Representatives

H Pat Barriscale, Barrister,Miriam McGillycuddy Miriam McGillycuddy Solicitor,

Pat Collier, Collier Broderick, (Spokesperson)

Louise Rowell, Legal Director,

Jasmine Murphy, HR Manager,

Martina Clifford, Store Manager

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-00004453-001

13/05/2016

The Respondent is a retail store, with a chain of shops throughout Ireland. The Complainant has been employed as a Sales Assistant in one of the Respondent's stores since 15 October 2012.

On commencement of his employment the Complainant was provided with a Contract of Employment and a copy of the Employee Handbook.

The Complainant works approximately 12 hours per week over 3 days.

The management structure at the store comprises of a Supervisor and Store Manager. The current Store Manager commenced in that role on 11 September 2014. The Store Manager reports to an Area Manager, who has management responsibility for a number of stores.

In submissions made on his behalf by his legal representatives, it was alleged that the Complainant was discriminated and harassed by reason of his disability in relation to his conditions of employment. In addition it is claimed that the Respondent failed to make reasonable accommodation for his disability.

It was submitted that the Complainant suffers from disabilities, in the form of acquired brain injury and reduce motor skills, as a result of a road traffic accident in 2004.. It was stated on his behalf that the Complainant was originally employed as part of a supported employment scheme. According to the Complainant, he had no problem in the workplace until the present Store Manager arrived.

Submissions made on behalf of the Complainant contend that the new Store Manager appeared to take no account of the Complainant's disability and initiated various disciplinary procedures against him. This process included referral to the company doctor on the basis that the Complainant's pace and rate of work was too slow. According to the evidence presented at the hearing the Respondent's company doctor confirmed that the Complainant was in a position to work, however, his place of work would be slower than others.

The complaint centres around incidents which occurred at the respondent store on 1 December 2015. It was stated on the Complainant's behalf that, as a result of becoming aware of videos taken of him from CCTV footage and circulated to staff by the Store Manager on that date, he was traumatised and had to go on work-related stress leave and has been off work since.

It was submitted on the Complaint's behalf that he had been following a grievance procedure but that he does not feel secure enough yet to return to the working environment.

It was stated on the Complainant's behalf that, while the Respondent was aware of his disabilities when he was originally employed, it appeared that the staff in his workplace, including the Store Manager, received no training in relation to dealing with the person with disabilities. It was further contended that as a result of this lack of understanding, the Complainant has victimised and harassed in the workplace culminating in the incident of the circulation of videos of him by the Store Manager for the general merriment of staff.

It was contended that this highlights and is definite evidence of the attitude which the Complainant was experiencing in the workplace and which eventually led to his having to leave the workplace on work-related stress.

It was stated on behalf of the Complainant that there were a number of incidents prior to the incident on 1 December 2015 where he said he had been victimised and treated unfairly. However, he felt that he could not raise his complaint at the time as it would have been his word against that of management.

In relation to the recording of the Complainant at work, it was submitted on his behalf that there were three specific recordings made on 12 August 2015, 14 August 2015 and 5 September 2015. These recordings were brought to the attention of the Complainant by a former colleague who had since left the employment of the Respondent. That former colleague advised the Complainant that the videos have been circulated via a WhatsApp group consisting of other members of staff of the store.

The Complainant stated in evidence that he was extremely upset when the matter, of the videos being circulated among staff, was brought to his attention.

In summing up the evidence on behalf of the Complainant, his legal representative stated that the Complainant was not accommodated in the manner that employers are required to do in such situations. It is further contended that the number of disciplinary hearing hearings that took place was due to prejudice and, that, in any event, the disciplinary situation did not justify the circulation of the recordings.

In response to the complaint, the Respondent stated that a series of disciplinary proceedings against the Complainant commenced around September 2013, almost one year before the current Store Manager commenced in that role. According to the Respondent's submission, the Complainant's Supervisor and Store Manager had to speak to him on numerous occasions about his attitude at work. It was further stated that the Area Manager had also spoken with the Complainant in relation to his attitude towards the Supervisor and Store Manager.

In support of their submission in relation to the Complainant's behaviour/attitude at work, the Respondent detailed incidents which took place in December 2013, March 2014, July 2014, August 2014, September 2014, June/July 2015 and September/October/November 23.

The Respondent denied that the disciplinary process, which the Complainant was taken through, was related to his pace of work. Rather, it was contended that it related to many incidents involving threatening and taunting behaviour, harassing other staff and behaving inappropriately with customers in the store.

In relation to the CCTV footage, the Respondent stated that on 1 December 2015 footage was sent, in error, by the Store Manager to a former member of staff. The CCTV footage in question showed the Complainant acting in a strange manner.

