Complainant

Respondent

Parties

Emma Mcintyre

Finn Hair and Beauty Ltd.

Representatives

Self- represented

Company representatives

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-00018854-001

01/05/2018

The respondent requested that that the title of the company be corrected.

This is reflected in the decision.

The complainant commenced her apprenticeship as a hair stylist with the respondent on 6/6/2015.

She went on sick leave on June 2017 due to a serious vision impairment.

She states that she was subject to discriminatory treatment, harassment and victimisation on the grounds of her disability.

The most recent date of discrimination is 7/3/2018.

She submitted her complaint to the WRC on 1/5/2018

The complainant was almost 2 years into her apprenticeship with the respondent when she began to experience failing vison in June 2017.

She was diagnosed with a detached retina which limits her side vison in both eyes. The vison in her right eye has not returned. She is being treated by an ophthalmologist on a monthly basis. She is scheduled for a review in August 2018 as to what corrective surgical measures might be performed. The consultant advised her that she might have to think of another career. She is unable to read.

She went off salary in June 2017. She submitted certs for the duration of her absence.

She states that when she asked the respondent to sign rent allowance application forms in late June/ early July 2017, her attitude changed. She felt that Ms. F, the respondent director, was cold towards her. Ms F did not want her to return. She had stated that vison is everything.

The respondent Director, Ms F, advised her on August 28 in the salon that the position would have to be re-evaluated.

On the 28 September Ms F stated to the complainant that there might not be a position for the complainant in the event of her having to undergo another surgical procedure.

She spoke to Ms. F on the telephone on 7 March 2017. The respondent asked her to explain how she had offended the complainant as asserted by the complainant in a text. The complainant advised that her solicitor would be in contact with the respondent. The complainant objected to Ms F screaming at her. The complainant states that Ms F shouted at her on 7 March stating “I have been good to you; you would have been gone if you worked anywhere else, too little contact. Ms F said, “Expect your p.45 in the post”. She believed that Ms F was trying to force her out of the job.

The complainant in a letter dated 7 March 2017 asked the respondent to explain why they were terminating her employment.

Victimisation.

The complainant removed the statement on Facebook which stated that that she was no longer working with the respondent.

The threat of dismissal was made in response to her stating to the respondent that her solicitor would be in touch with the respondent.

Harassment.

The complainant contends that the following statements amount to harassment:

Ms F’s question of 28 August “when you are going to be back”. Ms F stated to that her job would have to be re-evaluated.

In August, Ms. F suggested to the complainant that she go on holidays. She states that she was made to feel that she had done something wrong.

August 2017, the complainant states that she advised the respondent that she hoped to be back in October to which, Ms. F replied, “well if you are not back by Christmas, I won’t be able to hold the job for you “.

Ms F’s criticism of her in her letter of 9 March that she was making insufficient contact as to progress

The complainant considers the respondent’s letter to her of 9/3/18 criticising her for non-attendance at the Christmas party and too little contact with the salon and no visits to the salon even though she was passing by to be harassment.

The respondent’s letter of 9/3/18 stating 7, ‘You have been unable to give an indication of your return to work.” The complainant maintains that such statements are inappropriate when she is out on sick leave.

Complainant submitted letter from her doctor on 23/11/17, yet the respondent stated that the complainant was making insufficient contact with the respondent. The complainant states that she received advice from a third party in September 2017, to minimise contact with the respondent and to submit medical certs.

The respondent failed to treat her with respect and compassion.

The respondent employs a staff of five in his hair salon.

The complainant is in the second year of her apprenticeship. The respondent pays the recommended Irish Hairdressing Foundation rate of pay.

The respondent in 2017 did not have a sick leave policy but now has and offers contracts to staff. The current sick leave policy requires staff to maintain contact with the salon manager.

The complainant had been on sick leave since June 2017 and the respondent felt they were justified in seeking progress reports.

On 28 August the respondent asked the complainant if she had any idea when she would be able to return to work and stated, “I’ll do everything to hold the job open for you.”

The director offered to drive the complainant to a Diabetes programme in a Dublin hospital in October 2017 as her vison issue was connected to Diabetes. The complainant advised that she would not be attending the Diabetes awareness / training programme and that she would not attend the staff Christmas party. There was very limited contact after that.

