ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007350

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/08/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

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

Background:

The Complainant commenced employment with the Respondent as a pharmacy shop assistant on 3 August 2016. The Complainant was given a contract which had a finish date of 28 February 2018 which was to cover a period of carers leave. The rate of pay outlined in the contract was €9.15 with 35 hours contracted to her per week. The Complainant claims that she has been discriminated as a result of being dismissed as a result of her disability when her employment was terminated on 21 October 2016.

Summary of Complainant’s Case:

The Complainant stated that she was called to a meeting with the Respondent on 13 October 2016 to which the Respondent stated that they “don’t think this job is suitable” for her and her employment with the Respondent was terminated.

The Complainant has suffered from scoliosis since she was a child but this was not relevant to her employment and did not in any way affect the performance of her duties as an employee. On 13 October 2016 the Complainant was called to a meeting by the Respondent and it was made clear to her during the course of that meeting that concerns had been raised about the Complainants disability and the risk that she might cause injury to herself in the course of her duties. The Complainant was further informed that there was a concern that she had not been provided with manual handling training, which is the responsibility of the Respondent. The Complainant was then informed that she was not suitable for the job. The Complainant asked directly whether she was being dismissed for having a “bad back” the response from the Respondent was "yes" that it wasn’t as a result of her performance. The Complainant was unsure as to why she was being called to the meeting in the beginning but it became clear that this meeting took place following her informing the Respondent of an operation she had for her scoliosis when she was 13 years old. The Complainant stated that during the meeting the Respondent outlined that lifting boxes had nothing to do with her back. During this meeting the Respondent also stated that she was concerned the Complainant would be absent from work due to her back.

No proposal was made to the Complainant at the meeting about any changes that could be implemented or considered by the Respondent to facilitate her disability and no consideration was given or proposal made in relation to any reasonable accommodation that could be made in light of her disability.

This meeting came as a shock to the Complainant and has been a source of tremendous upset for her. The Respondent informed the Complainant that she did not have to stay on at work that day as she was so upset. The Respondent informed the Complainant that she could go home and that she would pay her for the remaining hours and that she would send her P45 also. As the Complainant left the meeting she was upset and informed her other colleagues that she had been dismissed due to her back. After the Complainant left the meeting, she received a text message from the Respondent to say that there was a job for her "but I need to talk to you".

In correspondence, the Respondent has denied that she was dismissed and claims that her job remained available. However, while the Complaint was sent a text message following the meeting, the Complainant maintains that this was not genuine and that instead it is a reflection of the fact that the Respondent acknowledged that she had panicked and acted rashly in dealing with the matter and dismissing the Complainant. Over the phone, the Respondent asked would the Complainant return to discuss what she could and couldn’t do. The Complaint felt as though she had been asked to return to work but that it wasn’t genuine. The Complainant stated that the Respondent was worried about her back and the possibility of being absent from work as a result. The Complainant felt that the Respondent would have just found another reason to end her employment as she was still on probation. The Complainant stated that she would be watched based on her back condition.

On 14 October 2016 the Respondent wrote to the Complainant stating that "It is with regret that I have to inform you that your role of pharmacy counter assistant with the company will terminate on 21st October 2016."

In correspondence the Respondent provided documentation from the company recording alleged allergic sensitivities and other health issues on the part of the Complainant, including comments to the effect that the company and its employees were "shocked" and "surprised" to learn of the Complainants allergies. Any allergies of the Complainant do not affect her role as an employee but these comments moreover were not communicated to her and indeed she was told there was no problem with her allergies. The Complainant outlined that she had worked in a pharmacy during placement, in her current role and she had never had an allergic reaction or issue as a result.

Summary of Respondent’s Case:

The complainant was employed by the respondent as a counter assistant in the pharmacy business with her employment commencing on the 3rd August 2016. Prior to commencing her work she had been interviewed by the Respondent and based on the replies to the questions put to her she was offered the position.

The employment was for a fixed term from the 3rd of August 2016 to the 28th of February 2018 to cover a period of carer’s leave requested by another staff member. The contract was also subject to a probation period of 11 months as set out in the staff handbook.

Within the first few weeks of work the Complainant advised other staff and the Respondent during the course of informal conversations that she had various allergies to chocolate, nuts and certain medicines. The Complainant had to leave the pharmacy due to being unwell on 20 September 2016 and took the 21 September 2016 as a sick day following doctor’s advice to do so. The Respondent asked the Complainant as to her health when she returned to work on the 22 September 2016. The Complainant informed the Respondent that she had attended a doctor where she was given an injection to control heart palpitations and that this reaction was probably due to her allergies. The Respondent then asked the Complainant if this was something she should be concerned about and whether there was anything in the pharmacy that could cause a reaction. The Complainant informed the Respondent that the allergies were only an issue if she ate something that she was allergic to.

The Complainant had previously told the Respondent that she had an anaphylactic reaction to using a hair dye and had to go to hospital due to surface contact with hydrogen peroxide. On another occasion, when one of the staff members was dealing with a particularly strong smelling antibiotic, the Complainant advised this member of staff that she was not in a position to smell the said antibiotic due to her allergies and that she was allergic to all but one antibiotic. In early September 2016 the Respondent had given all staff members training with regard to the use of the epipen product.

