EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-132
PARTIES
Ms Marie Walsh
(Represented by Denise Mulcahy, B.L.
instructed by Kieran Mc Carthy &Co. Solicitors)
AND
Cedarglade ltd
(Represented by Arthur Cox)
File Reference No: ET-151290-ee-14
Date of Issue: 21st September 2016
1 DISPUTE
1.1 This dispute concerns a claim by the Complainant that she was discriminated against by the Respondent in relation to her employment on the grounds of disability contrary to Sections 6(2)(g) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), owing to the Respondent dismissing her on discriminatory grounds and by the failure of the respondent to provide her with reasonable accommodation contrary to Section 16(3) of the Acts. The claim for victimisation was withdrawn on the first day of the hearing. The complainant sought the remedy of re-instatement.
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 3 December ,2014. On 17, May, 2016, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Adjudication / 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. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold hearings on 26 May and 4 July, 2016, where both parties were represented.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015
2. Summary of The Complainant’s Submission:
2.1 The complainant commenced work as a shop assistant on May 1, 1999. At that time the store was run by Mr. AB. On 25 October,2013, the respondent took over the running of the store and TUPE (transfer of undertakings for the protection of employees) applied . ( European Community : Protection of Employees on Transfer of Undertakings Regulations, 2003
2.2 The complainant had a history of rheumatoid arthritis and been under the care of a Consultant for many years. During Mr. ABs’ management period, the complainant was accommodated at work through a structured rostering system. She had reduced her 40 hr. week to a revised work pattern. This comprised of
· 28 hr. week
· Four shifts per week (7 am -3pm) with two half hour breaks.
· One day off mid-week for rest. (normally Wednesday or Thursday)
The respondent appointed a care taker manager following the takeover following the departure of Mr. AB. This system was in place until the appointment of a new store manager Ms. B in January,2014.
In March 2014, the complainant was going on holidays when she was approached by Ms. B who informed her that her shift pattern needed to change and her weekly hours would have to increase. The complainant refused the proposed change on health grounds. Ms. B informed her that these hours would have to be worked, otherwise she would have to attend the company doctor and be certified out on sick grounds, or be made redundant. The complainant made Ms. B aware of her condition but there was no change in the proposal. Ms. B informed the complainant that there would be more hours for her and they would have to be done. The complainant submitted that Ms. B informed the complainant that her mother also had the same condition as her.
After her return from holidays, the complainant was informed that redundancy was not an option. She commenced a revised working pattern of 7 am -4pm, which was an additional 4 hrs. a week. She changed as she understood that her refusal to change would place her in jeopardy. She undertook a food safety training day during April.
2.3 On 28 April 2014, the complainant was working on her own in the Deli section of the store. It was a Monday morning and there was a large number of tasks for her to undertake. Equipment at the store in both the refrigeration and ovens areas had been known to be faulty and a universal practice had evolved over time that staff filled in refrigeration temperature sheets without always checking the temperature due to time constraints. On this day, the ice cream fridge malfunctioned and had to be repaired. The complainant submitted that as result of pressure at work she had not completed the checks on the day and had placed the previous day’s recordings in its place. Once she was informed of the malfunction she asked her colleague Ms. C to tippex out the record. Ms. C erased the record. There was a €260 loss of ice cream. Some ice cream continued to be sold.
2.4 Ms. B undertook an internal investigation of the incident. This report issued on June 10, 2014. The complainant continued to work her increased work pattern until she was suspended on 11 June 2014 for falsifying food records. The complainant’s representative was very dissatisfied with the manner in which the internal investigation was conducted as they contended that Ms. B was not impartial and the report was biased.
“She was not in a position to impartially assess the extent to which the complainant was having difficulty in coping due to her disability and/or the extent to which the failure to reasonably accommodate the complainant’s disability accounted for her conduct “
2.5 The respondent invoked the disciplinary process on foot of the outcome of the internal investigation and the complainant was dismissed, following a period of suspension on July 1, 2014. An appeal was lodged and heard on 4 September. The appeal was not upheld and the complainant was notified of this on October 10. The complainant submitted that when she sought to discuss her health matters at the disciplinary hearings this was disregarded and dismissed as irrelevant.
2.6 The complainant representative advanced a number of arguments in support of the contention of discrimination on disability grounds:
The complainant had received a letter on 25 September, 2013 from the respondent,
“Your employment terms and conditions will be unaffected and Cedarglade ltd will take over those terms and conditions of employment “
1. There was a universal inherited practice in the store of inaccurate reporting of food safety checks. This needed time to change under the new management team.
