Complainant

Respondent

Parties

Sean Nihill

Bar One Racing Ltd

Complainant

Respondent

Anonymised Parties

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-00017100-001

23/01/2018

The Complainant commenced employment with the Respondent, a Bookmaker, on 31 October 2015, having been made redundant, when his previous employer closed their retail shop in Ennis.

Following an introductory period of two weeks, the Complainant was offered a six-month contract in a Hosting role, in the Respondent’s new shop which was opening in Galway city. This contract was extended on two further occasions – in April 2016 for six months and in November 2016 for 10 months. The Complainant’s employment with the Respondent ended on 20 September 2017, when his final contract was not renewed.

The Complainant’s claim that he was discriminated against by the Respondent, on the grounds of disability, under the Employment Equality Acts, was submitted to the Workplace Relations Commission on 22 January 2018.

The Complainant submitted that, in October 2015, he was contacted by the Respondent’s Operations Manager (Ms A), who requested him to show her around a premises in Ennis, which was operated by the Complainant’s previous employer, but which was now closed. The Complainant stated that he showed Ms A around the premises and expressed a desire to manage the office should the Respondent decided to open it again.

According to the Complainant, he and Ms A then had a conversation in a local hotel, where he once again expressed his interest in managing the office. The Complainant further submitted that he informed Ms A that he did not drive and explained to her that this was because of his impaired sight. The Complainant stated that he always makes this fact known to prospective employers from the start of a working relationship.

The Complainant submitted that, later that same day, he contacted Ms A to offer his services in the opening of their new branch in Galway city. According to the Complainant’s evidence, Ms A rang him back and asked when he could start and get trained on their systems. The Complainant stated that he started the following Tuesday in one of the Respondent’s other offices before commencing in their Galway city office on the first day it opened.

The Complainant stated that, on the bus to Galway, Ms A rang him and requested that he take on the role as host, as the staff there did not do that kind of job he did, i.e. interacting with customers and creating a buzz in the premises. According to the Complainant, he had no job description to work from, just did what he thought was needed. The Complainant stated further that, after two weeks, Ms A requested him to take on a six-month contract, which he accepted.

According to the Complainant’s evidence, as a former manager, with 25 years’ experience running betting shops, he found himself helping out behind the counter as well as carrying out his hosting role in the public area of the premises. The Complainant submitted that the reason he had to help behind the counter was primarily because the staff needed his expertise and they were also short staffed from time to time.

The Complainant submitted that, during this period, while checking a bet on the computer on one occasion, Ms A observed him using a hand-held magnifier. The Complainant stated that Ms A queried if he was okay and he confirmed that he was but indicated that he was just being careful by using the magnifier. According to the Complainant’s evidence, the look on Ms A’s face made him feel very uneasy and self-conscious. He stated that he quickly went about his normal duties and thought that was the end of it.

According to the Complainant, at the end of his contract, he had to contact Ms A to see what the story was with his employment with the Respondent. He further submitted that he had a conversation with Ms A about his contract, in the corner of the shop during business hours, while customers were in the shop. The Complainant stated that Ms A asked about his sight and he explained that he had been born with cataracts, but it was not an issue for him as he had his glasses and a magnifier. The Complainant also stated that he explained that this condition had not been an issue for him during his long employment in the industry. The Complainant submitted that following this conversation, his contract, as a host, was extended for a further six months.

The Complainant stated in evidence that a few days after his contract had been extended, the Shop Manager told him that, on the instruction of Ms A, he was to stay outside the counter and not to do the tills. According to the Complainant’s evidence, he informed the Shop Manager that this was not realistic, as they were still short staffed. The Complainant further stated that within two weeks, he was needed behind the counter due to staff shortages. The Complainant confirmed, in his evidence, that nothing more was said to him about staying outside the counter.

According to the Complainant’s evidence, in November 2016, he had to, once again, seek out Ms A as his contract was expiring. He stated that he met with Ms A and she offered him an extension of 10 months, which brought him up to 23 months continuous employment with the Respondent. The Complainant submitted that this type of short-term contract seemed to be the norm for the Respondent, so he was not concerned about the length of the contract or of being let go. However, the Complainant stated that, once again, Ms A asked him about his sight. According to the Complainant, he found this strange, as he did not believe she had any reason to make an issue of his sight.

The Complainant stated that, in March 2017, the job of district/area manager was advertised internally. The complainant stated that he decided to apply for the position, as his experience was more than enough for the job. The Complainant stated that, one week later, the job was re-advertised internally with the proviso that driving was a requirement. However, notwithstanding this, the Complainant stated that he decided to let his application stand, as there were no areas or districts quoted, so there was a possibility he could get around by bus as he had always done.

