Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Multiple Retail Store

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012264-001

04/07/2017

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

CA-00012264-002

04/07/2017

The Complainant commenced employment with the Respondent as a Sales Assistant on 4th September 2006. She worked 15 hours a week and was paid an average €244.45 gross per week. She tendered her resignation in writing on 19th May 2017. The Complainant asserts that she was discriminated against by reason of disability and that the Respondent failed to provide her with reasonable accommodation.

The Respondent refutes the claims.

The Complainant submits that she was discriminated against by the Respondent on the grounds of her disability (diabetes). She worked with the Respondent from 4th September 2006 as a part-time Sales Assistant. Up until 10th January 2017 she worked on checkouts. The Complainant submits that she was diagnosed with diabetes in 2003. She included this information in her job application form and the Respondent was aware of her disability. Her disability did not affect her ability to work on checkouts. In 2015 her medication was changed and she took sick leave for a number of months. On her return to work a Personnel Manager of the Respondent agreed to provide her with a twenty minutes’ unpaid break in the middle of her standard four hours’ shift. The Respondent also increased her weekly hours from 15 to 16 hours. The Complainant submits that she availed of the break and therefore was provided with reasonable accommodation by the Respondent up until January 2017. At a meeting with the Store Manager, Ms O’H and the Checkout Manager, Ms K on or about 1st December 2016 the Complainant was verbally informed that her work duties were going to be changed but was not informed at the time where she was going to be placed. The Complainant was informed that there were customer complaints concerning the Complainant “over the years” and that she was being moved because her customer skills were not good enough. The Complainant asked for the customer complaints but never received these. There were never any complaints against her brought to her attention until that time. The Complainant worked over Christmas and the New Year and then she had one weeks’ sick leave. On or about 10th January 2017 the Complainant was informed by the Floor Manager, Mr. O’C that she was no longer at the checkout and she was directed to ‘hygiene work’. This duty, being manual labour, was obviously very different in nature to the work which the Complainant had done for over ten years. The Complainant believes that none of her co-workers on checkouts were moved to heavy hygiene work. There was no risk assessment or investigation by the Respondent in relation to what impact this new work would have on the Complainant’s disability. The Complainant submits that she made Mr. O’C aware that she wouldn’t be able for the work in hygiene but was told that there is nothing he can do and to bring it up with Ms C, HR Manager. The Complainant was required to brush the whole store from top to bottom and when she finished her shift, her back and legs were aching and she felt most unwell. The Complainant did not believe that owing to her disability she would be able to sustain a change of this drastic nature from the work that she had always done in the store. She attended with her GP the following day on the 11th January 2017 as she felt very ill and also stressed at the thought of returning to work. The Complainant was most distressed and upset as she felt that she had been demoted and dismissed from her job and she was required to take work related stress leave. Thereafter, the Complainant was given no assurances by the Respondent that she would no longer be placed on heavy hygiene work and that she would be returned to her position as a Sales Assistant. Accordingly, in May 2017 the Complainant felt compelled to resign her employment.

It is submitted that

·         the Respondent carried out no assessment of the Complainant’s capacity to undertake hygiene duties, which were markedly different to her duties as a Sales Assistant,

·         in moving the Complainant from her usual duties on checkout to manual hygiene duties, the Respondent acted in disregard of the Complainant’s disability and in a most unreasonable manner,

·         the Respondent failed to consider any other options for the Complainant, such as permitting her to remain on in checkouts or perhaps considering stocking and stocktaking,

·         no appropriate enquires were made by the Respondent as to what measures could be taken to enable the Complainant to carry out her new duties.

