ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00009033

Parties:

Complainant                   Anonymised Parties          Respondent

A Complainant                                                                   A Shop  

Representatives  

Walters & Associates Walters & Associates Solicitors

Complaint(s):

Act                  Complaint/Dispute Reference No.                  Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00011870-001 12/06/2017  

Date of Adjudication Hearing: 23/10/2017 Workplace Relations Commission Adjudication Officer: Valerie Murtagh

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, 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 by the respondent from 24 January 2017 until the date of his dismissal on 15 March 2017. The complainant is alleging that he was discriminated against on grounds of disability in relation to his dismissal. While the complaint was lodged under the Equal Status Acts, clarity was sought at the outset of the hearing and the complaint was amended to one of discrimination on grounds of disability under the Employment Equality Acts.

Summary of Complainant’s Case:

1.1 The complainant was taken on as a sales assistant on 24 January 2017 with the store and worked a 12 hour week. The complainant states that on 15 March 2017, he arrived for work at the usual time and upon arrival he was informed by his supervisor, Mr. M to go to the office, after a few moments Ms. O and Mr. N arrived explaining that due to his “difficulties” and the fact that he had not improved in his work performance, they would have to let him go. The complainant asserts that he had only previously told his trainee manager Mr. R the week previously that he had Asperger’s Syndrome. The complainant states that Mr. R asked him if he had told the manager to which he replied “No”. The complainant submits that to this very day, he has been given no adequate reasons as to why he was dismissed. The complainant states that he received no verbal or written warnings. He states that he was informed that his performance was good (i.e. good on tills, undertook jobs without being asked). The complainant asserts that he was even deemed competent enough to be working alone while only the supervisor was in the office upstairs. 1.2 The complainant states that in a separate incident, on Friday 10 March 2017, while working alongside a colleague Ms. A, the complainant had an incident where an adult male claiming that he had a gun demanded he empty all of the money and alcohol into a brown paper bag or he would “blow his head off”. The complainant states that as he was frightened, he froze and panicked. After a few minutes, the person took his hand out of his jacket and laughed, the customer in question continued to abuse the complainant from the counter about prices. He then proceeded to leave the shop and the complainant states that he continued to do his work while in a state of shock to clear the large queue that had arisen. The complainant told the supervisor about the incident and also informed his trainee manager to which he was told the gun incident was a joke and brushed it all off. The complainant states that his trainee manager never even asked the complainant if he was okay. He subsequently asked the complainant to put the incident down in writing but the complainant never got a chance to do so as he was let go shortly thereafter. The complainant submits that the proximity to him informing his trainee manager of his disability and his subsequent dismissal circa 1 week later, is prima facie evidence of discrimination on grounds of disability. The complainant alleges he was dismissed from his employment on account of the company becoming aware that he had Asperger’s Syndrome.  

Summary of Respondent’s Case:

