Complainant

Respondent

Anonymised Parties

A Shop Worker

Grocery Retailer

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-00016375-001

18/12/2017

This is a claim taken under S.77 0f the Employment Equality Act, 1998, by a complainant who claims that she has been discriminated against by the Respondent, on grounds of Disability, in being denied access to a voluntary redundancy programme offered by the Respondent to a particular cohort of the workforce. The voluntary programme was not automatically available to employees, with absence from work of more than six months. Those being considered had to demonstrate that “they were fulfilling their contract of employment” by being at work or capable within the timeframe of the offer to be capable of returning to work.

The complainant believes this requirement to be discriminatory against her because:

There is acceptance on the part of the Respondent that she has a disability that prevents her attending work.

That this is acknowledged by the Respondent’s medical advisor.

Comparator employees have been offered the redundancy package that the complainant would have qualified for if she did not have a disability, a disability that, on the prognosis of medical advisors on both sides did, does and will prevent her from resuming work.

The Respondent company wished to change the contracts of employees employed pre-96, on what the Respondent refers to as enhanced contracts. There was a dispute with employees/union about this. An outcome from this was that some options were drawn up for the pre-96 cohort of (a) a redundancy package, by way of invitation to apply or (b) a payment of €5000 and acceptance of the revised package of benefits.

The claimant had been absent from work since August 2014, and with no prospect of returning to work opted to apply for the redundancy package. This was denied on the basis of the conditions attached to the programme.

Some correspondence and discussions ensued, with no resolution and the Complainant referred her case to the WRC on 18th December 2017 for Adjudication.

At an adjudication hearing on 20th March 2018 the Respondent introduced a preliminary issue of “time limits” claiming that the claimant was, in fact, out of time in taking the case in accordance with S. 77(5) of the Act and that therefore the Complainant’s case should not be heard.

I heard the preliminary case from the Respondent and reply from the Complainant representatives. I then went on to inquire into the case referred to me.

The complainant says that she has been employed by the Respondent since 30th June 1989 where she worked as a shopworker. In August 2014 she commenced sick leave, from which she has not returned to work. She has been diagnosed with Osteoporosis, Osteoarthritis and Duodenal Ulcers. In January 2015 she had a medical Review meeting with the Respondent company’s Occupational Health adviser. This confirmed her medical condition and goes on to state that the Complainant “is unlikely to be fit to return to work for the foreseeable future – if at all”

In 2015 the Respondent company opened a redundancy package for staff employed by the company pre-’96. The Claimant says she advised the company that she wished to avail of the terms and leave the company. She was advised by the Respondent that she would have to return to work in order to apply for the package.

On December 14th 2015, Mandate wrote on the Complainant’s behalf telling the Respondent that their conditions imposed on the Complainant were discriminatory. The Respondent replied that “[the Complainant] is currently on long term sickness absence ….. If the Complainant can provide a return to work date, an application for voluntary redundancy can be made should the company open this voluntary offer again in the future”

In January 6th 2016 the union acknowledged the rejection of the Complainant’s application and asked the Respondent to reconsider that rejection. The response to this was that ” the application did not guarantee a formal offer”. It also stated that “application for voluntary redundancy can be reviewed should the company open this offer again in the future”.

On the 9th August 2016, in an update on discussions with the company on the redundancy package for pre-96 staff the union advised that they asked that any proposals offered should also be extended to staff with long term absence. They also advised that the company responded that staff on longterm “must produce a certificate indicating that they are fully fit to return to work and fulfil their contract of employment, at which stage they can choose one of the options open to them.

On the 13th April 2017 the Complainant wrote to the store manager expressing her disappointment at not being accepted for inclusion in the redundancy plan. She also complained about the fact that she was not formally informed of the company’s intention to close the plan.

She says that she again wrote to the Respondent on May the 15th 2017, disappointed that she was not included in the redundancy plan and she did not receive a response to her 13th April letter.

Further meetings with the Respondent followed on May 26th 2017 and the 26th October 2017. She says the final response came from the Respondent on 24th November 2017 which stated that as a result of the Complainant’s “inability to return to work she was not in scope to avail of redundancy. The scheme has since been closed”

There is no disagreement about the fact of disability and therefore, the complainant says, the refusal to include her in the scheme is discriminatory under S.6 of the Employment Equality Acts 1998. The conditions laid down for inclusion in the redundancy plan mean that the she has been treated differently than she would have been if she had not been suffering from a disability and that those conditions affect a far greater percentage of those suffering disability than a person who does not have a disability.

