ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002316

Complaint(s):

Date of Adjudication Hearing: 03/04/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Ashdown Park Hotel

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution the following matters:

Section 8 of the Unfair Dismissals Acts, 1977 - 2015,

Section 79 of the Employment Equality Acts, 1998 - 2015,

Section 7 Terms of Employment ( Information ) Act, 1994

The referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

The complainant withdrew her claim CA 3124 – 001. Unfair Dismissals Act, 1977.

Summary of Complainant’s Case:

The Complainant commenced employment as a barmaid on the 23rd day of December 2013. She was initially engaged on a part time basis working three days per week. On the 1st July 2013 the Complainant commenced on full-time hours. The Complainant was paid at a rate of €8.65 per hour. She worked 28 to 30 hours per week at the start of her employment and that increased to 30 to 34 hours. When she commenced her role as a chef her hours increased again to approximately 50 hours per week.

The Respondent in December 2013 acknowledged the entitlement of the Complainant to a Contract of Indefinite Duration and purported to provide such a contract to her, dated the 23rd December 2013.   During this period the Complainant predominantly worked as barmaid but also fulfilled some duties on reception.

The Complainant was offered the position of Chef at the Respondent’s premises by the then manager. The Complainant agreed to accept this role on the strict condition that in the event that the food offering was discontinued (and thereby the role of chef became redundant), she would resume her duties as a barmaid as set out in her original contract of employment. The Complainant signed a contract of employment for the chef’s role dated the 1st September 2014. Food at the Respondent premises was in fact discontinued in or around June 2015 and so the Complainant expected, as was previously agreed, to resume her prior duties as barmaid and receptionist under the initial 23rd December 2013 contract of employment. However, the complainant, because she was the only female was also asked to carry out chamber maid duties. When the two other male barmen came in for work she was sent off to do the rooms. That work, was physically much more demanding than her role as a bar maid. She was required to carry heavy linens, lift heavy mattresses when making beds and carry heavy items up three flights of stairs. The complainant found it extremely demanding and because of her medical condition, endometrioses, she felt she was not physically capable of carrying out such heavy duties.

The Complainant’s hours began to be reduced significantly in comparison to male employees who began employment as bar staff after her. Her hours dropped to 20 to 24 hours per week. At no time did the Respondent provide the Complainant with notice that her hours or her pay would be decreased significantly. Two male employees took up employment after the Complainant and they were consistently provided with full-time hours in their roles as bar staff before the Complainant’s hours were provided. Thus essentially leaving the Complainant only with whatever remaining hours were available.

The Complainant, at all material times, performed the same job and tasks as the male staff and her correct status was that of a barmaid. During her employment, the Complainant also at times fulfilled the role and duties of a receptionist as when the need arose and was required.

At no time was there any heavy duties required during her employment either as a barmaid or as receptionist. In relation to the stocking of the bar area, this responsibility was shared and did not present any great difficulty for the Complainant and a night porter was employed to carry out any heavy lifting or tasks of that nature in the accommodation and other areas of the business.

There were, as matters stood, no other female employees working behind the bar at the time the Complainant attempted to resume her status as barmaid.

In October, 2015 the Complainant underwent a surgical procedure which meant she was unable to carry out heavy duties for a period of one week. When she continued to experience discomfort, she attended with her General Practitioner who advised that she refrain from any heavy duties for a period of one week but certified her fit to work on her regular light duties.

Before the Complainant could convey her doctor’s advices she was notified by rota that her hours had been reduced. She was at no stage given notice that her hours or pay were to be reduced. She was refused the option, which she requested, to carry out her hours in reception and bar area where there was no heavy lifting. The Complainant submits that there were sufficient duties and hours for her to be accommodated and that any tasks which she could not do could easily have been done by one of the other members of staff without any significant cost or inconvenience to the Respondent.

The Respondent provided the Complainant with a letter alleging she was unfit to work as a result of after her initial medical procedure and asked the Complainant to notify him when she would be fit to return to work. The Complainant was at all times certified as fit to carry out her duties as a barmaid and receptionist and explained this to him. Her certificate certified her for one days leave and no heavy lifting for a period of one week only. The complainant did work the Monday and the Tuesday prior to the respondent telling her she couldn’t continue to work as in their opinion she was medically unfit to do so.

