A) of the Acts. The parties to the complaints were advised of this and were asked to address it at the Hearing on 12 July, 2013. The complainant attended at the Hearing and gave direct evidence. Her representative submitted a written submission (supplemented by oral argument) in the matter. He also addressed the question of whether or not the complainant’s complaint of alleged discriminatory treatment on grounds of gender (referred on 3 March, 2010) was properly before the Tribunal. The respondents neither attended nor were represented at this Hearing, although the second and third named respondents had written to the Tribunal on 24 April, 2010 and 10 November, 2010 and the contents of this correspondence was of assistance to me in reaching my conclusions on these issues. Having considered the relevant information in my possession at that time I decided that (i) I had jurisdiction to hear both of the complaints referred to the Tribunal and (ii) my investigation of the complaint referred on 3 March, 2010 would encompass allegations of discriminatory treatment on grounds of gender. I wrote to the complainant and the second and third named respondents on 24 July, 2013 advising on my conclusions in these matters; that the reasons for same would be set out in this Decision and that I would proceed to investigate the substantive elements of the complaints. Consequently, the reasons for my conclusions are included at Section 3 below.
3. PRELIMINARY ISSUE OF JURISDICTION
3.1 The question arises, in the first instance, as to whether or not the two complaints referred to this Tribunal by, or on behalf of, the complainant are properly before it for investigation. Both referral forms contain the following information at the relevant sections of each form where particulars of the person or organisation against whom the complaint is made “EMart Ltd – Conor and Gay Jones” at an address in south county Dublin (details supplied). It is clear from details contained on the Companies Registration Office database that EMart Ltd. was dissolved with effect from 11 January, 2008. Thus it ceased to have any legal existence from that date and the Tribunal has no jurisdiction to investigate any complaints referred against it. However, the question remains as to whether or not the complainant can maintain proceedings against Conor and/or Gay Jones.
3.2 From examination of the complainant’s contracts of employment I am satisfied that she commenced employment with EMart Ltd in March, 2005 and was promoted to the position of Store Manager in January, 2006. This employment relationship ceased on 11 January, 2008 when the company was dissolved. The complainant’s oral evidence at the Hearing on 12 July, 2013 was that she continued to attend work as normal and at the same location after January, 2008 and that (i) her shifts were assigned to her by either Conor or Gay Jones as previously, (ii) she took instruction from either as required and reported to them in terms of her responsibilities and (iii) she addressed employment issues such as annual leave to them. From examination of the correspondence to the Tribunal from the Conor and Gay Jones dated 10 November, 2010 it is clear that the complainant was working with them in January, 2009 – one year after the first named respondent was dissolved. It is submitted on behalf of the complainant that by continuing to employ the complainant after the date of dissolution, the second and third named respondents were employing her and dealing with her in their personal capacity, either individually or collectively as partners. Having carefully considered the matter I concur with the submission by the complainant’s representative. I note that the Labour Court reached a similar conclusion when addressing an analogous situation in Murphy v Orlowski & Sierzanski[1]. I therefore find that the complainant can maintain her complaints against the second and third named respondents (individually or jointly). I further find that as both of these persons are named on each of the complaint forms referred to this Tribunal both complaints are properly before me for investigation.
3.3 The second preliminary issue which requires attention is the question of whether or not the complainant’s initial complaint to the Tribunal on 3 March, 2010 encompasses allegations of gender discrimination. It is common case that the box entitled “gender” at section 4 of the Complaint Form – which seeks confirmation of the discriminatory ground(s) the complaint is advanced on - was not ticked. However, section 7 of the Form – which seeks a brief description of the nature of the complaint – contains several references to the complainant’s pregnancy. In the instant case this section of the complaint form is supplemented by a further page of details which is also peppered with references to the complaint’s pregnancy. It is submitted on behalf of the complainant that it was abundantly evident she was advancing a complaint of gender discrimination, notwithstanding she did not tick the relevant box at section 4 of the Complaint Form. It is further submitted that the respondent was on notice of this intention from the outset and Counsel relies on the judgment of Hogan J in Armstrong v Moffat & Others[2] where it was held that fair procedures (in terms of the respondent knowing what case it was required to answer) was met once the respondent was aware, in advance and in broad outline, of the case it was to meet at trial.
3.4 It is clear from caselaw[3] that the Tribunal’s Complaint Form is not statute based and it is permissible to amend a complaint provided the general nature of the complaint remains and there is no prejudice to the respondent. In the instant case the Complaint Form, which I note was completed by the complainant’s husband (both he and the complainant are Polish nationals whose first language is not English) had not ticked the “gender” box at section 4 of the form. It is however, beyond doubt that her complaint was premised on issues connected with her pregnancy. It is well established that issues connected with pregnancy are matters which can amount to less favourable treatment on grounds of gender in terms of section 6(2A) of the Employment Equality Acts, 1998-2008. The respondents were aware of the nature of the complainant’s claim from the outset and this notice complies with the test in Armstrong v Moffat & Others[4]. After considering the arguments advanced I find that (a) matters connected with the complainant’s pregnancy were part of the complaint from the outset notwithstanding the omission on the part of the complainant (or her husband) when completing the Complaint Form and (b) no prejudice arose to the respondent. Consequently, the complainant is entitled to advance her complaint on the gender ground.