2. The respondent took over a company which had previously specifically reasonably accommodated the disability of the complainant. The respondent had a responsibility to enquire into the circumstances of the complainant’s employment and to be mindful of its continuing responsibility to accommodate the complainant’s rheumatoid arthritis.
3. When the issue of additional hours was discussed in March 2014, the respondent ought to have broadened the scope of the discussions to include medical reports from the complainant or the company doctor.
2.6 The complainant’s representative made closing submissions on seeking a direction from the Equality Officer under Section 101 (2)(b) of the Acts as amended (Employment Equality Act, 2004) for alternative redress in respect of the dismissal. They submitted that the case was an appropriate case on which to direct that it be heard as an Unfair Dismissals case. They cited Jackson V Top Security Ltd DEC -E2007-035 in support.
Section 101(2) Where an individual has referred a case to the Director General of the Workplace Relations Commission under section 77(1) and either a settlement has been reached by mediation or the Director General of the Workplace Relations Commission* has begun an investigation under section 79, the individual—
(a) shall not be entitled to recover damages at common law in respect of the case, and
(b) if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal, unless the Director General of the Workplace Relations Commission, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and respondent.
*Director of Equality Tribunal prior to October 1, 2015
3 Complainants evidence:
3.1 The complainant detailed the background to her Rheumatoid arthritis. She submitted that there were occasions where a steroid injection was necessary for her in the event of an exacerbation. She had managed her condition while Mr AB was in charge through a system of half hourly breaks and a day off midweek. She did not work weekends. When a colleague left in 2013, She changed from an 8 am to 2pm pattern to 7am to 3 pm. When the store changed ownership, she was assured by Mr AB that “all would be the same “.
3.2 The shop was due for revamp after the takeover. There was no air conditioning or heating. The Health Inspector had shut down the Deli on one visit. The complainant submitted that there were problems when Ms B took over the management of the store as she was not permitted to hire staff but managed to hire two staff. The complainant submitted that Ms B saw the solution to staffing issues at the 8 staff member store in increasing the hours of the existing staff. She was approached to increase her hours on two occasions, she declined on health grounds, but did not initially expand on this. On 18 March, she was called to the office and told by Ms B that her hours were going to be changed by imposition. She understood that she could be working variable shifts and variable days over a 7-day rota. The complainant submitted that she had rheumatoid arthritis and learned that Ms B’s mother shared the condition. She asked for her options and was informed that if she refused she
· Could be made redundant
or
· Put on sick leave by the company doctor.
The complainant offered to submit a medical report but this was declined by Ms B, who informed that she would be “no good to her as a dead dog “She was advised to think it over and discuss with family and friends. The complainant stated she was concerned and considered redundancy but she had family commitments. She phoned work the day before she was due back to learn that her shift had been changed from 7 am to 4 pm and 9 am to 6 pm 3 days in a row. She queried this and her 5-day pattern was restored but the shift changed. She described being “stressed out of my head” as the shop was busier without the corresponding level of staff. She was not referred to the company doctor. She undertook a days training for HACCUP, food safety on 12th April.
On Monday, 28th April, she was working alone in the Deli until Ms D came in at 9 am. The common practice was to fill in the temperature recording of the fridges on a recording template before 12 noon. The information ought to have been transferred from the day before but this had been omitted, causing an additional work load for the complainant. She was having lunch when she was approached by Ms B asking whether she had done the temperature checks? She said that she hadn’t done them. A fuse had blown in the fridge from the previous night. She mentioned to Ms D that she may as well tippex out the recording entered on the checklist. The complainant accepted that she had entered a falsified temperature reading onto the checklist but wished the Equality Officer to understood that she was amongst a group who had historically engaged in this practice given the precarious state of the electrical equipment and the lack of regulation of heating or air conditioning in the shop. on April 28th, she was standing beside Ms D in conversation with Ms B whilst discussing the falsification.
3.3 The complainant cooperated with the internal investigation but felt targeted by Ms B. she had a 15-year clean disciplinary record and suddenly, nobody else mattered as she had been caught. Ms B did not mention her rheumatoid arthritis but the complainant had a strong instinct that Ms B was biased against her. She offered to pay for the ice cream but this wasn’t accepted. Once she obtained the report of the internal investigation, she knew that “she was a goner “.
