DEC-E2016-053

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-053

PARTIES

Colman Murphy

(represented by Eamon Kirwan)

AND

Xtra-vision Ltd

(Represented by IBEC)

File reference: EE/2013/127

Date of issue: 29 March 2016

Introduction:

1.1 This complaint concerns a claim of discrimination on the grounds of disability. The complainant outlines that he was unlawfully selected for redundancy at a time that he was on certified sick leave and because of his disability, a degenerative eye condition, and that he was discriminated against with regard to access to employment. The respondent has a network of retail outlets, and at the time of the hearing had entered receivership.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 3rd March 2013 under the Employment Equality Acts. On the 16th June 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 4th September 2015. The complainant attended in person and was represented by Eamon Kirwan. The respondent was represented by IBEC and the Managing Director, a former Senior HR Manager, the Company Chairperson and the current HR Manager.

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

2. Submissions and evidence of the complainant:

2.1 The complainant outlines that he was unfairly selected for redundancy at a time that he was on certified sick leave and that his dismissal was discriminatory on the grounds of disability. In submissions, the complainant outlines that he was discriminated against in contravention of section 6(2)(g) of the Employment Equality Acts; that he was penalised in not being given access to employment contrary to section 8(1)(a) and 8(5)(a); that he was treated differently to other employees in contravention of section 28(1) and that he was victimised contrary to section 74(2)(d) when he was selected for redundancy and subsequently dismissed.

2.2 The complainant outlines that he held a senior role managing aspects of the respondent’s store network and his job title was “Senior Property and Projects Manager”. Driving was part of this role. In December 2010, he developed a degenerative eye condition and continued working until the 24th April 2012 when he could no longer drive. At this time, he went on certified sick leave for two weeks and on his return was informed that he would no longer be involved in the management of a project. This was confirmed in an oral conversation with the respondent Chairperson, who told him that a particular person would be fulfilling his duties (referred to in this report as “the Colleague”). The complainant raises the manner in which the Chairperson dealt with him, where he said “would you like me to sugar coat that for you?” Later that same day, three individuals were informed that the complainant would be taking time out to address his medical issue and that he should provide a job description of the jobs he was working on. The complainant then went on further certified sick leave. Over the next few months, he met with the Managing Director of the respondent. In the meeting of the 14th August 2012, they discussed his condition and the division of operational duties in his absence. At this stage, the complainant mentioned his going back to work. The Managing Director suggested that the complainant remain out on leave. In respect of the meeting of the 31st August 2012, the complainant met again with the Managing Director as well as with the Colleague who had taken on his duties. The complainant said that his Colleague raised issues regarding a contractor and he felt that he was being blamed for the problem. The complainant said that he offered solutions to his Colleague. After addressing operational issues, the complainant said that he would be returning to work and was offered a large screen. His Colleague also asked after the complainant’s health.

2.3 The complainant’s return to work was delayed for medical reasons and the complainant attended an occupational health assessment on the 7th November 2012. He emailed respondent to say that he had been given the “all clear” and expressed his wish to return to work. He said that he also spoke with the HR manager but did not receive confirmation of his return. The finding of the occupational health assessment was confirmed in a letter of the 8th November 2012. After this, he met with the Managing Director on the 16th November 2012. This meeting was the first occasion that the Managing Director raised the possibility of the complainant’s redundancy. He acknowledged at the hearing that he had been aware of redundancies in 2012, but this was a shock. He said that he had an outstanding mortgage, that he had a young family and that he wanted to go back to work and that there had been no consultation. The complainant outlines that he proposed alternatives to his redundancy but was told that they were not viable and that he was redundant. He replied that there was still a job for him to do.

2.4 The complainant received an email from the HR manager inviting him to a meeting on the 30th November 2012 to discuss his possible redundancy. He met with two HR managers and was told that his position had been made redundant. He sought to raise alternatives to redundancy. At a follow-up meeting on the 11th December 2012 attended by the complainant, the Managing Director and the HR manager, the complainant was offered an alternative position of store manager. At this time, the complainant made a presentation about cost-savings of €600,000 that could be obtained through restructuring. The complainant’s competencies were not discussed during the meeting. Furthermore, he was not permitted to return to work and was deprived of access to his work email. No explanation was provided for this latter act. The complainant acknowledged that in an email of the 13th December 2012, he did not challenge his lack of access to his work email account and did not ask for access to be restored. The issue is mentioned in the context of using the complainant’s private email address in correspondence. On the 18th December 2012, the complainant met with the HR manager who said that the respondent had examined his proposals and that the respondent had concluded that they were not viable; the HR manager confirmed his redundancy. The complainant replied that he would appeal this decision. The complainant’s redundancy was confirmed in a letter from the respondent of the 8th January 2013. The complainant attended an appeal hearing with the Chairperson of the respondent on the 25th January 2013. They discussed the fact that the Colleague had taken on his property-related duties and that her title had changed to that of “Property and Estates Manager.” She was involved in the roll out of at least one new store and there were procedures and processes being drawn up for additional stores. These were all aspects of his role. The complainant said that there should have been a matrix to consider both his and this Colleague’s position in the company. He also raised the fact that this Colleague dealt with him on behalf of the respondent when he was on sick leave, in particular her lead role at the meeting of the 31st August 2012. After the appeal hearing, the complainant’s redundancy was confirmed in a letter of the 7th February 2013. The complainant outlined that he received his P45 and RP50 prior to the hearing of his appeal, demonstrating that this was a “done deal”.

