EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E/2016/050
PARTIES
Monika Martela
(Represented by E.M. O’Hanrahan Solicitors)
Vs
M.K. Human Resources Limited (t/a Temple Recruitment)
and
DHL Supply Chain (Ireland) Limited
(Represented by IBEC)
Date of issue: 16 March 2016
1. Dispute
1.1. This dispute concerns a complaint by Ms. Monika Martela that the Respondents, M.K. Human Resources Limited (t/a Temple Recruitment) and DHL Supply Chain (Ireland) Limited, discriminated against her on grounds of disability contrary to Section 6 of the Employment Equality Acts and contrary to Section 8(1)(b) of those Acts in relation to her conditions of employment.
1.2 It is further submitted that the Complainant suffered victimisation following her raising the matter of her grievance and also that her alleged dismissal from DHL Supply Chain (Ireland) Limited constituted discriminatory dismissal within the meaning of the Employment Equality Acts.
2. Background
2.1 The Complainant is a Polish national who came to Ireland in 2007 and registered with an employment agency - Industrial Temps (Ireland) Limited – which assigned her to various entities, including Ryanair and IKEA. The business of Industrial Temps (Ireland) Limited was subsequently acquired by M.K. Human Resources Limited (trading as Temple Recruitment).
2.2 M.K. Human Resources Limited (“the agency”) assigned the Complainant to DHL Supply Chain (Ireland) Limited (“DHL”) in December 2010. She was assigned to DHL until November 2011 and again from April 2012 until February 2013 when she became unfit for duty as a result of a serious medical condition which required surgery. She was certified unfit for work until 3 June 2013. Prior to her return to work the Complainant states that the agency requested an additional medical certificate to confirm that her medical condition was not work-related before she was permitted to resume duty.
2.3 Following her medically certified absence, the Complainant requested that she be reassigned to her pre sick leave duties at DHL. However, her request was not granted and she states that she was given no work placement for a considerable time, following which she was granted occasional temporary roles. The Complainant submits that these occasional temporary assignments were only granted after she had referred complaints to the Equality Tribunal and the Employment Appeals Tribunal alleging breaches of employment legislation.
2.4 Ms. Martela referred 2 complaints of alleged discrimination to the Equality Tribunal, the first on 9 October 2013 and the second, which included allegations of victimisation, on 20 April 2015. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General, on 15 October 2015, delegated the complaints to me - Gary Dixon, Equality/Adjudication 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. 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 19 November 2015.
2.5 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 was working on a long term assignment with DHL until her certified sick leave commenced on 5 February 2013. She states that when she submitted a fit to resume medical certificate she was not allowed to do so by the agency who requested further information from her medical adviser. The Complainant considers that the agency acted in bad faith in this regard and she believes that it had no intention of allowing her to return to her prior position at DHL, as evidenced by the fact that her medical adviser had provided all the medical clarification sought by the agency.
3.2 The Complainant states that neither the agency nor DHL sought to have her independently medically assessed in the context of providing her with reasonable accommodation. However, she accepts that such reasonable accommodation was not required in any event as she was fit, ready, willing and able to return to her previous job at DHL which, she alleges, was “terminated” by the Respondents.
3.3 The Complainant alleges that following referral of her complaint to the Equality Tribunal, she was offered a position at Ryanair on comparably excellent remuneration but that it never actually materialised; instead she was given a “short intermittent assignment” at Kingston Technology.
3.4 The Complainant submits that she was confronted and pressurised by the agency in May and November 2014 in relation to her having referred complaints of alleged breaches of employment law to the Equality Tribunal and the Employment Appeals Tribunal. She states that when she refused to withdraw these complaints, she found herself out of work. She alleges that other work colleagues have not been treated in this manner by the agency as they were offered various interviews and positions that were not offered to her. She further alleges that the HR Director of the agency told her she would “be destroyed” and would not receive further assignments or references from the agency. She considers that the failure to reinstate her at DHL following her return form sick leave constitutes discriminatory dismissal contrary to the Employment Equality Acts.