4. SUMMARY OF COMPLAINANT’S CASE
4.1 The complainant, who is a Polish national, commenced employment with EMart Ltd. on 9 March, 2008 as a Catering Assistant. She adds that she was promoted to the position of Store Manager in EMart Ltd. on 6 January, 2009. She states that at all times she was employed at premises in south county Dublin. The complainant further states that she became pregnant in early 2009 and was certified unfit for work from 20 January, 2009 until 24 January, 2010, when she attempted to resume duty. She adds that from the outset of her absence she furnished medical certificates to her employer. In the course of the Hearing the complainant stated that the reason furnished to cover her absence from 20 January, 2009 to June of that year was factors connected with a high risk pregnancy. She added that her absence from June, 2009 to January, 2010 was due to kidney problems. Counsel clarified that the complainant suffered from a condition called Cystopyelitis – which is an inflammation of the bladder and renal pelvis. Counsel added that the complainant was diagnosed with a similar condition called Pyelonephritis – which is also a renal inflammation. In the course of the Hearing the complainant stated that she was diagnosed with these conditions in late June/early July, 2009. She presented no evidence that either of the conditions were pregnancy related in nature. Counsel argued that these conditions are disabilities in terms of section 2(1)(b) and (c) of the Employment Equality Acts, 1998-2008. Counsel asserted that the gender aspect of her complaint centred on the fact that she suffered two miscarriages during her period of absence.
4.2 The complainant states that in January, 2010 her GP advised her she was fit to resume duty and she sought a meeting with her employer in this regard. She further states that this meeting took place on 14 January, 2010 and that the second and third named respondents attended. The complainant adds that they discussed how business was going and they told her things were not good and that the third named respondent was now managing the shop. She further states that they spoke of re-training for the complainant bearing in mind her prolonged absence and that they would have to think about things in terms of her hours. The complainant adds that it was agreed she would resume work on a gradual basis – increasing her hours week on week – until she was restored to the hours she had prior to her absence. She further states that the second named respondent left the discussion and that when he did so the third named respondent asked her if she (the complainant) intended to try for another baby. The complainant states that she did not want to appear impolite and replied that she did not plan to do so at that time. The complainant rejects the assertion that this was a comment made by the third named respondent as two mothers talking. It is submitted on behalf of the complainant that this comment is at the least inappropriate and displays a negative predisposition by the second and third named respondents towards her which is discriminatory on grounds of gender. In the course of the Hearing the complainant stated that at that time she had not been certified (in writing) as fit to resume duties by either her GP or Gynaecologist, although they had confirmed this to her verbally and that she furnished the respondents with medical certificates for the previous four weeks’ of her absence. The complainant emphatically rejects the assertion made by the respondents that she advised them during this meeting that she only wished to resume work for five weeks to obtain the necessary PRSI contributions to render her eligible for State Disability Benefit. In this regard Counsel notes that the letter from the Department of Social and Family Affairs (as it then was) states the complainant’s entitlement to benefit will cease on 20 January, 2010 and that she requires thirteen weeks of insurable employment from then to re-qualify for the benefit.
4.3 The complainant states thatshe spoke with some colleagues on 18 January, 2010 and became aware that she was not rostered for training the following Friday (as agreed) and that her hours for the following week (commencing 25 January, 2010) were significantly below what she had expected. The complainant states that she e-mailed the second named respondent immediately seeking clarification of the situation and received a reply confirming that the hours assigned to her were different to what had been discussed the previous week. The complainant states that she replied by return, reluctantly accepting the proposal. She adds that the second named respondent subsequently contacted her (by telephone) seeking medical certification from her medical advisors that she was fit to resume work. The complainant adds that she agreed to do so but before she could arrange this she received an e-mail from him requesting that she attend the company doctor (Dr. M) as soon as possible to ascertain whether or not she is fit to resume duties. She states that she again responded immediately stating she would make the necessary appointment with Dr. M, but she took issue with other comments in the e-mail- namely those suggesting she had indicated to them that (i) her doctor had told her she was not medically fit to resume for another year and (ii) she only wished to resume work for a period to re-qualify her for State Disability Benefit. The complainant states that this e-mail also advised that the respondents had concerns for her health and that until this was resolved they were unable to roster her for work – which is in conflict with what was agreed at the meeting on 14 January, 2010.
4.4 The complainant states that she attended for medical examination with Dr. M on 25 January, 2010 and she certified the complainant fit to resume work. The complainant adds that both her GP and Gynaecologist also certified her as fit for work and she presented all three of these certificates to the respondents when she met with them on 27 January, 2010. She states that despite these medical opinions the respondents continued to resist her request to resume duty and a meeting was arranged for 3 February, 2010 to discuss the matter further. The complainant states that she received an e-mail from the second named respondent on 2 February, 2010 asking her to (i) furnish copies of her GP certificates covering her absence during the period January, 2009 – January, 2010 and (ii) confirm that she is available to work as rostered without exception. The complainant states that she replied immediately advising she had submitted these certificates regularly during her absence – the certificates covered a four week period – and that these had been posted or hand delivered to her place of employment during the year she was on sick absence. In the course of the Hearing the complainant re-iterated in direct oral evidence that she had submitted theses medical certificates – despite the third named respondent advising it was not necessary for her to do so – and that she had not kept copies of them. The complainant adds that she also confirmed to the respondents that she was available to work whatever hours she was rostered, although there were issues with working Saturdays and Sundays – she had never worked Sundays prior to her absence. Counsel for the complainant submits that it was entirely unreasonable of the respondents to expect the complainant to comply with this request and notes that neither of them had ever raised the matter during the twelve months the complainant was unfit for duty. He states that it only became an issue after the complainant sought to resume duty. It is further submitted that the complainant confirmed her willingness to co-operate with the respondents in respect of Saturday and Sunday working. Counsel submits that, in all of the circumstances, the actions of the respondents’ amount to discrimination of the complainant on grounds of gender, disability and race contrary to the Acts.
