ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018642
Parties:
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018642
Parties:
Complainant
Respondent
Parties
Saoirse Smith
IDG Direct
Complainant
Respondent
Anonymised Parties
Representatives
Audrey Carney HR Manager
Philip Corry external HR Advisor
Complaint(s):
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-00023990-001
11/12/2018
Date of Adjudication Hearing: 13/03/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances, and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed), and I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 11th of December 2018) seeks redress from the Respondent in circumstances where she claims the Employer behaved unlawfully and discriminated against her in the course of a her employment and that this demonstrates that that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her disclosed disability (as detailed in Section 6 of the 1998 Act (as amended)).
In particular the Complainant says that she discriminated against by reason of her disability. The Complainant says she was discriminated against when the employer failed to give her reasonable accommodation for her disability. The Complainant says she was dismissed for discriminatory reasons and because she was opposed to discrimination.
The Complaint has been brought within the six months from the date of the occurrence and therefore within time limits.
Section 6 of the Employment Equality Act 1998 where
Sub Section (1) For the purpose of this Act…discrimination shall be taken to have 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)(the “discriminatory grounds”)
Sub Section (2) As between any 2 persons the discriminatory grounds..are…
That one is a person with a disability and the other is not…
Section 8 of the Employment Equality Act 1998 - the employer shall not discriminate against an employee or prospective employee in relation to access to employment.
In the event that the Complainant is successful it is open to me to make an award of compensation and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Summary of Complainant’s Case:
The Complainant attended with her mother. The Complainant did not prepare submissions but presented her own case orally. The Complainant made the case that her new Employer refused to make any accommodation to her presence in the workplace. The Complainant says she raised a number of issues and these were not dealt with adequately. The Complainant says that her ultimate dismissal was tainted by reason of it’s being discriminatory.
Summary of Respondent’s Case:
The Respondent had prepared a submission in response to the Complaints set out in the workplace relations complaint form. A number of witnesses gave evidence on the respondent’s behalf. I note that the submission seeks to represent the termination of the Complainant’s employment to have arisen by reason of her poor incompetence. I think the use of the word incompetence throughout the submission is unnecessarily harsh and does not reflect the reality. The Complainant’s performance was at issue.
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of this hearing. The Complainant has brought a complaint against the Respondent employer that in the course of her employment with the Employer she was discriminated against by reason of having a disability. The Complainant is in full-time need of a wheelchair and this fact would have been obvious and known to the Respondent when engaging the Complainant. The employment relationship commenced in and around the start of May 2018, at which time the Complainant was taken on for a probationary period to be trained up in the tele sales and marketing sector. There can be no doubt that there was a very steep learning curve at the commencement of this job. The arrangement is that after a comprehensive week of induction, a new member of staff would be closely monitored and coached in the workplace so as to ensure that he or she would get maximum return from contacts made.
There can be no doubt that the Complainant found the work difficult. I fully accept that she was always ready to do the best that she could but that as each day or week passed, it seemed to her that she was falling behind with very little hope of catching up. A number of factors played into this seemingly endless period of catch up. Firstly, the Complainant’s induction course and package was inadequate she says, for the actual application to the workplace. Secondly, the Complainant’s first and initial supervisor left the workplace unexpectedly leaving a period of time (3/4 weeks) during which she floundered and felt that there was no real support mechanism. Thirdly the Complainant says that some more senior people were dismissive and slow to help and that she found them to be unapproachable.
I heard evidence from Mr. McM who became the Complainant’s direct line Manager in and around the end of July 2018. I additionally heard evidence by a Quality Assurance Manager who reviewed the Complainant’s work in a regular and systematic way. On balance, I accept that the Complainant who was trying her best and did occasionally hit targets was generally not well suited to this particular type of work. The Complainant worked alongside another new recruit who like the Complainant had a three or four-month period where she was finding her way but thereafter started to make real progress. The performance graph which I was provided with shows the performance levels of both employees, and I note that the Complainant appears to trail behind her colleague. Although this might be factually correct (and the Complainant did not challenge this evidence), I fully accept that the Complainant worked hard and applied her talents and skills in the workplace.
On balance I do not accept that there was anything inherently discriminatory in the way in which Management went about training, upskilling and overseeing the Complainant. The goals set are the same as for all other employees. The Performance Improvement programmes and the “Glide path” programmes were applicable to all employees equally and there was no direct or indirect discrimination in their application. Whilst the Complainant may have felt that the workplace expected to much from her with what she perceived to be limited support, the expectations were not (to my mind) rendered unreasonably onerous by reason of her being in a wheelchair. Everybody was expected to meet these expectations. Everybody was given the same opportunity to improve. MrMcM referenced a few areas where the Complainant struggled. Mr. McM was kind enough to the Complainant in his own way. The Complainant was under performing and despite constant intervention by the company (per the company’s evidence) the Complainant never came up to the expected standard of competence required to move forward from the (now extended) probationary period.
I do not find that where the Complainant was seated was discriminatory to her nor do I find that the over the shoulder style of monitoring was discriminatory. I accept it these things might have been difficult and played into her performance achievements but they are not discriminatory and did not arise by reason of a disability.
I listened carefully to the evidence of the Quality Assurance manager JKJ against whom the Complainant had made certain allegations. In particular, the Complainant says that this lady repeatedly told her that she had the worst performance compared to anyone else. The Complainant says this impacted severely on her mental health. JK said that her manner was to praise where expectations were met and to galvanise where they were not . She spent a lot of time with the complainant. The Complainant felt undervalued by management. It was too hard to reach goals and too much pressure applied. On balance I found JK was not to be as blunt and rude as she was being made out to be.
In the course of her employment in this workplace, the Complainant raised a number of issues which it was appropriate for her to do so and which were peculiar to her own needs. I note that the Employer herein describes itself as being a multi-billion company reaching buyers in 90 companies. In light of this, I think it must be reasonable to expect that it is a company that would be expected to implement best practices across the board. To this end, the engagement of an employee in a wheelchair should ideally have led to as seamless an absorption into the workplace as might be desirable. The Complainant was anxious to make the point that she would be reluctant to make allegations of discrimination in a glib way. For her, day to day life involves her striving to be independent of needing help and feeling included.
Of some concern to the Complainant was the fact that nobody addressed the presence of a wheelchair user in the busy offices in the event of an emergency. I do accept that she raised this matter with Mr.McM the line manager who was overseeing her work and performance from July of 2018. Whether or not the Complainant specifically suggested that there should be an “evac chair” is not critical to me. I fully accept that she raised the issue of her safety in an emergency. I have no reason to doubt that she raised the issue directly with the HR department too. I do not understand why MrMcM did not in fact take this matter very seriously and communicate the need for a specific plan to accommodate the Complainant in the event of a fire and or other emergency in the workplace. Mr. McM pointed out that there were fire wardens appointed in the building but did not satisfy himself that the relevant fire warden was aware of the complainant’s presence nor did Mr.McM satisfy himself of what might be the best practise. No drill or practise was ever organised. She worked three days a week.
In addition to this the Complainant stated that the heavy fire doors leading from the office space to the lift lobby were very heavy and she could not open them independently. MrMcM agreed with the complainant and in fact gave evidence that he would try and make sure that at closing time he would make sure to open door and “let her out”. The image of the Complainant being trapped until he came along to free her was not lost on MrMcM once he had so described it. MrMcM indicated that the Complainant had asked about these doors and whether or not they could be automated. Whether such an accommodation would have been feasible is not clear to me (given it was also a security door) but I have no evidence to suggest that MrMcM ever made any request or inquires in this regard.
An office social was being organised in the public house next door in and around Halloween of 2018. There were posters on the walls and the Complainant (along with other members of staff) were sent an email. The Complainant attended the event only to find that the event was on the first floor and she could not attend. To be fair to MrMcM and a few of her other colleagues, they did come down and have a drink with her in the downstairs bar, but I accept that whilst grateful for this gesture the Complainant must have felt the embarrassment of this situation acutely. The event had been organised by the sports and social committee and the Respondent therefore urged me to disavow their responsibility in circumstances where the committee was ostensibly responsible for organisation and not the employer. However, I cannot accept this argument in circumstances where this workplace must be seen to be an inclusive, equal opportunity and equal access workplace. It is for the Employer to ensure that it’s philosophy and policy permeates any event which is associated with it’s name. The social here was an after work event held in the public house next door where there was an open invitation. Whoever selected the venue ought to have known or ought to have been told that the venue was unsuitable for the Complainant and therefore operated to exclude her from attending an event that her unit and team went.
The Complainant was also concerned that the disabled toilet was being used by persons other than herself (and other disabled persons). The company appeared to have no hard and fast policy in this regard. I note MrMcM had immediately addressed the issue of the emergency cord having been taped back and therefore rendered inaccessible to the Complainant. On balance I cannot find that the toilet could not (in all cases) be used by others. The potential delay to emergency accessing the toilet (a concern of the Complainant) could also arise if another wheelchair user was already using the facility. I find the Complainant’s argument that it needed to be left free at all times in case she had immediate use does not withstand scrutiny. I am satisfied that the toilet was built within the then applicable building regulations.
The Respondent’s case is that the Complainant’s performance was such that not only did it have to extend the probationary period but eventually had to call the Complainant to a more formal meeting to discuss the Performance Improvement Plan to which the Complainant was working as well as the performance more generally. Unusually, the Employer cites this meeting as being capable of morphing into a Disciplinary meeting if the explanations relating to performance are not satisfactory.
The Complainant attended this meeting to which she was invited on the 4th of December 2018. At the meeting the Complainant was advised that she had failed her probationary period and her employment was being terminated. Given the fact that the Complainant received a letter of termination from KMcM in the course of the meeting (and dated 4th of December), I would accept that the Employer had clearly decided that the Complainant’s employment was going to be terminated in advance of this meeting. Whilst I accept the Complainant was on notice that she could potentially be dismissed at the meeting (per the letter of warning) it is surprising to me that a pre-prepared letter confirming dismissal was handed to the Complainant at the meeting. The decision was made and she never stood any chance of reversing it. To my mind this amounts to the very worst of HR practise. In On the face of it, this might render the dismissal unfair but of course the Complainant was not in the workplace long enough to be entitled to the benefit of that legislation.
When considering all the evidence I must determine whether or not the Complainant was discriminated against by reason of her disability. I must determine whether the Complainant was discriminated against because the employer failed to give her reasonable accommodation for her disability. And finally, I have to determine if the Complainant was dismissed for discriminatory reasons and/or because she was opposed to discrimination.
Whilst I might consider the termination of the employment to have been badly handled I do not consider it to have been discriminatory. The Complainant was let go because she was under-performing and the evidence in this regard is unavoidable. Nor yet can I find that those other aspects of the interaction (previously discussed) amounted to a discriminatory treatment of the Complainant in the workplace.
I find that the Complainant has not made out the Prima Facie case required.
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 -CA-00023990-001
The Complaint herein fails.
Dated: 29.4.19
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words: