ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002269 and ADJ-00005695
Parties:
| Complainant | Respondent |
Parties | A Checkout Assistant | A Multiple Retail Store |
Complaints:
|
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-00003046-001 | 04/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00003048-001 | 04/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00003077-001 | 04/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00007867-001 | 27/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00007870-001 | 27/10/2016 |
Date of Adjudication Hearing: 18/07/2017
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant referred a number of complaints to the Director General under both the Employment Equality Act 1998 and the Unfair Dismissals Act 1977 and in relation to the dismissal in the present case. At the oral hearing of the complaint on 18th July, 2017 the Complainant’s representative informed the Adjudication Officer that the following complaints were being withdrawn, namely CA-00003048-001, CA-00007867-001 and CA-00007870-001.
The Complainant’s representative confirmed at the oral hearing that the Complainant wished to proceed with Complaint Referral No. CA-00003046-001 which had been referred under the Employment Equality Act, 1998 and Complaint Referral No. CA-00003077-001 which had been referred under the Organisation of Working Time Act, 1977. The Complainant’s representative confirmed in writing subsequent to the oral hearing (by e-mail on 31st July, 2017) that the complaint under the Organisation of Working Time Act had been resolved between the parties and accordingly, this complaint withdrawn.
Therefore, the only matter before me for decision relates to the complaint under the Employment Equality Acts as referred under Complaint Ref. No. CA-00003046-001.
Background:
The case concerns a claim by the Complainant that the multiple retail store who employed her discriminated against her on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2015 in terms failure to provide reasonable accommodation and discriminatory dismissal. |
Summary of Complainant’s Case:
The Complainant was employed by the Respondent as a Checkout Assistant from 13th May, 2000 until she was dismissed with effect from 30th October, 2015. The Complainant was diagnosed with anxiety in 2008. In December, 2010, the Complainant miscarried a pregnancy of twins and fell into a deep depression and was absent from work on sick leave until January, 2011. The Complainant became upset at work on 15th January, 2011 and was brought to the office by her Line Manager, Mr. A, where she was told that “lots of people have abortions and miscarriages every day of the week and they just get on with it, you have to get on with it too. You are not going home if that’s what you think so just take deep breaths and go back to the shop floor and go to the checkouts at 12 noon”. The Complainant, who had never asked to go home, returned to the shop floor but was extremely upset at this point. Another Manager met with the Complainant and sent her home that day. The Complainant was subsequently certified sick for a period of one month with depression and anxiety. The Complainant raised a complaint against her Line Manager in relation to the manner in which this incident had been handled. The outcome was that the Line Manager was told to “keep away” from the Complainant whilst working on the shop floor and there was no apology offered from the said Line Manager. Later that year the Complainant became pregnant and commenced a period of maternity leave on 15th February, 2012 which was due to end on 19th August, 2012. The Complainant went absent on sick leave on 20th August, 2012 after falling into a deep depression following the birth of her child. All of these absences were certified by the Complainant’s General Practitioner. The Complainant remained absent on sick leave from 20th August, 2012 until she was informed about her dismissal on 4th September, 2015. During this period the Complainant attended her own GP and hospital appointments on a regular basis and submitted weekly medical certificates to her employer which confirmed the diagnosis of depression. Also, during this period the Complainant was requested to attend monthly meetings with her employer regarding her absenteeism. However, there were a number of these meetings that she was unable to attend due to the nature of her illness but she attended the majority of such meetings with management. The Complainant always made the Respondent aware if she was unable to attend any of the scheduled meetings. On two occasions the Complainant was sent home again as when she arrived for the meeting the Respondent was not in a position to meet with her despite them having arranged the meetings. The Complainant was called to a meeting on 4th September, 2015 where she met with the Store Manager, Mr. B. At this meeting the Complainant informed Mr. B that she had been attending a Consultant Psychiatrist for treatment. However, the Complainant’s employment was terminated at this meeting and a letter of dismissal was issued to her on 7th September, 2015 in which it was stated that the decision to dismiss was taken after careful consideration. The Complainant’s employment was terminated with effect from 30th October, 2015 which took into consideration the eight weeks’ notice entitlement. The Complainant was offered the