Alleged prima facie case of discrimination
3.5 As outlined previously, the Complainant submits that when she attempted to return to the workplace following a period of sick leave, the agency sought to clarify that her medical condition was not work-related. She considers that this request was made in bad faith and was not for the purpose of assessing her availability, ability or suitability to return to the workplace because when her medical adviser confirmed the position, the agency then issued a “pre-dated” letter (i.e. a letter dated one month in advance of its postal date) informing her that there was no work available. Ms Martela submits that the agency simply did not wish to facilitate her return to work in circumstances where she provided a fit to resume medical certificate and where it had been confirmed that her medical condition was not work-related. The Complainant believes that these facts are sufficient to establish an inference of discrimination on the ground of disability which is of appropriate substance to place the burden on the Respondents to prove the contrary.
4. Summary of Respondents’ cases
4.1 MK Human Resources Ltd.
4.1.1 The agency accepts that the Complainant had been assigned to DHL under a contract for services for temporary workers. However, it states that the contract does not specify any exclusivity in regard to DHL (or any other user of its services), nor was the Complainant contracted specifically to DHL.
4.1.2 The agency submits that no “dismissal” took place as the Complainant continues to be employed and receives wages, etc., as appropriate. As regards the Complainant’s statement that she was aggrieved when her assignment at DHL ended, the Respondent states that she was never employed by DHL but was assigned there as a temporary agency worker; the need for such temporary agency work at DHL diminished during the Complainant’s 4 month sick leave absence.
4.1.3 The agency contends that following the Complainant’s absence on sick leave she was offered numerous assignments but that she declined most of these placements. In relation to periods where no work placements were available, the agency refers to clause 4 of its contract for services which states, inter alia, that “the temporary worker acknowledges….there may be periods where no suitable work is available ….” .
4.1.4 The agency denies the Complainant’s assertion that, unlike other fellow agency workers, she was not offered interviews and it outlined various interview opportunities that had been afforded to the Complainant. However, it states that she was intent on returning to DHL despite that particular role no longer being available. In that regard the agency states that the Complainant’s pre sick leave role was not filled by any other agency worker. (This was confirmed by DHL at the hearing).
4.1.5 In relation to the allegations of victimisation, the HR Director of the agency refutes the Complainant’s assertions in regard to events following referral of her complaints to the Equality Tribunal and the Employment Appeals Tribunal. The HR Director strongly denies using any threatening language or that she raised her voice to the Complainant. However, at the hearing the HR Director accepted that she did ask the Complainant to withdraw her complaint of alleged unfair dismissal (which had been referred to the Employment Appeals Tribunal). She (the HR Director) submits that this request was made in good faith as the “unfair dismissal” complaint was absurd considering no dismissal had taken place and the Complainant was still employed by the agency. The alleged unfair dismissal complaint was subsequently withdrawn and the agency accordingly denies any allegations of discrimination or victimisation.
4.2 DHL
4.2.1 DHL submits that it is not a party to these proceedings as it never was the Complainant’s employer, nor was it a party to any unilateral actions of the agency in its dealings with the Complainant.
4.2.2 Without prejudice to its preliminary argument at 4.2.1. above, DHL states that it has availed of the services of this agency since 2010, mostly to support its contract with Ryanair at Airport Business Park, Dublin which involved refilling “bar carts” for Ryanair flights departing from Dublin Airport. DHL states that its requirement for agency workers in support of its own core workforce fluctuates depending on factors such as seasonality and volumes. (At the hearing DHL explained that it would normally advise the agency at the end of a given week of its requirement for agency staff the following week).
4.2.3. DHL submits that, due to the volumes and seasonality of the work in question, it would not be in a position to guarantee work for agency staff in any circumstances, including staff on sick leave for unspecified periods. DHL acknowledges, however, that the Complainant was held in high regard by management in relation to her work performance, punctuality, etc., while she was placed on assignment at its operations at Airport Business Park, Dublin.