The Complainant says in summary that;

1. While certified as fit to work on light duties only, she was suffering from a disability as defined by section 2 of the Employment Equality Acts 1998 to 2015;
2. The Respondent failed to provide the Complainant with work that she was able to do in breach of her rights under section 16 of the Employment Equality Acts 1998 to 2015;
3. The Respondent failed to take any steps to ascertain what the Complainant was fit to do in breach of her rights under section 16 of the Employment Equality Acts 1998 to 2015;
4. The Respondent failed to take any medical advice to establish what tasks the Complainant was fit to do in breach of her rights under section 16 of the Employment Equality Acts 1998 to 2015;
5. The Respondent discriminated against the Complainant in breach of her rights under section 16 of the Employment Equality Acts 1998 to 2015;
6. The Respondent provided work hours to the Complainant’s male counterparts which he failed to provide to the Complainant;
7. The Respondent treated the Complainant’s male counterparts in a manner which was more favourable to the manner in which he treated the Complainant and as such he treated the Complainant less favourably than her male counterparts;
8. The Complainant performed the same or similar roles to her male counterparts;
9. There was no objective justification for the less favourable treatment of the Complainant;
10. When the Complainant complained of the less favourable treatment she was victimised as a result of making this complaint and she eventually resigned her position unable to tolerate any further inappropriate treatment

Summary of Respondent’s Case:

The business was bought as an investment. It was refurbished and opened as a bar and guest house. A manager was employed to run the operation. The manager reported to the owner as the owner was not there most of the time.

The complainant started off as a bar maid and then was promoted to chef when the company decided to serve food also. Her salary went from €8.65 to €10.00. It reverted back to €8.65 per hour when she returned to her barmaid/ receptionist duties. The complainant also did some house keeping duties.

The owner became aware of a financial problem in June, 2015. He asked his accountant to look at the figures to assess how bad the situation was. The accountant made an arrangement to meet with the manager on the 29^th June, 2015. On that date prior to the meeting the manager resigned. The owner and the manager then had a meeting with the staff. The situation was explained to them. They had a brain storming sessions. It was decided to close down the food section in which the complainant was working as a chef at that time. The complainant asked if she could talk to the owner and accountant after the meeting. She raised an issue that she had with the owner’s daughter and son- in – law. She feared, because the manager was gone that she would suffer at their hands. She was assured that that would not happen and that her hours were secure. Everything ran smoothly until October, 2015. The owner was informed that the complainant had had an operation when she handed in a sick certificate. He was given no prior notice of this operation. The owner felt that he couldn’t allow her return to her normal duties under the circumstances. She was advised of that on the 7^th October, 2016. Then she asked for her p45.

Prior to her resignation she did not raise an issue in relation to her hours.

Her hours of work were comparable to the other employees.  

Decision:

Section 41 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 of the Employment Equality Acts, 1998 – 2015 and Section 7 Terms of Employment ( Information ) Act, 1994 requires that I make a decision in relation to the complaint.

Gender Ground.

The Employment Equality Acts at Section 6 provides as follows:

Section 6(1) of the Employment Equality Acts, 1998 – 2008 (the “Acts”) provides that: “…discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds.” The Acts make unlawful discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the traveller community”

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)

I should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious. The Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282 confirmed the English position that discrimination can be conscious or sub-conscious and can therefore be difficult to prove. Here, in a case involving age discrimination, the Court held:

“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

The complainant alleges that prior to July, 2015 she did the same role with the same duties as her male colleagues. They all worked the same hours up and until July, 2015 thereafter the complainant’s hours began to dramatically reduce. The respondent stated that the hours reduced for all staff. However, upon considering the time sheets submitted by the complainant it would seem that reduction in her hours was much more dramatic that anyone else. For example, on the week of the 20.07.2015 the complainant worked only 22 hours when her comparator worked 35. On the week of the 13.07.2015 she worked 25 hours and her two male comparators 30 hours.

The respondent’s evidence did suggest that the complainant’s role and her capabilities were view differently by the respondent based on her gender. It was also evident from the time sheets that her hours were reduced and her male colleagues hours were not, The respondent provided no reasons that could objectively justify why the complainant was treated less favourably.

Disability

The definition of disability contained in the Employment Equality Acts is set out in a list of broad categories as follows:

“(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 judgment or which results in disturbed behaviour”.

In this jurisdiction disability has been interpreted in an extremely broad way . In An Employee v. Bus Eireann [2003] ELR 351 it was held that heart conditions amount to a disability for the purposes of the Acts. Further, in the case of Mr O v. A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability. Further, as was suggested in A Government Department v. A Worker EDA094, the de minimis rule applies and the condition must manifests in a minimal level of symptoms to be classified as a disability.

The complainant suffers from an extremely painful condition known as endometriosis. It is a condition unique to females for which there is no cure. The complainant underwent surgery for this condition in October, 2015. Following the surgical procedure in October 2015 the complainant was advised by her doctor to return only to light duties, and not to undertake any lifting for a period thereafter. Initially, she was absent from work for one day and she was advised to avoid heavy lifting for one week. That was later extended to 6 weeks. I am satisfied that the complainant was suffering from a disability at the material time.

