ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008698

Parties:

Complaint:

Date of Adjudication Hearing:  5th April 2018 and 24/05/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed with the Respondent from 20th May 2016 until the employment terminated on 20th January 2017. The Complainant was paid £10.25 an hour and he worked 20 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 26th May 2017 alleging he had been discriminated against on the basis of his gender, sexual orientation and Disability. The Complainant resigned on 20th January 2017.

Summary of Complainants Position:

The Complainant was employed by the Respondent on 20th May 2016 through the Business in the Community “Ready for Work” programme. This programme provides work experience, training and guidance to people with high barriers to employment. The Complainant suffers from mental health and Tourette’s and the Respondent was on notice of this when he commenced employment having completed a named form on 5/4/2016. The Complainant was initially employed in the Restaurant and in May he was moved to a Department within the Store. Shortly afterwards he began to experience difficulties with one of his colleagues, named, who is a daughter of one of the Managers. Her behaviour was rude, homophobic and aggressive towards him and used inappropriate language.

The Complainant raised a grievance on 21st September 2016 naming this employee where she had behaved in an aggressive manner and used derogatory terms. There was a facilitated meeting held on 4th October 2016 where the issues were discussed resulting in both Parties agreeing to work together in a civil and professional manner. He again raised a grievance against the same employee in relation to incidents on 21st and 25th November 2016. These incidents were investigated by the Respondent and the outcome was that both Parties were found to have breached the Dignity at Work Policy in a report dated 14th January 2017.

The Complainant stated that he continued to be discriminated against by this employee and the Respondent. He asserted that he had applied for a transfer but was informed by Management that they would not recommend him due to his punctuality/attendance and at this meeting he stated he was also informed to stop making accusations against his Line Managers with no clear evidence and that he needed to behave appropriately on the floor. The Complainant stated the reason for his certified absences was the conduct of the Respondent when he was absent from 18/12/16 to 14/1/17 – Forced Majeure Leave on 26/11/2016 – missed two shift on 6/10/2016 when he tripped and fell – 19th September 2016. The Complainant asserted the Respondent was aware of the Complainant’s health issues and the rigid application of the transfer policy by the Respondent demonstrates a failure to provide reasonable accommodation to the Complainant. The Complainant also asserted that the Respondent threatening the Complainant with Disciplinary Sanction if he continued to make complaints flies in the face of the Respondent’s own Dignity at Work Policy

On 9th January 2017 the Complainant entered the men’s locker room and found inappropriate deeply offensive graffiti on the wall. The matter was investigated and he received the outcome on 21st January 2017 which found the Respondent was unable to identify who had written the offensive words on the wall. The Complainant stated the Respondent should have issued a statement to its employees or taken such other appropriate action but they failed, refused or neglected to do so.

On 14th January 2017 the Complainant was transferred within his Store to the Lingerie Department. He felt degraded, humiliated and distressed and noted there were no other males working in this department and asserted this was motivated by his sexual orientation and gender and the comparators are all male employees and all male heterosexual employees in the store. He stated he felt he was transferred as a result of his grievance complaints. The Complainant stated he was aware of a vacancy in another Store but he was refused a transfer and this was compounded by a letter he received dated 25th January 2017, after his resignation.

The Complainant received a response to his Grievances of 21st and 25th November 2016 on 14th January 2017 and the outcome to his grievance of 9th January 2017 on 21st January 2017. The Complainant resigned by letter dated 20th January 2017.

Discrimination on the basis of Gender. The Complainant asserted that his transfer to the Lingerie Department was discrimination on the basis of his gender as no other men were required to work in this Department and this coupled with the name calling and is evidence of discrimination on the basis of his sexual orientation.

Discrimination on grounds of Sexual Orientation. The Complainant asserted he was discriminated against on the basis of his sexual orientation in relation to the derogatory remarks and the graffiti on the locker room and queried whether the Company Grievance Procedure was the correct vehicle to investigate such a complaint and he was transferred to the Lingerie Department.

Reasonable Accommodation. The Respondent was aware of the Complainant’s Health issues through the Business In the Community’s Ready for Work Programme and the Respondent was put on notice of this prior to his employment. The Respondent in an unreasonable manner refused to move the Complainant to another location where this would not be a disproportionate burden on the Employer.

Discriminatory Dismissal. The Complainant was left with no option but to resign because of the discriminatory treatment afforded to him by his Employer and this is provided for in the Act. The Complainant sought to invoke the internal Grievance Procedures and the Respondent failed, refused or neglected to resolve or adequately attempt to resolve his issues. The Respondent applied the same criteria to him as they applied to all other employees in relation to his request for a transfer.