right to appeal this decision by 11th September, 2015 to the Respondent’s Regional Manager. The Complainant subsequently appealed the dismissal and she was informed by the Regional Manager on 21st September, 2015 that the decision to dismiss was being upheld. The Complainant was not offered an appeal hearing. The Regional Manager stated in this letter that in coming to this decision he had reviewed the Complainant’s file, minutes of meetings and any medical reports provided by her. The Complainant submitted that the Respondent did not take into account that she had a disability that prevented her from carrying out her normal every day duties when it took the decision to dismiss her. The Complainant claims that the Respondent has failed to comply in its obligations under Section 16 of the Acts to provide her, as a person with a disability, with reasonable accommodation. The Complainant submitted that the provisions of Section 16(3) of the Acts impose a positive obligation on the Respondent to have carried out an investigation into the nature and extent of her disability. The Complainant submitted that the Respondent failed to refer her for medical assessment to its own medical advisors to establish what, if any, measures such as a phased return to work, could have been put in place to facilitate the Complainant’s return to work. The Complainant submitted that such an assessment would have assisted the Respondent in ascertaining what tasks she was capable of performing in light of her disability. However, the Complainant claims that the Respondent made no medical assessment or other investigation into her competence to carry out the tasks associated with her role after her treatment with the Consultant Psychiatrist. The Complainant relied upon the following cases in support of her claim, namely, Ms. Z –v- A Chain Store[1], Mark Kehoe –v- Converted Limited[2], Noel Flynn –v- Emerald Facility Services[3], Connacht Gold Cooperative Society –v- A Worker[4], Humphries –v- Westwood Fitness Club[5], Shannon Regional Fisheries Board –v- A Worker[6] and Southern Health Board –v- Teresa Mitchell[7]. |
Summary of Respondent’s Case:
The Complainant commenced employment with the Respondent on 13th May, 2000 and worked as a Sales Assistant. The Complainant commenced a period of maternity leave on 20th February, 2012 and was expected to return to work on or about 20th August, 2012. The Complainant submitted a medical certificate on 9th August, 2012 which stated that she was suffering from anxiety/depression and she did not return to work at any point until her employment was terminated with effect on 30th October, 2015. The Respondent submitted that the Complainant could not perform the duties attached to the position of Sales Assistant as a result of her illness from 9th August, 2012 onwards. Over the course of the Complainant’s three year absence, the Respondent met with her at regular intervals to discuss her condition to establish whether or not she might be in a position to return to work. The Complainant also furnished regular medical certificates confirming that she was unfit to work as a result of anxiety/depression. The Respondent submitted that in these circumstances there can be no doubt but that it was “in full possession of all the material facts” concerning the Complainant’s condition. The Respondent submitted that it is clear from the notes of the various meetings held with the Complainant that she was advised that her position could not be held open indefinitely, and when the time came, she was clearly advised, in writing, that dismissal on the ground of incapacity was being considered. The Respondent submitted that it is without doubt that the Complainant was allowed the “opportunity to influence the employer’s decision”. The Respondent submitted that as demonstrated by the meeting notes and correspondence that issued to the Complainant, she was asked, on multiple occasions, to discuss her condition with her doctor with a view to establishing whether or not she might become fit to return to work. The Respondent submitted that the letter dated 20th August, 2015 from the Store Manager specifically advised the Complainant that: “Should you be unable to provide us with a [return to work] date, then we will have to make a decision regarding your employment and this could include termination of your employment. I advise you to discuss this with your doctor prior to the meeting. You should bring along to the meeting any reports or any information which you might want us to consider on the day”. The Respondent submitted that the above facts demonstrate clear compliance, on its part, with the requirements laid down in the Humphreys –v- Westwood Fitness Club case. The Respondent submitted that it acted reasonably to the Complainant in allowing her position to remain open for a period of over three years but was not obliged to keep this position open indefinitely when there was no prospect of her returning to work. The Respondent submitted that insofar as reasonable accommodation was concerned, the Complainant was certified as unfit to perform duties from 9th August, 2012 and remained unfit to work until her dismissal on 30th October, 2015. The Respondent submitted that neither the Complainant nor her doctor could give any indication of when she might be fit to return to work and neither suggested that she would fit to return to work if the Respondent implemented specified measures, by way of reasonable accommodation, for the Complainant’s disability. The Respondent submitted that had the Complainant indicated that she had recovered to such an extent such that a return to work was a viable prospect, it would have been more than willing to accommodate her in any way that it could. The Respondent’s policy is to accommodate, where possible, employees returning to work from long term sick leave. Examples of the measures routinely provided by the Respondent to such employees, by way of reasonable accommodation, included a phased return to work, a return to work on restricted duties and the allocation of particular shifts. The Respondent submitted that the Store Manager would have deferred making a decision about the Complainant’s continued employment until a later date if she had indicated that she might be in a position to return to work in the medium term. The Respondent relied upon the following cases in support of its position, namely: Humphries –v- Westwood Fitness Club, Elaine O’Brien –v- Dunnes Stores[8] and Bolger –v- Showerings (Ireland) Limited[9]. |
Findings and Conclusions:
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. In the case of Melbury Developments v Arturs Valpetters[10] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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)…..”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability". It was not in dispute that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to this complaint and I concur with that view. Accordingly, the issues for decision in this case are (1) whether she was discriminated against by the Respondent in relation to discriminatory dismissal on the grounds of disability and (2) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the Section, of performing the duties for which they have been employed. However, this defence is tempered by the provisions of Section 16(3)(b) of the Acts which provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if s/he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer. On a practical basis, Section 16 of the Acts as interpreted in the case of A Health and Fitness Club -v- A Worker[11] upheld by the Circuit Court (Humphreys –v- Westwood Fitness Club), requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake his/her duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision”. The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel[12] as: “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”. In An Employer -v- A Worker[13], the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case”. In the case of A School –v- A Worker[14] the Labour Court held that “The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court in Humphries v Westwood Fitness Club and in A Worker v An Employer a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.” Without doubt, this assessment is an onerous process for employers. It is worth bearing in mind why this burden is placed on them. Recital 16 of the relevant EU Directive states “the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination”.[15] Discriminatory Dismissal The first issue that I must decide relates to the Complainant’s claim that she was subjected to a discriminatory dismissal on the grounds of her disability. Based on the evidence and submissions of the parties, I have established a number of key facts and I make the following findings:
The key area of contention between the parties in this matter surrounds the question as to whether or not the Respondent was in full possession of all the material facts concerning the Complainant’s medical condition upon taking the decision to terminate her employment. The Complainant, on the one hand, has argued that the Respondent did not take into consideration any medical evidence or reports from her own doctor and that it failed to refer her for medical assessment to the company’s Occupational Health Physician prior to taking the decision to terminate her employment. The Respondent, on the other hand, has argued that the Complainant had been absent from work for three years and that it was in full possession of all of the material facts in relation to her disability. The Respondent contends that it engaged with the Complainant at regular intervals throughout her absence to discuss her medical condition and had requested her to present any relevant medical documentation and information from her doctor for consideration prior to taking the decision to dismiss. However, the Complainant failed to provide any such medical reports or information for consideration and neither she nor her doctor was able to provide any indication as to when she would be in a position to return to work. The Respondent disputes that it was obliged to refer the Complainant to its Occupational Health Physician in circumstances where her own doctor had certified her unfit to work and was unable to provide any indication when she would be fit to return to work. It is clear from the case law cited above that employers are required to adopt a process orientated approach in terms of attempts to satisfy its obligations under Section 16 of the Acts which, in practice, requires the employer to be in full possession of all of the material facts concerning the employee’s medical condition or disability before a decision is taken to dismiss a person on the grounds of incapacity. Having