The Complainant relied upon the following cases in support of her claim: A Worker v A School [2014] 25R.L.R. 307, An Employee v A Broadcasting Company [2012] 23 E.L.R. 88, V. Cascella and A. Cascella T/A Donatellos Restaurant v A Worker [2005] 16 E.L.R. 28, Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, Ntoko v Citibank [2004] 15 E.L.R. 116, A Worker v An Employer [2005] 16 E.L.R. 159

The Respondent submits that the Complainant commenced her employment on 4th September 2006. At the date of her resignation the Complainant was working as a Sales Assistant. On 1st December 2016, the Respondent received a complaint from a customer in respect of transaction completed at the Complainant’s checkout. Later that day the Store Manager, Ms O’H and the Checkouts Manager, Ms K met with the Complainant to discuss the complaint. Following that meeting, the Respondent made a decision to move the Complainant to a different role in the store. The Complainant was contracted to work as a Sales Assistant, which encompasses a variety of roles. The Respondent was entitled for legitimate business reasons to allocate the Complainant to a different role in the store. Ms C, HR Manager met with the Complainant on 31st December 2016. The purpose of this meeting was to confirm to the Complainant that she would be moving to the shop floor. The Complainant failed to attend for work on 4th January and submitted a medical certificate for the period from 4th to 9th January 2017 due to Respiratory Tract Infection. On 10th January 2017, the Complainant returned to work for a four-hour shift and was allocated duties on the shop floor, in this case in hygiene. That department was short staffed. There was no suggestion that the Complainant was being permanently allocated to hygiene. The Complainant did not return to work for her next scheduled shift, or at any point up until the date of her resignation. The Complainant submitted regular medical certificates throughout this period citing “Work related stress” as the reason for her absence. On 10th February 2017, Ms McG, solicitor wrote to the Respondent’s HR Manager, Ms C and to the Respondent’s Head Office advising them she was acting on behalf of the Complainant. Ms McG advised that the Complainant “…had been told that she would be moving to the floor but she assumed that this would be to do stocking and stocktaking and not heavy hygiene work, which is a job requiring manual labour. My client was in complete shock and traumatised as a result of what she had to endure at work on the 18th January 2017”. She went on to say that “We are writing to you to invoke the Grievance Procedure in relation to what happened and you might please make the appropriate arrangements in relation to same and notify my client of any meetings that she would be required to attend in this regard. Please confirm that she will be able to bring a representative with her at the meetings. My client at present gets very nervous having to bring in her sick note every Monday as she finds approaching the Personnel Office and having to hand it in, a very nerve wracking experience in light of what happened on the 18th January 2017.”

After six weeks of certified absence, Ms C wrote to the Complainant inviting her to attend a meeting on 24th February 2017 to discuss her absence and “current status”. The Complainant’s solicitor replied to this letter on 21st February 2017 noting that the Complainant “… is not in a position to attend this meeting on Friday the 24th February 2017 at 12.30 p.m. as we have not had a response from [the Respondent] to date and you have not confirmed as requested that she is able to bring a representative with her to meetings.” The Complainant did not attend the meeting on 24th February 2017 and continued to submit medical certificates citing “work related stress” as the reason for her absence. On 16th March 2017 Ms O’H wrote to the Complainant advising her that she had received the two letters from the Complainant’s solicitor. Ms O’H wrote “[The Complainant], you are a valued member of staff and we look forward to your return. Please consult with your medical doctor and advise when you might be fit to attend meetings with us.” On the same date Ms O’H wrote to the Complainant’s solicitor acknowledging receipt of her two letters. Ms O’H advised that “When [the Complainant] is fit to attend meetings we will engage with her on any matters that she wishes to raise. She may have a work colleague in attendance with her in line with her terms and conditions of employment. In the meantime, [the Complainant] must continue to send in weekly medical certificates. We reserve the right to deal with our employees directly as appropriate.” Considering the information provided by the Complainant’s solicitor that the Complainant found attending the store “a very nerve wracking experience”, Ms O’H allowed the Complainant time to schedule a meeting for a date when she felt comfortable doing so. However, having heard nothing from the Complainant for six weeks, other than delivery of weekly medical certificates, Ms O’H wrote to the Complainant on 27th April 2017 inviting her to attend a meeting in order to provide an update on her medical condition. Ms O’H wrote “At this meeting, we will be discussing your current medical condition and any other issues which you want to raise, I suggest that you discuss this with your doctor before the meeting and bring along to the meeting any medical reports or any other information which you which us to discuss on the day”. The Complainant’s solicitor replied by letter on 2nd May 2017 noting that the Complainant will be unavailable to attend the meeting. She added that she is meeting with the Complainant shortly and will revert once she has taken her instructions. Over two weeks later, without having issued any additional communications, personally or via her solicitor, the Complainant handed her letter of resignation on 19th May 2017. Ms O’H was shocked to receive the Complainant’s letter of resignation and in an effort to reverse any decision of the Complainant that may have been taken hastily, she wrote to the Complainant offering her “the opportunity to discuss the matter…in order to try to resolve any issues.” Ms O’H invited the Complainant to attend a meeting on 29th May 2017, writing: “If you feel that you do not want to discuss the matter and do not attend at this meeting, I will then accept your resignation and will process your P45 and any monies owing to you.” The Complainant’s solicitor replied to Ms O’H’s letter on 24th May 2017 noting that the Complainant will not be attending the meeting and requesting her P45 and any monies owing to her to be forwarded as per her resignation letter of 19th May 2017. The Respondent complied with this request and shortly after sent the Complainant her P45 and cessation pay.