4.5 The complainant states that she immediately contacted her GP and asked her to provide a medical certificate covering her absence for the period 20 January, 2009 – 24 January, 2010. She further states that she believed this to be reasonable because she had sent regular medical certificates to her employer during her absence and had not kept copies of them. She adds that rather than go into her (the complainant’s) entire medical history her GP furnished her with a single certificate covering the period which made reference to just one particular condition “Pyelonephritis Chronic” as the reason for her absence. The complainant states that she furnished this to the respondents immediately and expected to be allowed to resume work soon thereafter. She adds that when she was not rostered for work she e-mailed the respondents on 16 February, 2010 wherein she recounted recent events – that three medical opinions (including the respondents’ own medical advisor) had certified her fit to resume work and requested that she be permitted to do so immediately. The complainant states that the respondents did not comply with her request but instead stated that they had consulted again with Dr. M for an explanation of the condition and on her suggestion they requested the complainant to attend Dr. B – an Occupational Health and Safety Expert. It is submitted on behalf of the complainant that this was an unnecessary step and was an attempt by the respondents to place a further obstacle in the complainant’s path as regards her return to work. It is further submitted that the actions amount to discrimination of the complainant on grounds of gender, disability and race contrary to the Acts. In the course of the Hearing the complainant confirmed that during her consultation with Dr. M on 25 January, 2010 she had not told her (Dr. M) of her medical conditions – as she did not consider them relevant – and the discussion focussed on her miscarriages.
4.6 The complainant states that she e-mailed the respondents on 20 February, 2010 wherein she (i) makes reference to her miscarriages and her “fragile health”; (ii) states she believes the failure to allow her return to work is because they (the respondents) are fearful she will be absent again in the future for the same reasons; (iii) states she believes the treatment of her to be discriminatory on grounds of disability (iv) advises that her GP had made reference to “Pyelonephritis Chronic” as the reason for her lengthy absence because this was the most recent of her conditions and (v) indicates she will attend for examination by Dr. B and has already commenced that process. The complainant states that the respondents replied on 24 February, 2010 wherein they make reference to her need to return to work to acquire sufficient PRSI contributions to qualify for social security benefit (which she denies) and the fact that they were not qualified to make an assessment of her fitness to return to work and that was why they required Dr. B to examine her. The complainant states that she met with Dr. B on 16 March, 2010 – the delay was due to issues acquiring medical records from the complainant’s medical advisor at her maternity hospital. The complainant adds that when she heard nothing from the respondents following her consultation with Dr. B she e-mailed them on 24 March, 2010 and 28 March, 2010 seeking an update of the situation. They replied on 29 March, 2010 advising the medical report was expected the following week.
4.7 The complainant states that Dr. B issued his report to the respondents on 1 April, 2010 but she was not furnished a copy of same at that time. She states that she received it around three weeks later. The complainant notes that Dr. B (in his report) states they discussed PRSI contributions at the consultation – she rejects this. She adds that around this time she made direct contact with Dr. B and was informed his report had issued to the respondents and that his opinion was that she was fit to resume work. The complainant states that she e-mailed the respondents on 5 April, 2010 advising them she was aware of Dr. B’s opinion and requesting that she be permitted to resume duty immediately. She adds that she heard nothing from them and e-mailed again on 9 April, 2010 repeating her request and advising that she viewed their actions as constructive dismissal. The complainant states that the respondents e-mailed her on 12 April, 2010 briefly recounting the events from January, 2010 (as they saw things) adding that there was no basis for constructive dismissal and that it was her decision to resign. She adds they further advised that the business was in financial difficulty and that any position she might return to would be on a different basis to what she had enjoyed prior to her departure on sick leave in January, 2009. The complainant states that she responded advising that she believed she was forced to resign. She adds that she requested a copy of Dr. B’s medical report and indicated that she would put her resignation on hold pending further discussions between them to see if any resolution of the issue could be reached – and stated that such discussions should conclude by 16 April, 2010.
4.8 The complainant states that the respondents made no contact with her before 16 April, 2010 and consequently she e-mailed them late that evening confirming her resignation and advising that she proposed to refer a complaint of constructive dismissal to the relevant authorities. She further states that the respondents e-mailed her on 17 April, 2010 rejecting their actions were inappropriate in any way and offered her a position as a Retail Assistant – a position similar to the one she held on commencement of her employment in 2005 – on terms and conditions which were significantly below what she had as Store Manager before her absence in 2009. The complainant states that the most significant of these changes centred on her hours of work (no standard or minimum level of hours each week), a reduction in her hourly rate of pay and a provision entitling the respondents to lay off the complainant or reduce her hours. She adds that she replied immediately refusing the revised terms and reconfirming her resignation. In the course of the Hearing the complainant stated that she refused the revised contract because (i) she was of the view she had a full-time contract as Store Manager and that this was still in force at that time and (ii) the revised terms were an insult to her. She was unable to say if other employees had been treated differently to her at the time.
4.9 Counsel for the complainant submits that the respondents agreed, at the meeting of 14 January, 2010 that the complainant could return to work the following week, albeit on a gradual basis and that this is reflected in the rosters for the two weeks following this meeting. He further submits that the respondents subsequently resiled from this agreement and thereafter engaged in a process which placed significant obstacles in the complainant’s path in returning to work – effectively preventing her from resuming duty despite medical evidence from three medical practitioners – including one nominated by them – that she was fit to resume work. Counsel adds that despite these opinions the complainant was subsequently required to attend Dr. B for further assessment and notes that he too certified her as fit for duty. It is submitted that the actions of the respondents in refusing to permit her return to work amounts to discrimination of her on grounds of (i) disability – because of the medical conditions she suffered; (ii) gender – because she suffered a number of miscarriages which are inextricably linked with pregnancy and (iii) race – they would not have treated a hypothetical Irish employee in similar fashion.