regard to the totality of the evidence adduced, I am satisfied that the Respondent complied with its obligation to adopt a process orientated approach and that it fully engaged with the Complainant at regular intervals throughout the duration of her three year absence from work. I find that the Respondent was fully informed and in full possession of all the material facts regarding the Complainant’s medical condition when the decision was taken to terminate her employment on the grounds of incapacity. In this regard, I note that the Complainant was requested on multiple occasions to discuss her condition with her doctor with a view to establishing whether or not she might be in a position to return to work. The Complainant was advised by the Respondent that dismissal was being contemplated if her doctor was not in a position to provide an indication as to when, or if, she would be in a position to return to work. I am satisfied that the Complainant was afforded the opportunity to influence the Respondent’s decision as to whether or not her employment would be terminated in that she was requested on several occasions to provide any relevant medical information or reports from her doctor which should be taken into consideration prior to the decision being taken to dismiss. It is clear that the Complainant failed to provide any such medical information or reports from her doctor and that she was not in a position to indicate if, or when, she would be in a position to return to work. I am satisfied that the Respondent acted in a reasonable manner towards the Complainant in keeping her position open for a period of three years. Furthermore, I am satisfied that there was no obligation on the Respondent to keep her position open indefinitely in circumstances where her own doctor, despite repeated requests to do so, could not provide any indication as to when she would be in a position to return to work. Having regard to the forgoing, I find that the Complainant was not subjected to a discriminatory dismissal on the grounds of her disability contrary to the Acts. Reasonable Accommodation The second element of the Complainant’s claim which I must decide relates to the claim that the Respondent failed to provide the Complainant, as a person with a disability, with reasonable accommodation contrary to Section 16(3) of the Acts. It was not in dispute that the Complainant had been certified unfit to perform her duties during the three year period from 20th August, 2012 until her employment was terminated with effect from 30th October, 2015. As I have already stated in my findings above, I am satisfied that the Respondent was fully informed and in full possession of all the material facts regarding the Complainant’s medical condition throughout the period of her absence. I am satisfied that the Respondent was in regular contact with the Complainant throughout this period in order to obtain updates in relation to her medical condition and to try and ascertain if, and when, she would be in a position to return to work. It is clear from the evidence adduced that the Complainant was not fit to return to work in any capacity throughout this period given the nature of her medical condition. Based on the medical reports available to the Respondent it is also clear that the Complainant would not have been in a position to return to work or undertake any duties prior to the termination of her employment regardless of any special measures or facilities which could have been put in place to accommodate her disability. The Respondent had requested the Complainant on several occasions to discuss her condition with her doctor with a view to establishing whether or not she might become fit to return to work. However, the Complainant failed to provide any medical report or information from her doctor to indicate that she would be in a position to return to work in any capacity into the future. Therefore, given the ongoing nature of the Complainant’s medical condition and in the absence of any confirmation from her doctor as to when she would be deemed fit to return to work, I am satisfied that it was not possible for the Respondent to put any special measures or facilities in place which would have rendered her capable of performing her duties or a modified variation thereof. Accordingly, I find that the Respondent did not fail in its obligation to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts. |
Decision:
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.
I find that: (i) The Respondent did not discriminate against the Complainant on the disability ground pursuant to sections 6(2)(a) of the Acts, in respect of discriminatory dismissal contrary to Section 8(6) of the Acts, and (ii) The Respondent did not fail in its obligation to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts.
Accordingly, I find in favour of the Respondent in this case. |
Dated:
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Employment Equality Acts – Disability – Section 16 - Reasonable Accommodation – Discriminatory Dismissal – Complaint not upheld |
[1] DEC-E2009-111
[2] DEC-E2011-034
[3] DEC-E2009-065
[4] EDA0822
[5] [2004] 15 ELR 296
[6] EDA1318
[7] DEE011
[8] UDD1714
[9] [1990] ELR 184
[10] EDA0917
[11] EED037
[12] EDA0721
[13] EDA0413
[14] EDA1430
[15]Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation Official Journal L 303, 02/12/2000 P.0016 -0022