2.5 The complainant outlines that he was discriminated against in having duties removed from him after his return from the first period of sick leave in June 2012; he states that his position was transferred to the Colleague. He states that he wished to return to work and subsequently was certified as fit to do so; the respondent prevented his return to work. The complainant challenges the veracity and the process around his redundancy, stating that the alternatives he proposed were not considered and that no matrix was used to assess candidates for redundancy. He states that he was treated differently to other employees who faced redundancy as they were allowed continued access to their email and to attend the workplace. He said that he had effectively been locked out. No other employee had been made redundant while on certified sick leave. The complainant also outlined that when he returned after the first period of sick leave, the only task that he could not do was to drive. The respondent should have provided him with reasonable accommodation to allow him return to work. He said that he maintained that the respondent had breached the Employment Equality Acts and said that the act of penalisation occurred when he was told that if he returned to work, he would be made redundant.

2.6 In respect of redress, the complainant outlined that he had incurred losses of €77,500 as a result of the discriminatory dismissal and the other unlawful acts of the respondent. In 2013 and in 2014, he had held two roles, each with an annual salary of €15,000. He said that in 2015, he was able to secure a role with remuneration of €50,000. He acknowledged that the respondent had provided references.

2.7 In cross-examination, the complainant acknowledged the contents of his job description and said that they were only provided to him in 2014, even though it is dated “2010”. He said that health and safety was a new function. He acknowledged that he was the only Senior Property Manager in the respondent. He said that his periods of sick leave were from the 30th April 2012 to the 8th May 2012 and the 18th May 2012 to the 29th November 2012. He acknowledged that his contract of employment provided for 60 days’ paid sick leave, but he received payment for the entire period of sick leave. He also retained the benefit of health insurance. He acknowledged that the first meeting with the Managing Director had been informal and held in a public house. They had discussed that the respondent was struggling. The complainant acknowledged that at the third meeting the Managing Director had said that two other senior roles were to be made redundant, identifying the role of Chief Finance Officer and the Head of IT. It was put to the complainant that the Managing Director had told him that his prognosis was uncertain and to ensure that he was fit to return to work. The complainant replied that he was told that he was obliged to avail of the occupational health insurance policy or he would be made redundant. In reply to the question that the respondent was not opening new stores, the complainant replied that he retained responsibility for tackling dilapidations. He disagreed that the respondent had treated him better than other employees in delaying his redundancy. He said that he had been excluded from the workplace and lost his status and could not meet colleagues. In re-direction, the complainant said that he had originally drafted a job description and this preceded the one presented by the respondent. He outlined that he had devised a project to ensure cheaper fit-out of new stores. This innovation led to the CAFM programme and later made his Colleague’s role very do-able. The project required ongoing innovation.

2.8 In closing submissions, it was submitted that the reference to “sugar coating” by the respondent of the complainant’s medical condition was linked to the redundancy. It was submitted that the respondent had victimised the complainant by asserting that he would be made redundant if he returned to work. It was submitted that a named Colleague had taken over the duties regarding the complainant’s redundancy by attending the second meeting in a local public house. The complainant was subject to differential treatment in that he was not allowed access to the workplace and that he was subject to a discriminatory dismissal in breach of the Employment Equality Acts, evidenced by the absence of documentation to justify his dismissal.

3. Submissions and evidence of the respondent:

3.1 The respondent denies that the dismissal of the complainant was discriminatory and asserts that a fair process was followed in his redundancy. It was submitted that the complainant was aware of the difficulties faced by the respondent and his redundancy was one of three at this time. Moreover, the respondent only commenced the complainant’s redundancy when he was deemed fit to return to work. It was further submitted that there was no claim related to reasonable accommodation and no evidence of victimisation. It is submitted that the claim in relation to access to employment was misconstrued as the complainant had already been made redundant at the time of the complaint.