The employer was later informed by letter from the Complainant’s solicitor dated the 16 December 2016 that the heart palpitations on 20 September 2016 were caused by the Complainants underlying heart condition and not any allergic reaction as they were previously informed. This heart condition had never been previously disclosed to the employer.

Up until 12 October 2016 the Complainant had made no formal declaration/notification to her employer about her scoliosis condition. The Complainant informed the Respondents witness (W1) of her condition and said that the Respondent stated that they would talk to the other staff. This caused concern as the Complainant’s job role involved daily manual handling. This disclosure was made by the Complainant to the Respondent where she informed him that she couldn’t lift a box weighing 8.9kg which she said she could not lift because of her scoliosis condition. The Complainant had been lifting boxes heavier than this prior to this date since she started work on 3 August 2016. The Respondent argues that the issue with regards to lifting this box was not an issue as it was agreed that the Respondent would lift all the heavier boxes. The Complainant ended up lifting the box once the Respondent confirmed that it was not that heavy.

It is submitted that the purpose of the meeting on 13 October 2016 with the Respondent was to ascertain the nature and the extent of the Complainant’s condition, to deal with any concerns and to determine what accommodations / modifications, if any, needed to be made to ensure a safe place and system of work for the Complainant and in turn the other members of staff. The Respondent felt that they had an obligation as the employer to have this meeting as they had genuine and justifiable concerns for the Complainant’s health and safety as a result of the Complainant’s various allergies and also scoliosis condition which had only been notified to them on the previous day. The purpose of the meeting was not for disciplinary purposes.

At the said meeting the Respondent had intended to discuss with the Complainant as to how they could manage to accommodate her within the business but did not get the opportunity to do so. The Respondent stated that she was concerned about the Complainant abilities to lift boxes due to her fused spine and also stated that she didn’t think the job would be suitable for her in the long term. The Complainant asked if she was being fired as a result of her back to which the Respondent stated that it was a result of her suitability to the job. The respondent stated that although it is not suitable, they were trying to figure out ways to make things work and to accommodate the Complainant within the business. Eventually the Complainant refused to engage any further with the Respondent and abruptly left the meeting. The meeting commenced at 1.15pm and lasted approximately 10 minutes. The Respondent was not happy with how the meeting went and did not want to lose the Complainant as an employee and so tried to ring her at 2.18pm on 13 October 2016 which was within one hour of the Complainant having left the meeting. When the Complainant did not answer the phone, the Respondent sent her a text message:-

“Hi ‘Complainant’, will you please give me a ring asap. I need to talk to you. There is a job here if you want it but I need to talk to you. ‘Respondent’”

The complainant did telephone the Respondent back a few minutes later but refused to return to work. The Respondent outlined on the phone that she was sorry for upsetting the Complainant and asked her to return and talk to her. The Complainant refused to return as she had been let go. As a result of the Complainant leaving the meeting in the manner in which she did, her refusal to return to meet the Respondent, her informing the Respondent verbally during the telephone call that she would not be returning to work and then her failure to turn up to work on Monday 17 October 2016, the respondent issued a standard termination letter of one week’s notice on 17 October 2016. Furthermore, on Wednesday 19 October 2017, the Complainant sent a text message to the Respondent requesting that the Respondent issue her with her P45. The letter received by the Respondent was not in any way questioned by her.

Furthermore the Respondent states that if they actually wished to terminate the employment the Respondent was sufficiently protected in the contract of employment and Staff Handbook to end the employment during the probationary period without any need for a meeting with the complainant. It is therefore submitted and repeated by the Respondent that the purpose of the meeting on the 13 October 2016 was not a disciplinary meeting for the purpose of dismissing the Complainant but to rather sit down with the Complainant to ensure a safe system and place of work for the employee. The Complainant was provided with a contract and the Staff Handbook.

The Respondent also states that an employer has the right to treat the person with a disability differently so as to prevent relevant circumstances possibly causing harm to that person or to others.

Findings and Conclusions:

The case is referred under:

Section 77 of the Employment Equality Act, 1998 provides:

A person who claims—

(a) to have been discriminated against by another in contravention of this Act,

Section 6(1) of the Employment Equality Act, 1998 provides:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”,) one person is treated less favourably than another is, has been or would be treated.

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 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The Complainant claims that she was discriminated against on the 13^th of October 2016 because she suffers from a disability namely scoliosis.

On this date the Respondent requested to meet the Complainant with the intention of discussing her condition. The Respondent submitted that the purpose of this meeting was to discuss her condition in full and to determine whether here were measures the company could take to accommodate the Complainant to work in the pharmacy. During the meeting the Respondent informed the Complainant that they felt her role as counter assistant would not be suitable due to her back condition.

The Respondent has not supplied any evidence to support why the complainant was not requested to visit the company doctor for a professional medical opinion to assess the capability of the Complainant to carry out her role nor did they consider reasonable accommodation or consult with the Complainant regarding her ability to carry out her duties. The oral evidence presented by the Respondent supports the claim that the Complainant was dismissed due to her disability.

Therefore I find that discrimination occurred against the Complainant because of her disability under the Employment Equality Act. The Complainant has approximately sixteen months remaining in her fixed term contract at the time of dismissal.

The Complainant is awarded €16,000 compensation which equates to approximately one year’s salary.

Dated:   4 October 2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery