ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000581

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 01/03/2016

Workplace Relations Commission Adjudication Officer: Orlaith Mannion

Keywords: Employment Equality Acts, Disability, Failure to provide reasonable accommodation, Knee injury, Provider of agency work, Agency worker

Dispute:

1.1 The case concerns a claim by a security guard against a provider of agency work - a Multi-National Retailer. His claim is that he was discriminated against on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’]. He claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed there. He also claims victimisation.

1.2 The complainant referred a complaint under the Acts to the Workplace Relations Commission on 11th November 2015. On 22nd February 2016 in accordance with his powers under Section 16 of the Workplace Relations Act 2015 and section 75(4B), the Director General delegated the case to me, Orlaith Mannion, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced and a joint hearing was held on 1st March 2016 as required by Section 79(1) of the Acts.

Summary of the Complainant’s case:

2.1 The complainant readily admits that the Multi-National Retailer is not his direct employer. He submits that his paid by an agency supplying security services to this Multi-National Retailer. However, he submits that the respondent has significant command and control over him e.g. his plans to take annual leave would have to be approved with the Security Manager and all security reports (e.g. reports of attempted theft) would be sent to this manager. If the respondent was not happy with any aspect of his or an other security guard’s work, the respondent would ensure that they would be no longer stationed at their store.

2.2 The complaint was employed by a security company in 2014 which was subsequently taken over by an other security company as part of a transfer of undertakings. Prior to commencement of employment with the first security company, he had a workplace accident which entailed three operations on his knee. He also told his employer the full story at the interview and that he was in receipt of €32 per week disability benefit from the Department of Social Protection as a result of this accident. When he commenced employment with the agency he worked on a few different sites. However, the respondent was very happy with his work and specifically asked his agency (i.e. his employer) to retain him at their store. No other agency worker was stationed at this store more than him.

2.3 His duties included patrolling the 40,000 square foot store, checking the security cameras which were on a podium to the left of the entrance and putting security tags on alcohol and blades. The complainant maintains that the best way of catching shoplifters was observing the security cameras. This is because it provided evidence other than oral testimony if shoplifting occurred. However he is anxious to point out that he did not sit all day watching the security camera but that he patrolled the store as well.

2.4 He submits that he really enjoyed his work and got on well with his colleagues in the Multi-National Retailer. He knows that both the Security Manager and the Store Manager were very happy with his work as he was retained working in the store while others from the security company were not asked to come back there. He submitted as evidence rosters to indicate that he regularly worked 52 to 60 hours in this store.

2.5 There were no problems in the workplace until he arrived into the Store one day and the chair on the podium where the security cameras were had disappeared. He mentioned it to the Security Manager who said that it was not his decision to remove the chair. The complainant pointed out that if he was doing a 10 hour shift from 14:00 to 00:00 and then was rostered to come in at 09:00 the following morning, this would put too much pressure on his injured knee. The complainant readily admits that he had not previously told the respondent about the issues with his knee as it had not caused problems previously as he had done a mix of walking and sitting down. He also thought that the security company may have mentioned it to them already.

2.6 The Security Manager told the complainant to raise the issue with the Store Manager. The complainant submits that the Security Manager said to him that it should be no problem reinstating the chair as both he and Store Manager knew that the complainant was a good worker.

2.7 The complainant obtained a medical certificate from his GP which stated that he needed to sit down for some of his shift and handed it to the Store Manager. The complainant submits that the Store Manager refused to accept the written request for reasonable accommodation and responded by saying ‘You won’t get the f*cking chair’. The complainant asked the Store Manager to ask Head Office for the chair to be reinstated for his shifts. According to the complainant, the Store Manager refused as he said Head Office would laugh at him if he made such a request. The complainant’s hours were cut after making this request and his name removed from the roster.

2.8 The complainant submits that he left the letter (including the Doctor’s note) to the Store Manager requesting reasonable accommodation but it was ignored. The complaint said that he rang Personnel in Head Office but the Employee Relations Officer there stated that they would not intervene as it was something that should be resolved at a local level. His own employer reiterated the request to the respondent, to no avail.

2.9 The complainant submits that he tried to work without the chair. He said on a few occasions he leaned against the wall and stretched out his right leg but the store manager came to reprimand him. The complainant submits that he developed a knee infection and his GP referred him back to his orthopaedic consultant. The complainant states that the consultant said that he cannot stand for ten hours continuously or it would undo the consultant’s good work. The complainant has not returned to work since 4th November 2015 in the respondent’s store.