3.2 The Managing Director gave evidence. He outlined that he had acted as both the Deputy Chief Executive Officer and as Finance Director. He had appointed the complainant to his post at a time that the respondent had a network of 220 stores. During the course of 2011, the respondent entered examinership, leading to a significant reduction of the number of stores as well as redundancies. The respondent had sought lower rents in the stores it maintained. While there had been plans to open new stores in 2012, he said that it became clear that the pace of change relating to losses had accelerated and the expansion plans were shelved. A business decision was made to save on capital expenditure and to pull back on the roll out of new stores. The Managing Director outlined that in 2012, the respondent looked at every business cost, including in Head Office. It had already implemented wages cuts. At this time, head office included 45 to 50 staff and the respondent looked at roles that would be in decline. The Managing Director said that he concluded that three senior roles were no longer required and gave the example of having one senior IT manager instead of two. It had been decided to virtually stop the store roll out, initially reduced to 15 and then to five, and the maintenance function had been out-sourced. The team understood what to do regarding the fit-out of stores and the “shop in the box” concept was never implemented. The Managing Director acknowledged that the complainant had managed the consolidation of office space and utilities. He contrasted the complainant’s role with that of the Colleague in that she managed 160 stores, while his role was spread across other functions. The complainant’s maintenance function was subsumed into operations, the health and safety role incorporated into HR and the Colleague took over the fit-out role. He said that the complainant could not have performed the Colleague’s role as she was specialised in dealing with landlords. He said that this was a business in crisis and that there were further redundancies in February 2013. He outlined that he was concerned for the complainant’s health, so made the suggestion of taking holidays. He said that he went to the board of the respondent to have the complainant’s sick pay extended beyond the contacted 60 days. He said that he was clear that the three senior roles were redundant and distinguished the Colleague’s role as her core role remained. He outlined that he had met with other senior managers in hotels when discussing their redundancy. He said that had the complainant been fit, he would have been made redundant in June 2012. It was only raised with him in July 2012 and the Managing Director denied that he prevented the complainant from returning to work and that the respondent never spent the €600,000 on shop fit-outs, as projected.

3.3 In cross-examination, the Managing Director said that the rationale for the redundancies of the three senior members of staff stemmed from the decision to stop spending cash. This was his decision and brought to the board for their approval. He said that there may or may not have been a document of what was put to the board, but said that this was a high paced time. He said that he explained the role changes to the complainant and the complainant had accepted them. The Managing Director confirmed that the Colleague had not attended redundancy meetings of other staff as she had with the complainant. He said that she had attended the meetings of the 14th and 31st August 2012 and she discussed a particular operational issue. It was put to the Managing Director that why would the Colleague have to raise issues with the complainant if they were doing different roles; he replied that she had taken on some of his roles while he was on sick leave. In relation to other aspects of the complainant’s role, the Managing Director acknowledged that he had assumed some of his duties and gave an example of contact with particular landlords. In respect of the complainant’s other duties, he said that health and safety went to HR, and maintenance to a named person while the Colleague took over the residue, including dilapidations. He outlined that he was aware that the complainant had attended a doctor regarding his return to work in November 2012. Asked about the complainant’s presentation of alternatives to redundancy, the Managing Director that this took one and a half hours. He outlined that the proposals contained in the complainant’s presentation would not generate sufficient savings. He said that he did not formally write to the complainant as this might create fear in the workforce. He further replied that he had gone through the proposals in detail. He acknowledged that he did not meet with the complainant to directly give his feedback on the proposals. This was relayed through the HR manager. In respect of the board minutes regarding the complainant’s redundancy, the Managing Director replied that no minute had been taken regarding the redundancies.

3.4 The Head of HR outlined that she had been involved in both the consultation process and the decision to make the complainant redundant. She also arranged the appointment for the complainant to establish his fitness to return to work. She said that the telephone calls she made to the complainant while he was on sick leave were to arrange meetings and that he was being paid during this time. At the meetings with the complainant, she said that they were informal and she raised alternative roles of store managers then available. The Managing Director had attended to consider the viability of the proposals put forward by the complainant. She outlined that she had attended meetings with other senior staff and while they had taken place at work, the complainant could have asked that his meetings take place in the workplace. She outlined that the complainant lost access to his email as his password expired and that he was later reinstated to the email. She outlined that the complainant’s redundancy was delayed until 2013 because of his sick leave. In cross-examination, the Head of HR acknowledged that others in the complainant’s team continued to work as there was no reason for them not to. She outlined that new work had been allocated to colleagues while he was on sick leave. Referring to the complainant’s email of the 13th November 2012, she said that this refers to returning to employment and not re-entering the workplace. She said that she was aware of the complainant’s pending redundancy in June 2012 as well as the decision to delay it until his return to employment at a later stage. She acknowledged that she had not seen documents regarding the three senior redundancies, nor a written assessment of the viability of the complainant’s alternatives to redundancy. She said that the Managing Director had asked her to relay to the complainant his assessment that the proposals were not viable.