4.10 Counsel further submits that the actions of the respondents were such as to entitle the complainant resign from her employment – she was constructively dismissed. He adds that in addition to their efforts to prevent her return to work, when finally faced with medical evidence that she was fit to resume duty they offered her employment on terms and conditions so fundamentally different to those she had enjoyed before her absence commenced in 2009 that they were guaranteed to be rejected by the complainant. Counsel further submits that the complainant had demonstrated a strong willingness to return to work and was amenable to discussing the matter but the respondent was not willing to engage and the offer was extended on a take it or leave it basis. He contends, in essence, that the respondents engineered a situation where the complainant had no alternative but to resign and submits that this amounts to discriminatory dismissal of her on grounds of disability, gender and race contrary to the Acts.
5. SUMMARY OF RESPONDENT’S CASE
5.1 The second and third named respondents accept that they met with the complainant on 14 January, 2010 but reject her version of what occurred at that meeting. They state that the complainant advised them she continued to be very unwell with kidney problems and that her doctors had indicated she could remain so for a further year and that she was travelling to Poland in early February for further medical opinion. In the course of the Hearing they confirmed that the complainant furnished them with medical certificates for the period mid-December, 2009 – early January, 2010. The third named respondent subsequently resiled from this and stated that these certificates were received by post at the retail premises on 30 January, 2010. Both respondents stated that no medical certificates were received from the complainant at any time during her absence, although they accepted (in the course of the Hearing) that that they had access to the premises where the complainant contends the certificates were sent was open during the year and they had access to it. They further accepted that they were aware she had suffered two miscarriages during her absence. The respondents state that the complainant informed them she needed to return to work for a period of five weeks to acquire sufficient PRSI contributions to render her entitled to social security benefit. They add that they were inclined to help her and agreed to facilitate her request and she was rostered for a number of hours for the week commencing 25 January, 2010 to cover another employee who was due to go on annual leave and they anticipated that she would return to work on that basis. The respondents emphatically reject any assertion that the complainant was informed she would return to (i) her managerial position or (ii) on the terms and conditions she had enjoyed prior to her absence on sick leave. They add that at the meeting they informed the complainant that (i) the business was in a precarious position; (ii) the third named respondent had assumed the role of Manager without remuneration and (iii) the maximum they could afford to pay her was €10 per hour.
5.2 The third named respondent accepts that the second named respondent left the meeting and that she and the complainant continued talking. She states that this was a discussion about parenting and related issues between two mothers. The third named respondent rejects that she asked the complainant if she (the complainant) intended to become pregnant again but does accept that the issue of pregnancy and the complainant’s miscarriages were mentioned. The third named respondent also states that an issue (details supplied) which the complainant had encountered previously and which the third named respondent’s sister had also experienced, was also raised. The third named respondent states that she had previously introduced her sister to the complainant and they had discussed the matter – a point that was accepted by the complainant at the Hearing. It is submitted on behalf of the third named respondent that this discussion occurred over coffee after the meeting had concluded, that it was informal, convivial in tone and was set against the backdrop of what she (the third named respondent) understood had been a very difficult twelve months for the complainant. She rejects the assertion that it demonstrates a negative predisposition towards the complainant on grounds of gender, or at all.
5.3 The respondents accept that the complainant was rostered for hours during week commencing 25 January, 2010. They further accept that they received the complainant’s e-mail of 19 January, 2010 expressing her disappointment at the number of hours she was allocated and state that it was at this stage they formed the opinion that they should take professional advice on the matter and consulted their legal advisor. They state that after considering the advice obtained and in light of the complainant’s own comment that she continued to remain unwell, they decided to have her undergo a medical assessment by Dr. M (the company doctor) at their expense and the second named respondent e-mailed the complainant on 21 January, 2010 advising her of same. The respondents accept that the complainant attended Dr. M on 25 January, 2010 and that Dr. M issued an opinion that day wherein she certified the complainant fit for duty, which was furnished to them by the complainant on 27 January, 2010. They also accept that the complainant also presented medical certificates from her GP and Gynaecologist (dated 25 January, 2010 and 23 January, 2010 respectively) on that date. In the course of the Hearing the respondents stated that they refused to permit the complaint resume work from that date because she was unwilling to accept the new terms and conditions they were offering her employment on.
5.4 The respondents state that they had discussions with the complainant on two occasions during her prolonged absence in 2009. They add that the first such discussion occurred during a meeting on 24 June, 2009 when the complainant advised that if she was to return to work it would be part-time only, maybe afternoon. The complainant accepts this meeting took place but rejects the assertion work patterns were discussed. The respondents states that the second discussion took place on 4 November, 2009 when the parties touched upon when the complainant might resume work. They add that this discussion was followed by an e-mail from the complainant wherein she states “when the situation will change I will give you notice of at least two weeks before coming back and if offer is still open I would like to work afternoons if possible”. It is submitted on behalf of the respondents that the complainant was not disposed to returning to work on a full-time basis and that this only became an issue when they withdrew from their original decision to allow her return to work following the meeting on 14 January, 2010. In addition, it is submitted that the complainant effectively resigned her position as Manager when she indicated she wished to resume on shorter working hours, if and when she did resume duty, although they never clarified this understanding to the complainant at any time.
5.5 The respondents state that as responsible employers they were entitled and indeed required to establish the complainant’s fitness to resume work after an absence of more than a year. They state that they were unaware the complainant suffered from a disability in terms of the Acts and it is submitted that the complainant has advanced no evidence to the Tribunal that she suffered from any such disability. In the course of the Hearing the third named respondent confirmed that she had received medical certificates from the complainant (at latest 31 January, 2010) which indicated that the complainant suffered from Cystopyelitis and that this was the reason for her absence during December, 2009/early January, 2010. The second named respondent accepts that he requested the complainant (by e-mail dated 2 February, 2010) to supply copies of her medical certificates covering her absence during the period January, 2009-January, 2010. In the course of the Hearing he was unable to say why he made such a request or how this was consistent with the (accepted) comment he made to the complainant in March, 2009 that it was not necessary for her to submit medical certificates. The second named respondent accepts that the complainant furnished a single medical certificate covering this period on 3 February, 2010 wherein it states that her absence was due to Pyelonephritis Chronic. He adds that (i) as neither he nor the third named respondents were medically qualified and this was a new medical condition which conflicted with previous medical information furnished by the complainant, they sought the advice of Dr. M. The respondents state that Dr. M suggested referring the complainant to Dr. B – an Occupational Health and Safety Expert – and they e-mailed the complainant on 18 February, 2010 advising they had decided to follow this advice. The respondents reject the assertion that this was an attempt by them to place a further obstacle in the complainant’s path as regards her return to work and instead submit it was the actions of prudent and responsible employers.
5.6 The respondents argue that the complainant’s failure to disclose her full medical history to Dr. M caused delay and necessitated an additional medical referral to Dr. B. They further submit that this additional referral involved the collection of medical records from a variety of sources, which took some time and that the consultation with Dr. M was arranged with all reasonable speed. The respondents state that the complainant met with Dr. B on 16 March, 2010 and he issued his opinion on 1 April, 2010 –which they received on 6 April, 2010. They note that Dr. B comments there “are several conflicts in the history she has given and the certificates received” and that “presently (1 April, 2010) she is fit to carry out her duties, however I have serious apprehension that she will remain well for some weeks and a new issue will arise”. The respondents also note that Dr. B goes into some detail about the complainant’s proposal that she would resume work for a limited period to requalify for social security benefit. The respondents further note the complainant’s response of 21 April, 2010 to Dr. B wherein she takes issue with certain aspects of his report. They refer, in particular, to her comment that she intended to return to work on a trial basis for 4/5 weeks and submit that this is consistent with their recollection of the events of 14 January, 2010. They further submit that it is wholly inconsistent for the complainant on the one hand to seek to be rostered for more hours than she had been (in January, 2010) whilst on the other hand declaring (some months later) that she would return to work for 4/5 weeks as “after 2 miscarriages in one year and that prolonged health complications I was unsure if I will be able to carry my duties despite my certify fitness to work”. The respondents also note the complainant’s e-mail of 21 January, 2010 wherein she states her doctor mentioned she might be absent from work for a further month or so. The respondentstherefore reject that they discriminated against the complainant on any of the grounds cited.
5.7 The respondents accept that notwithstanding his reservations about the complainant, Dr. B was satisfied she was fit to resume work and state that they set about facilitating this once they were satisfied she was indeed fit to resume. They further accept that the received the complainant’s e-mail of 9 April, 2010 and responded by e-mail dated 12 April, 2010 wherein they recounted their understanding of events from January-April, 2010 adding that they viewed her decision to terminate her employment as premature and advising that if she wished to pursue this decision they would be unable to procced to discuss a role for her to return to as previously indicated. In the course of the Hearing the respondents stated they had advised the complainant at the meeting on 14 January, 2010 that the business was in financial trouble and that the third named respondent was carrying out the duties of Manager – the duties the complainant had previously performed – without remuneration. The respondents state that they e-mailed the complainant on 17 April, 2010 re-iterating this situation and offering her a contract as a Retail Assistant at an hourly rate of pay of €10. They add that this was the best they could offer and was consistent with other staff at Retail Assistant level. They further state that these terms were not forced upon the complainant and that she rejected them as unacceptable and resigned from her employment.
5.8 The respondents submit that the complaint did not act reasonably in refusing these terms and conditions and in insisting that she resume employment in the position she had before her absence in January, 2009 in circumstances where the economic position of the business had fundamentally changed. They add that the business collapsed and the shop closed in mid-July, 2010 - some ten weeks after they offered the complainant revised conditions of employment. The respondents further state that all staff were made redundant and received only statutory redundancy as the business could not afford anything else and that the complainant would have been similarly treated at that juncture had she acted reasonably and accepted the contact of employment offered on 17 April, 2010. In the course of the Hearing the respondents stated that none of the other employees had their terms or conditions altered at the time - January-April, 2010 or when they transferred from EMart Ltd. in November, 2009. It is submitted on behalf of the respondents that the complainant resigned her employment of her own volition and that she was not dismissed. It is further submitted that her actions in this regard were premature and cannot be regarded as sufficient to enable her maintain a complaint of constructive discriminatory dismissal on any of the grounds advanced.