When the Complainant brought the CCTV footage to the attention of the Respondent, they immediately apologised and took disciplinary action against the Store Manager, who had been using her personal phone and send the CCTV footage inadvertently to a former staff member.

The Respondent stated that the video footage comprised of a recordings dated 5 September 2015, which showed the Complainant conversing with a customer and a second recording, dated 12 August 2015, which showed the Complainant behaving in a manner, on the shop floor, which posed a health and safety risk for himself and others.

According to the Respondent's submission, the Store Manager had always previously kept the Area Manager appraised of the Complainant's performance and by way of illustration she had sent example CCTV clips to him for review. In support of their submission in this regard, the Respondent exhibited emails sent by the Store Manager to the Area Manager regarding the CCTV footage taken on 14 August 2015.

The Respondent contends that the tone and context of the email exchange between the Store Manager and they Area Manager is one of concern for the complainant and also his ability to do the role, even in the manner in which it had been adopted for him. According to the Respondent, the tone and content of the exchange between the Store Manager in the Area Manager is not ridiculing, intended to be entertaining or in any way to harass the complainant.

In relation to the circulation of the CCTV footage, the Store Manager gave evidence to the effect that she recorded the footage from the CCTV system, using her personal phone, as the work phone was not available to her at that time. According to her evidence, the Store Manager intended the recording to be sent to the Human Resources Manager and the Area Manager. The Store Manager further stated that, unfortunately, when sending it via Viber she pressed the wrong number on the phone and sent it instead to another staff member.

The Store Manager stated that she noticed the error above 5/10 minutes later. However, she was not in a position to take immediate action as the staff member, to whom she had sent the recording in error, was not working that day but when she arrived at work the following day Store Manager requested her to delete the message.

In further evidence, the Store Manager stated that this was the only occasion on which CCTV video footage of the Complainant was circulated.

In response to the Complainant's contention that he had experienced a number of incidents of victimisation prior to 1 December 2015, the Respondent stated that such alleged incidents had never been brought to the Company's attention. In addition, the Complainant did not raise any issues of victimisation with the Staff Welfare Officer or the HR Assistant when he met with them on 15 May 2015. The Respondent contends that while the Complainant may have felt pressured/stressed by the disciplinary proceedings, the Store Manager was performing her duty in protecting the safety, welfare and dignity of staff and customers and also ensuring standards were being adhered to.

In response to the Complainant's claim that he was not provided with reasonable accommodation and/or that no adaptation of his role had been made to take account of his disabilities, the Respondent stated that they were not made aware that the Complainant had any health issues when he commenced employment in 2013.

The Respondent stated that the Complainant's role was adapted for him as soon as it became clear he had health issues. Post March 2014, the Complainant was offered easy tasks such as sweeping, mopping, bailing boxes and tidying products on shelves. In addition, it was stated that from July 2014, when the Respondent was advised that the Complainant suffered from dyslexia, the supervisor and/or the Store Manager read out copy of the Rota and also hand him a copy so that he could take for family member help him with it.

The Respondent contends that they acted reasonably at all times. Once they became aware of the Complaint's health issues, they assigned him the easiest tasks and did not required to him to complete facing off on lower shelves where it caused him discomfort. The Respondent also relieved the Complainant of the requirement to undertake certain tasks which others, doing similar work, are expected to do.

The Respondent stated that out of concern for the Complainant's health and safety, the company doctor was engaged to assess his ability to do his role and to inform the company what accommodations they needed to make as a result. In addition, the company deployed the resources of HR, the Staff Welfare Officer and the Area Manager in addressing issues involving the Complainant.

According to the Respondent, the Staff Welfare Officer and the HR Assistant visited the store on 15 August 2014 to get a better understanding of the situation. During this visit they met with and listen to the Complainant and advised his Supervisors and management how to help the situations.. The Respondent stated that, on that occasion, the Complainant advised the Staff Welfare Officer that he was 100% mentally capable of doing the job and 70/80% capable of doing it physically.

The Respondent stated that the issues addressed with the Complainant in the disciplinary procedures did not relate to his pace of work. On the contrary, the Respondent contends that the issues addressed in the disciplinary procedures related to unacceptable behaviour by the Complainant, which involved customers, colleagues and management. The Respondent provided examples of the issues that were the subject of various disciplinary procedures over a two-year period.

The Respondent contends that the disciplinary processes was conducted in accordance with good practice, only initiating them after initial informal conversations and Plans to Improve Performance (PIPs) failed to correct the problems. The Respondent further stated that it was patient over a two-year period while slowly working through conversations, PIPs and disciplinary process with the Complainant. The Respondent reissued the Complainant with a second final written warning, notwithstanding the seriousness of the issues involving his harassment of staff/customers and his intimidating behaviour towards colleagues.

