Complainant

Respondent

Anonymised Parties

{An Employee}

{A Food Company}

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-00016704-001

09/01/2018

The Complainant is a General Operative who has worked with the Respondent since 28th April 2015. He is non-national.

The Complainant claims that he has been discriminated against on the disability ground due to his severe developmental dyslexia and secondary emotional disturbances. He has difficulties understanding what he reads and writing. He informed the company of his dyslexia when he was first employed. He does not require any assistance in carrying out physical work.

He was racially, sexually harassed, bullied and mocked by a female supervisor. He reported this to his Manager confidentially. He did not want to cause trouble so requested a move internally. This was the reason for the change to the stores section. He does not want the company to take any formal action until he considers this on his return to work.

He found out in June 2017 that there would be a test for General Operatives of their English. He showed his medical report to his supervisor and told him about his diagnosis of severe dyslexia, developmental difficulties, and difficulties reading and writing, but nothing was done. No assistance or accommodation was given to him for the test.

The Complainant forced to do the interview and test in July 2017 and was told he failed the written test, even though he told his supervisor he is dyslexic. He was not given the results. When he was informed he failed the test, he told the manager that it was not fair and assistance had not been given. The Complainant then raised this with a HR representative who refused to take his dyslexia into account.

He is the only person who did not receive a contract and a higher wage. He does more work than the others as he drives a forklift. He feels disappointed and mistreated. This has caused him a lot of stress. He is aggrieved as other General Operatives have received improved wages and a contract following an English quiz. The news got out to his colleagues that the Complainant failed and he was mocked by his colleagues.

The Complainant’s first contract of employment expired and he continued working but he has not been given another contract. He was given the employee handbook in English and requires assistance with queries on this.

He then started having insomnia and sleeping difficulties, and began being late for work. He tried to attend work but it led to suicidal thoughts. He developed back problems due to all the heavy lifting, and has restrictions in the type of work he can carry out. He felt forced to continue due to the company doctor’s assessment which said he is fit but should not be left standing still. He has only now been given the doctor’s reports. He continues to have pain. The company would not allow his sister to attend the doctor’s assessment with him to assist him. He is now absent on sick-leave which is unpaid. He suffers from chronic depression and is attending a psychologist. He has medical expenses of 1,300 euro and the company has not recognised the burden of his treatment.

The Respondent advised the Complainant’s fixed-term contract has lapsed and he is a permanent employee. A revised handbook was issued in March 2017. The Respondent will arrange for HR to assist the Complainant with any queries.

There is a trade union representing employees in the Respondent. The company have very strong policies on bullying and sexual harassment. The bullying and harassment policy and grievance procedure are on the noticeboard. They are not aware of any alleged issues with the Complainant’s first supervisor or allegations of sexual harassment or bullying and harassment.

The company advertised recruitment for senior operatives which is a higher grade in June 2017, which were internal appointments. There were 3 notices advertised for the new roles and a town hall meeting was held. 102 applicants applied, all were interviewed and an increased rate of 10.38 euro per hour offered for the role of senior operative. The assessment of a candidate was based on both his behaviour and skills on the job.

There was an interview to assess general knowledge of the factory based on safety standards, technical standards, required documentation to be completed, knowledge of corrective actions and experience of training other colleagues. There was a written test for the 70 roles to determine behaviour in a given situation, and the veracity of the responses to the part 1 based on knowledge. The required score was 75% on the combined total. The Complainant achieved 45% on the interview and 60% on the test. His combined score was 52%. If the interview was better he may have been successful. Other candidates appealed this. The Complainant has a high rate of absence and does not follow reporting procedure.

The hourly rate for the Complainant before his absence was 9.38 euro per hour. The hourly rate for a general operative was increased to above minimum wage in 2018. In July 2018 this was increased to 10 euro per hour. His role is still available and the Complainant has the option to see the company doctor regarding facilitating any injuries.

When the Complainant reported a back problem in November 2016, he was referred to the company doctor and was given manual handling refresher training. If the Complainant was not happy with the company doctor’s assessment he should have raised this. The Complainant went on sick-leave in November 2017 due to health-related issues.

The company doctors report of 1st December 2017 confirmed the Complainant has disharmony between verbal and logical intelligence versus executive intelligence and low memory skills. He may need a different approach when given instructions or feedback. The report states that as he is not able to read and write the Complainant will never be able to pass any tests unless he memorises it without understanding. The Complainant’s own medical report produced at the hearing which refers to his difficulty with spelling, reading and writing indicate that it would be negligent of the Respondent to put the Complainant in charge of paperwork. A very high proportion of the work of a Senior Operator involves record keeping, numerical recording and temperature checking in a food environment.