5.9 In summary, it is submitted on behalf of the second and third named respondents that they acted reasonably and proportionately at all times in circumstances where they had genuine concerns about the complainant’s ability to resume work, particularly given the inconsistencies and discrepancies regarding her medical history. It is accepted that the initially sought to accommodate the complainant’s return to work in order to enable her acquire the necessary level of PRSI contributions to enable her qualify for social security illness benefit but that they reconsidered this decision on receipt of advice. It is submitted that everything changed after this and the complainant demanded she return to work on terms and conditions she previously enjoyed but the respondents were unable to accede to this due to a significant downturn in business. They offered her alternative terms and conditions which were not acceptable to her and she subsequently resigned from her position. It is submitted that the respondents did not (i) discriminate against the complainant or (ii) dismiss the complainant in circumstances amounting to discrimination, or any of the grounds advanced.
6. CONCLUSIONS OF EQUALITY OFFICER
6.1 The issues for decision by me are whether or not the second and third named respondents (i) discriminated against the complainant on grounds of gender, disability and race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender, disability and race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts. 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 of the parties at the Hearing.
6.2 Section 85A of the Employment Equality Acts 1998 - 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which s/he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
6.3 The first issue which requires attention is whether or not the complainant had a disability in terms of the Employment Equality Acts, 1998-2008. The medical certificates submitted to me as part of my investigation state that during the course of the complainant’s absence between January, 2009 and January, 2010 the complainant suffered from Cystopyelitis – which is an inflammation of the bladder and renal pelvis and Pyelonephritis – which is also a renal inflammation condition. Counsel for the complainant submits that both of these conditions are disabilities in terms of section 2(1)(b) and (c) of the Employment Equality Acts, 1998-2008. These sections provide as follows –
“disability means –
(a) ……
(b) the presence in the body or organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body…..”
I have carefully considered the evidence adduced by the parties on this matter and I am satisfied that both of the conditions mentioned above are encompassed by the definition of disability contained at section 2(1) of the Acts.
6.4 I shall now examine the complaint of less favourable treatment of the complainant in terms of the ground of disability.The second and third named respondents state they received no medical certificates from the complainant during her absence and submit that they were therefore unaware the complainant suffered from either of the conditions mentioned. The complainant states that she furnished medical certificates to them from the outset of her absence and that these were delivered by hand and/or posted to the address where she was employed. Having carefully considered this matter I am satisfied, on balance, that this was not the case. In this regard I note the second named respondent’s e-mail of 6 March, 2009 – some six weeks after she commenced sick leave – that he did not require a medical certificate covering her absence and this was in circumstances where the complainant had advised him she would be out of work for a further two to three months. Moreover, I note the respondents’ comment that they had access to the premises at all times during her absence. Finally, I am satisfied that had the respondents received medical certificates they would have furnished same to their legal advisor and/or this Tribunal. The complainant states that she furnished medical certificates to the second and third named respondents in the course of the meeting on 14 January, 2010 and I note that the third named respondent initially accepted this was the case in the course of the Hearing but that she subsequently resiled from this stating she received them by post on 30 January, 2010. A copy of these medical certificates and the envelope they were in was furnished to me in the course of my investigation. Having carefully considered the evidence adduced by the parties I am satisfied that these medical certificates were not received by the respondents until 30 January, 2010 and that the third named respondent was mistaken when she stated the complainant handed them to her at the meeting on 14 January, 2010. However, I note that these certificates, which state her absence is due to Cystopyelitis, only certify the complainant’s absence until 5 January, 2010.
6.5 It is common case that the parties met on 14 January, 2010 and that the outcome of this meeting was that the respondents agreed to permit the complainant return to work. I note the complainant’s comment that she did not furnish any medical certificate confirming she was fit to resume work and that the respondents did not seek such certification at this time. This is, in my view, consistent with the rather casual approach the respondents had displayed to the complainant’s absence over the previous twelve months. It is also common case that the respondents changed their minds shortly afterwards and withdrew their previous agreement to offer her shifts. Much is made of the disputed issue that the complainant was seeking to resume work to enable her acquire sufficient PRSI contributions to re-qualify for social security illness benefit. However, whilst this is mentioned by the respondents from the outset it is clear to me, from examination of the correspondence between the parties from 21 January, 2010 onwards – copies of which was submitted to me by the parties - and the direct evidence of both respondents at the Hearing, that the respondents’ concern for the complainant’s health and well-being was the primary factor which underpinned their behaviour. Indeed, they argue that they were obliged as responsible and prudent employers to adopt the approach they did.
6.6 The respondents state that prompted by this concern they requested the complainant to attend for medical assessment by Dr. M (the company doctor) at their expense. It is common case that the complainant attended for this medical assessment on 25 January, 2010. A copy of this medical opinion was furnished to me as part of my investigation and I note Dr. M’s opinion as follows – “I find her to be in excellent health. She is fit to return to work immediately.”. It is common case that the complainant presented this opinion (in writing) to the second named respondent on 27 January along with medical certificates from her GP and Gynaecologist (dated 25 January, 2010 and 23 January, 2010 respectively). I have examined both of these certificates and they state unequivocally that the complainant was fit to resume duty with immediate effect. I am satisfied that at this particular time any concerns the respondents may have had as regards the complainant’s fitness to resume work were allayed and they should have permitted her to do so. However, this was not the case and on 2 February, 2010 the second named respondent e-mailed her requesting that she furnish medical certificates for the full period of her absence. I find this request quite extraordinary bearing in mind (i) his comment of 6 March, 2009 that the he did not require the complainant to furnish medical certificates at all and (ii) this had never been an issue at any time subsequent to that, in particular at the meeting on 14 January, 2010. In the circumstances I find the actions of the second named respondent in requesting same to be unreasonable. In effect he was looking behind the medical opinion of three medical professionals, including his own nominated Occupational Physician. Moreover, the reasons why the complainant was absent for the period January, 2009-January, 2010 was irrelevant at that time as she was now certified fit to resume work and the matter could have been dealt with as an administrative issue whilst permitting her to resume duty.
