Complainant

Respondent

Anonymised Parties

A Retail Manager

A Supermarket Chain

Representatives

C Bowman SC instructed by Sean Ormonde & Co. Solicitors

M McKenna BL instructed by Legal Counsel of Respondent Organisation

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-00008230-001

17/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008230-002

17/11/2016

Background:

The Claim concerns a long-standing Manager in a Branch of a large Retail Chain. She was requested to assume a Two Stores remit whereas formerly she had only one Store in her responsibility. The handling of the issue by the employer was alleged to have been Discriminatory.

A very extensive written submission was presented and supported by considerable oral evidence.

In precis, the Complainant alleged that she had been

1.       Unduly and unfairly pressurised to change her legal terms and conditions of employment -from being a Manager of One Midlands Store to a positon where she would have responsibilities for Two Stores. For convenience in the Adjudication decision I have adopted the shorthand phrase “One/Two Stores” issue to refer to this.

2.       Her Contact of Employment did not have an unfettered Mobility Clause and the Organisation had no legal basis to compel her to accept duties in other stores as well as her own Primary Place of Employment without her Agreement in advance.

3.       As a result of the dispute regarding her work locations she had fallen ill due to stress.

4.       She had been prevented by the Organisation from resuming her normal duties, despite being passed as medically fit, by their insistence on setting acceptance of the Two Store Policy as a precondition to return to work.

5.       The Two Stores precondition had effectively been most discriminatory on the ground of her disability, had not afforded her Reasonable Accommodation for her Disability and had amounted to Harassment.

6.       The Payment of Wages complaint refers to the period when she was fit to work but was denied access to work. The Complaint alleged that this denial of wages was in breach of the Act.

A detailed submission was submitted and supported by considerable oral evidence. It was not denied that a serious Industrial Relations Dispute had taken place between the parties regarding the One/Two Stores issue.

However, it was strongly contended by the Respondents that this was never an Employment Equality issue. It had never been presented as such until very late in proceedings and there was absolutely no evidence to support a prima facie inference of discrimination never mind a concrete base for an actual Equality claim.

In plain English, this was an Industrial Relations dispute between the parties and could not be conflated with an Employment Equality claim that had no realistic basis.

Happily, the parties had reached an agreement prior to the Hearing and the Complainant was now back at work.

The Payment of Wages complaint was without foundation as the Complainant had exhausted her entitlements to Sick pay under the Organisations’ sick pay scheme and could not claim that she had been placed on some form of Administrative leave that would entitle her to payment. The claim is without foundation.

Considerable oral evidence was given, a large volume of correspondence was exhibited and there was extensive debate among the Legal representatives for the parties.

On consideration, the following points became clear regarding the two Complaints.

3:1   The Employment Equality Claim   CA-00008230-001

The basic legal prerequisites for An Employment Equality claim of Disability Discrimination is that it is necessary, firstly, to establish that a Disability existed and secondly that Discrimination as defined in the Act then actually occurred.

This is the Burden of Proof requirement.

3:2     Burden of proof discussion.

Section 85A of the Employment Equality Acts identifies that the burden of proof requirement is established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant

The issue of the evidence necessary for both Complainants and Respondents has been carefully considered in the case law of the Employment Appeals Tribunal and the Labour Court.

The headline point is in the decision of the Labour Court in Southern Health Board v Mitchell,DEE 001/2001. In this case the Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement 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 in seeking to raise a presumption of unlawful 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 a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Adjudicator or Court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy EDA0821 as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The argument that mere membership of a protected class i.e. being allegedly Disabled was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court in the Valpeters case.

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule” Arturs Valpeters (Complainant) v Melbury Developments Ltd (Respondent)EDA0917

It follows therefore that the evidence presented by the Complainant must be of a sufficient strength to raise a presumption of discrimination which then arises for rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment.

3:3     Consideration of the Evidence in the case in Hand

Having read all the extensive correspondence presented and heard the oral evidence, particularly that from the Complainant herself I had to come to the conclusion that this was a case which hinged on the letters of Contract between the parties -particularly the alleged “Red Circle” letter of the 26th January 2001 and the Terms and Conditions of Employment statement dated the 26th February 2001. The interpretation of the Mobility Clause in this letter was hotly contested between the parties over an extensive period and was the nub of the dispute.

