ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003301

Complaint for Resolution:

Date of Adjudication Hearing: 22/09/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant has a disability which can limit her mobility especially towards the end of the working day when she tiredness sets in.

She has made three complaints under the Employment Equality Act and a further complaint of victimisation arising from these.

The first concerns criticism of her choice of footwear which choice was necessitated by her disability. She says that she was criticised unfairly over this.

The second relates to attempts by her employer to require her to undertake ‘key holder’ duties’ which she says presents difficulty because of her disability. It involves checking a five storey building, making sure lights are turned off and collecting bags of cash. She says that she was told that she could not use the lift for this exercise.

Finally, the company adopted a policy of removing stools from behind sales points in order to encourage greater contact with customers. She says this had an adverse effect on her, again because of her disability.

Preliminary Matter

The respondent raises a preliminary point in respect of two of the issues. It also notes in passing that none of the issues referred to the WRC had been the subject of a complaint under the company grievance machinery.

In respect of the complaint about the footwear this arose from a change in the respondent dress code and was introduced in March 2013 which the respondent submits places it outside the time limits within which to submit a claim. It further says that no claim arises as the complainant was permitted to wear the footwear of her choice in any case.

In respect of the issue over the removal of the stools the complainant was on certified sick leave when this was being implemented on a phased basis. Therefore she did not become affected by it at all until her return from work on July 7^th 2016. As she made her complaint to the WRC on May 27^th this lies outside the scope of the complaint and is therefore not validly before the hearing.

In respect of the first of these the complainant says that all the incidents form a continuum and therefore fall to be dealt with under the Acts. She also says that the relevant date for the complaint about the stool is April when they were removed. However, it was accepted that the central issue was the proposed assignment of ‘Key Holding’ duties to the complainant.

Decision on Preliminary Matter

I find that there is no continuum or nexus between these events. Indeed no case arises under the footwear complaint. The complainant did not dispute the respondent version of events and one cannot discern any act of discrimination. In any event it is outside the time limits.

Likewise in relation to the ‘Stools’ issue I find that the respondent made a business decision in good faith. It might, perhaps have ‘equality proofed’ it for its effects on workers with physical needs to rest. However evidence was given that where individual employees made a request, or where the nature of the work required it (prolonged use of a computer, for example) this was conceded.

Indeed, leaving aside whether the ‘stools’ complaint falls within jurisdiction efforts were made over the four or so working days after the complainant returned to work to accommodate her. They may not have been entirely to her satisfaction but the respondent is entitled to some time to meet any such request before a complaint can be said to crystallise. Certainly no complaint under the Acts can be said to arise by virtue of the change of policy per se. it is how the impact of this on any person with, say a disability, is addressed.

The complainant stated in evidence that she did not raise the issue with anyone at the time.

Accordingly, as this issue arose only after the complaint was referred to the WRC I find that this matter too falls outside my jurisdiction. The complainant went on sick leave on April 18^th, four days after the stools policy changed, made her complaint on May 27^th, but did not return to work until July7th.

Accordingly it is clearly not a part of the complaint as referred and not within jurisdiction.

This leaves only the matter of the ‘key holder dispute.

Respondent’s Submission and Presentation:

Regarding the key holder dispute the respondent, in 2013, decided that those employees at the grade of the complainant should undertake the closedown process and related duties (such as call out in the case of an emergency). They were known as ‘Lead Booksellers’ and were in a promoted capacity.

A number of meetings were held with the complainant throughout 2013 (notes of which were submitted in evidence).

At one of these, on April 26^th 2013 the complainant outlined her reservations about undertaking the role which included issues such as safety, gaining access to the building, possible risk through having the keys in her possession etc. There was a further family matter which was mentioned. There was no reference then to her disability.

The meeting concluded on the basis that nothing would happen until September. At a later meeting on April 29^th the complainant said that she had a problem ‘with key holding as being a duty for her grade and pay’.

The issue did not arise again until her performance review in 2016 when the interviewer raised it at the end of the discussion and this was recorded on the report of the interview.

The respondent received a letter from the complainant’s union in February 2016 also objecting to the new duties but without making any reference to her disability as the basis for this. A letter was also received from her GP in March stating that these were unsuitable duties on account of her disability, although this letter referred to duties which were not actually being required in the role, clearly on the basis only of the information supplied to the GP by the complainant.

The respondent points out that use of lifts is permitted, (the complainant had said that they were not), the duty is carried out by two people, access to the light switches is convenient to the lifts, the weight of cash carried is not excessive etc.

Finally the respondent says that, prior to going on sick leave the complainant was told at a meeting on April 12^th that she would not be ‘requested again’ to undertake the duties.

Conclusions and Findings

I have considered all the written and oral submissions that were laid before me both prior to and in the course of the hearing. Following my preliminary decision above the only issue that remains for decision is the matter of the key holding.

It is hard to detect what the complaint might be here.

The issue has quite obvious industrial relations characteristics and despite rumbling on from 2013 only developed any sort of equality dimension in February 2016 with the arrival of the letter from the complainant’s GP. As noted above the GP acted on the basis only of what her patient, the complainant told her, some of which at least was erroneous.

The independent medical opinion (March 30^th) was to the effect that she was ‘currently fit for her role’, with some limitations on carrying heavier loads on stairways.

The only issue referred to the independent medical practitioner touching on the key holding role was the weight of a cash box, which the respondent submitted was no heavier than a few books and in any event, could be transported using the lift despite the complainant’s assertion (supported by her GP) that she was told it could not.

So between the initial appearance of the complainant‘s disability for the first time as a factor in a letter from her GP (on February 8^th) and based, in the respondent’s submission on erroneous information as to the nature of the duty she was recommending against, the period between the opinion of the independent medical assessment (March 30^th) and the decision to withdraw the requirement (April 11^th) was a matter of less than two weeks.

I do not discern any discriminatory act anywhere here and no prima facie case has been made out. The issues arising in the case lie squarely within the industrial relations arena.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

In relation to complaint CA-00004904-001 no prima facie case of a breach of the Employment Equality Act 1998 has been made out and I dismiss the complaint. Likewise, and arising from this, no evidence was adduced of victimisation and this aspect of the complaint also is dismissed.

Dated:   28^th September 2016