In March 2017, a family member brought the complainant’s Facebook page message- copy submitted- to his attention in which she described herself as a” former trainee hair stylist” of the respondent. Ms F. tried to contact the complainant on the 6 of March. There was no response. Ms F sent a text informing the complainant that she had been notified of her Facebook message- that she is no longer working with them. She stated that she would have expected official notice, that she had been fair to the complainant and expected reciprocity. She did question at the hearing if she should have sent that message. The respondent received a same day response to her text, asking her not to send such offensive texts, that she should be supporting the complainant. The director telephoned the complainant to ask her to explain what was offensive and the complainant refused to engage and advised that her solicitor would be in touch with the respondent, to which the respondent retorted that she would send the complainant her P45. She states that it was a very heated exchange and she includes herself in that description.

The respondent refers to the complainant’s letter of 7 March asking her to explain why they were terminating her employment. The respondent refers to their response, letter of 9 March, in which they explain that they may have misinterpreted her intentions based on her description of herself as a former trainee hair stylist with the respondent and advising that they would be happy to fund a consultation with a doctor of her choice to provide them with a fitness to work and prognosis as to recovery – information which has been missing. They assert that they wanted to do their best to keep her job open. The complainant did attend the company funded doctor in May 2018. He stated that he could not accurately predict when the complainant could return.

Harassment

The respondent denies that they harassed the complainant. Copies of text messages submitted indicate a friendly and concerned attitude on their part.

The respondent denies that she stated, “if you are not back by Christmas, I won’t be able to hold the job for you "

A staff member, not the director said “have a great holiday “to the complainant.

They received no further information or contact since receipt of Consultant’s letter, dated 23 November, stating that she had diabetic retinopathy and impaired vison that was not responding to treatment and it was not possible to indicate when her sight would improve to the point which would enable her to return to work.

The director, Ms F refutes that she said anything to her about holidays in August. She did not threaten her job. She did state that they would have to re-evaluate as it would be difficult to hold the position open indefinitely.

The respondent advised per letters of 9 and 23 April that she was welcome to come back subject to medical approval. Her job is there for her. The respondent states that they tried to support her. They also state that she should have maintained contact with them setting out her condition or sent a text.

The matter for adjudication is whether or not the respondent discriminated against the complainant, and contrary to Section 6 (1) of the Employment Equality Act, 1998 in discriminating against her, harassing her and victimising her.

Section 2 of the 1998 Act defines disability as

                                “(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,”

I consider that the complaint’s hugely significant loss of vison falls within the above statutory definition.

Section 6. defines discrimination as

(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated”.

                                (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The burden of proof.

Having established her right to invoke the right to equal treatment on the disability grounds, I must now consider the second test which the complainant must satisfy in advancing her claim. The person making a complaint of discrimination is obliged by virtue of section 85A of the Acts to establish facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only when these facts have been accepted as sufficient to raise an inference of discrimination that the onus moves to the respondent to rebut the inference of discrimination.

The Labour Court in Margetts v Graham Anthony and Company Ltd EDA 038 stated that mere membership of a protected class is insufficient to raise an inference of discrimination. The complainant is obliged to demonstrate that in addition to the existence of her disability, the less favourable treatment of which she complains is attributable to the fact of her disability. The complainant did not make the case that another employee, absent from work for reasons unconnected with her disability or suffering from a different disability has or would have been treated more favourably. She objected to the respondent’s statements to her and viewed them as evidence of discrimination.

Scope of the complaint: jurisdiction to hear the complaints.

One of the instances relied upon by the Complainant in support of her claim is that the respondent indicated to her in August 2017 that she would have to re-evaluate her position. Section 77(5)(a) of the Acts provides: -

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

The complaint was submitted on 1 May 2018. So, only instances of alleged discrimination between 1 November 2017 and 1 May 2018 are inadmissible.

However, in Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5)

“Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

I consider the remark of 28 August to be part of a continuum with other instances of alleged discrimination concerned with the impact of her disability on her job and her capacity to return. I do not see this as a stand-alone incident.

