Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Retail 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-00012625-001

19/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00012625-002

19/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012625-003

19/07/2017

CA-00012625-001 Employment Equality Acts

The Complainant contends that she has been discriminated against by the Respondent Employer on grounds of her Disability. She further contends that the Respondent treated her unlawfully by failing to give her ‘reasonable accommodation’ for her disability.

CA-00012625-002 Redundancy Payments Act 1967

The Complainant seeks statutory redundancy payment.

CA-00012625-003     Minimum Notice & Terms of Employment Act 1973

The Complainant received 4 weeks’ notice of the termination of her employment but was not paid the notice period.

The Complainant was employed as a Shop Assistant from 14 October 2008 to 30 June 2017, when her employment was terminated on grounds of her long-term absence from work.     She was on sick leave from 24 February 2016 because of a serious shoulder and sole problem which she stated may have been caused by temperature and the lifting of heavy weights in the workplace.   She was in the same position for seven years in her employment. After several meetings with her Employer, the Complainant was dismissed. She had submitted medical certs monthly. She was dismissed on 2 June 2017, giving four weeks’ notice, because of her medical condition. She contends that the Respondent discriminated against her and she cited two comparators who were on long term illness absence and were not dismissed, (Comparator H and Comparator F who are still in the employment).           The Complainant further contends that the Respondent acted prematurely in moving to dismiss her while a pending surgery has not been carried out.     She further states that the Respondent acted unfairly by refusing to accede to her request to be medically assessed and provide medical reports from the Respondent’s doctor.

Two other claims were made in the Complainant’s complaint form as outlined above, redundancy and minimum notice.

Having had absences from work for a total of 38 days, the Complainant was cautioned in September 2015 for poor attendance, and she was given a verbal warning for her absence from work on 17 February 2016. From 24 February 2016 onwards, the Complainant was absent from work due to pain in her back, foot and leg. She furnished medical certificates to the Respondent and at all times informed the Respondent that she could not return to work. The Respondent met with the Complainant at regular intervals since 24 February 2016 by way of Long Term Absence (LTA) meetings. The first of these was on 1 April 2016. In total eight LTA meetings were held with the Complainant between April 2016 and June 2017. At each of these meetings, the Complainant could not give any indication of a return to work date. The Respondent stated that they could not hold open her position indefinitely.   The Complainant indicated that, following an ultrasound, an Orthopaedic Specialist thought there was a fifty per cent chance that she would require surgery on her shoulder tendons down the line. By letter dated 24 April 2017 the Respondent wrote to the Complainant and reiterated the unlikely possibility of the Complainant’s position being held open without an indication of a return to work date as communicated to her at a previous meeting on 6 April 2017.   The Complainant was requested to visit her doctor before the next meeting, scheduled for 28 April 2017, and asked her to take medical reports and other relevant information for the Respondent to consider at that meeting for the purpose of establishing a likely return to work date.      At the meeting of 28 April 2017 the Complainant advised the Respondent that her doctor would not provide a medical report to the Respondent directly, however he would provide a report to a doctor acting for the Respondent. The Complainant also stated that her doctor was of the opinion that her shoulder would get worse if she did not have the operation and that he could not advise on a likely time for such an operation and potential recovery from same due to waiting list delays. Further LTA meetings were held with the Complainant on 19 May 2017 and 2 June 2017.   At the meeting on 2 June the Respondent tried again to ascertain if there would be a return to work date.   She was asked what was preventing the Complainant from returning and she stated “everything”.   She was asked if there was anything the Respondent could do to help her return to work, such as easing her back to work with shorter days for a period until she was fit to return to normal hours.   The Complainant was advised that her contract would be terminated on 30 June 2017 due to the inability of the Respondent to indefinitely hold her position open without a likely return date following a 15-month absence from work. Legal submissions were made regarding Section 16 (1) (b) of the Employment Equality Acts and the decision of the Labour Court in A Health and Fitness Club v A Worker (EED037).       The Court set out the approach that should be taken in order that an employer can rely upon the defence set out in Section 16 (1) (b) of the Acts. The Respondent submits that on the basis of regular meetings and communications with the Complainant over 15 months, it formed a bona fide opinion that the Complainant would not be capable of performing the duties for which she was employed.   The Complainant’s clearly stated and evidenced position of unfitness would lead a reasonable employer in the position of the Respondent to deem the Complainant incapable of returning to work.

CA-00012625-001 Employment Equality Act 1998

The Complainant contends that she has been discriminated against by the Respondent Employer on grounds of her Disability. She further contends that the Respondent treated her unlawfully by failing to give her ‘reasonable accommodation’ for her disability.