I could not see how it could be characterised as an Employment Equality “discrimination on grounds of disability” dispute under the accepted definitions in the Act and in legal precedent.

It was accepted that the Complainant had been on Sick Leave for periods during 2015 and 2016 and had also suffered two very unfortunate bereavements in her family during this period.

It was clear that all parties accepted that illness was not a deciding issue and the Complainant had submitted fitness to work certificates on several occasions. While the Complainant had been certified for “Stress” during some of this period there was no evidence presented that this was considered at the time as a qualifying Disability.

Ironically the letter from her Legal Advisors – Sean Ormonde and Co on the 31st August 2016 summed up the case rather well, I thought, and I quote directly

a)      The subsisting contractual relationship between our Client and Respondent X does not permit a change in work location absent agree between the parties;

b)      Our Client does not agree to changing her work location, as demanded by X

c)       Our Client has been certified as fit to return to work and is anxious to do so

d)      X has refused to allow her to return to work, unless she agree to the variation of her contractual terms with regard to work location;

e)       As out client does not agree, she has not been provided with any work hours or any pay to date.

3:4     Conclusion /Disability Claim

The Evidence pointed to a major Company adaptation and reorganisation programme country wide in the period of the economic downturn circa 2014/2016. The job positon occupied by the Complainant was not unique and many of her colleagues were facing similar challenges regarding relocation. She had what she believed was a “Red Circle” letter which the Respondent found difficult to reconcile with. This was a classic Industrial Relations dispute which could not be “shoehorned” into an Equality Claim.

References was made to two Comparators in the written submission of the Complainant but this issue was not actively pursued at the Hearing- it being alleged that the Red Circle letter was virtually unique to the Complainant

From her direct Oral evidence, it was clear to me that the issue of location and a grievance over the issue of the red circle letter and how the matter had been handled by the Employer were foremost in the Complainant’s mind. The Complainant was a very long standing Managerial grade employee and had an expectation that she would have been, in her mind, treated with more consideration.

Despite everything however, I still could not see this as a case of Disability Discrimination. She was never medically certified as Disabled in the common understanding of the Definition -she had a major issue over the proposal to relocate her - this was a perfectly legitimate grievance but it is not a Disability Discrimination situation.

Accordingly, I had to determine that a prima facie case of Employment Equality discrimination was not established and the claim fails.

3:5     Reasonable Accommodation and Harassment complaints.

The difficulty in satisfying the prima facie Burden of Proof elements in the main Disability Discrimination claim discussed above effectively means that an Equality based claim for Reasonable Accommodation has to fail. As there was no Disability Discrimination the question of Reasonable Accommodation did not arise.

Leaving aside the Disability arguments made above, the considerable evidence of numerous meetings and much correspondence does not support a claim of Harassment. This was a prolonged dispute over a Mobility clause in a contract and naturally a number of meetings were heavily contested especially those involving the overall group HR Director. However, none of this could be described, as commonly understood as “harassment” under the Employment Equality Acts.

3:6     Payment of Wages Act, 1991 CA-00008230-002

The essence of the Complainant’s case is that in the period she was declared fit to work (but was not allowed to do so by reason of the alleged Respondent preconditions of agreeing to changed terms of employment specifically the mobility clause) she was entitled to be paid.

The Complainant had exhausted her sick pay entitlement and although now physically fit for work was in a dispute with her Employer regarding the terms of her Contract. I did not consider that the Non-payment of Wages during the contested period was an illegal deduction under Section 5 of the Act.

Considerable reliance was palced by the Complainant on the remarks of Laffoy J in the case of Maria Cronin v Eircom Limited [2007] 18 ELR 84 essentially making the argument that once the Complainant was fit for work there was an implied obligation on the Respondent to provide her with work or at the very least pay her while the Contract dispute continued.

This is an interesting argument under Commercial Law but I did not see how it could be transposed into a Payment of Wages Act, 1991 Section 5 claim. The facts were that the parties had what was in bare bones an Industrial Relations dispute over Work Locations.

Accordingly, I did not find that the non-payment of the Complainant’s salary for the dispute periods of absence was an illegal deduction as specified under the 1991 Act.

Act

Complaint/Dispute Reference No.

Summary Decision /Refer to Section Three above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008230-001

Claim is not well founded -no prima facie inference of Discrimination is found to base a claim.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008230-002

Claim is not well founded and is dismissed.