4.2.4. During the hearing DHL stated that its requirement for agency workers had been declining in line with the economic downturn and that the requirement also diminished dramatically when it lost its contract with the Arcadia Group in early 2014. DHL confirmed that it did not seek a replacement for the Complainant when she went on sick leave as there were sufficient resources available within its core workforce to ensure that the Ryanair contract was delivered.
5. Conclusions of the Equality Officer
Appropriate Respondent(s)
5.1 The complaints of alleged discrimination referred to the Equality Tribunal in this case contained 6 named Respondents as follows –
1. MK Human Resources Limited (t/a Temple Recruitment),
2. DHL Supply Chain (Ireland) Limited,
3. DHL Express (Ireland) Limited,
4. DHL Global Forwarding (Ireland) Limited,
5. DHL Holdings (Ireland) Limited and
6. DHL International (Ireland) Limited.
However, the complaints against the named Respondents listed at 3, 4, 5 and 6 above were subsequently withdrawn. Therefore, the named Respondents for the purpose of this decision are MK Human Resources Limited (t/a Temple Recruitment) and DHL Supply Chain (Ireland) Limited.
Agency Work and the Employment Equality Acts
5.2 Under Section 2 (1) of the Employment Equality Acts an agency worker is defined as follows:
“agency worker” means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;
The Employment Equality Acts also apply to providers of agency work. This term is defined at Section 2(5) as follows: -
“A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act, 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the “provider of agency work”.
5.3 DHL procured the services of a number of agency workers from the agency from time to time, including the Complainant. Accordingly, I consider that DHL is a provider of agency work within the meaning of the legislation.
5.4 Section 8 of the Acts contains the general prohibition of discrimination. Section 8(1) provides: -
“In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”
5.5 The combined effect of these provisions is that both the first named respondent (MK Human Resources Limited) and the second named Respondent (DHL Supply Chain (Ireland) Limited) can each be an impleaded party under the Acts, the former as the Complainant’s employer and the latter as the provider of the agency work on which the Complainant was employed. It follows, therefore, that each or either of the named Respondents may potentially be considered liable for any discrimination deemed to have occurred.
5.6 Allegations of alleged discrimination on the grounds of gender and race were also included in the original referral of these complaints but those allegations (on the gender and race grounds) were subsequently withdrawn. The essential issue for decision, therefore, is whether either (or each) of the 2 named Respondents discriminated against the Complainant on the ground of her disability in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts. 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.
5.7 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires a Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If the Complainant succeeds in doing so, then it is for a Respondent to prove the contrary.
5.8 In Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) the evidential burden which must be discharged by a Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:
“The claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”
5.9 In evaluating the evidence, therefore, I must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts. As outlined above, the Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a Respondent.
Alleged Discrimination by MK Human Resources Limited
5.10 The Complainant alleges discrimination on the disability ground. Section 6(1) of the Employment Equality Acts 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 between any 2 persons, ............ (g) that one is a person with a disability and the other either is not or is a person with a different disability,.. .
5.11 The initial point at issue in these complaints is that Ms. Martela considers that she should have been reassigned to her previous posting at DHL following her 4 month absence on sick leave and the fact that she was not so reassigned, in her view constitutes discrimination of the disability ground. She also asserts that the failure to reassign her to DHL constitutes discriminatory dismissal within the meaning of the Employment Equality Acts. It is a fact, however, that the Complainant’s pre sick leave role at DHL was not filled by any other agency worker. DHL confirmed at the hearing that it did not seek a replacement for the Complainant when she went on sick leave as its requirement for agency workers had been in decline during the economic downturn and sufficient resources had become available from within its own core workforce to cover her role.
5.12 As regards alleged discriminatory dismissal, it is also a fact that no “dismissal” took place as the Complainant continues to be employed by the agency. While the Complainant’s assignment at DHL terminated while she was on sick leave, DHL was never the Complainant’s employer and, as already outlined, no “dismissal” occurred in any event.
