Complainant

Respondent

Anonymised Parties

A Sales advisor

A Department Store

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-00011547-001

24/05/2017

The complainant is employed by the respondent as a sales advisor. He commenced in his employment in October 2008. The complaint relates to alleged discrimination on the grounds of disability.

The complainant stated that he was discriminated against by the respondent on the disability ground and that it failed to provide reasonable accommodation for him.

The complainant stated that he was absent from work on certified sick leave from 24th February 2017 until 4th March 2017. The complainant confirmed that on his return to work he was subject to a disciplinary process, the result of which was the issuing of a verbal warning on the 10th March 2017 which would remain in place for a period of three months. The complainant contends that the respondent discriminated against him by invoking its disciplinary procedures as a result of his absence in circumstances where he was suffering from a disability. The complainant stated that he sought refresher training in manual handling and a transfer to lighter duties. He contends that this was not facilitated by the respondent and accordingly the respondent failed in its obligations to provide reasonable accommodation to him as a person with a disability.

The complainant stated that the verbal warning was appealed on the basis that medical tests had been carried out and that he was diagnosed with a disability (spondylosis at C5/C6). The complainant stated at the appeal that as the warning was issued in circumstances where the he was awaiting test results, the confirmation of the diagnosis meant that the warning should be rescinded.

The respondent refutes the complainant’s position. The respondent stated that its management of attendance procedures provide that eight absences in a rolling 26-week period will be addressed in the return to work meeting and that action may be required under its sick absence management procedures. The respondent stated that the complainant was aware of these procedures as he had previously been given verbal warnings in November 2014, July 2015 and May 2016 in relation to his levels of absence.

The respondent stated that at a meeting with the Section Manager on 9th March 2017, the complainant was asked if the respondent could assist him in any way. The complainant sought assistance with heavy lifting and refresher training in manual handling. The respondent stated that the verbal warning was confirmed to the complainant by letter of 10th March 2017. The warning was appealed by letter dated 20th March 2017 and a radiologist report confirming “mild spondylosis at C5/C6” was included in the appeal documentation. The respondent stated that an appeal hearing took place in line with its procedures on 4th April 2017 and the decision to issue the verbal warning was upheld on appeal.

The respondent stated that it invoked the disciplinary process in the same manner that would be applied to all staff. The respondent stated that it was not aware of the complainant’s disability at the time it issued the warning to him and in those circumstances, it could not have discriminated against him on the grounds of his disability. The respondent stated that it transferred the worker to lighter duties temporarily and arranged refresher training in manual handling as soon as it was practicable.

The complainant stated that he was discriminated against on the grounds of his disability. The respondent refutes the complaint.

The complainant confirmed on 20th March 2017 by way of a radiologist’s report that he had “a mild spondylosis at C5/C6. Spondylosis is defined as “a medical term for the general wear and tear that occurs in the joints and bones of the spine as people get older”.

Disability

Disability is defined in Section 2(1) of the Employment Equality Acts, 1998-2015 as follows:

“disability” means

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

On the basis of the provisions of the legislation, I find that the complainant’s condition meets the definition of a disability as provided for in the Act.

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(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) 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,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

85A (1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Reasonable Accommodation

The requirement to provide reasonable accommodation is set out under Section 16(3) of the Employment Equality Act, 1998 as follows:

16(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’ s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shallbetaken, in particular, of —

The complainant stated that the respondent discriminated against him when it issued a verbal warning to him on 10th March 2017. The notification of the disability was provided to the respondent on 20th March 2017 in the appeal documents relating to the verbal warning. On the basis that the respondent was not aware of the disability at the time it issued the verbal warning, I find that the respondent did not discriminate against the complainant as he has alleged.

The complainant also alleged that the respondent failed to reasonably accommodate him as his requests to be transferred to lighter duties were ignored and he did not receive refresher training in manual handling. On these issues I find that the complainant was accommodated by the respondent. He received manual handling refresher training on 19th April 2017 and was transferred to lighter duties on or round 1st May 2017 for a period of three months. I find that these concerns arose at a meeting when the complainant returned to work from sick leave in early March 2017 and were subsequently dealt with by the respondent out of genuine concern for the welfare of its employee.

I note that the complainant has high levels of sickness absence and was issued with a further verbal warning in or around January 2018. It was confirmed at the adjudication hearing that none of the absences that led to the verbal warning in January 2018 citied spondylosis as the reason for the absences.

In all of the circumstances of this complaint, I find that the complainant has failed to establish facts from which an inference of discrimination can be drawn. Accordingly, the complainant has failed to discharge the burden of proof.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that the complainant has failed to establish a prima facie case of discrimination and accordingly, the complaint is not well founded.