3.4 She raised the link between her health condition and the pressure she was under at the disciplinary meeting on 19 June but this was regarded as irrelevant. Her Solicitor had also raised it. She contended that she was given no chance at all at either the disciplinary hearing which recommended her dismissal or on appeal. She told the hearing that “I did not do it because of my rheumatoid arthritis, I did it because I was under pressure” She reflected that had the previous manager been in place then she would still be retained on the staff. She had tried to work since she left the respondent employment but her condition had flared up. This disappointed her. She had done two weeks work in a large chain store. She had really enjoyed her job at the respondent store and wished to return.
In cross examination, the complainant confirmed that there was no major training in Mr ABs management era and she had received her job description, handbook and training from the respondent. She understood the importance of Food Safety but reaffirmed that the equipment was on its” last legs “. She had not formally raised these malfunctions to the store manager, Ms B.
The complainant stated that she wrote in the false temperature but it was signed by Ms D. She told Ms D to tippex it out. When challenged on changing her story, the complainant clarified by stating that she, herself did not go downstairs to tippex it out.
The respondent asked the complainant to confirm whether given her misgivings regarding the suitability and impartiality of Ms B to conduct the internal investigation, had actually caused her to object and seek a replacement. The complainant stated “no”, that she didn’t realise that she had a problem until she read the report. She contended that she had been unfairly dismissed. She confirmed that she had not raised her level of pressure with Ms B nor had she actioned the grievance procedure in relation to her health condition. She was struggling as she had been informed that everything would remain the same post the take-over but that was not the case. She tried to raise her health issue throughout the disciplinary processes but she was informed that these had no bearing on the decision of the managers and were irrelevant. The respondent disputed that the complainant had offered to produce medical reports at the time of the proposed change of hours. The complainant reaffirmed that she could get the required medical reports.
She denied that she had used her health condition as a defence. She stated that she was put under threat following the takeover, she hadn’t really familiarised herself with the handbook or the new management structure. There had been no induction. Previously both Ms E and the complainant had run the shop while Mr AB managed the ordering. After this a trainee manager acted as a care taker manager at the store from October to January before Ms B was appointed
4 Summary of the evidence of the complainant’s husband
4.1 Mr Walsh confirmed that the complainant’s health had deteriorated post her dismissal as being at work and moving around helped her condition. His wife had always worked from aged 12. He recalled the change process in the store and the complainant discussing the option of redundancy in around March 2014 but this wasn’t a runner.
He recalled the 7.5-week period before the internal investigation was concluded and presented to the complainant where he witnessed the complainant go “downhill” and her stress was brought to the surface. He attended the disciplinary meeting where he recalled that his wife’s health was deemed to be “not relevant “to the process. He submitted that his wife had not been treated like a human being.
5 Summary of the Respondent submission:
5.1 The respondent had prepared the case to address the claims for Discriminatory Dismissal and Reasonable Accommodation. Both claims were disputed and denied. The respondent did not accept that the complainant suffered from a disability within the meaning of disability under the Acts. At the earliest juncture, the respondent contended that the claim on discriminatory dismissal was not properly before the Equality Officer as the complainant was not dismissed because of any health/disability condition but rather because of “gross misconduct “in relation to a food safety issue. The claim may well have been better classified by the complainant as an Unfair Dismissal claim under corresponding legislation. However, given the parameters of Section 101 of the Equality Acts, that was no longer possible. In addition, the claim for a breach of section 16 of the Act on failure to grant reasonable accommodation was unfounded.
5.2 The respondent took over the running of the business under “TUPE” regulations on 26 October, 2013. A new store manager was appointed. An employee handbook and a job description issued to the complainant in early April, 2014. The respondent confirmed that training in food safety was undertaken by the complainant on 12 April 2014. It was a disappointment to the respondent to discover within a two-week period following this date that the complainant was involved in a serious breach of the Food Safety standards required at the store. As part of her normal duties, the complainant was required to take the temperature of an ice cream freezer every morning and to record the temperatures in a chart to satisfy HACCUP and retention of the Q mark in hygiene and food safety. On 28 April 2014, an incident occurred where the complainant did not complete the temperature checks for the ice cream freezer but yet recorded temperatures in the chart. This resulted in an internal investigation which recommended that disciplinary procedures be conducted.
· There had been a common practice to falsify records in the past
· Staff had been trained two weeks previously on food safety
· There was no evidence of Ms Walsh’s’ stated pressure
· There was a loss of product
· Health and Safety risk
· Actions were brand damaging
The complainant was placed on paid suspension from 11 June,2014
A disciplinary hearing took place on 19 June which was conducted by Ms E and Mr C who reached conclusions of gross misconduct and made a decision to summarily dismiss the complainant. The complainant was represented by her husband. The decision was communicated to the complainant on July 1, 2014.
