EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2017 – 078
PARTIES
Ms A (represented by Ms Siobhan Gaffney, B.L., instructed by Sean Costello and Company, Solicitors)
and
A Retail Business (represented by IBEC)
File Reference: et-154635-ee-15
Date of Issue: 5th October 2017
Table of Contents
- Claim..
- Summary of the Complainant’s Written Submission.
- Summary of the Respondent’s Written Submission.
- Conclusions of the Equality Officer
- Decision.
Keywords:
disability – depression and anxiety – reasonable accommodation – discriminatory dismissal – behaviour which can be symptomatic of a particular disability -
A Government Department v. A Worker [EDA061] – A Health and Fitness Club v. A Worker [EED037]
1. Claim
1.1. The case concerns a claim by Ms A that the respondent retail business discriminated against her on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2011, in terms of failure to provide reasonable accommodation, other discriminatory conduct and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 25 March 2015. A submission was received from the complainant on 11 March 2016. A submission was received from the respondent on 26 August 2016. On 1 February 2017, in accordance with her powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 6 September 2017, after a previous hearing was adjourned to give the parties an opportunity for direct communications. I requested her P60 form from the complainant at the hearing and received it on 12 September 2017. This concluded the correspondence with the parties.
2. Summary of the Complainant’s Written Submission
2.1. The complainant commenced work for the respondent in a temporary capacity in 1999. She was made a permanent member of staff in 2000. The complainant suffers from depression and anxiety, which, she submits, is a disability within the meaning of the Acts. She states that she made the respondent aware of her condition first in June 2012 and again in December 2013.
2.2. In January 2014, the complainant was asked to attend a disciplinary meeting after having been absent from work on sick leave for two weeks. The complainant attended this meeting alone, because she was too embarrassed by her condition to let a colleague accompany her to the meeting. The complainant updated the respondent on the care she was receiving especially for her anxiety during this meeting. The complainant states that the respondent made no attempt whatsoever to investigate the extent of her condition or to consider what kind of reasonable accommodation might be appropriate. In the light of this neglect by the respondent, the complainant submits that initiating disciplinary procedures was in itself discriminatory.
2.3. In February 2014, the complainant was called into another disciplinary meeting for alleged failure to observe the respondent’s absence reporting policy. The complainant stated that following a counselling session, she had found herself unable to get out of bed for four days and had lost any concept of the passage of time. The complainant was nevertheless found to have breached the absence policy, and a disciplinary hearing was scheduled for her, which took place towards the end of the month.
2.4. At that hearing, the complainant gave the same explanation regarding how the poor state of her mental health had caused her to be in breach of the policy. Nevertheless, she was given a verbal warning as per the respondent’s disciplinary procedure.
2.5. The complainant had another sick absence, caused by significant anxiety and depression, in April 2014. Again, she fell afoul of the absence reporting policy and received a letter from the respondent’s HR department asking her to contact them immediately on this matter. The complainant did not fulfil this request and was subsequently asked to attend a meeting whilst still certified unfit for work. Again, she did not attend that meeting. The respondent’s HR manager then wrote to her and required that she attend another meeting on 22 May 2014. The complainant was also advised that “failure to respond to this invitation within 7 days from receiving this letter may result in your dismissal”.
2.6. The complainant, due to her disability, did not contact the HR department or attend the meeting. The next day, 23 May 2014, the complainant was dismissed from her employment. The respondent’s letter stated that the reason for her dismissal was her absence from work since 18 March 2014, her failure to attend for her disciplinary hearing, and her failure to contact the store for the reason of her non-attendance.
2.7. The complainant appealed her dismissal with the help of her union representative, and the decision was overturned and converted into a stage III written warning, to stay on her file for 12 months.
2.8. The reversal raised the question of the complainant’s return to work. The complainant’s GP wrote to the respondent stating that she had adjusted the complainant’s medications, and that it was hoped the complainant could return to work the following month – August 2014. However, according to the complainant, the respondent insisted on a definite return to work date, and also that €2,447 of holiday pay and statutory notice was now owed back to the respondent. This communication exacerbated the complainant’s condition; she took to her bad and, as she says in her submission, “switched off from dealing with all matters”.