The Respondent invited the Complainant to welfare meetings to discuss his stress but he is unable to attend until he is feeling better. The Respondent received a certificate from the Complainant’s doctor in February 2018 stating he is under the care of a clinical psychologist due to chronic depression and general anxiety. He is not in a position to talk to an employer’s representative without support, and requires special treatment at work due to dislocation and disorthography. The company has an Employee Assistance Programme.

The Respondent will not facilitate the Complainant’s return to a role of Senior Operator which he does not hold. He can apply for roles as they arise and demonstrate his competency for the role.

I have heard the evidence of the parties at the hearing and considered their submissions including those submitted following the hearing of the Complainant dated 20th August 2018 and of the Respondent dated 10th September 2018.

The Complainant is a non-national who claims that he has been discriminated against on the grounds of his disability in terms of S6 of the Employment Equality Acts 1998-2015. The Complainant suffers from severe dyslexia. Dyslexia is a recognised disability under the Employment Equality Acts 1998-2015. Due to his difficulties with reading and writing, as a non-national the Complainant requires additional assistance in order to understand his employment rights.

S6 of the Acts state that discrimination occurs 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 discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

Disability in the Employment Equality Acts 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…

The Complainant claims that he has been discriminated against because he has not received equal pay and the same contract as his colleagues who were appointed to the role of Senior Operator. He provided a medical report setting out his severe dyslexia, developmental difficulties and its impact when the role of Senior Operator was advertised. He sought assistance in relation to the process of appointment of Senior Operator from a representative of the Respondent, but no assistance was forthcoming. He was required to perform the test and interview on the same basis as other applicants without a disability in July 2017. There was no evidence adduced by the Respondent that they considered the report submitted, the specific tasks for Senior Operator or sought expert advice or guidance as to whether any form of reasonable accommodation could be provided to the Complainant in applying for the role.

S16 (1) of the Employment Equality Acts 1998-2015 provides:

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

(a)    will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(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…….

(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 fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) 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.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(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.

S85 of the Acts provide that where in any proceedings facts are established by or on behalf of the Complainant from which it may be presumed there has been discrimination in relation to him, it is for the Respondent to prove the contrary.

The Respondent has provided detail regarding the role of Senior Operator and that specifically this role is responsible for completion of a high level of record keeping, numerical recording and temperature checking in a food environment. It is clear that the Respondent did not objectively inquire into the restrictions of the Complainant’s disability as set out in detail in the medical report submitted prior to his participation in the test and interview in order to inquire, what if any reasonable accommodation could be given in order that he be competent to carry out the essential tasks of the role. Nor did the Complainant himself propose any particular course of action that would assist him with the test and interview for the role. The Respondent subsequently carried out its own medical assessment of the Complainant some months after the application process. Both the Complainants and Respondents medical reports set out the Complainant’s severe difficulties with reading and writing.

The Judgement of the Supreme Court in Nano Nagle School v Marie Daly is still awaited regarding the interpretation of S16 of the Employment Equality Acts 1998-2015 and the application of Directive 2000/78/EC establishing a General Framework for equal treatment in employment and occupation.

The Court of Appeal in Nano Nagle School v Marie Daly [2018 11 IECA] said the following:

“ It follows from these citations that section 16 does not require any special construction because interpretation of its meaning is available in the ordinary meaning of its words. The section does envisage some distribution of tasks, just as it also specifies time adjustments, as HK Denmark found was the case with the Directive. It is correct to infer that the requirement to be able to perform all the tasks of the position means the tasks after adjustment or distribution. Adjustment to access and workplace and hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16 (1) must be respected. The section does not in its terms make the process of enquiry a ground of default, neither does a failure to consult constitute breach of the duty imposed.”…....”the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting”.

The evidence of the Respondent is that record keeping, numerical recording and temperature checking comprise essential tasks for the role of Senior Operator due the health and safety responsibilities of the role which I accept. No evidence has been provided that any form of reasonable accommodation can allow the Complainant to carry out the essential tasks of a Senior Operator, and accordingly I find that the Complainant’s complaint of discrimination on the grounds of his disability, failure to receive equal pay and a contract as Senior Operator is not proven.

I find the Complainant’s complaint of discrimination under S6 of the Employment Equality Acts 1998-2015 is not proven.

Disability discrimination, reasonable accommodation, interpretation of S16, practical compliance with the statute