2.10 The complainant submits that the CCTV was adjusted for a sitting position so all security guards had to crane their necks to view it. The complainant states that other stores as part of this MNE still have a seat on the viewing podium. He submits that he believes he is being punished for other security guards’ laziness. They did not walk around like he did but spent their shift playing with their phones.

2.11 The complainant submits that he would love to return to work at that store but he cannot risk further damage to his knee by continuous standing so could only return if the chair was reinstated. He also submits that he would find it difficult to return after the abusive comments made by the Store Manager.

Summary of the Respondent’s case:

3.1 The respondent argues that it has been incorrectly named as the respondent. It has never been the employer of the complainant. It points out that Section 2 of the Acts define employer as the person with whom the employee has entered into or for whom the employee works under a contract of employment. The complainant does not have a contract of employment with the respondent. Neither did the respondent issue the complainant with a payslip.

3.2 The complainant raised a grievance about the chair with his actual employer. This is where it should be dealt with. His employer did not make the respondent aware of his injured knee until the chair was removed for operational reasons.

3.3 In direct evidence (no written submission was made on the substantive issue) the respondent stated that they have a problem with ‘shrinkage’ in that store i.e. items for sale were being stolen from the shop floor. The Store Manager gave evidence that the Security Manager attended a regional meeting with other security guards where he heard the suggestion that the chair be taken away so that security guards could focus on patrolling the store and stand near the door when they are not doing that. The Store Manager thought this was a great idea and implemented it straight away.

3.4 The Store Manager did admit to seeing the letter from the complainant’s GP but said that as he was not employed by the respondent, he ignored it. He also said that, even though he had a good working relationship with the complainant the complainant never told him that he had a knee injury until the chair was taken away. The Store Manager denies using the offensive language that the complainant submits that he used. He said none of the other security guards complained about the chair being taken away. The Store Manager said that the complainant was a good worker but he would be unwilling to have him back working in the store because of this knee injury. The role of security guard is a mobile position. The Store Manager still maintains that having no chair there is good for business although he was not able to quantify the amount they have saved. He also stated that the camera can be adjusted up or down depending on whether you are sitting or standing.

Decision:

Preliminary issue – correct respondent

4.1. I fully accept the respondent’s contention that it was not the complainant’s employer within the meaning of the Acts. It did not pay him directly and his contract of employment was not with them. In fact his employer was one of the best known suppliers of security and cleaning services in the State. Therefore, his employer is an employment agency within the meaning of Section 2 of the Acts i.e. a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers. This makes the complainant an agency worker within the meaning of the Acts. Consequently, the respondent is a provider of agency work as defined in Section 2(5) of the Acts i.e. a person who, under a contract with an employment agency obtains the services of one or more agency workers but is not their employer for the purposes of the Acts. The Multi-National Retailer, who is the respondent in this case, obtained the services of many security guards including the complainant for their stores. Indeed the respondent enjoyed significant command and control over the complainant. He was included on the security roster and had to let the respondent know when he intended taking annual leave. The respondent was, unequivocally, a provider of agency work. Section 8 of the Acts clearly states a provider of agency work shall not discriminate against an agency workerregarding, inter alia, conditions of employment. Therefore the correct respondent was named.

Failure to provide reasonable accommodation

4.2 In the circumstances of this case, Section 6(1) of the Acts provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one agency worker is treated less favourably than another agency worker is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the respondent failed to provide reasonable accommodation to the complainant in order to enable him to continue to work with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.3 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently 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 the respondent.

4.4 Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(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;

I am satisfied that a knee injury requiring three operations is a disability within the Acts. I accept the respondent’s evidence that they were not aware of the complainant’s disability until the chair was taken away. However, both the Security Manager and Store Manager (and the HR Department shortly afterwards) were aware from then on.

4.5 Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee. Regarding this Section 16 (1) of the Acts states:

Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….

(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.

However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is provided:

(3) (a) For the purposes of this Act a person who has a disability

is fully competent to undertake, and fully capable of

undertaking, any duties if the person would be so fully

competent and capable on reasonable accommodation

(in this subsection referred to as ‘‘appropriate

measures’’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where

needed in a particular case, to enable a person who has

a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate

burden on the employer.