This decision was appealed. The company received notification of appeal from the complainant’s solicitor on 15 July. The appeal was held on 4 September, 2014, where the complainant was represented by her solicitor. The Appeals Committee, comprised of Ms F, human resource manager and Mr D, regional manager, met with Ms B on 22 September. The appeal was not upheld and this was notified to the complainant on 10 October, 2014.
5.3 Three different sets of eyes reviewed this event from the respondent’s perspective. The complainant was represented throughout. Ms B, as store manager was the correct person to investigate the incident of 28 April. She had no knowledge of the complainant’s health condition, hearing about it for the first time during the disciplinary procedure process.
Ms E and Mr C, the managers who conducted the disciplinary process, found dismissal to be the appropriate sanction and while the complainant’s health condition was advanced as a defence, it had no bearing on the decision. Ms F and Mr D who conducted the appeal found that the complainant’s rheumatoid arthritis had no bearing on the decision to dismiss and upheld the dismissal.
5.4The respondent contended that Ms B only became aware that the complainant had rheumatoid arthritis during the course of the disciplinary procedures. Citing D V Government Dept. DEC -E2008-011, the respondent contended thatthere was an onus on the complainant to put forward evidence of her medical condition or other appropriate evidence.The respondent submitted that the hours change in March 2014, amounted to 4 hours a week as the other staff were full time. This did not threaten the complainant and there was no mention of a health condition of rheumatoid arthritis. There was no reference to a “dead dog “The adjustment of working hours was universally discussed at the store and necessary for business needs. The respondent has an operational equality policy and is committed to equality and diversity in the workplace.
5.5 When the store was taken over, there was 1:1 meetings with all staff and there was no record of a Rheumatology report given to the respondent by either Mr AB or the complainant. The reference made by the complainant to being threatened by the company doctor was taken out of context. The complainant was offered a consultation and she refused. Therefore, the complainant could not reach the burden of proof on Sec 16(3) of the Acts. The company had no record of the complainant making any request other than for one day off during her 4 shifts per week.
5.6 The respondent contended that it would be unjust, if not unconstitutional for a direction to be permitted by the Equality Officer under section 101(2)(b) to refer the case base to another Adjudicator of WRC to hear an Unfair Dismissal case. The respondent recorded that the respondent was wholly opposed to the pleadings of the complainant in this regard. The claims had been heard at length by the Equality/Adjudication Officer over the course a 2-day hearing. It was not an appropriate case and a fair hearing would be impossible.
5.7 The respondent contended that the complainant had breached food safety standards, a short period after receiving specific training on the topic. This compromised the integrity of the respondent’s food safety management systems, potentially placed the health of customers at risk and constituted a breach of trust. Food safety is of paramount importance for the proper running of the respondent business.
6 Evidence of Ms B.
6.1 Ms B had worked with the respondent company for 14 years. She had been a Nurse previously. She commenced as store manager on 28 January, 2014.She was struck by the lack of procedures and structures at the store and recollected that the shop needed a lot of work. All staff were given a handbook each and training in food safety was organised. The revamp planned for the store was delayed and she concentrated on raising the standards at the store.
There was an” engagement evening” to welcome Ms B sometime in early February and Mr D, financial Controller was her line manager. An issue had arisen on unaccounted stock loss at the store and there was an open forum for staff to try and resolve this followed by an interview process.
6.2 On 28th April, 2014, Ms G had brought to her attention that the ice cream in the fridge was soft. A malfunction of the fridge was identified and fixed by Ms B changing the plug and using an extension lead. The top half of the stock was removed and the bottom half was intact. She was shocked to learn from both Ms C and the complainant that the temperatures had not been done and were tippexed over. She undertook an internal investigation and found that the complainant had cut corners and had admitted to the falsification. This process took time as the logistics on staff availability and logistics of getting them off the floor was challenging.
6.3 The first she heard of the complainant’s rheumatoid arthritis was during the meeting with Ms F and Mr D. She understood that the complainant may have had a dietary condition as she used soya milk but did not enquire into her exact condition. She confirmed that her own mother had rheumatoid arthritis.
Ms B confirmed that the company did not own the fridge and it was given by the Ice cream company. She had a duty to report the incident of April 28th to her seniors and the matter was passed to Human resource department for advice and direction. Food safety was the single most important issue for the store and its customers.
She described the complainant as an excellent worker, with whom there were no issues before April 28th.