6.7 Section 6(2)(1) of the Employment Equality Acts, 1998-2008 provides as follows-
“discrimination shall be taken to occur where –
(a) a person is treated less favourably than another person is, has or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the discriminatory grounds) ….”
It is well established that the first thing a complainant must establish is that s/he was treated differently to another employee. The provision requires that this difference in treatment must be compared with how someone else is or was treated in a comparable situation. However, it also encompasses a comparison with how someone might be treated in a comparable situation – the concept of a hypothetical comparator- where circumstances permit and require such a comparison. It is common case that there was no actual person for the complainant to compare herself with at the relevant time and in those circumstances I am satisfied that a comparison with a hypothetical comparator is permissible and necessary. I am further satisfied that the correct comparison is with a person seeking to return to work after a prolonged absence due to a different disability or for reasons unconnected with disability. I am satisfied, on balance, that the respondent would not have treated such a comparator in a similar manner – refusing a return to work – and that the treatment of the complainant was inextricably linked to the fact that she had a disability. In A Technology Company v A Worker[5] the Labour Court in adopting the approach considered by the UK Court of Appeal in Wong v Igen Ltd & Others[6] stated that "if the protected factor or characteristic is more than a " trivial influence" in the impugned decision, a claim of discrimination will have been made out.". Having regard to the comment of the Labour Court I find that the complainant has established a prima facie case of discrimination on grounds of disability in respect of the treatment of her by the respondents at end January/start February, 2010. In the course of the Hearing the respondents stated that they refused to permit the complaint resume work from that date because she was unwilling to accept the new terms and conditions they were offering her employment on. I cannot accept this. At that time no new terms and conditions had been offered to her. All that had occurred was that the respondents had informed her the business was in trouble and that if she were to return they would have to review her terms. It is abundantly clear that this proposition was unacceptable to the complainant. Consequently, I find that the respondent has failed to rebut the inference of discrimination raised and the complainant is entitled to succeed in this element of her complaint.
6.8 Whilst my finding in the previous paragraph dispenses with this element of the complaint, in the interests of completeness I will examine the subsequent actions of the respondents in terms of the allegation of less favourable treatment on grounds of disability. It is common case that the complainant complied with the second named respondent’s request and furnished a single medical certificate covering her absence. In the circumstances I am of the view that this was a reasonable response by the complainant, particularly as she was seeking to resume work as a matter of urgency. On receipt of this certificate the respondents decided to refer the matter back to their Occupational Physician (Dr. M) who in turn suggested she be referred to Dr. B – an Occupational Health and Safety Expert. The respondents argue that the complainant’s failure to disclose her full medical history to Dr. M caused delay and necessitated an additional medical referral to Dr. B. This again appears quite extraordinary. One might have expected that Dr. M would have conducted a full and thorough examination of the complainant, including a record of her full recent medical history, before delivering her opinion. I note the complainant states she had not told Dr. M of her medical conditions – as she did not consider them relevant – and the discussion focussed on her miscarriages. I find this to be, at the least, disingenuous of the complainant and is a matter which I propose to take into consideration in terms of the remedy ordered.
6.9 The respondents seem to suggest that the opinion of Dr. B is somewhat qualified and makes reference to a number of inconsistencies in the complainant’s medical history. In particular they make reference to the alleged comment made by the complainant to Dr. B that she was seeking to resume work for a short period to requalify for social security benefit. I have examined the opinion issued by Dr. M and whilst he expressed some reservations about her medical history he nonetheless certified her fit to resume work. If his concerns were significant he could have reached a different opinion as regards the complainant’s ability to return to work. I note his comment at the fifth paragraph of his opinion of 1 April, 2010 addressed to the second and third named respondent as follows “I understand from our discussion and referral that this lady has indicated during your January meeting that she had been advised by the Social Welfare department that is she returns to five full weeks of employment … she will be paid a full sickness absence benefit.”. Having carefully considered this comment in the context it appears in the letter, it is clear to me that the second and third named respondents had raised this matter with Dr. M and it was not an issue advanced by the complainant in the course of the consultation. Consequently, I am satisfied that this comment has no relevance to my conclusions.
6.10 I shall now deal with the complainant’s allegation that she was treated less favourably by the respondent on grounds of gender. In this regard she seeks to rely on the fact that she had suffered a number of miscarriages during her period of absence. The respondents accept that they were aware she had miscarried a number of times during the period involved. For avoidance of doubt I find that the medical conditions mentioned above are not pregnancy related illnesses(in this instance) on which she could ground her complaint of gender discrimination. Section 6(2)(A) of the Employment Equality Acts, 1998- 2008 provides as follows
“Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”
In a line of authorities starting with its judgement in Dekker v Stichting Vormingcentrum voor Junge Volwassenen[7] the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancyis direct discrimination on grounds of her gender. It is indisputable that miscarriage is inextricably connected with pregnancy and consequently is also something only experienced by women. I am satisfied therefore that any adverse treatment of the complainant as a result of her suffering a miscarriage amounts to direct discrimination of her on grounds of gender.