The Respondent submits that at no point did the Complainant seek a specific assurance that she would no longer be placed on heavy hygiene work and that she would be returned to her position at checkouts. Further, the Complainant’s solicitor said nothing of substance in any of the letters sent after 10th February 2017. The Respondent submits that they simply refused to engage with the various assurances given to them that the Respondent wanted the Complainant back in work and was taking her complaints seriously. The letter sent by the Complainant’s solicitor after she resigned does not explain why the Complainant would not be attending the meeting, it says nothing about the Complainant’s grievance or the basis upon which she was resigning her job. The issue of the Respondent having failed to reasonably accommodate the Complainant simply does not arise; the Respondent was never given any opportunity to accommodate the Complainant or to engage with her grievance or any other issue in relation to her employment. The Complainant refused-without it would appear any reason valid or otherwise – to engage with her employer in relation to any of those issues.

Evidence of HR Manager, Ms C

Ms C submits that she met the Complainant on 31st December 2016. At the meeting, she informed the Complainant that she would be moved to the shop floor but did not discuss the details. Ms C submits that the Complainant did not say anything that she wouldn’t be able to work on the shop floor. The only query she made was in relation to her 20 minutes’ break. When queried, Mc C confirmed to the Complainant that the managers on the shop floor are aware of her additional break arrangement. In cross-examination Ms C confirmed that the Complainant was moved to hygiene duties on the shop floor for operational reasons, more people were required on the shop floor. She confirmed that another person with no disability was also moved to the shop floor at the time. In cross-examination Ms C submitted that she never heard of the Complainant informing Mr. O’C of her inability to work on the shop floor. She confirmed that she was aware of the Complainants diabetes.

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 discrimination may be inferred. If she 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 this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such some prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

In the case of Melbury Developments v Arturs Valpetters (EDA0917) the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 … the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ….”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability".  It was not in dispute that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to this complaint and I concur with that view.

Accordingly, the issues for decision in this case are (1) whether or not the Complainant was discriminated against by the Respondent on the grounds of disability and (2) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Section 16(3)(b) of the Acts provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if she/he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer. Section 16 of the Acts as interpreted in the case of A Health and Fitness Club -v- A Worker EED037 upheld by the Circuit Court (Humphreys   –v- Westwood Fitness Club), requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake his/her duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of   all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision”. The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel EDA0721 as: “The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”. In An Employer -v- A Worker EDA0413, the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case”.

In the case of A School –v- A Worker EDA1430   the Labour Court held that “The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court in Humphries v Westwood Fitness Club and in A Worker v An Employer a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.”

The key area of contention between the parties in this matter surrounds the question as to whether or not the Respondent discriminated against the Complainant on grounds of her disability when moving her to the hygiene duties and whether or not the Respondent provided the Complainant with reasonable accommodation.

