ADJ-00005316

Complainant

Respondent

Anonymised Parties

A Customer Assistant

A Grocery Retailer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00007436-001

05/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00007436-002

05/10/2016

The Complainant has been employed as a Customer Assistant by the Respondent, a large grocery retailer, since October 1990.   She is employed on a 15 hour per week contract with a wage of €14.31 per hour. She has been on long-term sick since June 2011. The Complainant submitted two complaints under the Employment Equality Act, 1998 which were received by the WRC on 5^th October 2016.   The parties agree on the existence of a disability.

The Complainant provided a detailed written submission.

The Complainant submitted that she received a letter from the Respondent dated 14 March 2016 advising her that the Respondent was seeking voluntary redundancies. In early April 2016, the Complainant received a telephone call from the Respondent to advise that the Respondent was offering the Complainant one of two options, firstly go back to work under different conditions and receive a once off payment of €5,000 or secondly agree to take a voluntary redundancy. The Complainant chose the second option, namely a redundancy package to exit the company immediately with a redundancy package of €24,000.

The Complainant submitted that having accepted the redundancy package, the Complainant was later advised that the package was being withdrawn and that the reason for this withdrawal was that the Complainant was on long-term sick leave.

On 9 August 2016, the Complainant received a letter from her trade union, confirming that the Respondent had written to the union in relation to the availability of the redundancy package to workers on long-term sick leave, confirming that “Colleagues must produce a certificate indicating that they are fully fit to return to work and fulfil the contract of employment at which stage they can choose one of the options open to them”. A copy of this letter was adduced at the hearing.

The Complainant asserts that this is direct discrimination on the disability ground, in that she has been treated differently than she would have been treated had she not been suffering from a disability.

In the alternative, the Complainant submits that she has been a subjected to indirect discrimination, in that the pre-condition that she has been subject to (return to work in order to be eligible for the redundancy package) affects a far greater percentage of those suffering a disability than those not suffering such a disability.

The Complainant submits that there is no objective basis justifying such discrimination. Whether a person is on long-term sick leave or not, they remain an employee of the organisation. In the event that an employer believes that an employee is likely to be unable to return to work in the future, it is open to a company (having first observed fair procedures) to terminate the employment of that person on the grounds that the contract of employment has been frustrated. In the absence of this, it is clearly hoped and anticipated that the Complainant will be able to resume her position at some point. Therefore, according to the Complainant, there can be no objective justification for this discrimination on the basis that in some way the Complainant’s illness marks her out as some form of non-employee.

The Respondent, according to the Complainant, has shown no objective justification for this action.

Regarding the contractual construction, the Complainant submits that this revolves around the fact that an offer of redundancy was made by the Respondent, and accepted by the Complainant. The Complainant contends that although it was open to the Respondent to make a selection for redundancy amongst its workforce, it was not open to the Respondent to do so in any manner that was not fair, in accordance with fair procedures, and objectively reasonable.   In terms of the Employment Equality Acts 2011 (“the Acts”), it was not open to the Respondent to discriminate against the Complainant on any one of the nine protected grounds. In particular, it was not open to the Respondent to discriminate against the Complainant on the Disability ground.

The Complainant submitted that she has suffered a breach of contract connected with her employment and was subject to differing conditions of employment by reason only of her disability. Had she not been suffering a disability, the contract formed to pay a redundancy payment would have been honoured. In addition, any agreement made between the Respondent and the union adversely affecting employees’ conditions of employment on the Disability ground under section 8 (1) (b) of the Acts is void under section 9 (2) of the Acts.

The Complainant put forward that it should be found that as a matter of fact no contract to make a redundancy payment was concluded, then the reason that the Respondent would have failed to conclude such contract to make such redundancy payment is that the Respondent is operating an illegal policy of discriminating against workers on the Disability ground.

In direct evidence the Complainant outlined the events of April 2016, stating that she had been offered and accepted a redundancy package of €24,000 only to have it withdrawn the following day; the Complainant had received a text message at 07.13 on Friday 15^th April asking her to call the Store Personnel Manager, when they spoke later that day the Complainant was told the offer was withdrawn. The Complainant had a contemporaneous note detailing her version of the events.

The Respondent submitted a detailed written submission

The Respondent submitted that in January 2016 it announced its decision to move all Pre 96 employees to "the modern contract of employment". In March 2016 it wrote to all relevant employees to advise that it was continuing discussions with the Pre 96 employee's union regarding a number of items including an option of voluntary redundancy; though this letter did not confirm that voluntary redundancy was an option available to Pre 96 employees at that time.

In April 2016 the Respondent offered a voluntary redundancy package to employees who were in scope. Employees who did not comply with the company Sickness Policy were deemed not to be, 'in scope.'

Additionally, where employees were long-term absent for a substantial time where the Respondent believe it was reasonable to conclude a return to work was not forthcoming (6 months as a guide), on this occasion the Respondent did not extend a formal offer of voluntary redundancy without further detailed consideration. These criteria applied to the Complainant.

Employees who were "in scope" were invited to respond and then sign an application form for redundancy for the Respondent to consider.   Signed applications did not guarantee a formal offer and the Respondent reserved the right to withdraw the offer and disregard signed applications.

The Respondent submitted that on 14 April the Personnel Manager of the Complainant's branch phoned the Complainant to notify her of the indicative redundancy and buyout figures that would apply if she were to fall in scope as per the terms of the voluntary redundancy process.

The Respondent submits that on 15 April the Personnel Manager again spoke with the Complainant to clarify that at this point the Complainant was not in scope. The Personnel Manager did not, according to the submission, at any point in her conversations with the Complainant make a formal offer of redundancy. The purpose of these phone calls was to inform the Complainant of the process and to assess the likelihood of the Complainant returning to work in the near future and therefore falling into scope.

The Personnel Manager gave direct evidence in which she denied making any offer of redundancy to the Complainant, nor did she tell her to come in and collect a cheque.

An Employee Relations Manager for the company also gave direct evidence. He explained that there were two criteria which could exclude Pre 96 employees from falling within the scope of the process. Firstly, if they were not complying with the Sickness Policy and, as the Complainant had not submitted Sick Certs since August 2014, she did not fall into scope based on this criteria. Secondly, if an employee was absent for more than six months they were deemed to be out of scope.   However, he pointed out, they were not necessarily excluded, if they engaged.

On 5^th September the Respondent received a letter from the Complainant's solicitor requesting that an offer of redundancy had been made and that it should be paid. The Respondent replied denying that any formal offer of redundancy had been made.  

The Respondent puts forward that the letter the Complainant received from them on 14^th March 2016 was not an offer of voluntary redundancy.

The Respondent denies the Complainant was collect any payment from the Respondent; rather she was invited to a meeting in order to discuss her options in relation to future employment with the company.   The Respondent agrees that the Personnel Manager did contact the Complainant on 15^th April to notify her that she would not be considered for voluntary redundancy until such time as she could indicate a return to work date.

The Respondent submits that the voluntary redundancy process was not automatically available to employees who were not compliant with the Company sickness policy. The Complainant had last submitted a sick cert in August 2014 and was therefore in breach of the Company Sickness Policy and so the Respondent was not in a position to manage the Complainant through the long-term illness process. The Respondent pointed out that some employees on long-term sickness were accepted for the voluntary redundancy package. The Respondent also stated that nothing the union writes has company authority.

The Respondent's submission outlined that voluntary redundancy was not automatically available to employees who were absent from work for more than 6 months. No individual was automatically excluded from the process due to the fact that they were absent from the business on long-term illness (long-term illness is defined in the Respondent's Sickness Policy as " a period of absence exceeding 8 weeks in succession").

The Respondent does not believe the Complainant has established a prima facie case of discrimination.

It is the Respondent's case that the Complainant was not considered for voluntary redundancy, she was not offered voluntary redundancy and she was not denied voluntary redundancy.   The Respondent contends that the employment Equality Acts were not intended to be used by employees for the purpose of exiting the company through redundancy.

CA-00007436-001 Complaint under section 77 of the Act.

The Complainant argues that she was discriminated against by way of her disability in that she was not considered to be eligible to apply for the voluntary redundancy package available to other employees. The Respondent denies that the Complainant was discriminated against; as she did not fall within scope she was not entitled to apply for the voluntary redundancy package. The Respondent argues that the Complainant has not established a prima facie case.

Section 6 of the Acts defines discrimination as follows: "6.- (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which – (i) exists…," and "(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are – (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground").

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

Test one; it is agreed by both parties that the Complainant has a disability.  

Test two; she was not considered for the voluntary redundancy package which was open to other pre-96 employees, including those out on long-term sickness.

Test three; It seems to me that as the Complainant was not allowed apply for the voluntary redundancy package, because she did not fall within scope, and the reason she did not fall within scope is because of her disability (it was unlikely she could return to work in the short-term due to her disability) then she was treated less favourably than an absent colleague comparator without a disability.

I believe a prima facie case has been established and so the onus moves to the Respondent to prove that there was no infringement of equal treatment.

In this case I do not believe that the Respondent has proven that the Complainant was not discriminated against due to her disability.   The Respondent has accepted that employees out long-term with no reasonable expectation of a return to work did not fall within scope and were therefore not eligible to apply for the scheme; no objective justification was provided in support of this restriction.   In my view this criteria discriminates against employees with a disability.

The Complainant should not have been excluded from applying for and being considered for the voluntary redundancy package. It is the employer’s prerogative to decide on the criteria to be used to decide who is offered redundancy thereafter.

The Complainant also put forward that she was offered a voluntary redundancy lump sum payment which she accepted. The Respondent claims that no such offer was made. There is a conflict of evidence regarding the conversations that took place between the Complainant and the store Personnel Manager. The existence of contemporaneous note written by the Complainant supporting her version of events is telling. However, the fact that exact figures were prepared for the Complainant's lump sum would not be unusual and does not indicate a decision to offer redundancy to the Complainant by the Respondent.   From the evidence adduced at the hearing I believe the store personnel manager may have made an error in telling the Complainant she had been accepted for redundancy. The sending of an early morning text by the Personnel Manager indicates to me a realisation on her part that she had made a mistake and an attempt to undo her error.  

In the circumstances I do not believe the offer made by the store Personnel Manager over the phone was legitimate and therefore it does not stand.