3.5 The Chairperson gave evidence. He outlined that at the relevant time, he had been Chair of the board of directors of the respondent and had previously been the Chief Executive Officer. He outlined that he received the complainant’s appeal letter on the 16th January 2013 and met with him on the 25th January 2013. He accepted that the complainant’s role was unique but did not accept that the complainant was made redundant because of his health issues. He outlined that he had been concerned about the complainant driving while at work and that he suggested that the complainant obtain further medical advice. He accepted that he had made the remark about sugar coating news to the complainant. He said that there had been extensive discussions regarding redundancies and the difficulties faced by the respondent. These difficulties prevented the roll out programme and also meant that the complainant’s role came to an end, as there was no more money to spend. In cross-examination, the Chairperson said that a particular individual had carried out the complainant’s role while he was on sick leave and that the complainant had been at the meeting when this had been arranged. Asked about his role in the June 2012 redundancies, the Chairperson said that he would have reviewed the finances and projections of the respondent. He said that the board charged the Managing Director to make €250,000 of savings and that he came back with savings and details of the three senior redundancies. As to the complainant being identified as one of the three, the Chairperson replied that he would have been biased on his side. He was not involved in the process of identifying the complainant for redundancy. Addressing the complainant’s future role, the Chairperson said that 70 to 80% of his role was gone because of a sharp deterioration in the respondent’s business. Questioned about the paperwork or rationale for the three redundancies, the Chairperson said that the Managing Director had been questioned about the genuineness and process around the redundancies. In relation to the job description, he outlined that a more detailed description was provided after the start of the examinership.

3.6 In closing submissions, the respondent outlined that the well being of the complainant was to the fore of its dealings
with him. When the complainant was on sick leave, his duties were distributed amongst his colleagues. It was submitted that the Colleague held a distinctive role and there was no pool to compare her role against the complainant’s. The complainant could have been made redundant in June 2012 and that three roles were identified at that time for redundancy. The respondent wished that the complainant continue in employment so that he retained his health benefits. He also received more than the 60 days of contracted paid sick leave. It was further submitted that the complainant did not receive less favourable treatment and that he had had not established a prima facie case of discrimination, nor identified an appropriate comparator.

4. Findings and reasoning:

4.1 The complainant was employed as a Senior Project Property Manager for the respondent until the end of his employment on the 7th February 2013. The complainant asserts that his dismissal was discriminatory due to his disability, a degenerative eye condition. There are further complaints in relation to access to employment, victimisation and a failure to provide reasonable accommodation. The respondent denies the claims of discrimination and outlines that the complainant was more favourably treated than other employees, who were made redundant at an earlier stage.

4.2 The facts around the complainant’s disability and that it falls within the definition of “disability” provided in the Employment Equality Acts were not in dispute. Up until the end of his employment on the 7th February 2013, the complainant was, at all times, an employee. While he was on certified sick leave and sought to return to work after he was certified as fit to work, his complaint cannot be advanced as an “access to employment” claim as contemplated by section 8(1)(a) of the Employment Equality Acts. This is because he was in employment during the relevant time.

4.3 There are different elements to the complaint. First is the desire of the complainant to resume his duties and to return to work after being certified as fit for work. In his email of the 13th November 2012, he asks of the HR Manager when he will be able to return to work. The complainant never returned to work and also complains of his loss of access to his work email and the fact that meetings with the respondent took place off-site. A further complaint relates to victimisation, where the complainant was told he would be dismissed if he returned to work. The complainant also asserts that his dismissal by the respondent amounts to a discriminatory dismissal on the grounds of his disability and the process to make him redundant was unfair and discriminatory. He raises a comment made to him by the Chairperson and a lack of documentation from the board to justify his dismissal.