Direct discrimination

In order to determine whether the complainant has established a prima facie case of discrimination, a three-stage test can be applied:

1.       The complainant must establish that she is covered by the relevant discriminatory ground.

2.       The complainant must establish that the specific treatment alleged has actually occurred.

3.       It must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground (See e.g. Mr. F v. A Financial Institution, DEC-S2008-003; Kelly -v-Panorama Holiday Group Limited, DEC-S2008-007; Hallinan v. Moy Valley Resources I.R.D. North Mayo-West Sligo Ltd., DEC-S2008-025).

I note that the Complainant is covered by the relevant discriminatory ground (disability). It was not disputed that the Respondent was notified of the Complainant’s disability. It was also not disputed that this disability could be managed by way of medication, regular rest and food and drink intake.

The Complainant submits that the Respondent discriminated against her when the decision was made to move her. The Complainant submits that “she wondered to herself that she might be moved to stocking and stocktaking.” However, she was “never formally notified in writing that her duties and her position were going to be unilaterally changed by the Respondent, nor was she informed that she was going to be moved to heavy hygiene work.” I note that the Complainant’s Terms and Conditions of Employment letter outlines that her position is one of a Sales Assistant. The Complainant submits that she has always worked at the checkout and felt that her move to hygiene duties was in fact a demotion. However, the Handbook provided by the Respondent lists the duties of a Sales Assistant as, amongst others, customer service, use of cash register, regular stock-taking and maintenance of store hygiene and safety. The Complainant has signed Acknowledgement Slip confirming that she received a copy of the handbook and confirming that she understands that it is her duty to familiarise herself with its details. The Respondent submits that the Complainant was aware of the broad duties of a Sales Assistant and that, in fact, her position was not changed. Accordingly, the change of terms of employment and change of position were not mentioned in the Complainant’s solicitor’s correspondence. I am satisfied that the Complainant was employed as a Sales Assistant which entailed a wide range of functions with work in the hygiene being just one of those. I am, therefore, satisfied the position of the Complainant was not changed, she remained to be employed as a Sales Assistant although, her responsibilities were changed from checkout to hygiene duties.

The Respondent submits that the decision to move the Complainant was an operational one. It was, however, also in reaction to a customer complaint received. The complaint did not warrant a disciplinary action but it did support the decision to move. There was conflicting evidence from the Complainant in respect of the alleged customer complaint. In her submission and the WRC Complaint Form she stated that on the 1st December 2016 she was informed she would be moved due to the complaints. However, she denied that in her direct evidence. On balance, I prefer the Respondent’s evidence in that regard, which is supported by the Complainant’s written submissions.

I note the differing statements in respect of the level of manual work involved in hygiene. The Complainant submits that it was “a change of drastic nature” and that she was required “to brush the whole of the store from top to bottom and when she finished her shift her back and legs were aching and she felt most unwell.” The Complainant stated in her evidence that she did inform Ms C on 31st December 2016 and Mr. O’C on 10th January 2017 that she would not be able to work in the new position. The Respondent refutes this claim and maintains that the only issue ever raised by the Complainant was on 31st December in relation to her additional break arrangement. The Respondent points out that this statement is simply untrue and for that reason it has never been mentioned in any of the Complainant’s solicitor’s letters or submissions. The Respondent further submits that the hygiene duty involves maintenance of hygiene and safety as opposed to cleaning. The Respondent confirmed that a contract cleaning company is providing services in terms of cleaning of the store. Hygiene duties are more related to health and safety aspect of running a store such as identifying and removal of spillages, debris etc. The Respondent submits that there is no medical evidence available to show that the Complainant’ s condition prevents her from this level of manual work. I note also that the Complainant stated that she was not notified of the change and was surprised to find out on the 10th January 2017 that she is not rostered to work at the checkouts. In cross-examination, the Complainant stated that she “presumed” she would be on the checkout duty. I note that the Respondent spoke with the Complainant at least twice, on 1st and 31st December 2016 to inform her about the move. Even if no details were discussed she would have been made aware of the change.

