Complainant

Respondent

Parties

Hairdresser

Salon

Act

Complaint Reference No.

Date of Receipt

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

CA-00011317-001

15/05/2017

The complainant asserts that she was discriminatorily dismissed by the respondent on grounds of her disability, anxiety; the respondent denies the claim and states that the complainant was dismissed on performance grounds.

The complainant outlined she was diagnosed with anxiety in late March 2017 and as the weeks went on, it got worse. She texted the owner about taking time off and took two days off, instead of the week the GP recommended. She texted the owner on the 14th April 2017, who told her she does not “do” sick days so she was aware that the owner was not fond of people taking days off. It was the complainant’s decision to take two days off. She said that she would be back on Tuesday 18th April 2017 (after the bank holiday) with her sick cert. She continued to work but felt that she was ignored in the following two weeks. She was pulled in on a Saturday and after work, the owner told her she was a liability and the business could not be run around her. The complainant asked the owner what she had done wrong, who replied that the clients and the salon had no problem with her but her head was all over the place. The complainant thought that this referred to her anxiety. There were no incidents in the workplace. The complainant asked the owner why she was being let go and the owner had no other reason but her mental health. The owner asked the complainant to get her stuff and she left by walking through the salon. She was physically upset and crying while she passed clients and staff in the salon. She had heard nothing from the salon since.

The complainant referred to text messages with the owner to show that she knew of her anxiety. The complainant contacted the owner on the 14th April 2017 to explain that she had an attack and referred to going to the GP. The owner replied by saying OK. The owner submitted letters from other staff about their problems but she had no time for the complainant. The complainant was an apprentice hairdresser and started in September 2016. The respondent did not maintain any record of her training. There were training sessions on either Monday or Thursday. The complainant brought in models to do cuts, blow dries or hair colouring. Members of staff assessed her, but there was no record of this.

The complainant said that after the dismissal, she recently started back in an old job, but this was not her career. She could not face going back to hairdressing as she was too badly scarred. Her confidence was knocked. She now works in a factory and not in a public role anymore. The complainant referred to her contract of employment and her entitlement to notice. She was not given any warnings. She was approached unaware of the problem the owner had with her. She asked her whether there were any other problems and she replied no.

In cross examination, it was put to the complainant that she says that she submitted a medical certificate for the two days, which the respondent denied receiving. She was asked whether she had the medical certificate with her; she did not have the certificate with her. It was put to the complainant that her medical certificate is dated the day before the adjudication and makes no reference to having taken time off; she replied that she handed in a certificate. It was put to the complainant that the comment of the owner not doing sick days was taken out of context; she replied that she believed that the owner did not do sick days at it was a small business.

The complainant was referred to the letter from her colleague regarding her migraines; she replied that when she was taken on, her anxiety was not known. It was put to the complainant that a small business is vulnerable to excessive absenteeism; she replied that she had only taken two days off. In respect of her last day of employment, the complainant said that she had been in the office when the owner came in. It was put to the complainant that the owner called her into the office to raise longstanding performance issues; she did not accept that there were performance issues. The complainant was asked whether she accepted she had mixed up colours; she replied that she had not used one brand of product and when she was hired she was told that the salon used a different product in which she was trained. The complainant was asked whether she accepted she had taken appointments without including the customer names and phone numbers; she did not accept this and this would not be possible in a small salon and with the respondent IT system. It was put to the complainant that in the week towards the end, she took two appointments without recording names; she replied that this was not true. It was put to the complainant that the statement of a hairdresser colleague referred to doing classes with her; she replied that her skills were fine and her confidence was maybe a problem. It was put to the complainant that she had three years in a salon when she started with the respondent; she agreed with this and that while her blow dries were good, there may be issues with her cuts. It was put to the complainant that she had rated herself as below average on a self-assessment sheet; she replied that her confidence was weak and the respondent was baffled by the low scores she gave herself. It was put to the complainant that the dismissal was based on her performance; she replied that the first she knew of performance was on the day she was dismissed.

The complainant said that she was ignored by the owner on her return to work. It was put to the complainant that the owner was running a business and may not have time to deal with staff; she replied that the owner did not treat her equally. It was put to the complainant that had she approached the owner to say things were bad, the owner would have helped; she replied that the owner did not show any interest in her texts. It was put to the complainant that the owner had asked whether she would be in the next day; she replied that it was there in black and white that the owner did not want to know. It was put to the complainant that in asking whether she was in work, the owner was available to talk to her; she replied that the owner never approached her and was not bothered. In respect of her comments on social media related to eggshells, the complainant said that she was Instagram friends with colleagues and the owner blocked her.

The complainant’s mother gave evidence. She said that the owner lost the medical certificate submitted by the complainant but has the one submitted by the stylist.

The days the complainant was out on sick leave were the 14th and 15th April 2017. The owner said that staff was walking on eggshells around her, but this was not true as staff members live near her and know of her anxiety. They now know why she was dismissed.   The complainant outlined that she passed her six months’ probation and the stylist was in shock that she was let go. This colleague knew of her illness and there were no issues. The complainant did not do the colour course with a named supplier. The respondent lost her sick note and the complainant wanted to clear her name. She wanted to know why she was let go. The complainant was treated differently after she took two days off.

The owner outlined that she advertised for a position of a first-year apprentice. She read the complainant’s CV and told her that she did not have a position for a third year. The complainant came back to say that she would work as a first year and wanted to stop commuting to a named location. The complainant started on first year wages and said she could do everything. The owner explained that they are a small salon and everyone worked together. The owner’s reference to not doing sick days meant that if someone goes sick, this may leave people being on their own. There is no issue with people who are genuinely sick. The owner never had any issue with her staff and she did not lie to people.

When the complainant started, the owner noticed that her standard of hairdressing was not up to standard. She sent the complainant on a colour course with a named brand as the salon used both high profile brands. The owner taught staff every day and explained as she went. The salon had four or five staff working on Thursdays, Fridays and Saturdays. Apprentices were assessed every week on every model they did. She commented that the trainers wrote notes every morning which the apprentices used.

On the last day, the 29th April 2017, the complainant did a shocking blow dry which the owner had to start again. Everything was explained if things were not up to scratch. When the owner noticed there were a performance issue, they explained what the issue was and the complainant would listen and learn. On this occasion, the complainant was standing at her desk and the information was not going in. She said ‘I know’ but was not engaged. While the complainant brought models to the salon, she did not show a huge amount of engagement. The complainant said she had not done a cut in three years and did not do cuts, blow dries or colour for friends. This is a job you learn every day and the owner was still learning every day.

In January 2017, the owner gave all the staff a self-assessment form. She had completed a business training course and given information about boosting staff. It was for staff to fill in about themselves. The complainant had done three years and one would expect her numbers to be higher. The respondent was surprised that she rated herself so low.

The owner said that a staff member who is sick should phone and not text. The owner did not do her business by text. When the complainant returned from sick leave, the owner did her normal day and the complainant never approached her to explain what had happened. In the following two weeks, there were two occasions the complainant did not note the name or number of a client and could not explain why. There were two blow dries that the owner had to start again. On the last day, the staff were giving out about the complainant, that she was not pulling her weight. It was not registering with her and there was no further improvement. The owner referred to having to start a short bob blow dry again and the complainant also mixed the wrong colour.

The complainant did not submit a medical certificate from her doctor. The owner said that it is a fabrication to say that she was dismissed because of her mental health. She commented that the stylist is with her for 14 years. She has depression and the owner gets on very well with her. You must be aware of someone’s illness to help them. The stylist is given the accommodations she needs. A second colleague is a second-year junior. She suffers migraines and this happens every month or every 5 weeks. She must leave the floor and the owner brings her to the staff room. The lights are turned off and the owner phones the colleague’s family, who take her home. This colleague used to work Mondays but now has this day off as this can be a stressful day as only two staff are on duty. The owner said that she and the complainant could have discussed things and she was not a mind reader. It was rude to send anyone a text and the complainant should have phoned in. She never told the owner she wanted to take the whole week off.

In cross-examination, it was put to the owner that the complainant had whatsapped her every evening regarding classes and colour orders; she replied that she did not do real business through whatsapp and colour orders were nothing to do with her. It was put to the owner that the complainant sent a colour order by whatsapp every night; she did not accept that this was a colour order. The owner said that she was aware that people were on eggshells. It was put to the owner that the complainant never did colour training with a named brand; she replied that she would get the complainant the dates.

The owner said she did call the complainant to meet her on the 29th April 2017 and did not give formal notice. She was frustrated and the complainant was a liability on the floor. The owner could not have someone making so many mistakes and the complainant’s performance had not changed. The sick days were not the issue. The respondent said that they tried their best and nothing was improving. Things were not going in. There was nothing in writing except for the self-assessments. They did not write notes about people’s assessments. The complainant could not wipe the slate clean of her three years of experience.

The stylist outlined that she worked with the respondent for 14 years. She told the owner at the start of her depression. The owner was there if she needed to talk. The owner was aware of how she felt and it was never an issue. She was not treated less favourably than others member of staff. She worked with the complainant, who was quiet. She did not do a lot of training classes. She worked Thursday, Friday and Saturday so they worked together on Fridays and Saturdays. She is a stylist and would not normally speak to trainees directly about issues and would approach the owner. When the complainant started, they thought she could do things like a third year, but she was not up to this standard. She did not know the complainant suffered with anxiety.

The stylist said that the respondent trained and explained tasks to the apprentices. They attended classes and kept a log book of their work. The apprentice explained their work and this was assessed. While apprentices always had log books, in the last couple of months, the respondent has started signing off on training. This was a new thing they thought off.