Nearly all of the statement/incidents cited by the complainant as evidence of less favourable treatment on the grounds of disability concern queries about her progress towards recovery. The complainant did not identify the less favourable treatment as compared with another employee without a disability or a different disability. Being disappointed with the respondent’s response, however justified, is not the same as demonstrating how another is or would be treated more favourably. She had not been dismissed. She submitted medical certs attesting to her inability to work. Her own evidence is that the ophthalmologist suggested that she might have to consider another career. The respondent’s expectation to be kept updated is not an unreasonable one. It is a small salon. It is hard to imagine that the respondent would make no enquiry of another employee absent not for reasons of a disability or of a different disability.

Impaired vison in a small, 5-person, hairdressing salon is a catastrophic event for the complainant.

Subject to section 16(3) of the Act, section 16 (1) provides that an employer is not obliged to retain an employee who is not fully capable of doing the job he or she is required to do, But the employer is obliged to decide on the future course of the complainant’s employment on the basis of medical evidence. The medical evidence available to the respondent- the last being November 2017- confirmed that the complainant had seriously impaired vision, was unfit to work and the duration of her recovery was uncertain. In Humphreys v Westwood Fitness Club, the EED037, the Labour Court commented that the respondent should ensure that” employee is given fair notice that the question of his dismissal for incapacity is being considered”. The respondent was in a ‘wait and see’ mode. They indicated that they would have to re-evaluate the position. I accept that they did at least flag the future possibility that her employment would have to be terminated which I accept was unsettling for the complainant struggling with the loss of sight. They offered the complainant the option of continuing to work subject to medical evidence.

I do not find that the evidence submitted raises an inference of discrimination by the complaint on grounds of disability.

Complaint of harassment.

The enquiries by the respondent as to a likely return date and flagging the long-term uncertainty concerning her job are used to ground the three complaints of discrimination, harassment and victimisation. The Labour Court stated in A school v A Worker, EDA122 that

“It seems to the Court that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts”

The court went on to state that they would treat the complaint of harassment as if pleaded in the alternative.

Section 14(A) of the Acts broadly provide that harassment is any

“unwanted conduct related to any of the discriminatory grounds”.

This unwanted conduct must have the

“purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

I also note that the Respondent had no employment equality policy in place or procedures for dealing with any grievances including complaints of harassment. That has been corrected. The complainant never initiated a complaint of harassment.

I consider that the conduct complained of falls short of violating her “...dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment…”. The impugned statements were made off- site. She was on sick leave. I am satisfied on the balance of probabilities that the complainant has not established that she was harassed by the Respondent.

Complainant of victimisation.

Section 74(2) of the Acts defines victimisation as follows

“(2) For the purposes of this Part, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) n/a”

(g) an employee having given notice of intention to take any of the actions mentioned in the preceding paragraphs”

In the case of   Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2) The Complainant was subjected to adverse treatment by the Respondent, and;

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant identifies the protected act as her statement to the respondent on the 7 March that her solicitor would be contacting the respondent. This was in response to the respondent texting her first on 6 March and on getting no answer, phoning her on the 7 March to ask her if she still considered herself to be an employee given her Facebook characterisation of herself as a” former hair stylist” with the respondent. The complainant’s only response to this enquiry was to advise the respondent that her solicitor would contact the respondent. The complainant did not indicate then or at any previous time that the actions of the respondent were discriminatory or that she intended to take proceedings based on a complaint of discrimination on disability grounds as required. This hardly meets the definition of a protected act set out in section 74(2) of the Acts. This drew the response from the respondent that she would send her P45 to her. The respondent wrote to her 2 days later clarifying that her job was still there for her. The respondent’s retaliatory and ham-fisted response was understandably hurtful for the complainant. I can accept that the complainant was struggling with a devastating condition. I can accept that she believed that her impaired vison and on-going treatment warranted a different response but that does not necessarily constitute adverse treatment as set out in the Acts. I cannot disconnect the complainant’s silence on her condition other than for medical certs since November 2017, her description of herself as a former stylist and her notification that her solicitor would be in touch, from the retaliatory response of the respondent which does not meet the definition of adverse treatment. She incurred no detriment.  

As I do not find the respondent’s statement of 7 March to be adverse treatment it is not necessary for me to consider the connection between the protected act and any adverse treatment.

I do not find that the complainant was victimised.

I do not find that that the complainant has established facts from which discrimination based on disability, or harassment or victimisation can be inferred. Therefore, her complaint cannot succeed.

Discrimination on disability grounds; harassment; victimization