5.13 The Complainant has also asserted that, following her sick leave absence, other fellow agency workers were offered better interview opportunities and more favourable assignments than her. However, noevidence was presented to show that any other employee was treated more favourably than the Complainant. When these assertions were discussed at the hearing the Complainant was unwilling to identify any colleagues who were treated better than herself.
5.14 It is a fact that the Complainant had a serious illness and I appreciate that she felt aggrieved when she returned to the workplace to find that her previous assignment was no longer available. However, in my view no prima facie case has been established in relation to alleged discrimination by the agency on the disability ground as no evidence has been presented to show that the agency treated the Complainant less favourably than any other employee in a comparable situation within the meaning of the Employment Equality Acts.
Alleged Discrimination by DHL
5.15 At paragraph 5.4 previous I found that DHL may potentially be considered liable for any discrimination deemed to have occurred. The essential allegation against DHL is one of “discriminatory dismissal” as the Complainant was not re-engaged at DHL on her return from sick leave. However, DHL was never the Complainant’s employer. Therefore, DHL could not have dismissed her.
5.16 I note that the Complainant was held in high regard by DHL management during her assignments there. However, I accept that DHL’s requirement for agency workers was in decline over time; hence DHL did not seek a replacement for the Complainant when she went on sick leave as, due to the economic downturn, sufficient staffing resources had become available from within its own core workforce to cover her role. In light of these facts, I consider that no prima facie case has been established in relation to alleged discrimination by DHL on the disability ground.
Alleged Victimisation by the Agency
5.17 The Complainant alleges that she was confronted by the agency’s HR Manager and pressurised for having referred complaints of alleged breaches of employment law to the Equality Tribunal and the Employment Appeals Tribunal. She states that when she refused to withdraw these complaints, she found herself without work. She further alleges that the HR Director told her that she would “be destroyed”and would not receive assignments or references from the agency. The HR Director denies this.
5.18 These matters were discussed in detail during the hearing. The HR Director fervently denies using any threatening language or that she raised her voice to the Complainant; the fact also remains that the Complainant is still employed by the agency. The HR Director accepts that she asked the Complainant to withdraw her complaint of alleged unfair dismissal (which had been referred to the Employment Appeals Tribunal) but she states that this request was appropriate as a an allegation of unfair dismissal was absurd where no dismissal had taken place and where the Complainant was, and is, still in the agency’s employ.
5.19 Other instances of alleged victimisation are also in dispute. For example, the Complainant alleges that when she submitted a fit to resume work certificate following her illness, the agency requested additional medical evidence to confirm that her medical condition had not been work-related. The agency states that this request was made in good faith, i.e. as reassurance that the Complainant’s health had not suffered as a result of her previous job placement which involved working in a cold warehouse. I consider that the agency’s rationale for this request is, at best, unusual. However, such a request for medical clarification does not, in my view, constitute adverse treatment.
5.20 The Complainant also alleged that she had not been given the same placement and interview opportunities as her colleagues, in particular an interview at Ryanair. The agency denies this and cited assignment opportunities that were offered to the Complainant but which were declined by her. I note that the Complainant, when asked at the hearing, declined to identify any colleagues whom she stated were afforded better opportunities. I also note that the Complainant had in fact been afforded an interview at Ryanair, albeit subsequent to referral of her victimisation complaint. Therefore, while the parties have opposing perspectives on these allegations of victimisation, on balance I consider that the agency’s responses are reasonable and, accordingly, I deem that the allegations are not substantiated.
6. Decision
6.1 I have completed my investigation of these complaints 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:
· I consider that the Complainant has not established a prima facie case of discrimination on the disability ground against either of the named Respondents;
· I find that the Complainant did not suffer victimisation by M.K. Human Resources Limited (trading as Temple Recruitment) within the meaning of the Employment Equality Acts and the Workplace Relations Act.
____________________
Gary Dixon
Adjudication Officer/ Equality Officer
16 March 2016