Ms B dealt with the need to seek a revision of rosters at the store as the roster was not conducive to sales. Some staff were working 6 to 7 hrs without a break, some worked a 14-15 day stretch without a rest day. She recalled the 1:1 meeting with Ms Walsh, she asked her to try the 7 -4 pm slot and revert back. She stated that he complainant did not do weekends due to seniority, but required a rest day after either 2 or 3 straight working days. The complainant and Ms G populated the top part of the roster and others were fitted in after them. The complainant never worked more than three days in a row. She recalled the complainant stating there were health reasons for her unwillingness to change her work pattern and Ms B advised her that her “health should come first”. She had no recollection of the complainant offering to submit her medical records but did recall the complainant asking what would happen if she couldn’t do the hours? That was when Ms B mentioned redundancy.
The complainant returned to work and worked the extended shifts, there was no issue raised on the extra hour. Ms B had no memory of a 40 hr week being rostered. Ms B was not aware of any employment records forwarded from the previous owner. There was a three-month period before she took over. She saw the letter produced from a Dr G on the complainant’s health condition but this was after she left employment.
In cross examination, Ms B denied that she herself was under increased pressure due to her own probationary situation. She was starting from scratch at the store and it was challenging, not frustrating. She was not exposed to a particular pressure from the parent company. There was a parallel disciplinary issue in train at the store and someone else had been let go. She confirmed that she had not been on notice of the complainant’s condition and assumed her health was a private matter. There were no grounds to refer the complainant to the company doctor as the complainant worked the extra shifts without further discussion.
When asked whether she had considered the significance of the complainants Wednesdays off, she confirmed that the complainant stated that she got tired after 2 days, but did not inquire into fatigue.
Ms B submitted that she had interviewed the relevant people in her internal investigation, but this did not include input from the staff rostered on the previous Sunday. The complainant took responsibility for the wrongdoing. There was no incident form on file as there was no concern about the customers at the time. Ms B formed the view that the complainant was responsible. She was aware of the gravity of her findings at investigation and knew that termination may be an option at the disciplinary stage.
Ms B confirmed for the Equality Officer that the complainant offered to pay for the damage but the parent company did not condone this approach. There was no due diligence document prepared on the staff who transferred over under TUPE. There were no employment files. The complainant worked as normal at the store from April 28th to June 11th, the date that she was placed on suspension. The suspension was advised from the human resource dept. Ms B saw no other way of managing the issue, there were rules involved. In her experience, employees typically did not action the grievance procedure when they were dissatisfied.
7 Evidence of Ms E, Disciplinary Hearing
7.1 Ms E had worked at the human resource department for 8 years. On April 28th 2014, she was contacted by Ms B and received a report of the core incident .Investigation guidelines were issued and the complete report recommended a disciplinary process .The meeting was led by Ms E and Mr C took minutes .Her first awareness of the complainants rheumatoid arthritis was via the solicitor for the complainants letter on June 18 .This had no bearing on the decision of the disciplinary hearing .They took account of the condition but the business is about Food Safety and they were aware of a number of pressing non compliances at the store .
The events of April 28th were intolerable for the store, there was a serious breach of trust. Everyone there on the day was interviewed by Ms B. The store was 1200 sq. feet and while there was an issue of faulty equipment, there was a backup probe available to secure an accurate temperature reading. Ms E approached Ms B to seek clarification on the “dead dog” commentary and found on balance that no such remarks were made.
The ultimate outcome of dismissal was recommended due to two main factors;
1 Breach of food safety steps.
2 Serious breach of trust. Incorrect temperature followed by tippex.
Ms E was satisfied that this was the correct sanction.
During cross examination, Ms E responded to the complainant’s representative questions on why the stated pressure described by the complainant was not put to any other employee outside one employee who worked on tills.? She said that the internal report had directed the question to the employee on the tills.
She stated that the on site manager was impartial. Reasonable accommodation was not considered at any stage as the complainant’s health condition did not justify her actions nor inform her dismissal. Ms E stated that if “pressure” was a contributory component then there was an onus on the complainant to raise it under the grievance procedure.
When challenged on the proportionality of the dismissal by the complainant’s representative, Ms E reaffirmed that the actions constituted gross misconduct on two counts Neither the Group Hr Manager or Mr AB had raised any special instructions or directions regarding the complainants work pattern at the store and the complainant would have had several opportunities to ventilate issues herself. She disputed that the outcome of the disciplinary procedure was predetermined. The decision to dismiss was a joint decision, all possible sanctions were considered yet dismissal was considered the appropriate sanction.
In response to questions from the equality officer, Ms E stated no particular weighting was given to the period of suspension already served from mid-June and reasonable accommodation was not an issue. There was a basic exchange of employee files on transfer of business but no Inquiry took place on whether any reasonable accommodation was in place for anyone. The realignment of rosters was viewed as a priority for the store.