Issues for decision:

1.       Has the Complainant a qualifying disability as required by the Act (Section 6 (2) (g))?

2.       Has the Complainant established the primary facts from which it may be presumed that there has been discrimination in relation to her, and if so, has the Respondent then proved the contrary (discharge the burden of proof) (Section 85A).?

3.       Can the Respondent rely on the defence provided in Section 16 (1) (b) in the Act that it was not required to retain the Complainant in her position as she was not fully competent to undertake the duties attached to the position?

4.       Has the Respondent fulfilled its obligations in regard to ‘reasonable accommodation’ as provided for in Section 16 (3) (a)?

In relation to question 1 I am satisfied on the common evidence that the Complainant suffered from a disability.

In relation to question 2 I find as follows:

Section 85 (A) of the Act provides:

“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”.

It is this section of the Act that deals with the burden of proof. In order to investigate if discrimination took place, it was necessary to examine the comparators put forward by the Complainant in this instant case, who suffered from disabilities and were on long term sick leave.    

The Complainant put forward two comparators, Ms H and Ms F. In the case of Ms H it was established in evidence from the Respondent that she has been on sick leave absence for less than twelve months, whereas the Complainant was out on long term sick leave for over fifteen months.   In the case of Ms F, the evidence of the Respondent was that this individual is on long term sick leave but medical evidence is to hand on her condition and she is re-assessed every few months. It was argued by the Respondent that the comparators are not valid, particularly as the Complainant has stated on numerous occasions that she was not fit for work and could not state if she would ever be so. I find, from the evidence, that the comparator Ms H is not a valid comparator for the reason that she was not on sick leave for the same length of time as the Complainant. It is common case that comparator Ms F was on long term sick leave for at least as long as the Complainant. I therefore accept that comparator as valid, and the Complainant has established a prima facie case, and the burden of proof shifts for the Respondent to prove that there was no discrimination.               The Respondent relies upon Section 16 of the Act as a valid rebuttal to the claim of discrimination.

In relation to question 3, and the issue of rebuttal by the Respondent, I find:

Section 16 (1) of the Act provides:

“16 (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual –

(a)    Will not undertake, (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed or

(b)    Is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”

From the evidence, I note that the Complainant suffers with a debilitating condition which from her own evidence, stated “I am still unable to walk or stand for long amount of time without experiencing pain. I am still awaiting doctor’s decision to conclude if I require surgery for my shoulder”.  

I note that the Complainant was on sick leave from February 2016 until her employment was terminated in June 2017, that the Respondent held at least 8 returns to work meetings with the Complainant and that at these meetings the Complainant was never able to give an indication of a date on which she might return to work.   The Complainant was asked to provide medical reports and her evidence was that her doctor would not provide such reports directly to the Respondent but would do so to the Respondent’s medical personnel. I find that there was a flaw in the Respondent’s position by not referring the Complainant for an assessment by a doctor designated by the Respondent.   However, I accept the Respondent’s evidence that no number of referrals would have resulted in the Complainant being fit to return to work in any reasonable period, and the Complainant’s own evidence at all times indicated that this was the case.

In relation to question 4 I find:

Section 16 (3) provides:

“(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 section 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 accessto 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 shall be taken, in particular, of -

(i)the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.”

I note that at the meeting held with the Complainant on 2nd June 2017, the Respondent asked the Complainant “Can we do anything to help your return? Maybe easing you back to work with shorter days with fewer hours…”.   The Respondent made some effort to offer an accommodation to the Complainant for her to return to work, but the key issue is that the Complainant was unable to provide an indication of a return to work or even partial return date.

I conclude that the Respondent in this instant case has formed the bona fide belief that the Complainant was not fully capable of performing the duties for which she was employed and that the Complainant’s complaint of discrimination is not upheld.

CA-00012625-002 Redundancy Payments Act 1967

The Complainant seeks statutory redundancy payment.

I find that the post the Complainant occupied was not made redundant and therefore her claim for statutory redundancy payment fails.

CA-00012625-003     Minimum Notice & Terms of Employment Act 1973

The Complainant received 4 weeks’ notice of the termination of her employment but was not paid the notice period.   Section 4 of the Act provides for the employer’s obligation to give notice to the employee. The Act does not confer automatic entitlement to payment for the notice period, but that an employer is obliged to give the requisite notice. In this instant case, the Complainant was not available to work her notice period and her claim for payment is not upheld.