In making this complaint the complainant relies for support on the decision in ADJ-00005316. In that case the complainant submitted that” whether a person is on long-term sick leave or not, they remain an employee of the company. In the event that an employer believes that an employee is unable to return to work in the future, it is open to a company, having first observed fair procedures, to terminate the employment of that person on the grounds that the contract of employment has been frustrated”. Therefore the complainant asserted that there could be no objective justification for this discrimination on the basis that in some way the Claimant’s illness marks her out from the rest of her colleagues, as some form of non- employee. She claims the Respondent has shown no objective justification for its action in this case.

Contrary to what the Respondent stated at the hearing in relation to the time limit issue, the Complainant submits that the most recent discrimination arose from the refusal to include her in scope for the redundancy package, by letter to her dated 24th November 2017.

The complaint was referred to the WRC on December 18th 2017.

At the outset the Respondent raised a Preliminary Argument that the Complainant’s claim is out of time under Section 77(5) of the Equality Acts and as such should not be heard by the Adjudication Officer. The Respondent contests that the most recent date of discrimination was 24th November 2017, when the complainant says she received confirmation from the respondent that redundancy was not open to her. On the contrary the Respondent says that this is not the case and that The Complainant was consistently told throughout the absence management process that her application for the then voluntary redundancy scheme was not being progressed for consideration at that time as, being on long-term illness, her welfare and her return to work was the priority. She was again informed in a welfare meeting on 20 May 2017. This position was confirmed by the Respondent at the request of the Complainant in November 2017.

The voluntary redundancy scheme, for those potentially in scope, closed in April 2017. Not in scope is defined as not capable of returning to work and fulfilling her contract of employment.

The Respondent says that the Complainant did not raise her claim with the WRC until 18 December 2017, seven months after the scheme closed and over 2 years since she was first informed that her application for the voluntary redundancy scheme was not being progressed by the Respondent.

The Respondent goes on to state that “Section 77(5) of the Act states that a claim for redress “may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.” Subsection 6 then sets out that “If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—

(a)                the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction…”

The Respondent says that under the above piece of legislation the Complainant’s case is out of time and should not be heard.

The Respondent goes on to say that in Cementation Skanska Ltd v Tom Carroll DWT0338 the Labour Court provided its view of the standard that should be applied in applications for time extensions under the grounds of ‘’reasonable cause’’.

‘’It is noted that the standard required by this subsection is that of ‘reasonable cause’. This may be contrasted with the much higher standard of ‘exceptional circumstances preventing the making of the claim’ which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case.

It is the Courts view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.’’

The Respondent says the Complainant has no reasonable reason for the delay in submitting her complaint to the WRC. That she was represented by her union throughout the process of meeting with the Respondent in relation to her absence and her queries in relation to her application for t redundancy package. The Respondent says that in Tyco Healthcare (Ire) Ltd v A Worker EET025/2002 the delay in submitting the claim was apparently due to the failure of the Complainant’s advisors to file her proceedings on time. The Labour Court’s view was that this did not constitute acceptable circumstances for an extension to the initial six-month timeframe.

The Respondent says that where an alleged discriminatory decision is made but is merely a reiteration of a previous decision then the date of the previous decision is deemed to be the last occurrence of the alleged discriminatory act. In support of this the Respondent cites the case of Ms G v Berkeley Court Hotel (DEC-E2004-035). Here the Complainant had a medical condition and was deemed by an occupation health physician as unfit for work. The employer, on the basis of this advice, did not allow the Complainant to return to work. The Complainant requested a number of times that she be allowed to return to work.   The employer refused to do so on the basis of the medical advice received. The Equality Officer concluded that each time the employer refused to allow the complainant to return to work was merely reiteration of the original decision and each refusal was not a new decision. Thus, the Complainant’s referral was out of time as it had been more than twelve months since the employer first refused to allow her back to work.

The Respondent has reiterated its position to the Complainant over a period of two years, the first time being November 2015.

There is no disagreement between the Complainant and the Respondent with regard to the meetings that occurred between November 2015 and November 2017, or the dates of these meetings, or the fact that they had as their subject matter the issues of access to the redundancy plan and the circumstances under which that could be achieved.

The Respondent’s submission details these meetings and the correspondence to the Claimant and her representatives arising.

I have to conclude that the first discussion, wherein the alleged discrimination occurred was that meeting in November 2015. In processing her case for discrimination under Section 77 of the Employment Equality Act 1998 in December 2017 the Claimant clearly exceeded the time limit for the taking of such claims and in the circumstances I cannot find reasonable cause to extend the time period set down in Section 77(5) of the Act.

I find that the Claim fails, having exceeded the time limit within which claims under Section 77(5) of the Employment Equality Acts, 1998 can be taken.