8 Evidence of Ms F, Appeal Manager
8.1 Ms F had worked in human resources for over 20 years. She had worked for 6.5 years in the parent company sales dept. Ms F had met the complainant at customer training over the past three years. The Appeal of the dismissal was delegate to her and Mr D.as regional manager and they were charged with making a decision as they saw fit. She determined that a serious breach of trust had occurred on the complainant’s side. She was aware that it was the complainants first disciplinary procedure. She confirmed that the Appeals Committee was appointed to hear from the complainant. Ms F found on balance that she believed Ms B’s rebuttal of the “dead dog “comment.
Ms F acknowledged that the practice of inaccurate reportage of temperatures had happened in the past but she was not persuaded by the complainant’s reliance on the defence of the pressure she was under as she submitted: “surely, if under pressure, tippex wouldn’t have been used?”
She submitted that if the new hours were a problem, the complainant could have secured a consultation with the company doctor.
They considered the application of a final written warning as they had an open mind and listened to the complainant. They heard nothing from her to influence a revision of the sanction. Food safety was a most serious matter for the business.
During cross examination, Ms F stated that the store wanted to retain experienced staff and while there was a wage differential of €11.85 per hour for long serving staff and €8.65 for new staff, it was the high standard in food safety of the parent company that everyone had as a target.
During the discussions in follow up with Ms B on September 22, Ms F was asked why the company doctor was not called on for an input? Ms F replied that the complainant had not asked for an accommodation. She was asked whether the appeals committee had examined the pressure factor in the raise during the disciplinary procedure and the Appeal? She answered that it was reviewed in the internal investigation when Mr R, who worked on the tills had stated that he was unaware of the complainant’s pressure.
In relation to the tippexed temperature checks, Ms F stated that had they been left blank the respondent would have understood but falsification was unacceptable. Ms F contended that the complainant raised her health issue as a defence after she had been caught and the committee were not in a position to look into the health issue further.
In response to questions from the Equality Officer, Ms F confirmed that the Appeals Committee had not sought the input of Mr Ab or the company doctor/complainants GP. There was no health questionnaire on file at time of transfer of the business or since then, neither was there an Incident form logged on the events of April 28th.
9 Findings and Conclusions of the Equality Officer /Adjudicator.
9.1 My objective in this case is to decide whether or not the respondent discriminated against the complainant on the ground of disability in terms of section 6(2)(g) of the Acts by failing to provide her with reasonable accommodation as provided for in Section 16(3) of the Act. In reaching my decision, I have reviewed and listened carefully to both parties oral and written submissions in the case. I have reflected on the evidence submitted.
As a first step, I must examine the contentions of the complainant in addition to addressing the respondent submitted defense that
(1) The complainant did not possess a disability
(2) The respondent was not on notice of either the disability or a request for reasonable accommodation.
I propose to do this by referring to the definition of Disability 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.
This is a broad definition of disability and based on the evidence adduced at the hearing, I find that the complainant did have a disability in the form of a lifelong condition of rheumatoid arthritis, which is accurately reflected in Section 2 (c) above.A Worker v a Hotel [2008] ELR 73 is Labour Court authority on the condition of osteo-arthritis defined as a disability .
I appreciate that there were no medical records on file at the business prior to the take-over by the respondent company and I will address this next.
In Arturs Valpeters v Melbury Developments [2010] E.L.R. 64, the Labour Court identified the parameters of the burden of proof necessary in employment equality cases.
“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination
. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
9.2 During my investigation, I was struck by the noticeable lack of emphasis given to the biographies of the staff profiles during the course of the transfer of undertakings in September/October, 2013. If due diligence was completed on the economic components of the business on transfer, crucially it does not appear to have arisen in the context of the 8 staff who transferred over to the respondent company. I am conscious that it was a small business involving 8-9 employees and a 1,200 square foot premises, however TUPE regulations are not restricted by the scale of the business.
It appears to me that the comprehensive details on a worker of 15 years standing as in the complainant’s case, should have been to hand and a record of the appropriate transferred employment record made available as part of this case.
I find that the transferor had a responsibility to transfer staff in compliance with TUPE regulations and while I appreciate that this case is not submitted under the regulations, nonetheless, I see merit in referring to a European Court of Justice preliminary reference on whether TUPE applied in a cleaning contract case,CLECE SA v Martin Valour (Case C-463/09) [2011]2 C.M.L.R,
“An entity cannot be reduced to the activity entrusted to it. Its identity emerges from several in dissociable factors, such as its workforce, its management staff, the way in which its work is organized, its operating methods or indeed, where appropriate, the operational resources to it.”