2.9. On 13 August 2014, the HR manager wrote to the complainant regarding her return to work. In that letter, the manager set out in detail the times during which she had tried to phone the complainant on 11 August, which was three times in total. On 26 August, the HR manager wrote again and stated that she was anxious to have the complainant back at work as a matter of urgency. She also stated that the complainant’s failure to contact her could place her position with the company in jeopardy again.
2.10. On 3 September, the HR manager wrote again to the complainant and outlined again her attempts to contact the complainant. She also stated that if the complainant had not contacted her by 10 September 2014, it would be assumed that the complainant was no longer interested in her position with the respondent. On 16 September 2014, the HR manager wrote to the complainant again and gave her a final opportunity to contact her by 26 September 2014. On 29 September 2014, the complainant’s employment with the respondent was terminated for the second time.
2.11. The complainant submits that the respondent has made no efforts to refer her to a medical assessment to ascertain whether she was capable and fit for work. She further submits that being disciplined for matters which arose due to her disability and where therefore outside of her control is in itself discriminatory. Last, she contends that her dismissal from the respondent’s employment was solely due to her disability and hence discriminatory.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. As a preliminary point, it submits that given that the complaint was filed on 24 March 2015, only events dating back to 24 September 2014 should be covered, and that any other events referred to are out of time pursuant to the provisions of S. 77(5) of the Acts and that the Commission has no jurisdiction to investigate same.
3.2. The respondent also contests that the complainant’s depression and anxiety constitute a disability within the meaning of the Employment Equality Acts.
3.3. The respondent submits that issues with the complainant’s attendance and punctuality arose from 2011 onwards, but that diagnoses other than “depression and anxiety” were given on her medical certificates until her absence from 19 December 2013 to 2 January 2014.
3.4. The respondent states that the disciplinary procedure following this absence – which was not the first such procedure the complainant went through – was in relation to the 12 shifts she had missed in the previous months, including for gastroenteritis and a sinus infection. The respondent also states that the complainant did not receive a disciplinary sanction.
3.5. Whilst the respondent, from then on, was aware that the complainant was suffering from depression and anxiety, the respondent continued to take issue with the fact that the complainant was not following the respondent’s absence management policy when she was out sick. It especially notes that the complainant did not “maintain regular or any contact” [emphasis in the original] with the respondent’s management during her absence from 18 March 2014 to 27 May 2014. It is the respondent’s position that the numerous letters, meetings scheduled and contact attempts on the part of management would have afforded the complainant ample opportunity to explain her position. However, according to the respondent, she only made contact when she chose to appeal her first dismissal on 23 May 2014. The respondent points to this as evidence that the complainant proved able to contact the respondent if she so chose.
3.6. The respondent states that during the appeal hearing of the complainant’s dismissal, the necessity to maintain contact with the respondent’s management was again impressed on the complainant, including by her trade union representative. The complainant also stated that the respondent had an old phone number for her, yet when she provided the new phone number, it turned out to be the same as the one the respondent already had on file.
3.7. When the complainant’s dismissal was rescinded, she was advised to contact Ms B., human resource manager, for her return to work date. The complainant was then out sick for, as she advised Ms B. on the phone, an underactive thyroid. No medical certificates were submitted by the complainant with regard to this absence.
3.8. The respondent’s submission on Ms B.’s subsequent attempts to contact the complainant very much mirror what the complainant says in her submission on the matter. The respondent also notes that no medical certificates to explain the complainant’s absence were received, and hence argues that it was not on notice of any illness which could have potentially mitigated the complainant’s actions. The complainant’s employment was terminated on 29 September 2014.
3.9. The respondent disputes that the complainant’s employment was terminated due to her disability, and maintains that it was the complainant’s indiscipline in maintaining contact with her employer which led to her dismissal. The respondent asserts that the complainant’s dismissal was wholly unrelated to her capacity to fulfil her duties.