The stylist said that she was probably there in the salon on the 29th April 2017. She did not really notice the complainant and did not recall seeing her leaving. She knew that the complainant had been dismissed that evening. She was surprised as she was not aware of the conversation with the owner. They asked why the complainant had gone and she did not remember when the next trainee started. In cross-examination, it was put to the stylist that she said goodbye to the complainant as she left the salon; she could not recall saying good bye and the complainant could have asked to leave early.

In closing comments, the respondent outlined that the complainant has said that she was discriminated against on grounds of a disability. She must show that she has a disability and has only now submitted a certificate. The complainant has not set out a prima facie case of discrimination. There was performance issues and no progression by the complainant. There was regular training but no engagement from the complainant, especially with her three years of experience. There is no comparator and the respondent has identified two comparators. The respondent would have spoken with the complainant had she raised her anxiety issues. The complainant has made mere assertions about the dismissal and the causal link with her anxiety. The respondent submitted that there was no evidence of victimisation. The complainant worked for the respondent for six months and as a third year there was no improvement in her performance.

The complainant commenced employment with the respondent on the 5th September 2016 and was dismissed on the 29th April 2017. She was employed as a hairdressing apprentice and was paid €227.92 per week. The complaint is made pursuant to the Employment Equality Acts on grounds of disability. The respondent sets out that the complainant must first show she has a disability with the ambit of the Employment Equality Act and that she can establish a prima facie case of discriminatory dismissal.

The interpretation section of the Employment Equality Acts provides the following definition of disability:

“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.”

The above definition provides a five-pronged definition of disability and includes a disability that may arise in the future or one imputed to a person. There was a conflict in evidence case whether the complainant submitted a medical certificate to the respondent. The complainant said she submitted a medical certificate, while the respondent denied receiving this certificate. It is not necessary for me to resolve this conflict. The complainant’s text message of the 14th April 2017 was clear. She stated: “Hi [owner] sorry I won’t make it to work today I have been having panic attacks and the doctor has said I have anxiety so il be going back to him today for medication.” The complainant was dismissed on the 29th April 2017. The question to be determined is whether the complainant was dismissed because a disability was imputed to her.

I note the evidence of the respondent comparators. They were colleagues of the complainant and include the stylist, who attended the adjudication, and a hairdresser, who submitted a written statement. This is evidence of non-discriminatory treatment and accommodation given to both employees.

Section 85A (1) of the Employment Equality Act states:

“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.”

In Valpeters v Melbury Developments Ltd [2010] E.L.R. 64, the Labour Court held as follows in respect of the burden of proof for claims of discrimination:

“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.” 

I make the following findings whether there are facts of such significance to raise a prima facie case of discrimination. It is striking that this a case of a dismissal based on performance, but the only documentation of this poor performance is one authored by the complainant herself on the 31st January 2017. The complainant denies that she was performing poorly (although acknowledged she was low in confidence). One would expect to see the respondent logging the poor performance of a hairdressing apprentice, for example through the use of log books. One would expect the respondent’s concerns to be formally put to the complainant or reduced to writing. Aside from the complainant’s self-assessment, there is nothing until her dismissal on the 29th April 2017. The intervening act is the complainant’s text of the 14th April 2017 where she refers to anxiety, her GP and medication as well as her taking two days of sick leave. The respondent acknowledged making the statement of not “doing” sick leave, although said that this was in the context of the burden placed on colleagues. Having considered the written and verbal evidence of the parties, I am satisfied that the absence of any documentation generated by the respondent relating to the complainant’s performance and the intervening event of her absence on sick leave are facts of such significance as to establish a prima facie case of discrimination. I am satisfied I can make this finding, notwithstanding the comparator evidence. The respondent has not rebutted the inference of discrimination and I find that the complainant was dismissed because she was imputed to have a disability.

In assessing redress, I note the complainant’s evidence that she no longer thinks she could have a public-facing role in hairdressing. I note that she worked for the respondent between September 2016 and April 2017. I note that her CV refers to her working in hairdressing since 2010, in three salons. In 2010/11, the complainant worked in a pharmacy, also a public-facing role. I note that the complainant had a 48-month contract with the respondent (of which there were 40 months left) and the evidence that it was not usual for a fully-trained hairdresser to work in the salon they trained as an apprentice in. Taking these factors together, I assess that the effects of the discrimination warrant an award of €7,000.

CA-00011317-001

I have concluded my investigation of this complaint. Based on the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was discriminatorily dismissed on grounds of disability.

In accordance with Section 82 of the Act, I order the respondent pay to the complainant €7,000 in compensation. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

Employment Equality Act

Imputed disability

Burden of proof / section 85A

Valpeters v Melbury Developments Ltd [2010] E.L.R. 64,