I find that the three-month period of caretaker management immediately in the wake of the transfer clouded this required transfer of intelligence on staff. I accept that there was no official record given to the transferee, the respondent, on the fact that the complainant had a disability, yet when I asked the complainant whether anyone in the store was aware of her illness, she stated that everyone knew. I find that there was an opaqueness around the interaction of Ms B and the complainant on the topic of her arthritis. I accept that the complainant was in charge of the Deli during Mr ABs tenure and Ms B held full store managerial responsible from the outset in January .It appeared to me from the evidence adduced that there was an unease between the parties and while health was mentioned in March 2014 in the context of the proposed roster changes , I find that it not expanded on until it was raised on a more robust footing during the course of the disciplinary process .In addition , I find that it is most probable that the complainant understood that she had a local arrangement with Mr AB on work pattern accommodation without being familiar with the official term of reasonable accommodation. I note that the staff handbook does not address this particular part of the legislation under its Employment Equality section. It merely refers to post employment medical screening not being sufficient grounds to unsettle a job offer.
9.3 Section16 of the Employment Equality Act 1998, as amended, provides for reasonable accommodation as follows:
(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(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.
…..
Section 16 (3) provides
(a) For the purposes of this section, 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) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -
I. To have access to employmentii. To participate and advance in employment,
iii. To undergo training,
Unless the measures would impose a disproportionate burden on the employer.
This section is aimed at protecting the rights of individuals to participate in the workforce in an inclusive manner. It can follow that persons with a disability are afforded more favourable treatment than an employee without a disability. I have investigated the sequence of events as submitted by the parties:
The complainant presented as sharing a minimum information interaction with Ms B in March 2014. I believe she was frightened of losing her place in the shop and genuinely feared being placed on sick leave, where her earnings would have been reduced through this absence. At that particular time, I accept that the store was a beacon store firmly embedded in an improvement notice by the company. However, it would have been useful if either the respondent or the complainant had sought a medical opinion to guide the process at this point. Rheumatoid arthritis is a complex disease and the test for reasonable accommodation is an objective one. Therefore, a reasonable approach should have been informed by expert reports.
There is a strong onus on the respondent to adopt a proactive approach in this regard A Government Department V an Employee ADE/05/16 applies. I find that rheumatoid arthritis was imputed to the complainant during the take-over of the store and subsequently up until the point of her dismissal. I find that the respondent ought reasonably to have known about it through TUPE procedures and from their own enquiries.IN Y V Calderdale Council 1806514/02 July 2003, a UK tribunal held that an individual could not be expected to suggest all his own adjustments. This was a case involving a candidate at interview who lived with a stammer. I am influenced by the findings in this case.
In the instant case, I find that there was a base line of fear and uncertainty for the complainant in the context of an energised take-over of a poorly run business. Her acquiescence with the shift change in March is testament to this. Pressure seemed to be endemic in the store on a number of levels, erratic equipment, robust targets, stock loss and a parallel disciplinary procedure. I find that this workload was a lot of responsibility for one manager. I find that the business targets were prioritised over the complainant’s welfare and the disciplinary process placed everything on a different footing. It became a case of “New wine in old wine skins” from early on.
The respondent interpreted the complainants utilisation of her rheumatoid arthritis as an opportunistic defence in the context of a disciplinary process. I disagree with this. I am struck by the complainant’s own description of her condition pre the takeover as a managed illness at work, compared with an exacerbated condition post dismissal. I interpreted her submissions to the disciplinary procedures as honest and underpinned with fear of being edged out by the new company. Perhaps the fear was unjustified but it was real for her.
9.4.I am encouraged by the efforts made on the verification process adopted by Ms F and Mr D with Ms B on September 22, 2014. I find that there was sufficient information exchanged at this meeting in particular to trigger Section 16(3) of the Act. It seems to me that this premise was not clearly understood by the management team or else they interpreted it as “too late” in the day to inform a revision of a separation of the disciplinary process from that of reasonable accommodation.
Mr D “So where there any special arrangements or shifts that she requested?”
Ms B Nothing …. other than days off
…….