4. Conclusions of the Adjudication Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. In the hearing of the complaint, the complainant’s disability, respectively the fact that depression and anxiety are disabilities within the meaning of the Acts was not further argued by the respondent. The respondent’s witnesses accepted that the complainant had a disability. Neither was the time limit issue which the respondent had raised in its submission mentioned by the respondent’s representative in any way. I am therefore treating the complainant’s disability as being common case and the time limit issue as withdrawn. The complainant’s disability has also been established to my satisfaction from medical reports submitted in evidence.
4.5. From the complainant’s evidence at the hearing, it became obvious that the complainant was strongly affected by the social stigma which attaches to mental illness. She stated that she had not even told her own family of her condition. The only person who supported the complainant during her illness was her best friend. The complainant originally had lodgers in her house, but these moved out and she was alone in her house for stretches of time during her illness.
4.6. In terms of her employment history with the respondent, the complainant stated that she commenced on a temporary contract in the summer of 1999, “straight out of school”, and was soon made permanent. She confirmed in evidence that her terms and conditions of employment with the respondent were very satisfactory to her and described the overall package as “a really good contract”.
4.7. The complainant stated in her evidence that due to the shame and stigma she felt, she lied to the respondent in her sick certificates early in her illness. The complainant then first informed the respondent of her disability in June 2012 and then again in December 2013.#
4.8. The complainant described her depression over Christmas 2013 as very severe, and said in evidence that she “spiralled out of control”. From then on until the beginning of 2015, she was increasingly ill both from depression and anxiety, and possibly also, by her own evidence and doctor’s reports furnished as evidence, as a result of side effect from the medications used in her treatment. By the complainant’s evidence, the medications left her feeling numb, unable to think or engage with the world, and on many days, unable to leave her bed.
4.9. This inability to engage, as well as the shame and stigma she felt, put the complainant on a collision course with the respondent’s absence management policy. The complainant fully accepted in her evidence that she did not follow the prescribed procedures. In terms of the policy, each absence necessitated a return to work meeting once it was over. Whilst the complainant was aware of the right to be accompanied to these meetings, she said in evidence that the union representatives would have been her colleagues on the sales floor and she did not want them to know about her illness. The complainant also said that she was panicked every time she was “pulled up” by the respondent.
4.10. The complainant stated that the communications from the respondent, which were all framed in the language of disciplinary processes, made her depression and anxiety worse. The complainant also stated that she was so ill that she opened only some of her letters. However, she did open the letter which the respondent sent to her on 10 May 2014. The letter was from one of the respondent’s HR managers. It outlined the complainant’s failure to engage with the respondent and notified her that failure to respond might result in her dismissal. The complainant did not respond and was subsequently dismissed on 24 May 2014. This dismissal was later overturned.
4.11. The complainant stated that she was “devastated” by her dismissal, and that she had not considered that the respondent would actually dismiss her. She described herself as “hysterical” when she phoned her one close friend for advice of what to do. She then contacted a full-time official at her union, Mandate, for help, and as noted in the previous paragraph, her dismissal was overturned. Mr M., the union official, who has long personal experience in retail work environments, impressed upon the complainant the need to keep in contact with the respondent about her absences in the future. The complainant confirmed this in her evidence.
4.12. However, she soon let the contact slip again, even though her union representative contacted her to offer his assistance. But the complainant did not contact him. According to the complainant, she was panicked because the respondent had contacted her about the repayment of approximately € 2,500 which she had received upon her dismissal. She felt that she “could not survive until September with the need to reimburse the money” and that this financial demand was “one more thing on top of everything else”. The complainant offered to reimburse the respondent in instalments, but only received the reply that this needed to be discussed. She was also still feeling unwell and not in a position to provide a return to work date to the respondent. She confirmed in her evidence that she did received the respondent’s letters asking her to make contact, but that she was “at her very lowest” at that time, with constant panic attacks, insomnia and a high dosage of medications.
4.13. The complainant did not appeal her second dismissal. She stated, in cross-examination, that she felt it would be unlikely to be successful given all that had happened before between her and the respondent.
4.14. As regards any support received from the respondent, the complainant stated that she was given an employee-assistance helpline number which the respondent contracts with a third party for this purpose. The complainant spoke “in depth” to a man who she thought was a doctor. Some weeks later, she was called back by a woman who advised her to contact AWARE, the depression charity. According to the complainant, she was never sent to an occupational health specialist by the respondent to be assessed.
4.15. The complainant eventually made a full recovery from her conditions, was able to stop her medications, and is working again. However, she stressed that her current job has much less favourable terms and conditions than her employment with the respondent.
4.16. The respondent did not really challenge any of the complainant’s evidence, except to point out that she was able to make contact with the respondent and instigate an appeal against her dismissal when she lost her job, but not before or after. The respondent’s implication is that the complainant hence acted wilfully in breaking off contact, and that the cause of her actions was not her disability.
4.17. In terms of the respondent witnesses, it is clear from their evidence that they treated the complainant’s actions as a disciplinary matter. Ms K., the relevant HR section manager, said that with the complainant being out of contact, she had “no idea what’s happening”. When the complainant did not show for the meeting scheduled for 22 May 2014, she handed the matter over to her manager, Mr K., who effected the complainant’s dismissal. In cross-examination, Ms K. accepted that she was aware that the complainant was suffering from depression. She stated that she had not received training on issues of depression, or disability in a larger context, but that many employees whom she was responsible for suffered from depression and anxiety. She did not know that the complainant lived alone – she insisted that she would not discuss a staff member’s personal situation with other workers. I might note here that this strikes me as indeed the proper and professional thing to do.
4.18. Ms K. insisted that the respondent did offer the complainant support, and that at each return-to-work meeting, the complainant was asked whether there was anything the respondent’s managers could do for her. This is also borne out by the written protocols of these meetings, which were opened in evidence, and which do not speak of a hostile or negative attitude towards the complainant.
4.19. Mr K. confirmed in his evidence that he made the decision to dismiss the complainant after speaking to Ms K., without seeing the complainant, and that apart from that conversation, which was not recorded in writing, he worked off a spreadsheet of the complainant’s absences. He stressed that the “opportunity to engage never happened” due to the complainant’s non-responsiveness to the respondent’s communications. He also stated that for the respondent to implement its obligations in terms of reasonable accommodation pursuant to S. 16 of the Acts, the employee needs to engage. He stated that a referral to an occupational health expert can only happen with the consent of the employee in question.
4.20. Ms B., the HR manager who heard the complainant’s appeal of her dismissal and reinstated her, did meet the complainant in person and was significantly more sympathetic towards the complainant’s situation. However, she, too, insisted in her evidence that for any reasonable accommodation, or an instalment plan for reimbursement of the €2,500 or a return to work date to be discussed, the complainant would have to be in contact and make her needs known. Overall, the respondent’s position in the matter is that it engaged consistently with the complainant, but was stonewalled every step of the way. Counsel for the complainant emphasised every employer’s obligation to make adequate enquiries and gain the full picture of a workers disability before terminating the worker’s employment, pursuant to the Labour Court decision in Humphreys v. Westwood Health and Fitness Club, E.L.R. 296.
4.21. This case is not a particularly straightforward one. Clearly, in 2014, the complainant was extremely ill over a long period of time, and might well have been too ill at the time to continue her employment, in which case the overall provisions of S. 16 of the Acts might have availed the respondent. That said, it is clear from the overall evidence in this case that the respondent never properly ascertained that this was indeed the case. The respondent was on notice that the complainant suffered from depression, yet ascribed her lack of communication to a wilful act of silence on her part. This seems astonishing, since depression is unfortunately a rather common disorder and not an arcane affliction whose symptoms are unknown in wider society.
4.22. It does not seem unreasonable therefore to put an onus on the respondent’s HR managers to ask themselves the question as to whether the complainant’s silence may in itself have been a symptom of her illness and whether other measures to attempt and make contact with her might have been called for. This is especially so as all of them gave evidence that they are very familiar with occurrences of depression amongst the staff members they are responsible for. I would additionally like to note that whilst matters relating to the respondent’s common-law duty of care towards the complainant are not for me to adjudicate on, it struck me in the course of the hearing that the complainant, being most seriously ill and living alone in her house, might well have died by her own hand, and the respondent would have been none the wiser for it.
