DEC-E2016-119

EQUALITY OFFICER'S DECISION NO: DEC-E/2016/119

PARTIES

A Sales Assistant
(Represented by Keans Solicitors )

Vs

A Retailer

(Represented by Byrne Wallace Solicitors)

FILE NO: Et-149674-ee-14

Date of issue: 15th of August, 2016

1. Dispute

1.1 This dispute involves a claim by the complainant that she was discriminated against by the respondent ongrounds of disability in terms of section 6 of the Employment Equality Acts, 1998 to 2015 and contrary to section 8 of those Acts, in relation to her conditions of employment, and in relation to the respondent’s failure to provide her with reasonable accommodation. There is also a claim of harassment.

2. Background

2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 9th of October, 2014.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 9th of November, 2015 to me, Orla Jones Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 15th of April, 2016.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

3. Summary of complainant’s case

3.1 The complainant submits that

she has been employed by the respondent as a Sales Assistant since 30th of August 2003, and continues in this employment,

she fell ill on the 8th of July 2013 with meningitis and pneumonia following which she was left with a hearing impairment, with hearing loss and tinnitus,

she returned to work on 11th of November, 2013,

she sought assistance in returning to work and was not accommodated,

on several occasions the complainant has been called over the intercom when away from her till despite informing the respondent that she cannot hear the intercom,

she was initially afforded certain accommodations by the respondent such as being allowed flexibility with her hours,

the complainant requested that she be accompanied by a member of deaf/hear at any meetings with managers, which was refused by the respondent,

a letter issued from Deaf/Hear to the respondent indicating that a member of deaf/hear could be made available to accompany the complainant at meetings once advance notice was given.

4. Summary of Respondent’s case

4.1 It is submitted that

the complainant

has been employed by the respondent as a Sales Assistant since 30th of August 2003, and continues in this employment,

the complainant was absent from work from July 2013 to November, 2013,

in October 2013 the complainant met with the checkout manager and the HR manager to discuss her return to work,

the complainant confirmed that she was fit to return to work and provided a medical certificate to cover the period of her absence as well as a cert from her GP stating that she was fit to return to work on 11th of November, 2013,

the complainant advised the respondent on her return to work that she had been in a coma having had meningitis and pneumonia and following which she had been left with a hearing impairment,

the complainant indicated that she would like to work 4 hours a day for a couple of weeks to ease her return to work, this was accommodated by the respondent,

the complainant repeatedly sought reduced hours since her return to work in November, 2013 and has been facilitated with same on each occasion, she continues to work reduced hours,

on 23rd of January, 2014, the respondent’s HR manager, Ms. H met with the complainant and offered her the chance to switch to a flexi contract,

the complainant refused this offer as she stated that it would affect her payment if she got redundancy,

Ms. H met with the complainant again on 13 February, 2014 and informed her that she would be facilitated with 4 hour shifts for the next month again, to help her recuperate,

the respondent in a meeting of 19th of February 2014 sought an improvement in the complainant’s time keeping and was told by the complainant that her daughter brought her to work and that she couldn’t put her daughter under any more pressure,

Ms. H met with the complainant on 10 March 2014 to discuss the complainant returning to her contract hours, the complainant had reservations about this and so it was agreed that she could move up to 5 hour shifts for the next few weeks,

Ms. H met with the complainant on 19th of May, 2014 and the complainant advised her that she needed to take her medication at a certain time which she couldn’t always do due to her working hours, the respondent agreed that her breaks could be arranged around her medication times,

in a meeting on 7th of June 2014 the complainant was again accommodated with a reduction in working time, she was again offered a flexi contract which she refused,

In a meeting on 14th of July, 2014, Ms. H again met with the complainant and offered her 4 hour shifts for next six months, the accommodation of the complainant with four hour shifts has continued,

the complainant was placed at check out 2 or 3 as she indicated that these were quieter and did not affect her tinnitus as much,

the complainant was referred by the respondent to an occupational health specialist in September 2014, following a request for assistance from Deaf/Hear at management meetings,

every effort was made by the respondent to accommodate the complainant’s disability.

5. Conclusions of the Equality Officer

5.1 The issue for decision by me now is whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to her conditions of employment and whether the respondent failed to provide her with reasonable accommodation. The complaint of harassment was withdrawn at the hearing. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.

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

5.4 Preliminary Issue – Time Limits

5.4.1 The complainant in respect of this complaint has raised issues which occurred during the period 2013 and 2014. The complaint was submitted to the Tribunal on the 9th of October 2014 and cited the last date of discrimination as the 25th of September, 2014. The respondent in this case has submitted that a number of these allegations were referred outside of the 6 months time limits specified by the Acts. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown.

5.4.2 The complainant’s representative at the hearing submitted that the discrimination was ongoing and that the allegations were linked, however she also submitted that if a finding is made that the discrimination was not ongoing then the complainant is seeking an extension of the time limit to 12 months to include the allegations which fall outside of the 6 months but within the 12 month time limit. I note that the complainant in this case has been legally represented throughout this process since the filing of her claim on the 9th of October, 2014. The complainant’s representative in requesting an extension of time, in the alternative to a finding of ongoing discrimination, did not provide any reasons or justification which could be considered as ‘reasonable cause’ for granting an extension of time to 12 months. Accordingly, in the circumstances I am not satisfied that an extension of the time limits to 12 months is warranted.

5.4.3 The complainant advised the hearing that the discrimination is ongoing and that all of the acts of discrimination were continuing from the date of the complainant returning to work in November 2013. The complainant submits that they are repeated acts of discrimination by the same people in the course of the same employment and on the same ground.

5.4.4 The complainant in this case has submitted that the alleged discrimination is ongoing. It is possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, firstly however, establish that a discriminatory act occurred within the limitation period (see the decision of the Labour Court in Cork County VEC v. Hurley EDA 24/2011). In this regard I have decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment and of failure to provide reasonable accommodation which occurred between the 10th of April, 2014 and the 9th of October, 2014 i.e. in the 6 months preceding the complaint.

5.4.5 If I consider these alleged incidents to amount to unlawful treatment of the complainant contrary to the Acts, I will then consider the evidence adduced on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incident(s) within the six months preceding the referral of the complaint not to be well founded, the earlier alleged incidents would be statute barred.

5.4.6 It is clear from the above, that in order to consider the earlier alleged incidents of discrimination, I must firstly decide whether the most recent alleged incident of discrimination is proven. In addition, I must be satisfied that the complainant has established a link between the incidents and that they can be considered as separate manifestations of the same disposition to discriminate.

5.4.7 The complainant in this case has submitted that she was discriminated against by the respondent on grounds of her disability and that the respondent failed to provide her with reasonable accommodation for her disability.

5.5 Disability Ground

5.5.1 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.

“Disability” is defined in Section 2 of the Acts as meaning –

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms. causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

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

5.5.2 At the hearing, the complainant, when questioned about her disability submitted that she fell ill on 8th of July 2013 with meningitis and pneumonia following which she was left with a hearing impairment with hearing loss and tinnitus. She advised the hearing that she was diagnosed with loss of hearing in the right ear and that she was left with thirty percent hearing in her left ear. The complainant stated that she had also developed tinnitus after surgery for removing a clot from her brain. The complainant advised the hearing that she wears a hearing aid to assist her hearing. It is submitted that the complainant can understand what is being said when people speak slowly as she can supplement her hearing with some degree of lip reading but that this gets more difficult when there is a lot of background noise and/or in situations which the complainant finds stressful. The hearing of the claim was conducted with the assistance of a Speed Typist.

5.5.3 I am satisfied based on the totality of the evidence presented that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015.

5.6 Reasonable accommodation

5.6.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability (my emphasis) – this approach was endorsed in Humphries v Westwood Fitness Club[1].

5.6.2 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.

5.6.3 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court set out the approach that should be taken in order that an employer can rely upon the defence set out in Section 16(1)(b) of the Acts, namely:

"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.

5.6.4 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach, which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court.

5.6.5 Having regard to the time limits under the Acts I have decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment and of failure to provide reasonable accommodation which occurred between the 10th of April, 2014 and the 9th of October, 2014 i.e.in the 6 months preceding the complaint.

5.6.6 However in ascertaining whether or not the respondent’s treatment of the complainant amounts to discrimination and/or a failure to provide her with reasonable accommodation for her disability, it is necessary for me to examine the sequence of events which lead up to the six month period preceding the complaint. In examining these events I am doing so for their probative value in respect of the allegations of discriminatory treatment and of failure to provide reasonable accommodation, and not in the context of their being considered as separate incidents/allegations of discrimination. This investigation of events will lead me to reach a decision in respect of whether or not the complainant was subjected to a discriminatory treatment and whether the respondent failed to provide her with reasonable accommodation for her disability.

5.6.7 The complainant at the hearing, stated that she had advised the respondent of her disability following a period of illness which had led to her being absent from work from July 2013 to November 2013. The complainant advised the hearing that she returned to work on the 11th of November, 2013.

5.6.8 The complainant advised the hearing that she had prior to her return to work advised the respondent about her disability. It emerged at the hearing that the complainant’s daughter Ms. C had in fact advised the respondent about the complainant’s disability and Ms. C gave evidence that she had discussed her mother’s condition with the respondent’s Store Manager, Mr. K, prior to the complainant’s return to work. The complainant advised the hearing that she had on her return to work, given the respondent a letter from her doctor confirming that she was fit to return to work.

5.6.9 When questioned at the hearing as to whether any accommodations or special measures were requested by the complainant or on the complainant’s behalf to facilitate her return to work, the complainant stated that she had asked for reduced hours for a few weeks in order to enable her to ease herself back to work and to allow her to get used to her hearing aid. The complainant stated that the request for reduced hours was not on foot of a recommendation by her doctor but that she decided herself that she would need reduced hours for the first few weeks to enable her to get used to her hearing aid. The complainant went on to state that her balance was not very good and that she was still on a lot of medication and needed her daughter to drive her to work initially.

5.6.10 The complainant told the hearing that it was agreed with the respondent that she would return to work on 4 hour shifts initially. The complainant stated that this was agreed between Mr. K, Store Manager, and the complainant’s daughter prior to the complainant’s return to work. The respondent advised the hearing that they had conceded to the complainant’s request for reduced hours and stated that the matter of reduced hours had been the subject of ongoing and continuous engagement between the complainant and respondent since November 2013. The respondent submitted that several meetings took place between November 2013 and July 2014, with the complainant, wherein she requested and was granted reduced shifts of four or five hours duration for a number of weeks at a time. At the meeting of 14th of July, 2014 it was agreed that the complainant would be given reduced shifts of 4 hours a day for the following 6 months. It also emerged at the hearing that the complainant who was on a full time contract was on a number of occasions offered a move to a flexible hours contract in order to facilitate her with reduced hours on a longer term basis, but that the complainant refused this offer as she stated that it would affect her payment in the event of her being granted redundancy.

5.6.11 The respondent at the hearing stated that it had at all times facilitated the complainant in her requests for reduced hours and stated that the complainant was always accommodated in this regard. The respondent sought clarification as to whether it was being asked to answer allegations in respect for the hours the complainant was asked to work. The complainant’s representative clarified that the complainant’s hours of work was not being raised as an issue but that other accommodations were not provided. The respondent advised the hearing that the only accommodation asked for was granted by the respondent, that is a reduction in the complainant’s hours of work.

5.6.12 The complainant’s representative advised the hearing that the respondent had an obligation to seek out what assistance somebody with a disability requires and that this was not done in the present case.

5.6.13 The respondent advised the hearing that that the matter of reduced hours had been the subject of ongoing and continuous engagement between the complainant and respondent since November 2013. The respondent stated that the complainant had on a number of occasions sought reduced hours for an upcoming fixed period to facilitate her return to work and the taking of her medication. The respondent advised the hearing that these requests for reduced hours were always granted and that the respondent continuously engaged with the complainant to ascertain whether hours were suiting her and whether any changes were needed. The respondent in this regard submitted copies of minutes of numerous meetings between the complainant and management. These minutes indicate that the complainant sought reduced/particular hours to facilitate the taking of her medication following which it was agreed that she could take breaks from her checkout in order to take her medication. The complainant also advised the respondent that she needed to eat something when taking her medication and it was agreed that she could go to the canteen and eat something when she needed to take her medication, despite the fact that she would not be entitled to such a break given her reduced hours.

5.6.14 The minutes of the meetings also indicate that the complainant sought to be facilitated with working 4-5 hours a day, 5 days a week over the period Monday to Friday and requested that she would not be rostered to work Saturdays or Sundays as she needed these days to rest properly in order to ensure that she would not make mistakes on her checkout due to tiredness. The complainant also raised issues such as having to eat her dinner with her medication which the respondent advised her she could cook the night before and reheat at work when taking her medication but the complainant stated that she didn’t like to reheat her dinner. The complainant when questioned regarding problems with her time keeping referred to the fact that she had to be dropped to work by her daughter. It appears from the minutes of the numerous meetings held that the respondent engaged with the complainant on a continuous basis in order to facilitate her needs in respect of the hours she sought to work, and made numerous suggestions and allowances to facilitate the complainant. The complainant during these meetings also expressed interest in redundancy and queried whether she would be offered redundancy. The minutes of the meetings also indicate that the complainant was grateful to the respondent for granting her such flexibility in her working hours. The complainant expressed thanks to the respondent during these meetings.

5.6.15 The respondent advised the hearing that the complainant’s solicitor wrote to the respondent in December 2013 seeking the accommodation of fixed hours for the complainant and stating that this would enable the complainant to attend any necessary appointments and would facilitate her transport to and from work. The respondent advised the hearing that the complainant’s union had also written to the respondent seeking that the complainant be accommodated with fixed/reduced hours. The respondent stated that the complainant’s doctor also wrote on 7th February 2014 looking for accommodation on her behalf in the form of reduced working hours i.e. shifts of four hours a day. The complainant conceded that this was requested. The respondent advised the hearing that the complainant was granted reduced hours as per her requests.

5.6.16 The respondent advised the hearing that the first time that any request for accommodation other than reduced working hours was made was when the complainant’s solicitors wrote on 1st July 2014 asking for a social worker from Deaf/ Hear to accompany the complainant to meetings.

5.6.17 The complainant in the present case was not dismissed by the respondent and the respondent in this case did not take any decision to the detriment of the complainant. The respondent advised the hearing that the complainant continues to be employed by them and that she continues to be afforded reduced hours as per her requests for same following her return to work.

5.7 Meeting with Ms. J from head office June 2014

5.7.1 The complainant advised the hearing that she was called to the office on the 27th of June 2014, to meet with Ms. J from Head Office. It is submitted that the complainant was the second member of staff to be called in to the office on that day by Ms. J. The complainant stated that Ms. J went through her absences and referred back to the dates the complainant had been out sick in 2013. The complainant advised the hearing that Ms. J referred to the complainant’s absence from July to November 2013 and asked why the complainant did not ring in sick at the time adding that nobody knew what was wrong. The complainant advised the hearing that Ms. J had told her that failing to ring in when sick could lead to disciplinary action.

5.7.2 The complainant advised the hearing that she explained to Ms. J that she was unable to ring in sick as she had gone into a coma on 8th of July, 2013 and didn’t wake from it until August 2013. The complainant advised the hearing that she then terminated the meeting with Ms. J as she was annoyed at being threatened with disciplinary action. The complainant advised the hearing that she told Ms. J that she was terminating the meeting as she couldn’t understand any more what she was saying.

5.7.3 The respondent advised the hearing that Ms. J had called the meeting with the complainant not to discuss her sick absences but to discuss her time keeping. The respondent stated that the meeting was about the complainant’s time keeping and the fact that she had been late for work or late coming back from her breaks on 30 occasions in the preceding period. The respondent submitted minutes of this meeting to the hearing and the record of the meeting indicates that it was the complainant’s time keeping which was the subject of the meeting. The minutes show no reference to the complainant’s absence due to illness in July to November 2013 and the reference to disciplinary action is made by Ms. J in referring back to a caution the complainant received in March 2014 in respect of her time keeping. Ms. J, in the June meeting, refers to the previous caution in respect of the complainant’s time-keeping and to the fact that the complainant had been late on 30 occasions since that caution. The minutes also state that Ms. J advised the complainant that if her time keeping did not improve disciplinary action could be taken.

5.7.4 The record of the June meeting with Ms. J indicates that the complainant sought clarity as to whether she was at that point being issued with a caution and whether disciplinary action was now being taken. Ms. J clarified that disciplinary action was not being taken at that time, but that it could be if the complainant’s time keeping did not improve. The record of the meeting indicates that the complainant then terminated the meeting stating that she could not understand what was being said to her and stating that she would not meet with Ms. J unless she had someone with her.

5.7.5 Witness for the respondent, Ms. J advised the hearing that the complainant engaged with her throughout the 27th of June meeting and stated that the complainant did not appear to have any difficulty in communicating with her. Ms. J advised the hearing that the complainant did in the end terminate the meeting and that she did state that she didn’t understand what Ms. J was talking about. Ms. J advised the hearing that she had taken this to mean that the complainant’s issue was one of comprehension of the issue being discussed, as she at no point indicated that she had any difficulty hearing her. Ms. J stated that her understanding of the complainant’s reason for terminating the meeting was that the complainant did not comprehend the issue Ms. J was raising with her in respect of the possibility of disciplinary action if the complainant’s time keeping did not improve. Ms. J stated that she did not seek to rearrange the meeting with the complainant as it was not her store and she advised the complainant that she would inform Ms. H.

5.7.6 The complainant told the hearing that she did not recall seeing a copy of the minutes of the June meeting minutes previously.

5.7.7 The complainant in this allegation appears to be linking the threat of disciplinary action to her disability and to her sick absence from work. The respondent submits that this meeting was called due to the complainant having incurred 30 lates in the three month period, since being cautioned about her timekeeping, in March 2014. I do not find it unreasonable that the respondent would raise this as an issue with the complainant and I am satisfied from the totality of the evidence adduced in relation to this matter that this does not amount to less favourable treatment of the complainant on the grounds of her disability. I am also satisfied from the totality of the evidence adduced in relation to this matter that it does not amount to a failure on the respondent’s part to provide reasonable accommodation for the complainant’s disability.

5.8 Request for assistance at Meetings from Deaf/Hear- July 2014

5.8.1 The complainant told the hearing that she was often called to meetings with managers and /or staff of the respondent’s Human Resource team and stated that she had problems communicating in those meetings and in understanding what was being said. The complainant stated that she had as a result of this gone to her solicitor who then wrote a letter to the respondent on 1st of July, 2014 requesting that a member of Deaf/Hear be permitted to assist the complainant in any meetings or discussions with management. This letter also stated that the complainant would not be attending any more meetings with management without the presence of a social worker from Deaf/Hear.

5.8.2 The complainant advised the hearing that, she had approached a social worker at Deaf/Hear and the social worker had told her that she would be happy to attend the meetings with the complainant. The complainant stated that the Social worker then wrote to the respondent on the 27th of August, 2014 offering to attend meetings with the complainant once she was afforded a period of notice of same. The complainant advised the hearing that the respondent had refused this request stating that it was against company policy. The complainant advised the hearing that the attendance of Deaf/Hear would not cost anything and that they, once they received advance notice of the meetings, would be prepared to go and sit with the complainant in the meetings. The complainant stated that following the respondent’s refusal she had refused to attend any more meetings unless she had a social worker present.

5.8.3 The complainant advised the hearing that she and her solicitor had later received a letter from the respondent stating that the respondent had refused this request and stating that if the complainant refused to attend meetings with management, the respondent would have to proceed with disciplinary action. The respondent in this letter referred to the fact that the complainant in her job communicates on a daily basis with customers, managers and staff.

5.8.4 The respondent advised the hearing that the complainant’s job as a checkout operator means that she has to interact with managers several times a day for example if her till was over or under she would have to discuss it with management or if there were any issues with customers. The respondent advised the hearing that shortages or overs on the register and customer complaints or queries are examples of reasons why a till operator could be called up for a meeting and that there is little or no notice period given for such meetings. The respondent advised the hearing that if a register was over today, it would have to be discussed immediately with the till operator in order that the checkout bags could be balanced up for the following day. In addition, if there's a shortage on the register, the till operator would have to be asked if they remember something that happened on the day which could have caused the shortage.

5.8.5 The respondent advised the hearing that it would not be possible or practical to have a member of Deaf/Hear present every time a manager had to speak to the complainant. In addition, the respondent stated that it had been made clear to them that a social worker from Deaf/Hear could make herself available to attend meetings with the complainant, once sufficient notice was given. The respondent stated that a number of ad hoc meetings take place daily between a till operator and manager or supervisor and that it would not be possible to give notice of such meetings or discussions in order that a member of Deaf/Hear could be present. The respondent advised the hearing that the complainant interacted with customers and colleagues on a daily basis and that she had never prior to this indicated that her hearing difficulty had caused any problems in the carrying out of her daily duties.

5.8.6 The respondent stated that the complainant was advised that she could bring a colleague with her in any meetings with management but that the complainant had always declined to bring someone. The complainant at the hearing conceded that this was the case and stated that she was a very private person and would not want a colleague knowing her business.

5.8.7 The respondent advised the hearing that the complainant coped very well in dealing with customers and customer complaints at the checkout and that they were not aware that she had any issues understanding or communicating with customers.

5.8. 8 The respondent stated that the complainant had attended several meetings and discussions with management since her return to work and conceded that she had once or twice asked that something be repeated or that a person speak more slowly and that this was always complied with by the respondent. The respondent advised the hearing that the discussions with the complainant were usually on a one to one basis but that occasionally she would have to attend meetings with two members of respondent’s management team but that she was always advised in such situations that she could bring a colleague with her to the meeting for support.

5.8.9 Witness for the respondent, Store Manager, Mr. K advised the hearing that following receipt of the letter indicating that the complainant required assistance in meetings with management he then referred the complainant to the respondent’s company doctor Dr. R for assessment. Mr. K advised the hearing that this appointment took place on the 5th of September, 2014 and that reports were received from Medmark in this regard on 16th of September and on the 29th of October 2014 (submitted to the Commission). Mr. K stated that the respondent then acted upon these reports. Mr. K advised the hearing that the doctor’s reports advised that the complainant would benefit from working shorter shifts of 4 hours duration and that these should be between 9.00 am and 6.00pm. Mr. K stated that the reports also recommended that when speaking to the complainant they should “bring her to a quieted room and speak slowly and make eye contact with her (the complainant)”.

5.8.10 The respondent in referring to the Medmark report of the 29th October 2014, drew attention to the report which states that “ it's only reasonable to conclude that she (the complainant) has sufficient hearing to engage with her management colleagues” given that she has indicated that she has sufficient hearing to manage the till and to interact with customers. The report also stated that the respondent should not “call her to a meeting over a public address system, but rather invite her in person”. Store Manager, Mr. K stated that the majority of meetings are in the staff training room, and that it's a very quiet room. The report went on to state that the complainant is ‘ happy to work afternoons’ and that she has made “a great recovery but of course there's a significant residual hearing impairment and hoping with some accommodation, she can remain in employment”.

5.8.11 Witness for the respondent, Store Manager, Mr. K advised the hearing that the majority of the measures suggested in the Medmark reports were already in place in respect of the complainant. He stated that the complainant since her return to work had rarely been rostered to work more than 4 or 5 hours and when her hours were increased and she indicated that this was a problem for her, her shifts were changed to 4 or 5 hours shifts. It was agreed in a meeting on July 2014 that the complainant would be rostered for 4 hour shifts for the following 6 months. Mr. K went on to state that upon receipt of the Medmark reports all recommended measures/accommodations were discussed with the complainant and put in place as well as other measures which had been agreed with the complainant at the various meetings such as breaks to take her medication.

5.9 Difficulties with being called over the tannoy/intercom- 25th of September, 2014

5.9.1 The complainant advised the hearing that she had on occasion left her till to go to the toilets or to take her medication and stated that she always told someone when she was leaving. The complainant advised the hearing that she would often return to her till only to be told that her name had been called over the intercom while she was away from her till. The complainant advised the hearing that she was unable to hear the intercom due to her hearing problem. The complainant stated that the Checkout Manager, Ms. N, had called her over the intercom on a number of occasions despite knowing that the complainant couldn’t hear the intercom. She stated that she had approached Ms. N and asked her to stop doing this and that Ms. N had said “sorry I keep forgetting that you’re deaf”.

5.9.2 Witness for the respondent, Checkout Manager, Ms. N denied that she had referred to the complainant’s hearing impairment in such context or at all. Ms. N advised the hearing that she was not aware that the complainant had problems hearing the tannoy and stated that she had called the complainant over the tannoy to return to her checkout after noticing that the complainant had been absent from her checkout. Ms. N stated that all staff are called over the intercom when missing from their checkouts. Ms. N stated that she had called the complainant over the intercom on several occasions but that she had stopped this practice once the complainant informed her that she could not hear her name being called over the intercom due to her tinnitus. Ms. N stated that once the complainant advised her of this issue/problem she no longer called her over the intercom or tannoy.

5.9.3 Witness for the respondent, Checkout Manager, Ms. N advised the hearing that it is common case for employees who leave their checkout without notification, to be called over the tannoy or intercom. The complainant at the hearing conceded that this was the case ,”if you leave your checkout and you haven't told anyone where you are going, they would call you on the intercom to return back to checkouts”, however the complainant submits that any time she left, if Ms. N was not there, she would always inform someone else. The respondent submits that people were not always informed when the complainant was leaving her till, and hence she was called over the tannoy as was usual practice. The respondent went on to state that as soon as they were informed that the complainant had a problem with hearing the tannoy that they no longer called the complainant over the tannoy.

5.9.4 Witness for the respondent, Mr. K advised the hearing that he was not aware that the complainant was unable to hear the tannoy and that he had not been advised of this by the complainant. The complainant’s representative at the hearing submitted that it was reasonable to assume that if somebody is deaf, they cannot hear a tannoy. Mr. K in response to this indicated that people who have a hearing difficulty but who have a hearing aid, like the complainant would be able to hear a tannoy.

5.9.5 The complainant’s representative in advancing this aspect of the claim drew Mr. K’s attention to the minutes of the ‘back to work’ meeting which took place between the complainant and Ms. H, HR Manager and Ms. N Checkout Manager, on the 11th of October, 2013. The complainant’s representative submits that following this meeting Mr. K should have been aware that the complainant was unable to hear the tannoy/intercom, however upon inspection of these minutes, it appears that there was no mention of the intercom or tannoy or of the complainant having any issue with same at the back to work meeting of 11th of October, 2013. The minutes do however indicate that Ms. H, HR Manager raises a concern that the complainant may be missing words in the conversation and that she was shouting very loudly in the meeting. Ms. H at this meeting also refers to the complainant’s letter from her GP which certifies that she is fit to return to work. The complainant in response to this indicated that the doctor had said she was fit to work and that she was easing herself back in with the help of reduced working hours for the first two weeks and also indicated that her hearing aid was taking a little longer to settle in and to work properly due to her tendonitis. It is submitted on behalf of the complainant that the respondent discriminated against her by calling her over the intercom to her checkout. Witnesses for the respondent advised the hearing that this did happen but only up until they were notified by the complainant that she had difficulty hearing the tannoy/intercom.

5.9.6 I am satisfied from the totality of the evidence adduced in relation to this matter that this does not amount to discrimination or less favourable treatment of the complainant on grounds of her disability. I am also satisfied that it does not amount to a failure of the respondent to provide reasonable accommodation for the complainant’s disability.

5.10 New Checkout December, 2014

5.10.1 The respondent at the hearing raised an issue in respect of time limits in relation to this matter due to the fact that this allegation post-dates the lodging of the claim, in that it relates to a time period after the submission of the complaint. The respondent submits that it was open to the complainant to lodge a further claim to include the incidents/allegations which arose after the submission of the original claim form. While I note the respondent’s concerns in this regard, I should state that it is not envisaged that a complainant should have to submit an additional claim form for each and every alleged incident of discrimination. I am also satisfied in the present case that the respondent was on notice of this matter having received a copy of the submission on 29th of June, 2015, which includes details of this allegation. Thus for the sake of completeness and for the avoidance of doubt I will examine this allegation in the context of my decision.

5.10.2 The complainant advised the hearing that she had not attended work since December 2014. She advised the hearing that there was an issue in December 2014 where she was moved to a new till. The hearing was advised that the complainant had since her return to work, usually worked at checkout number 2 or 3, at her own request, as these were quieter than other checkouts and had no trollies behind them and so did not affect the complainant’s tinnitus.

5.10.3 The complainant advised the hearing that she had been told by Ms. N, Checkout Manager, on the 22nd of December 2014 that they were getting her a new till the next day which would be away from the other tills with no trollies in front of it and that it would help with her tinnitus.

5.10.4 The complainant advised the hearing that she went into work the next day but that, there was someone else on the till. The complainant stated that she then explained to the person on the till that it had been brought in especially for her and that it was going to make it easier for her to work. The hearing was advised that the person on the new till was then moved so that the complainant could use the new till as she had requested. The complainant stated that she found the new till difficult to use as everything was on the opposite side to the ordinary tills and that it was very complicated. The complainant advised the hearing that she had approached Ms. N the following day and told her that the new till was not working out for her and that she wanted to go back to her old till but that she appreciated that the till had been brought in for her.

5.10.5 The complainant advised the hearing that Ms. N then laughed and told her it had not been brought in especially for her but that it had been borrowed from another store because the store was extra busy as it was Christmas time and they needed an extra till. The claimant stated that she was annoyed as she had been led to believe that the till was brought in especially for her.

5.10.6 The claimant stated that she had then requested to be moved back to her old till and that this request was granted. The respondent advised the hearing that they had got the new till in for Christmas from another store and that the respondent prior to the arrival of the new till offered it to the complainant first, explaining that it might suit her as it was away from the other checkouts and the trolley noise. The respondent stated that the complainant did try the new till but didn’t like it and so requested that she move back to her old till which she was permitted to do. The respondent at the hearing denied that Ms. N laughed at the complainant’s error in thinking that the new till had been brought in especially for her.

5.10.7 I am satisfied from the totality of the evidence adduced in relation to this matter that it does not amount to discrimination or less favourable treatment of the complainant on grounds of her disability.

5.11 Conclusions

5.11.1 Witness for the respondent and HR manager advised the hearing that the complainant could communicate with customers, and with colleagues and that Ms. H had (as recommended in the Medmark report) observed the complainant speaking to customers and colleagues without any difficulty. Ms. H also stated that she had met with the complainant on her return to work and had asked her whether she was ready to return to work. Ms. H stated that the complainant had told her that she was fit to return to work and that she had submitted a fitness to work certificate from her doctor. Ms. H advised the hearing that the complainant explained what had happened to her during her illness and stated that she would need to work shorter hours for a few weeks in order to settle back into work and also to get used to her hearing aid. Ms. H stated that she asked the complainant whether the shorter hours had been suggested by her doctor and the complainant replied that it had not come from her doctor but that it was her own idea. Ms H, when questioned stated that the complainant did not at this stage mention that she would have difficulty in hearing the intercom or tannoy. Ms. H stated that the intercom only became an issue at a much later stage and that it was raised with the checkout manager Ms. N who then dealt with it.

5.11.2 Witness for the respondent, Store Manager, Mr. K advised the hearing that the complainant had asked to be accommodated with reduced hours on her return to work and stated that the respondent had acceded to this request. Mr K stated that the complainant continues to the present day to be accommodated with reduced hours while remaining on her full time contract in accordance with her wishes.

5.11.3 In advancing a claim of failure to provide reasonable accommodation the complainant acknowledges that she was accommodated with reduced working hours following her request for same but submits that the respondent failed to accommodate her disability by calling her over the intercom and by refusing her request to have a member of Deaf /Hear present in all meetings with management.

5.11.4 The evidence adduced has been that the respondent once notified that the complainant could not hear the intercom has stopped the practice of calling her over the intercom to return to her checkout.

5.11.5 As regards the request for a member of Deaf/Hear to attend all management meetings with the complainant, the respondent advised the hearing that it could not comply with this request due to the fact that a notice period is required in order for a member of Deaf/Hear to attend meetings. The respondent indicated that the nature of the complainant’s job dictates that she has to interact with and meet with members of management on a continuing and ongoing basis to discuss such matters as ‘overs’ or ‘unders’ on her till as well as customer complaints or issues.

5.11.6 The respondent indicated that the request for a member of deaf/hear to be present for all of these meetings could not be granted as it is not practical given the complainant’s job. The respondent having received this request from the complainant referred the complainant to for a medical in order to ascertain what if any further accommodations were required to facilitate the complainant. The Medmark report recommended that the complainant should not be called to meetings over the intercom, and that any meetings with management should take place in a quiet room and that participants should speak slowly and directly to the complainant in order to ensure that she can understand and participate in such meetings. It also recommended that the complainant be rostered for 4 hour shifts between 9 a.m. and 6 p.m.

5.11.7 It is submitted that the complainant returned to work in November 2013 but that the respondent did not refer her to Medmark until September 2014 almost a year after her return to work. The respondent advised the hearing that the complainant had been certified as fit to return to work in November 2013 and that this ‘fitness to return to work’, contained no indication of any special measures or accommodation required by the complainant. In addition the complainant herself has advised the hearing that the only accommodation she requested of the respondent was that she be permitted to work reduced hours for a few weeks. The respondent acceded to this request for reduced hours and the period of a few weeks has been extended to the present day when the complainant continues to work reduced hours at her own request.

5.11.8 The respondent advised the hearing that the complainant did raise issues in respect of taking her medication at work and that she was permitted to take breaks as necessary to allow her to take her medication when required.

5.11.9 It also emerged at the hearing that the complainant had indicated a preference for working on a particular checkout due to the fact that it is in a quieter location and away from the trollies and background noise. The respondent advised the hearing that the complainant was facilitated with this request and that she always worked on till 2 or 3.

5.11.10 The respondent upon receipt of the request from the complainant for a member of Deaf /Hear to attend all meetings with the complainant, considered the request and having concluded that it was not possible or practical due to the nature of the complainant’s work, then referred the complainant to the company doctor in order to ascertain what accommodations were necessary.

5.11.11 In considering reasonable accommodation it is not incumbent upon a respondent to provide perfect accommodation. In the present case the question arises as to what can be considered as “reasonable”.

5.11.12 The respondent in the present case did not grant the complainant’s request for ‘perfect accommodation’ but made inquiries as to what ‘reasonable accommodation’ was necessary and having received such recommendations agreed to implement such recommendations where such measures were not already in place. In addition, the complainant advised the hearing that she had been out on sick leave since December 2014 citing an incident where a new till was brought in and which it was considered would benefit the complainant due to its quiet location.

5.11.13 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, it is clear that a respondent when notified of a disability is obliged to ascertain the level and extent of the complainant’s disability and is obliged as per Section 16(3) of the Acts to make a proper and adequate assessment of the situation before taking a decision to dismiss the complainant.

5.11.14 The respondent in this case, although no decision was taken to the detriment of the complainant, once alerted to the fact that the complainant requested assistance in meetings with management, referred the complainant to Medmark, their Occupational Health Specialists for assessment. It is clear from the totality of the evidence adduced above that the respondent following receipt of the Medmark report and in consultation with the complainant then put in place measures (detailed above) to accommodate the complainant and to enable her to fulfil her role as a Checkout Operator.

5.11.15 Having regard to the foregoing, I am satisfied that the respondent, in this case made appropriate enquiries to ascertain the extent of the employees condition and following receipt of the Medmark report and in consultation with the complainant, did put in place special measures to enable the complainant to perform the duties for which she had been employed.

5.11.16 Accordingly, it is clear to me from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against by the respondent on ground of her disability.

5.11.17 In addition, I am satisfied based on the totality of the evidence adduced, that the respondent in this case did not discriminate against the complainant on the disability ground in relation to a failure to provide reasonable accommodation within the meaning of section 16 of the Acts.

6. DECISION OF THE EQUALITY OFFICER.

6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2015 I issue the following decision. I find that

(i) the respondent did not discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to her conditions of employment

(ii) the respondent did not discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.

________________

Orla Jones

Adjudicator/Equality Officer

15th of August, 2016

Footnotes

[1] [2004] 15 ELR 296

[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)