Prior to her surgery the complainant had no difficulties carrying out her duties. Following the procedure the complainant submitted a sick certificate by hand, which cover the dates 05.10.2015 – 06.10.2015     “ the complainant is suffering from a surgical procedure , to return only to light duties, no lifting thereafter for one week” On the 09.10.2105 she submitted a further certificate stating “ this is to state that the above named is currently unfit to lift, carry out any heavy work post operatively. She is advised to do light work from 09.10.2015 to 14.11.2015”. The complainant brought this certificate into work with her on Monday 12^th. Upon arrival and prior to giving her employer her doctors certificate, she noticed that her shifts had been changed. She was now scheduled to work 6-12 on the Monday and Tuesday and her Thursday shift was removed altogether. At that juncture she would normally have worked Monday, Tuesday 6.30am to 4pm and Thursday 12 – 6pm. The complainant asked her manager why her shifts had been changed and he said that the owner had been in an based on her first certificate “   “ the complainant is suffering from a surgical procedure , to return only to light duties, no lifting thereafter for one week” stated that if she couldn’t do the bedrooms she could stay in the kitchen and go home at 12 noon. She asked why she couldn’t do her normal hours in the bar and at reception as they did not involve any heavy lifting. His response was “ the way X sees it is that the bar and the reception involve heavy lifting”. He then handed her a letter dated the 07.09.2015 which stated “ From a health and safety point of view, we will be unable to offer you any work until you inform is that you are fit for work.”

I am satisfied based on the evidence and the documents submitted that the respondent was fully aware that the complainant had undergone a small surgical day procedure and was certified fit to return to work albeit was restricted to light duties for a period of one week. The Respondent also explicitly acknowledged the existence of the Complainant’s condition when removing her from the rota on Thursday 15^th. In Connacht Gold Co-Operative Society v. A Worker EDA0822 the Labour Court held that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability in order to demonstrate that it was not aware of the employee’s disability. That option is not open to the respondent in this case.

Reasonable Accommodation

Section 16 Employment Equality Act, 1998- 2015 requires an employer to " do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities”

Reasonable accommodation requires employers to take account of relevant characteristics of their employees and obliges them to make changes to allow the employee to do the work. This requires employers to take a proactive approach in removing barriers and making adjustment to the work environment so that an employee with a disability can be accommodated in the work place.

The position regarding an Employer’s responsibility to an employee suffering from a disability has recently been dealt with in the seminal case of Nano Nagle School V Marie Daly 2015 IEHC 785. . In particular this case has examined the extent of reasonable accommodation and appropriate measures which should be provided by an employer on behalf of an employee suffering from a disability which now includes an obligation on the employer to redistribute tasks and / or eliminate some of the tasks performed by the employee in order to accommodate that employees return to work.

There is a duty on an employer to make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before making a decision which may be to the employee’s detriment. This principle was first established in Humphreys v. Westwood Fitness Club [2004] ELR 296 in respect of decisions to dismiss a disabled employee on the grounds of incapacity. However, this principle was extended to all decisions that may detrimentally affect a disabled employee in A Worker (Mr O) v. An Employer (No. 2) [2005] ELR113. The practical effects of this requirement, is that it requires an employer to take into account all relevant evidence to determine the duration and extent of a disability. Once completed, the onus is then on the employer to consider the appropriate measures or special treatment or facilities in order to allow the employee to be capable of performing his employment. This necessarily involves an examination of the costs and obligations as an employer would not be expected to be over- burdened. In Kennedy v. Stresslite Tanks Limited Dec-E2009-078 it was held that failure to consider appropriate measures will lead to a finding of discrimination even where the employee was allowed to participate in the process.

In this case the Respondent took no steps whatsoever to consult with the Complainant, her medical advisors or the Respondent’s own medical advisors in order to ascertain what reasonable accommodation or appropriate measures could have assisted the Complainant in maintaining her role with the Respondent. In fact, had the complainant been left to carry out her normal duties in the bar and the reception, there would not have been an issue at all. The respondent, ignorant of all of the relevant facts took it upon himself to tell the complainant she couldn’t work until she satisfied his terms. The respondent had the certificate on the 9^th. It was that certificate, that formed the decision not to allow the complainant to work. However, with that knowledge he allowed her to work on the Monday and Tuesday and told her that thereafter she was not work until she was deemed “ fit to work”. There is no logic in that. If the respondent truly believed she couldn’t work until certified fit to do so , he shouldn’t have allowed her work on the Monday and Tuesday. Without any knowledge, assessment, consultation, or even reading the certificate submitted, he made, what can only be described as a bizarre decision to take her off the roster from the Thursday onwards. The complainant resigned her position shortly after that.  

I find that the complainant was suffering from a disability, was capable of carrying out her duties and that the respondent didn’t even consider making any reasonable accommodate.

The complainant has established a prima facia case of discrimination on the grounds of gender and disability. The respondent failed to objectively justified the cutting of the complainants hours furthermore the respondent failed to provide reasonable accommodation in relation to the complainant’s disability.

In all of the circumstances I award the complainant the sum of € 20,000.00

Dated:   8 August 2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

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