2.1 The respondent states that the complainant was employed by it from 24 January 2017 to 15 March 2017 under a contract of employment dated 24 January 2017. The respondent submits that it is a limited company which operates three stores in Dublin and has a total of 75 employees. The respondent states that it does not discriminate on the basis of disability and among its employees are four individuals with intellectual disabilities of various kinds. 2.2 The respondent states that without prejudice to the substance of the complaint, which is denied, the complainant has no basis for proceeding under the Equal Status Acts which relate to claims of discrimination in relation to the provision of goods and services and the provision of accommodation and access to education and that no cause of action under the Equal Status Acts has been disclosed. 2.3 Without prejudice to the foregoing, the respondent states that the complainant was employed as a sales assistant from 24 January 2017 until his employment was terminated on 15 March 2017. The respondent states that it was explained to the complainant from the outset that during the first six months of his employment, he would be on probation in order to allow both parties to assess the complainant’s suitability for the role which is reflected in clause 3 of his contract of employment. The respondent states that training in the necessary tasks associated with the role was provided to the complainant at induction and on 6, 7, 9 and 11 February but despite the complainant confirming on each occasion that he understood the relevant tasks which he was required to undertake in his role and that he knew how to carry out those tasks correctly, he failed consistently to do same requiring those tasks to be redone. 2.4 The respondent states that having received initial training from Mr. O, HR Manager, in light of the shortcomings in the complainant’s performance, he was offered the facility of Ms. O returning to provide further training. The respondent submits that the complainant declined this offer on more than one occasion. The respondent states that where the complainant’s performance failed to improve to meet the expected standards of the role, his employment was terminated due to performance issues. The respondent asserts that the decision to terminate the complainant’s employment was made by the store manager, Mr. N in conjunction with Ms. O. 2.5 Mr. N and Ms. O met with the complainant on 15 March 2017 and advised him that his employment was being terminated due to ongoing issues with his performance. The respondent denies that there was any mention of his “difficulties” as referenced by the complainant which incorrectly implies that the respondent was referencing the fact the complainant had Asperger’s Syndrome. The respondent submits that at the conclusion of the meeting, Ms. O asked the complainant if there was anything he would like to ask and if he understood what was being explained. The respondent asserts that the complainant confirmed his understanding and did not add anything further. The respondent asserts that at no time was the company aware of the complainant’s disability and it did not form part of the rationale or consideration for the decision to terminate his employment. 2.6 The respondent submits that it is now accepted, having interviewed Mr. R following notification of the allegations that the complainant informed Mr. R that he had Asperger’s Syndrome. However, Mr. R noted that this information was not relayed to him in the context of his work but during general conversation about college. The respondent asserts that Mr. R understood that this was said to him as an individual on a personal level, not as a trainee manager and as such he did not inform the company. The respondent states that Mr. R did ask the complainant if the manager had been informed of his condition to which the complainant replied that he had not. 2.7 The respondent submits that at no time prior to the ES 1 notification was the respondent on notice of, or aware of the fact, that the complainant had any disability. This is despite the fact that at the initial induction those involved were asked by Ms. O whether or not any individual had any issues which could affect their ability to carry out their role. The respondent states that the complainant did not bring his condition to the attention of Ms. O. However, another individual who undertook the induction training shortly before the complainant did raise an issue with Ms. O thereby making the respondent aware of his condition involved and allowing the respondent to take account of that condition. 2.8 The respondent asserts that with regard to training, it denies that the complainant was treated differently than any other employee of a similar level to the complainant and that he received training appropriate to his position and time with the respondent. Insofar as the complainant asserts that he did not receive food safety training, the respondent confirms that the complainant was treated consistently with other employees and had his employment continued, he would have received level one food safety training within three months of commencement of his employment in line with requirements.           2.9 Following the hearing, a document relating to an Employment Health Questionnaire (Page 2 of same) was submitted by the respondent in which the respondent states that the complainant chose not to disclose his disability on the form at the commencement of his employment. 2.10 In conclusion, the respondent refutes the allegations of discrimination on grounds of disability and states that the decision to dismiss the complainant was based on competency and work performance issues during his short tenure with the company.  

Findings and Conclusions:

    3.1 I have considered all the evidence both written and oral presented to me. 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 him. If he 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 these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –   "Section 85A of the Acts 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.”

Preliminary Issue

A preliminary issue was highlighted at the commencement of the hearing in relation to the complaint being brought under the Equal Status Acts as opposed to the Employment Equality Acts. At the outset of the hearing, I requested clarity from the complainant in this regard and he advised that the complaint related to discriminatory treatment and discriminatory dismissal on grounds of disability under the Employment Equality Acts.   

3.2 Disability is defined in Section 2 of the Acts:   ‘‘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;  

I am satisfied that the complainant’s disability which is Asperger’s Syndrome comes within the definition outlined above. Unlike other grounds such as race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee.   Regarding this Section 16 (1) of the Acts states:

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

(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.

However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

(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 fullycompetent and capable on reasonable accommodation(in this subsection referred to as ‘‘appropriatemeasures’’) 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.  

Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose a disproportionate burden: (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.  

3.3 The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court in the case of “A Health Club and A Worker”. It is worthwhile to quote the relevant paragraphs:

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that theemployer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed.However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case.At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's conditionand that theemployee is given fair noticethat the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.Secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.[1]   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’.   The complainant submits that he was discriminated against on grounds of disability in his employment and further submits that he was discriminatorily dismissed on grounds of his disability.   3.4 Having carefully examined all the evidence, I find that given the proximity of the complainant advising his trainee manager, Mr. R of his disability and his termination of employment circa 1 week later, the complainant has demonstrated a prima facie case and the onus shifts to the respondent to rebut said inference. The respondent submits that it was unaware of the complainant’s disability until after it received the ES 1 notification. Having taken testimony from various witnesses at the hearing, I do not find the testimony of Mr. R or Ms. O credible or convincing. While Mr. R gave evidence stating that the complainant informed him that he had Asperger’s syndrome, Mr. R said the complainant did so in a confidential manner in a discussion regarding courses they undertook at college but he kept this information to himself on the basis that the complainant told him on a private and confidential basis. Ms. O then gave testimony backing Mr. R’s testimony and adamantly stating that “the staff were trained that way and it was drummed into them at training” in that, if some information was given on a confidential basis, they could not act upon it. I do not accept this testimony as being credible. In my view, once the complainant voiced his concerns to his trainee manager and advised him that he had Asperger’s, the company was now on notice of a disability and it was incumbent on it to look into the issue of reasonable accommodation or appropriate measures to assist the complainant in his work. However, circa 1 week after this conversation, the complainant was called into the office and told his employment was being terminated due his work performance. When I enquired from the respondent’s witnesses’ seeking clarity on this issue, the witnesses varied in their testimony and were hesitant in their testimony. In addition, they lacked detail regarding the complainant’s purported poor work performance; Mr. R said it was due to problems regarding rotating stock and price checking issues; when I asked the store manager (who rotated between different stores), he stated that it was down to pace and the slowness of placing chilled /frozen deliveries in a timely manner. In my view, this is where the respondent could have implemented measures to assist the complainant with regard to reasonable accommodations to allow him remain in employment and once he had informed Mr. R. of his disability, there was an onus on Mr. R to deal with this issue. I am cognisant that Mr. R was a trainee manager in the store and his allegiance was to the store. I note that the complainant had not received any written warnings regarding his work performance which would be standard practice. While the respondent argued that the disciplinary procedure only kicks in when an employee comes through their probationary period; I do not find this argument convincing either. The respondent also argues that the complainant was given the opportunity to state his disability on the Employment Health Questionnaire which was furnished to him on commencement of his employment. However, the complainant states that he never had sight of page 2 of said document (Page 2 of Employment Health Questionnaire was furnished to the WRC following hearing) and it did not exist. While there is a clear conflict of evidence on this matter, (I note in the submission sent in by the respondent prior to hearing, the Employment Health Questionnaire is on a single page and it is very specific with a number of questions for example headed;

Have you ever had any of the following- yes/no –TyphoidFood PoisoningDysentery etc.

I would question as to why the second page was not inputted in the submission sent in prior to hearing or was not available on the day of the hearing. On this matter, I find the complainant to be a credible, honest witness with integrity and I found him to be consistent in his testimony throughout and I accept his testimony that he did not have sight of page 2 of said document.   3.5 In conclusion, having carefully examined all the documentation and witness testimony in the instant case, I find that the complainant based on the above evidence has demonstrated a nexus in relation to his termination of employment and his disability, therefore I find that he has shown a prima face case of discriminatory dismissal on grounds of his disability.        

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. 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 the respondent discriminatorily dismissed the complainant on the disability ground. In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015; I hereby order that the respondent pay the complainant €6,500 by way of compensation for breaches of the Act which represents a year’s salary. The award is redress for the infringement of the complainant’s statutory rights and therefore, not subject to the PAYE/PRSI code.  

Dated:   17th January 2018 Workplace Relations Commission Adjudication Officer: Valerie Murtagh    

[1] Determination No. EED037