Summary of Respondents Position:

The Respondent stated they were not put on notice of the Complainant’s health issues and the Form submitted by the Complainant in support of their complaint is not a Form of the Respondent but that of the Business in the Community Programme. Furthermore, this form specifically alerts the Complainant to notify the Respondent in relation to any disability or reasonable adjustments that may be required. The Complainant. did not complete this identified Form of the Respondent Company. The Complainant asserts he made numerous complaints against a named employee. The fact is the Complainant made one complaint only on 23rd September 2016 and he elected to have this dealt with through mediation. The Complainant asserts that this employee called him “princess” on 25th November 2016. This was investigated by the Respondent. Thus, the Complainant did not suffer regular discriminatory comments.

In relation to the Complainant’s grievance of 3rd December 2016 the Investigator appointed, named, met with the Complainant to explain the process and asked him to identify any witnesses. He named four and all were interviewed and the outcome was communicated to the Parties and that both the Complainant and this named Employee should be retrained in the Dignity at Work Policy. The fact is that the Complaint made by the Complainant was upheld and it was open to the Complainant to appeal the outcome of the investigation but he did not do so. The Respondent stated that the Respondent never denied the Complainant his right to raise any grievance during the course of his employment and in fact he raised another Grievance on 9th January 2017 and the outcome was to uphold both the Complainant’s complaints.

The Complainant had six periods of absence during his employment – 5th June his grandmother passed away – 10th September 2016, he was sick - 6th October 2016, he fell and was absent for two shifts – 26th November on Force Majeure Leave – 3rd December 2016 left store prior to his finish time – 12th December he missed three shifts – 10th January 2017 14 days sick leave because of depressive symptoms. This contradicts what the Complainant is asserting, that he was absent due to discriminatory treatment by the Respondent. Neither was the Respondent aware of the Complainant’s health difficulties as asserted as these absences demonstrate.

The Complainant applied for a vacancy but not on the basis of reasonable accommodation and his application was not considered in that light as the Respondent had not been put on notice of any health or disability issues by the Complainant.

The Respondent stated that the Complainant discovered graffiti in the men’s locker room and despite their investigation they could not discover who was in fact responsible. The issue was raised at all team meetings in the store and all employees were told this behaviour was unacceptable. The Respondent also stated that the Complainant was never moved to the Lingerie Department but remained working in his named Department until the day he resigned. What the Complainant is referring to is the policy of transferring all employees, male and female to restock the lingerie department from time to time but the Complainant continued to work in his own Department. The Complainant stated he raised this but does not identify who he raised it with.

The Complainant was informed of the outcome of the investigations and the Respondent wrote to the Complainant on 25th January 2017 in relation to his resignation letter of 20th January 2017 in which the Respondent requests the Complainant to ring to arrange a meeting and discuss his return to his employment and to address any issues he may have and the outcome of the investigations. There was no response. The HR Director wrote again on 2nd February 2017 asking the Complainant to contact him directly but there was no response.

The Respondent then dealt with in detail with the alleged discrimination on the basis of gender, sexual orientation and disability/reasonable accommodation.

Findings and Conclusions:

On the basis of the evidence, written and oral submissions by both parties with supporting documentation I find as follows –

The Complainant participated in the Business in the Community “Ready for Work Programme”. I note the Complainant completed an Occupational Health Form for this Programme. He was asked as follows “Is there any current or recurring medical problem/condition or medication side effects that we need to be aware of in order to make adjustments to enable you to do your placement that you feel we should know about”. The Complainant ticks NO. I further note that in answer to the question “Do you have a disability or impairment” the Complainant ticks “Mental Health Issue”.  I further note at the end of this Form the Complainant is advised as follows “For clients going on placement at (named i.e. the Respondent): If they have indicated that they have a disability or that reasonableadjustments may need to be made for their placement, then the new (named i.e. Respondent) Participant Health Questionnaire needs to be completed by them. Section 9 to be completed by the Ready for Work Coordinator. This form should be sent confidentially to the (named) Store Coordinator before placement starts”.

The evidence from both Parties was that the Complainant did not complete this Form before going on his placement with the Respondent and it is clear the Respondent was not made aware of any disability or health issues the Complainant had or any “reasonable accommodation” required by the Complainant.

The Complainant was provided with a written statement of his Terms and Conditions of Employment – copies provided. I have also examined the absences of the Complainant and there was no evidence to support the Complainant’s assertions at the Hearing that his absence was due to the discrimination he was suffering in his employment. These show he was absent on 7 occasions as follows – 5/6 his grandmother passed away – 10/9 absent due to vomiting – 6/10 fell and wrist swollen – 26/11 Force Majeure Leave – 3/12 left before his shift had ended – 12/12 fell ill vomiting – 10/1/2017 absent for 14 days due to depressive symptoms.