4.4 According to the complainant’s evidence, it was clear as of his meeting with the Managing Director of the 16th November 2012 that the respondent was considering making him redundant. While the complainant outlines that it was a shock that his role was considered for redundancy, it was agreed by the parties the respondent had implemented other redundancies and would carry out further redundancies at later dates. Moreover, when proposing alternatives to his redundancy, the complainant suggested that his post be considered in a pool with the Colleague, so that their candidature for redundancy could be assessed by way of a matrix. In his presentation of the 30th November 2012, the complainant proposed that the HR and Finance functions be out-sourced, presumably leading to redundancies elsewhere in the respondent company. It would not, however, be sufficient for an employer to point to other redundancies within an organisation to show that a particular redundancy was not discriminatory. In this case, the complainant points to an overlap in his role with that of the Colleague, referring to her interaction with him while he was on sick leave and to the duties she carried out. He asks why there was no written response to his proposals for alternatives to his redundancy and no written document produced by the board to justify his dismissal.

4.5 Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In respect of the claim of discriminatory dismissal, I find that the complainant has not established that his redundancy was discriminatory. I reach this finding for the following reasons. It was common case that the respondent faced a challenging trading environment, leading to corporate restructuring and the cessation of the store roll out. The parties did not dispute that two other senior Head Office staff were made redundant in 2012 and others followed in 2013 (although no documentation was provided relating to these redundancies). The respondent gave evidence of re-visiting and dramatically scaling back its planned development and roll out of stores, due to the fast pace of online challenges to its business. The Managing Director gave persuasive evidence of the change in policy and the pressing need for the respondent to stop spending cash. Through the documentation submitted, the respondent has established that this led to complainant’s post becoming redundant and that his role was markedly different to that of the named Colleague. It is not enough to infer that because she had assumed some of his duties while he was on sick leave that there was material overlap in their roles. I cannot infer from the lack of board documentation regarding the dismissal, or a written response to the complainant’s alternatives to redundancy, that discrimination occurred. There was sufficient other documentation to show that the redundancy was not discriminatory.

4.6 I further find that the complainant was not victimised when he was told that he would be made redundant if he returned to work. I accept the Managing Director’s evidence that this comment was made in the context of ensuring that the complainant was able to retain pay during sick leave for as long as possible. I note that these meetings were informal in nature and took place in a public house. While one might not appreciate the “sugar coating” comment of the Chairperson, I do not believe it was discriminatory and related to the necessary allocation of the complainant’s duties while he was on sick leave. The respondent has also explained the circumstances around the complainant’s access to his work email and this was not a matter complained of by the complainant at the time. The fact that the meetings regarding the prospective redundancy took place off-site is not, of itself, discriminatory and no request was made by the complainant to hold them in the respondent’s offices. I do not find that there was any failure to provide reasonable accommodation as the complainant only sought to return to work when he was declared medically fit to do so.

4.7 One element of the complaint succeeds. The complainant was deemed fit to return to work on the 19th November 2012, as provided in the corporate health assessment dated the 8th November 2012. The respondent then commenced the procedure around the complainant’s redundancy with a formal, minuted meeting of the 30th November 2012 and ending with the unsuccessful outcome of the complainant’s appeal, communicated in a letter of the 7th February 2013. Ordinarily, an employee facing redundancy continues to attend work and also acquires the right to time off to look for alternative employment. The respondent has not provided justification for why the complainant was not facilitated with a return to his role, even for the duration of the process around the redundancy. This is what the complainant had sought and had the complainant not been on sick leave, he would have continued to attend work until his redundancy was confirmed. I find that the respondent kept the complainant out, even after he was deemed fit to return to work. As outlined above, it goes too far to infer that the dismissal was discriminatory from the fact that he was not allowed to return to work and I expressly find that the dismissal was not, itself, discriminatory. However, had the complainant not had the disability, he would have continued to attend work while he challenged the decision to make him redundant. I recognise that this was particularly important for someone in the complainant’s situation as he had been out of work for some time and was entitled to return to work and later to end his employment in an orderly fashion. As the decision to keep the complainant out followed from his absence on sick leave, it amounts to discriminatory treatment on the basis of his disability. Balancing the relatively short number of weeks involved and the obvious desire of the complainant to again set foot in his then workplace, I award €5,000 in respect of the discriminatory treatment.

5. Decision:

5.1 I have concluded my investigation into this complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the complainant was subject to discriminatory treatment on grounds of disability, contrary to section 8 of the Act, in relation to not being allowed return to his post after having been assessed as fit to do so.

5.2 I find that the complainant was not subject to a discriminatory dismissal and was not subject to victimisation. There was no failure by the respondent to provide reasonable accommodation to the complainant. The complaint regarding access to employment is not well founded.

5.3 In accordance with section 82 of the Act, I order that the respondent pay the complainant €5,000. The entire award of €5,000 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended by Section 7 of the Finance Act, 2004).

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

29th March 2016