4.23. I accept that the respondent did make some effort to reach out to the complainant, but in a manner which strikes me as schematic, by-the-book, and altogether inadequate for the situation on hand. Specifically, the options for the complainant’s reasonable accommodation, or the possibility of a full occupational health assessment carried out by a suitably qualified specialist, were never mentioned in the correspondence directed at the complainant, and the matter of her absence was framed entirely as a disciplinary matter. All relevant correspondence was opened in evidence before me. I am satisfied from the complainant’s evidence that this manner of communicating made her depression and anxiety worse.
4.24. I cannot accept the respondent’s argument that the fact that the complainant was able to appeal her dismissal showed that her other periods of non-contact were wilful on her part. I accept the complainant’s evidence on how losing her job shocked her temporarily into action, as it were, but that the gravity of her overall condition and fear about her additional financial obligations towards the respondent meant that she found herself in a state of high anxiety and unable to engage again subsequently. I also accept the complainant’s unchallenged evidence that her anxiety and depression both took a turn for the worse in the weeks following her re-instatement.
4.25. Even if the respondent had not considered this possibility, I still cannot see why the option of making payments in instalments, or options for the complainant’s reasonable accommodation, could not have been communicated to her in writing following her re-instatement and why everything hinged on the complainant being in touch first. I accept Ms B.’s evidence that the respondent has been very flexible in matters like recouping overpayments from staff in other cases, but none of this was communicated in writing to the complainant, nor did the respondent take other, more direct steps to do so when its letters did not elicit a response from the complainant. The complainant was never even asked, in any of these communications, why she did not make contact.
4.26. As noted above, had the respondent properly persisted in making contact with the complainant, in a more appropriately person-centred approach, it might well have transpired that the complainant’s needs at the time were beyond what the respondent would have been legally obliged to provide, but this never happened.
4.27. In terms of the law, it is worthwhile to quote the Labour Court decision in A Government Department v. A Worker [EDA061], in which the Court reviewed the changes in the law relating to disability brought about by the Equality Act 2004, and held that
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability. […]
The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances.
[emphasis added]
4.28. This finding in turn is an extension on the Court’s seminal, often-quoted findings in A Health and Fitness Club v. A Worker [EED037], in which it first prescribed the process for employers to follow to discharge their obligations under Section 16, and stated that
At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered.
4.29. From all of the above, I am satisfied that the respondent fell far short of these obligations under Section 16 of the Acts in terms of ascertaining the complainant’s situation and whether she would have been able to fulfil her role with reasonable accommodation, and the complainant is entitled to succeed on this point.
4.30. With regard to the complainant’s second dismissal, it is of course the respondent’s argument that the complainant was not dismissed for incapacity, but for indiscipline, and for not keeping in contact. I am satisfied however that in the case on hand, this amounts to splitting hairs. It is very clear from the totality of the complainant’s evidence that it was in fact her depression and anxiety which rendered her incapable of making contact. As noted previously, this is a factual connection which the respondent should have at least considered and probed, in a positively, supportively engaging way, with the complainant. Since the respondent did not satisfy itself properly or at all whether it was incapacity or wilfulness which caused the complainant’s silence following her reinstatement, I am satisfied that the complainant’s disability did indeed cause her dismissal, and that she is equally entitled to succeed in her complaint of discriminatory dismissal.
5. Decision
5.1. 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.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015 that the respondent did discriminate against the complainant on the ground of her disability in terms of failure to assess her condition for the purpose of considering reasonable accommodation pursuant to its obligations under S. 16 of the Acts, and that it did discriminatorily dismiss the complainant contrary to S. 8(6) of the Acts.
5.3. In light of the fact that I am satisfied that the respondent’s actions actually exacerbated the complainant’s poor health, and taking account of the size of the respondent’s business – the respondent being a major multinational retailer -, I hereby order, pursuant to S. 82 of the Acts, that the respondent pay the complainant €45,000, which is equivalent to 18 months’ salary for the complainant, in compensation for the effects of her discrimination. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
_____________________
Stephen Bonnlander
Equality Officer/Adjudication Officer
5 October 2017