EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E/2016/030
PARTIES
Barbara Nikodem
Vs
Jurys Inn Custom House
(Represented by IBEC)
File Ref: EE/2014/081
Date of issue: 15 February 2016
1. Dispute
1.1 This dispute concerns an allegation that the Respondent discriminated against the Complainant on the ground of her disability by failing to provide her with reasonable accommodation contrary to the provisions of the Employment Equality Acts and that her subsequent dismissal constituted discriminatory dismissal within the meaning of those Acts.
2. Background
2.1 The Complainant was employed as a member of the Respondent’s “guest service staff team” from August 2008 until July 2013. She worked primarily in hotel accommodation services and also in the restaurant area. The main functions associated with the Complainant’s role involved physical and manual cleaning duties.
2.2 The Complainant was absent from her employment due to a medical condition, which she describes as permanent damage to her spine, from August 2010 until the termination of her employment on 12 July 2013. The Complainant accepts that the damage to her spine is such that she will never be able to perform physical work again. However, she contends that she was not given “reasonable accommodation” by her employer and that her dismissal constitutes discriminatory dismissal on the ground of disability contrary to the provisions of the Employment Equality Acts.
2.3 The Complainant referred a complaint of alleged discrimination to the Equality Tribunal on 24 February 2014. In accordance with section 75 of the Employment Equality Acts, the Director, on 15 October 2015, delegated the complaint to me - Gary Dixon, Adjudication Officer/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 on which I commenced my investigation.
2.4 Written submissions were received from each party. As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on 28 October 2015. The hearing was adjourned at the request of the Respondent. A subsequent hearing on 20 November was adjourned at the request of the Complainant. The hearing resumed to conclusion on 26 November 2015.
3. Conclusions of Equality Officer
3.1 The essential issue for decision is firstly whether this complaint is admissible under the Employment Equality Acts and, if so, whether the Respondent discriminated against the Complainant on the ground of her disability contrary to the provisions of those Acts.
3.2 Section 77 of the Employment Equality Acts deals with time limits within which complaints of alleged discrimination must be referred. Section 77(5)(a) stipulates that a claim for redress may not be referred “…..after the end of the period of 6 months from the date of occurrence of the discrimination or……the date of its most recent occurrence.” Section 77(5)(b) provides that an extension of the 6 month time limit to 12 months may be granted by the Director in certain circumstances, i.e. where there is reasonable cause preventing a Complainant from submitting a claim within the prescribed 6 month period.
3.3 The Complainant’s employment with the Respondent terminated on 12 July 2013. Therefore, any provision of reasonable accommodation within the meaning of the Employment Equality Acts could only have been provided to the Complainant by the Respondent while she was in its employ, i.e. until 12 July 2013. Further, if discrimination within the meaning of the Employment Equality Acts was deemed to have occurred, as is alleged, then it would have to have occurred on or before the date on which the Complainant’s employment terminated - 12 July 2013 - unless there was evidence of subsequent victimisation. No such evidence was presented.
3.4 In accordance with Section 77 of the Employment Equality Acts, the 6 month period within which this complaint would need to have been referred expired on 11 January 2014. The Complainant submitted her complaint of alleged discrimination to the Equality Tribunal on 24 February 2014. At the hearing on 26 November 2015 the Complainant was given the opportunity to show that there was reasonable cause for submitting her complaint outside the 6 month period prescribed. The Complainant stated that, in her opinion, the alleged discrimination was on-going post termination of her employment with the Respondent. However, I am unable to accept this concept for the reasons outlined at 3.3 above. Further, I do not consider that any reasonable cause has been demonstrated for entering the complaint outside the 6 month period prescribed. In that regard I also note that no application was made for an extension of the time limit.
4. Decision
4.1 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. In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.
4.2 I have completed my investigation of this complaint and, in accordance with section 79(6) of the Employment Equality Acts and section 41(5)(a)(iii) of the Workplace Relations Act 2015, I hereby make the following decision:
4.3 This complaint was submitted outside the prescribed period within which a complaint of alleged discrimination is required to be referred under the Employment Equality Acts and, therefore, is not admissible under those Acts.
___________________
Gary Dixon
Adjudication Officer/Equality Officer
15 February, 2016