6.11 It is common case that the respondents were aware the complainant had suffered miscarriages during her absence. It is also common case that this issue was raised in the course of the discussion between the complainant and the third named respondent on 14 January, 2010. The third named respondent states that this issue was raised as a result of her concern for the complainant and I accept her comment in that regard. However, whilst the comment itself may not amount to discrimination, any decision taken by the respondents which used this information might be so. In this regard the Decision of the Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited[8] is instructive. In this case the Court stated that“discriminationis usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. The complainant was prevented from resuming work by the respondents when she was certified fit to do so. I am satisfied that the respondents’ actions were motivated, albeit non-intentionally, by the belief that the complainant would likely become pregnant again and would, in those circumstances, undoubtedly be absent from work again. Having considered all of the evidence adduced by the parties, I find, on balance, that the complainant has established a prima facie case of discrimination on grounds of gender contrary to the Acts and the respondent is now required to demonstrate that its actions do not infringe the principles of equal treatment.
6.12 In the same Decision the Labour Court also considered the standard of evidence which should be expected from a respondent seeking to rebut an inference of discrimination. It adopted the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite[9] (Gibson LJ) and held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden. Applying that test to the instance case I find that the respondents offered no cogent evidence to rebut the inference of discrimination raised and consequently, this element of her complaint succeeds. The complainant also referred a complaint of less favourable treatment on grounds of race (Polish nationality) contrary to the Acts. Counsel for the complainant submits that a hypothetical Irish employee would not be treated in similar fashion. The complainant has failed to establish any facts which might lead me to such a conclusion and this element of her complaint therefore fails.
6.13 I shall now examine the second element of the complainant’s case i.e. she was dismissed by the respondents in circumstances amounting to discrimination on grounds of gender, disability and race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts. It is clear that the respondents did not dismiss the complainant and that she resigned from her employment on 17 April, 2010. What is therefore at issue is alleged constructive discriminatory dismissal. It is common case that the respondents permitted the complainant to resume work after Dr. B had certified her fit to resume duties in early April, 2010. It is also common case that in doing so the respondents offered the complainant a revised contract of employment at the level of Retail Assistant, a post she held at the outset of her employment some years previously, with terms and conditions considerably below what she had enjoyed in January, 2009 when she was the Shop Manager. The complainant’s e-mail of 17 April, 2010 confirming her resignation states that she is doing so because she feels she is being forced out of her employment and considered the revised terms and conditions on offer at that stage to be “an insult”. The respondents state that due to the financial position of the enterprise this was all they could afford and offer and that the third named respondent was performing the complainant’s previous management role. In the course of the Hearing the respondents stated that the reason the complainant was not permitted to return to work during the period January-April, 2010 was because she would not accept the revised terms and conditions offered to her. I have already found at paragraph 6.7 above that this was not the case. I am satisfied that the first time the respondents formally put any revised terms and conditions to the complainant was when it furnished her with the revised contract attached to its e-mail of 17 April, 2010. I am also satisfied that these terms and conditions were considerably below those she had enjoyed immediately before her absence. Moreover, I note that the third named respondent was performing the complainant’s former role and it was not therefore redundant. In addition, the respondents state that the complainant was the only employee who had her role or terms and conditions altered in this way. I am satisfied that she would not have been treated in this fashion had she not been absent from work for the previous fifteen months. I have already held above, that the treatment of her between January and April, 2010 amounts to discrimination of her on grounds disability and gender contrary to the Acts. The question arises as to whether or not she was entitled to resign in the circumstances i.e. that she had no option but to resign, and if so, whether or not this amounts to constructive discriminatory dismissal contrary to the Acts.
6.14 Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2)[10] the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts.
6.15 I shall look at the circumstances of the instant case in terms of the “contract” test only as I consider this to be the most appropriate in the circumstances advanced by the complainant. This test generally refers to circumstances where the employee argues “entitlement” to terminate the contract. Itwas described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp[11] as follows:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. In the instant case the employer unilaterally sought to amend the complainant’s terms and conditions of employment. This action followed on from a period when the respondents had prevented the complainant from resuming work. In light of my comments at paragraph 6.13 above I am satisfied that the complainant was entitled to consider her contract repudiated and in doing so she was dismissed in circumstances amounting to discrimination on grounds of disability and gender contrary to the Acts. No evidence was adduced to support her assertion that her dismissal was connected with her nationality. The respondents did not explore other options that might have been available to accommodate the complainant’s return to work in her previous position and on her previous terms and conditions which would not exacerbate the financial situation it was experiencing. These options were clearly not palatable to them and in my view they took the easiest route available. I therefore find that the complaint was dismissed in circumstances amounting to discrimination on grounds of gender and disability contrary to the Acts.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find that -
(i) the second and third named respondents discriminated against the complainant on grounds of disability and gender in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary section 8 of those Acts when it refused to permit her return to work after a period of absence between January, 2009-January, 2010,
(ii) the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts when the second and third named respondents refused to permit her return to work after a period of absence between January, 2009-January, 2010,
(iii) the second and third named respondents dismissed the complainant in circumstances amounting to discrimination on grounds of disability and gender in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary section 8 of those Acts and
(iv) the complainant has failed to establish a prima facie that she was dismissed by the second and third named respondents in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts.
7.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015, I order that the second and third named respondents jointly pay the complainant the sum of €12,000 by way of compensation for the distress suffered by her as a result of the discrimination. I consider this award to be just and equitable in all of the circumstances of the case. This award does not include any element of remuneration and is not therefore subject to the Revenue tax code.
_______________________________________
Vivian Jackson
Adjudication Officer/Equality Officer
10 November, 2015
[1] EDA 125
[2] 2013 [IEHC] 148
[3] See Louth VEC v The Equality Tribunal [2009] IEHC 370
[4] 2013 [IEHC] 148
[5] EDA0714
[6] [2005] IRLR 258
[7] Case C 177/88
[8] EDA 051
[9] [2003] I.R.L.R. 322
[10] EED0410
[11] 1978] IRLR 332