The Complainant made a formal complaint on 23rd September 2016 against a named employee. He alleged this employee had called him a name and had informed him that nobody liked him. In line with the Respondent’s Dignity at Work Policy the informal procedures were activated and a named Investigator was appointed. A mediation meeting was held with both the Complainant and the employee named and this took place on 4th October 2016. After discussions both Parties agreed to move on, work together in a civil and professional manner and this was confirmed in a letter, undated to the Complainant.

The Complainant lodged a further complaint against the same employee on 3rd December 2016 with two allegations, namely, an issue concerning clothing tags and a second concerning calling names. This was investigated under the Dignity at Work Policy of the Respondent. An Investigator was appointed. The Complainant was interviewed on 28th December 2016. The Investigator also interviewed all witnesses to the incidents and interviewed the other named employee on 9th January 2017. Two of the witnesses identified by the Complainant were also interviewed on 12th January 2017.   The Investigator issued his findings on 14th January 2017. He found the first allegation was upheld and he found in relation to the second allegation that both the Complainant and the named employee were both responsible and both had contravened the Dignity at Work Policy.

Both were to be met with on an individual basis to go through the Dignity at Work Policy. Neither appealed this finding. I also note from the decision of the Investigator that both were informed that any further breach of the Policy could lead to Disciplinary Sanction.

Inappropriate graffiti was discovered by the Complainant on 9th January 2017 in the men’s locker room. This was clearly a homophobic comment against the Complainant who was named. An Investigator was appointed. He interviewed the Complainant and two other employees who had been identified in the CCTV footage outside the locker room. There was no evidence available to identify the person who had written this graffiti as neither of the witnesses interviewed were able to identify the person responsible. The Complainant was informed of the outcome of the investigation on 21st January 2017 to the Complainant. I note the Respondent stated that the issue was raised during team meetings.

The Complainant tendered his resignation by letter dated 21st January 2017. The Respondent replied on 25th January 2015 and again on 2nd February 2017 inviting the Complainant to meet with the Respondent and to discuss the issues he had raised and to organise a return to work. There was no response.

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.

Section 6 of the Employment Equality Act, 19898 provides as follows – (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where – a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ( in this Act referred to as the “discriminatory grounds”) which (i) exists (ii) existed but no longer exists (iii) may exist in the future, or (iv) is imputed to the person concerned.

(2) As between any two persons, the discriminatory grounds ….are (a) that one is a woman and the other is a man….the gender ground. (d) that they are of different sexual orientation….the sexual orientation ground. (g) that one is a person with a disability and the other either is not or a person with a different disability….the disability ground”.

Section 85A (1) of the Act provides as follows – “Where in any proceedings facts are established by or on behalf of a complainant 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 issue has been considered by the Labour Court in a number of key decisions namely Southern Health Board v Mitchell DEE 1/2001 – Cork City Council v McCarthy EDA 21/2008 and in Melbury Developments Ltd v Valpeters EDA 17/2009

Discrimination on the Gender Ground. Section 8(1) of the Act provides as follows – “ In relation to – (a) access to employment (b) conditions of employment (c) training or experience for or in relation to employment (d) promotion or regrading € classification of posts, an employer shall not discriminate against an employee….”.     The Complainant asserted that he was discriminated against on the gender ground when he was transferred to the Lingerie department in the Store in which he worked.

The evidence was that all employees had a liability to be moved into the Lingerie Department from time to time to stack the shelves. The evidence was that the Complainant continued to work in his own Department and that all employees, both Male and Female, could be assigned to stock the shelves.

In accordance with Section 79 of the Act I find the allegation of discrimination on the Gender Ground has not been substantiated and therefore the Complainant does not satisfy Section 85A(1) of the Act in relation to the Burden of Proof.

Discrimination on the Sexual Orientation Ground. Section 2 of the Act defines “sexual orientation” as Heterosexual, homosexual or bisexual orientation. The Complainant has claimed in his complaint form that he was discriminated against by his Employer in relation to his sexual orientation in his conditions of employment. The Complainant asserted he was discriminated against on this ground on the basis of verbal comments made by a colleague and by the derogatory graffiti in the men’s locker room and that these are a direct reference to the Complainant’s sexual orientation and would not be used in referring to a heterosexual employee. The Complainant also stated that he was unilaterally transferred to the Lingerie Department, a Department whose customer demographic is mainly female. The Evidence from both Parties was that the Complainant was called a derogatory name by a named female employee on one occasion on 23rd September 2016 following which the Complainant made a formal complaint, an investigator was appointed and the issue was resolved through mediation when both parties agreed to work together in a professional manner. The evidence was that the Complainant lodged further complaint on 3rd December 2016 in respect of an incident on 21st November 2016 when the Complainant looked for tags for clothes/items and an incident on 25th November 2015 in relation to an exchange between the Complainant and the named employee. The Investigator found the first complaint contravened the Dignity at Work Policy in that the named Employee should have explained to the Complainant the reason why she was not giving him the tags he requested. The Investigator found in relation to the second complaint of name calling that both the Complainant and the other named Employee had contravened the Dignity at Work Policy and were to be retrained in the Policy.