Ms B I treated her the same as everyone. Everyone had their shifts changed. I never asked her to do something I wouldn’t ask anyone else to do (or do myself). She had the least changes. I never put her on Sunday ……
It is clear that it was the structure of the days as well as roster flexibility, that allowed the complainant to be safely accommodated at work. She had no sick leave. I find that the respondent ought to have engaged further with the complainant on reasonable accommodation irrespective of the disciplinary procedure. It is over simplistic to determine the complainants reference to her illness as irrelevant. It was wholly relevant, in fact it was essential under the Acts
.In Queally Pig Slaughtering V Robert Tkac EDA 1618, the Labour Court referred to the previous case of A Worker V an Employer [2005] ELR 159, in terms of a test to be applied in cases of access to reasonable accommodation.
“….to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee ….”
In Tkac, the court held that” the respondent did not consider the possible options that were available” They pointed to the omission of a medical report.
In the instant case, the complainant’s solicitor formally applied for reasonable accommodation on 18 June 2014, one day before the disciplinary hearing. I find that by omitting to obtain both a medical report or collateral from the previous owner, Mr AB, the respondent is in breach of section 16 of the Act as it did not take appropriate measures as provided for under the Act. However, I find that the complainant is partly at fault in this regard for her lack of reliance on an early activation of the grievance procedure in March 2014, I can appreciate that the respondent may reasonably have taken her agreement to extend her shifts as a moot point.
10 Discriminatory Dismissal.
10.1 I have to decide whether the respondent dismissed the complainant in circumstances amounting to discrimination on the grounds of disability in accordance with section
6(2) of the Act and in contravention of Section 8. I find that the complainant has not established a prime facie case from which an inference of discriminatory dismissal on the grounds of disability can be drawn. The complainant confirmed during the hearing that her disability was not connected to the reasons for dismissal. The dismissal, she stated emanated from the pressure she was under during the change process.
“I did not do it because of my rheumatoid arthritis. I did it because I was under pressure “
In that regard the case is distinguished from Humphries V Westwood Fitness Club [2004] ELR 296, the seminal case on discriminatory dismissal, which was followed in. Clavin V Marks and Spencer’s ltd DEC E 2015-055. The dismissal in the instant case addressed an issue of “gross misconduct “on a Food safety issue.
The complainant’s representative submitted a request for me to issue a direction under Section 101(2)(b) of the Acts, that in the event that I did not uphold the claim for discriminatory dismissal , to permit this aspect of the case to run as an Unfair Dismissals case from the date of that direction.
I have considered the request; I am mindful of the extremely grave outcome associated with this case for the complainant. I believe that she got lost in the “new broom “of the respondent company. However, the complainant was represented by a legal team from June 18th 2014 and I have to respect their decision to run the case as a dismissal on the grounds of disability rather than an Unfair Dismissals case when the case was lodged. I note that there were several references to unfair dismissal in the correspondence exchanged between the parties. Therefore, I must find that it was an informed decision to choose the discriminatory dismissal route. I accept the submissions of the respondent in this regard and find that having completed my investigation, this is not an appropriate case on which to issue a direction under Section 101(2)(b) of the Acts.
11 Decision
11.1 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 on that date, pursuant to the continuation of my functions set out in S.83 of the Workplace Relations Act, 2015.I have made my decision in accordance with Section 79(6) of the Acts.
11.2 I find that the respondent did not discharge their responsibility to the complainant in accordance with reasonable accommodation in accordance with section 16 of the Acts. I have considered a number of options under Section 82(e) of the Act as potential for appropriate redress in this case. I am mindful of the stated desire of the complainant for reinstatement. I am conscious of the importance of the social model of disability and the importance for an individual with a disability to secure the dignity and respect that comes from being reasonably accommodated at work. Nano Nagle Centre v Marie Daly [2015] IEHC 785 applied. I am also mindful that time may have passed at the store and the complainant may be looking back via a slight gilded rear view mirror. But most of all, I am guided by the dual descriptions given by the complainant on her health status prior to the change of ownership and the subsequent deterioration and I find that it may be of benefit for the parties to revisit a potential for reasonable accommodation in this regard.
1.In the first instance, if the parties are prepared to engage and reach agreement on the potential for the complainant to be re-engaged at the store ( supported by medical advice on reasonable accommodation,) on 28 hours per week, this should go ahead from July 4 ,2016, the date of the second day of hearing in this case.
Or
2. In the event that mutual agreement on reasonable accommodation is not achievable within a six week period , then I award €10,000 in compensation for the distress suffered by the complainant in full and final settlement for the breach of Section 16. This is not in the nature of pay and therefore not subject to tax.
11.3 I find that the complainant has not proved that her termination of employment on July 2, 2014 was due to discrimination on disability grounds.
_____________________________
Patsy Doyle
Equality Officer/Adjudication Officer
Dated: 21st September 2016