Section 28 (1) of the Act requires the Employee making a complaint to name a comparator (f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities”. The Complainant and his Representative have failed to name a comparator and have failed to provide any evidence in relation to less favourable treatment by the Respondent. At the hearing the Complainant stated that nobody else was asked to change duties. The Respondent submitted that, in fact, the Complainant was not the only employee moved to the shop floor and another person with no disability was assigned the shop floor duties as this area required more staff at the time.

I note that the Complainant’s solicitor wrote to the Respondent stating that “We are writing to you to invoke the Grievance Procedure in relation to what happened and you might please make the appropriate arrangements in relation to same and notify my client of any meetings that she would be required to attend in this regard.” However, at no stage the Complainant or her representative engaged with the Respondent with a view to resolving the issue.

The Complainant was absent from work from the 11th January 2017 until 19th May 2017 when she tendered her resignation. The Complainant submitted medical certificates on a weekly basis from her doctor during the period of her absence confirming that she was unfit to attend work as a result of work related stress. The Respondent wrote to the Complainant inviting her to a meeting to discuss her medical condition and other issues she wished to raise on 20th February, 16th March and 27th April 2017. The Complainant was also advised by the Respondent to discuss this matter with her doctor prior to the meeting and she was afforded the opportunity to submit any reports or information from her doctor which she wished to have taken into consideration. The Complainant did not accept the invitations. Having received the Complainant’s resignation, the Respondent wrote to her offering her “the opportunity to discuss the matter…in order to try to resolve any issues.” The Complainant did not attend the meeting and, through her solicitor requested P45c to be issued and any outstanding monies to be paid. The Complainant stated that she was extremely stressed and couldn’t face returning to work. She stated that cannot even shop in the store anymore. In cross-examination the Complainant stated that even if she was to be brought back to checkouts she would not be able to return now due to stress.

Having regard to the totality of the evidence adduced, I am satisfied that the Respondent made effort to engage with the Complainant to resolve the matter and the Complainant was afforded ample opportunity to discuss the matter with the Respondent. The Respondent did inform the Complainant of the move in advance and there was no medical evidence showing that she was not able to perform the job made available to the Respondent. I am therefore satisfied that the Respondent acted in a reasonable manner towards the Complainant.

Having regard to the forgoing, I find that the Complainant has failed to establish a prima facie case of discrimination on grounds of disability, in terms of S.6(2) of the Employment Equality Acts.

Reasonable accommodation

The second element of the Complainant’s claim which I must decide relates to the claim that the Respondent failed to provide the Complainant, as a person with a disability, with reasonable accommodation contrary to Section 16(3) of the Acts.

The Complainant suffers from diabetes. It was not disputed that her disability can be managed by medication, regular breaks and food and/or drink intake. The Complainant confirmed that up until January 2017 reasonable accommodation required by the Complainant to carry out her duties and provided by the Respondent was an additional break to allow her to rest and consume some food and drink. There was no evidence proffered that the Complainant required any other form of reasonable accommodation following the move to hygiene. There was also no evidence proffered to demonstrate that the move has adversely affected her disability. I am satisfied that the Respondent continued to provide the Complainant with reasonable accommodation in the form of an additional 20 minute break. Moreover, the Respondent attempted to meet with the Complainant and discuss her current medical condition and any other issues which she would like to raise. She was also advised to discuss the matter with her doctor before the meeting and present any medical reports or any other information which she would like to discuss with the Respondent. The Complainant did not avail of the opportunity. I am satisfied that it was not possible for the Respondent to put any additional special measures or facilities in place. Accordingly, I find that the Respondent did not fail in its obligation to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts.

Taking the above into consideration I find that:

(i)       The   Respondent did not discriminate against the Complainant on the disability ground pursuant to sections 6(2)(a) of the Acts, and

(ii)    The   Respondent did not fail in its obligation to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts.

Accordingly, the complaint is not upheld.

disability- discrimination- reasonable accommodation