In relation to the graffiti in the men’s locker this was investigated but the Respondent was unable to ascertain the employee who had made the comments concerning the Complainant and the evidence was that the Respondent sought through team meetings to address the issue and the policy of the Respondent.

On the basis of the evidence I find the Complainant was the subject of a discriminatory comment by an employee on 23rd September 2016, this was investigated and the complaint was mediated between the Parties.

On the basis of the evidence in relation to the incidents of 21st November 2016 and 25th November 2016 which were the subject of a complaint by the Complainant on 3rd December 2016, there was no evidence provided by the Complainant to substantiate his complaint of discrimination on the sexual orientation ground.

I find that the Complainant was the subject of discriminatory graffiti on 9th January 2017 but the Respondent was unable to identify the person responsible for this during an investigation.

Discrimination on Ground of Disability and FAILURE TO PROVIDE REASONABLE ACCOMMODATION. Section 2 of the Act defines “disability” and Section 16 of the Act sets out the extent of an employer’s obligations to an employee with a disability. The evidence was that the Complainant commenced employment through the Business in the Community’s Ready for Work programme in May 2016. The evidence also was that the Complainant was required to inform the Respondent going on placement if they had a disability or if reasonable adjustments were required for their placement – set out in detail above in my findings. The evidence was the Complainant did not inform his Employer of his disability or if reasonable accommodation was required as set out at Section 16 (4) of the Act. The Complainant asserted that he wished to transfer to another Store and that following a meeting with his Employer he was informed he would not receive a recommendation for the transfer because of his absences. The Complainant asserted that the Respondent was aware of his health issues but then applied the same criteria to him as would be applied to a person without a disability. Section 85A(1) requires a complainant to establish facts. The Labour Court in Southern Health Board v Mitchell DEE 1/2001 held as follows – “The firstrequirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely to raise a presumption of discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise an inference of discrimination, that the onus shifts to the Respondent to prove there is no infringement of the principal of equal treatment”.

I find the Complainant has not met the burden of proof in that no evidence was provided to the Hearing or by way of submission that the Complainant had informed his Employer of his Disability.

DISMISSAL ON DISXRIMINATORY GROUND. Section 2 (1) of the Act defines dismissal as the following – “includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or if it was or would have been reasonable for the employee to do so, and dismissed shall be construed accordingly.”

This is usually defined as Constructive Dismissal. There are essentially two tests that an employee can argue in a complaint of constructive dismissal under the Employment Equality Act, 1998.

1. There must be a significant breach of the contract of employment by the Employer, which shows that the Employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering his resignation. The Complainant has not established there was any breach of contract by the Employer.
2. The Complainant must have acted reasonably in tendering his resignation. The Complainant invoked the internal Company procedures on three occasions, in a four month period once on 23rd September 2016, which was investigated and the Complainant’s complaint was upheld. He invoked the internal procedures again on 3rd December 2016 in relation to incidents on 21st and 25th November 2016. These were investigated by the Respondent in line with the internal procedures of the Company. In relation to the complaint relating to 21st November 2016, this was upheld by the Investigator while the Investigator found that both the Complainant and the other named employee had breached the Dignity at Work Policy of the Complainant. The Complainant made a third complaint via the internal procedures in relation to the graffiti incident on 9th January 2017. This was again investigated through the internal procedures but it was not possible to identify the person responsible for this as there is no CCTV footage in the men’s locker room. The outcome of this investigation was communicated to the Complainant on 21st January 2017 but the Complainant had tendered his resignation on the same date prior to him receiving the outcome of his complaint of 9th January 2017. In his letter of resignation, he stated “I did really love my position however I felt like I was being bullied and not a lot was getting done about this….”. The Respondent responded by letter dated 25th January 2017 and a further letter on 2nd February 2017 offering the Complainant a meeting to discuss any outstanding issues and to discuss a return to work. There was no response from the Complainant. I note that the Complainant had not lodged a complaint with the Respondent in relation to a Bullying complaint. I find that the Complainant did not act in a reasonable manner in tendering his resignation prior to the conclusion of the internal procedures and the Complainant did have a right of appeal if he was not happy with the outcome of his complaint of 9th January 2017 or by not engaging with the Respondent to discuss his issues as set out in their letter of 25th January 2017 and the subsequent letter of 2nd February 2017.

In accordance with Section 79 of the Act, I declare this complaint is not well founded.

Dated: 23rd August 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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