4.6 The seminal case on reasonable accommodation was determined by the Labour Court - A Health Club and A Worker. It is worthwhile to quote the relevant paragraphs:

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground 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.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [my emphasis][1]

In many cases taken on the ground of disability an employee or agency worker might have a shopping list of appropriate measures. In this case, the agency worker was merely seeking the reinstatement of a chair. He followed the necessary steps – initially approached the Security Manager, then the Store Manager who he provided with medical evidence before finally contacting the Human Resources Department in Head Office. Either the various managers that he dealt with did not have any awareness of their obligations as a provider of agency work or they were deliberately ignoring their responsibilities under the Acts. Neither version reflects well on the respondent. The respondent devoted great energy at the hearing to the fact that the complainant did not make them aware of his disability until they took away the chair. However, he had no need to make them aware of his disability nor make a request for reasonable accommodation until it impacted on his ability to do his job. In fact both parties are in agreement that his work was issue-free until the chair was taken away. The complainant was very clear (as was his doctor) that he could not remain upright (i.e. standing or walking) for ALL of his ten hour shifts. That did not mean he wanted to remain sedentary for all of his working hours – merely that he could sit down for some of the working time.

4.7 As the Labour Court has found in An Employer and A Worker sometimes reasonable accommodation involves treating a person with a disability more favourably:

The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.[2] [my emphasis]

For example, the respondent could simply have reinstated the chair for the complainant’s shifts. I do not see the need to overcomplicate the issue (as the respondent did at hearing) by saying risk assessments were required in the circumstances of this case.

4.8 Under Section 16 (3) of the Acts a respondent is not required to provide appropriate measures if the accommodation would impose a disproportionate burden on the respondent. Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose such a burden:

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s

business, and

(iii) the possibility of obtaining public funding or other

assistance.

I am not going to dwell on the detail on whether reinstating a chair is a disproportionate burden. Suffice to say that it is not - especially for a multi-national retailer who allow security guards to sit down for some of their working time in other stores. I am also cognisant that the respondent was not able to quantify, in any way, whether shoplifting had decreased since the removal of the chair.

4.9 To reiterate, the complainant’s doctor provided him with a letter explaining why an accommodation was sought. This was a reasonable request. However, the respondent was not willing to even consider it. Neither am I satisfied that the suggestions for reasonable accommodation would have placed a disproportionate financial burden on the respondent. Therefore, it cannot avail of the statutory defence and the complainant is entitled to succeed in his claim that the respondent failed to provide appropriate measures.

Victimisation

4.10 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of these Acts, an employee having been a witness in any proceedings under this Acts, an employee having opposed by lawful means an act which is unlawful under these Acts, or an employee having given notice of an intention to take any of the above actions.

4.11 By requesting reasonable accommodation and the respondent refusing to deal with it, the complainant was opposing by lawful means an act which is unlawful under these Acts. Therefore, any adverse treatment that occurs as a reaction to this by the respondent could constitute victimisation. I found the complainant to be a cogent and credible witness. I believe him when he said the Store Manager said ‘You won’t get the f*cking chair’. It was an unnecessarily aggressive response to a simple request made in the correct way i.e. accompanied by a doctor’s note explaining why this accommodation was requested. The complainant also provided documentary evidence of rosters prepared by the respondent with his hours significantly cut after he made a request for appropriate measures. The respondent did not refute this. I am satisfied that both of these reactions constitute victimisation within the meaning of the Acts. Therefore the complainant has established a prima facie case of victimisation and the respondent has failed to rebut the case.

Redress

4.12 In calculating redress for the complainant, I must be cognisant of a number of considerations. The respondent attempted to abdicate its responsibilities under the Employment Equality Acts by ignoring the complainant’s request for reasonable accommodation. It bears repeating that his request was a simple one – a seat! This differs from Nano Nagle v Daly where, at least, some attempt was made to consider whether reasonable accommodation could be provided.[3] All of this occurred in a situation where the respondent had been very happy with the complainant’s work. The respondent did not engage with his request at all even when he contacted the Human Resources Department in their Head Office. In fact, he was victimised for raising the issue. I find that compensation is the appropriate redress in the circumstances of this case.

Decision

5.1 I have concluded my investigation of the agency worker’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that

(i) the respondent hasfailed to provide appropriate measures that would allow the complainant to return to work in their store

(ii) the respondent victimised the complainant

Therefore, I find for the complainant.

In accordance with Section 82 of the Acts, I order the respondent:

(a) Pay the complainant €16,000 for its failure to provide reasonable accommodation (the approximate equivalent of six month’s salary)

(b) Pay the complainant €16,000 in compensation for victimisation

The total award of €32,000 is redress for the breaches of the Employment Equality Acts 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).

(c) Conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to their responsibilities as providers of agency work. Unless this decision is overturned on appeal, a report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year of the date of this decision. If this is not done, the Irish Human Rights and Equality Commission may (with the consent of the complainant) apply to the District Court for enforcement of this order under Section 91(1)(a) of the Acts.

Dated: 19 May 2016

[1] Determination No. EED037

[2] EDA0413

[3] [2015]IEHC 785