The issue before me for decision is, whether or not, the Respondent discriminated against the Complainant, on grounds of disability in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, and whether he was provided with reasonable accommodation and suffered harassment and victimisation in relation to her conditions of employment.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the claimant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

The Labour Court elaborated on the interpretation of Section 85(A) in Melbury v Valpeters (EDA/0917) where it is stated that the section: “places the burden of establishing the primary facts fairly and squarely on the claimant and the language of this provision admits of no exceptions to that evidential rule.”

Having carefully considered all the evidence submitted in relation to this specific issue, I am satisfied that, the complaint includes issues of sufficient substance, which the Complainant considered as incidents of the alleged discriminatory behaviour. In particular, the incidents in relation to the sharing of the CCTV footage are of such a nature as to establish a prima facie case of potential discrimination and harassment.

Consequently, I am satisfied, based on the above, that the burden of proof has reasonably passed to the Respondent, to prove that discrimination has not taken place. In this regard, I believe there are two specific matters which the Respondent is required to prove. The first relates to the contention by the Complainant that he was not provided with reasonable accommodation in relation to his disabilities. The second matter to be addressed by the Respondent relates to the specific allegation that he was discriminated and harassed in the recording and dissemination of the CCTV footage to other staff members.

With regard to the allegation that the Respondent failed to provide reasonable accommodation in relation to the Complainant's disabilities, Section 16 (3) of the Employment Equality Acts imposes obligations on employers to provide reasonable accommodation for employees who may have a disability, but who may be fully competent and capable of carrying out their duties on the basis of such accommodation. In its determination in the case of Humphreys v Westwood Fitness Club (EED037) the Labour Court stated, inter alia:

"The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all material facts concerning the employees condition...

The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. Looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, Section 16 (3) of the Act requires the employer to consider what, if any, treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered.

Finally, such enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate and is allowed to present relevant medical evidence and submissions".

Having carefully reviewed all of the evidence adduced in this case, I am satisfied that the Respondent took reasonable and appropriate measures both in terms of establishing the Complainant's medical condition and its impact on his ability to carry out his duties and, additionally, in applying certain modifications to the job and its requirements, in order to take account of the Complainant's disabilities.

In this regard, while it is noted that the Respondent was initially unaware of the Complainant's disabilities, I am satisfied that they took reasonable and appropriate steps to facilitate and accommodate him in such a manner that he could continue in the workplace. In particular, I note that the Respondent sought appropriate medical advice and also involved the Staff Welfare Officer and the Human Resources Department in addressing the issue.

It is further evident from the submissions made, that the Respondent took appropriate steps at local level to adjust the Complainant's work duties on a daily basis in line with his ability to carry out the work assigned to him. I also note in this regard, that efforts were made at local level to include the Complainant in social activities being undertaken by staff.

Consequently, taking all the above into consideration, I am satisfied that it demonstrates that the Respondent met their obligation in relation to Section 16 of the Acts.

The second issue for consideration is whether or not the Respondent discriminated against the Complainant in relation to the issue of the video footage. In my view this is a serious issue, where the evidence suggests the Complainant's behaviour at work was recorded from CCTV footage and was shared with staff who had no operational need or entitlement to review the material. It is also clear from the footage, which was available to the hearing, that the recordings of the Complainant gave rise to some merriment among those who were viewing it.

While there is a certain plausibility, in relation to the Store Manager's account of how one recording was inadvertently shared with another staff member, there were clearly two other recordings, which were similarly shared and for which no explanation was provided. Even in the event that those responsible were in a position to provide explanations for all three instances where the recordings were shared, it cannot be seen to justify what happened and, in particular, the impact on the Complainant.

It is clear from viewing the recordings that not only was the Complainant discriminated against on the grounds of his disability, but his basic right, and that of any employee, able or disabled, to the provision of dignity at work was seriously undermined.

Consequently, taking all of the above into consideration, I find that the complainant was discriminated against by the manner in which the CCTV footage was recorded and shared among staff. Therefore, I uphold his complaint in this regard.

Having carefully considered all of the evidence adduced and based on the considerations/findings as set out in the previous section, I make the following decisions in relation to the complaints before.

With regard to the claim that the Respondent did not afford reasonable accommodation to the Complainant to take account of his disability, I find that the evidence presented does not support the complaint. Therefore, the complaint is not upheld.

With regard to the claim that the Complainant was discriminated and harassed in relation to the conditions of his employment, I find the evidence supports the claim, with particular reference to the recording and sharing, with other members of staff, CCTV footage of the Complainant carrying out his work duties.

Consequently, I find in the Complainant's favour in this regard and award him the sum of €7,500 in compensation for the act of discrimination against him.

Disability

Acquired Brain Injury

Reasonable Accommodation

CCTV footage