According to the Complainant’s evidence, when the interviews, which were due to be held in Athlone, were being arranged, Ms A rang him and informed him there was no point in him going forward for interview as he did not drive. The Complainant stated that he thought this was very unfair but saw no point in arguing the case, as he only saw trouble ahead if he pursued the matter.

The Complainant stated, in evidence, that he was struggling financially and could not risk losing the job he had. The Complainant further stated that he had seen how the Respondent handled a bullying claim by another employee and this left him feeling that he had nowhere to turn. According to the Complainant, the HR function in the company was non-existent and it was a case of whatever Ms A or the Accounts Manager said that would hold sway. In this regard, the Complainant submitted that they were often issues people had and could never get a straight answer to your explanation for. The Complainant stated that, as a former shop steward, he always tried to help anyone who didn’t know their rights and entitlements and, as a result, he stated that staff trusted him.

According to the Complainant’s evidence, he continued to work away and do the job as professionally as possible until mid-August 2017. The Complainant stated that, at this point in time, he heard that the manager of the Respondent’s Ennis branch had resigned. The Complainant stated that he was delighted at this development, as he finally thought, after nearly 2 years in Galway, that he would get the job back Ennis that he had been waiting for. According to the Complainant, he wrote to Ms A regarding this position, as his contract was due to expire in September. He further stated that, on 23 August 2017, he met Ms A for a chat. The Complainant stated that, in response to a question from Ms A as to what he wanted, he restated his desire to have the job in Ennis. The Complainant submitted that, to his amazement, Ms A again questioned his eyesight and when he protested and said that he had been running shops for 25 years, she said that was irrelevant.

The Complainant stated that, for the third time in less than two years, he found himself again having to defend himself against his employer despite never having anything brought to his attention other than one bet, which was as much a systems error as human error. According to the Complainant’s evidence, Ms A also made an allegation of poor feedback about staff who worked for the Complainant’s former employers. The Complainant stated that, as this was a discussion about his future, he strongly protested and demanded proof of the allegation. According to the Complainant, Ms A immediately tried to backtrack, saying she wasn’t talking about him. However, the Complainant submitted that he again sought proof of the allegation, but nothing was forthcoming.

According to the Complainant’s evidence, he felt like he was on trial and had to take a breath to control his anger at this provocative and unwarranted slur on his character. The Complainant further submitted that, while Ms A was conducting interviews over the following few days, she never offered him a formal interview for the position in Ennis. According to the Complainant’s submission, the job in Ennis was filled very quickly, within two-weeks of the termination of his contract with the Respondent. In addition, the Complainant submitted that during this time, two new part-time employees were employed in the Galway city shop and he was not offered any job there either.

The Complainant submitted that, three weeks after his conversation with Ms A in relation to the vacancy in Ennis and having heard nothing in the meantime, Ms A arrived into the shop in Galway and asked him to go for a chat. According to the Complainant, at that point, nobody had been hired for the Ennis role, so he was quite hopeful that Ms A may have good news for him in that regard. However, the Complainant stated that, to his disgust, Ms A informed him that his contract was not being renewed and he was being let go.

According to the Complainant, he pointed out his value to the shop, as those running it had no experience. The Complainant further stated that, about 30 minutes into the conversation, Ms A asked if he would hang on until she had a chance to speak with one of the Respondent’s directors. The Complainant submitted that he was left sitting in the shop for three hours until eventually he got through to Ms A, who told him that he was finished and could go. The Complainant submitted that this was one further embarrassment he had to endure.

According to the Complainant’s submission, having thought long and hard about the way he was treated by the Respondent, he decided to submit a complaint to the WRC, as he felt he had been the subject of blatant discrimination by the Respondent both by their words and actions. The Complainant submitted that, in his view, the constant questioning of his eyesight, resulted in him being treated unfairly. The Complainant admitted that he held this view, despite not being in a position to find another employee who had been subjected to the same type of questioning as he had.

According to the Complainant’s submission, he believed that Ms A’s refusal to consider him for the Ennis job, purely based on her perception of his sight, was in breach of his right to fair and equal treatment. In addition, the Complainant submitted that, in his view, driving was added to the job requirements for the area manager job in order to prevent him from being considered. While noting that this happened earlier in the year, the Respondent submitted that he believed it showed a pattern of behaviour towards him.

The Complainant submitted that equal treatment would have meant him being offered an interview for the Area Manager job and also the Ennis job, for which Ms A decided was unsuitable without even asking him if he would accept different terms of employment.

The Complainant stated that he worked very hard in Galway, for nearly 2 years, and the company never had or brought any issue to his attention. Consequently, the Complainant stated that this just added to his amazement that he was disposed of so suddenly and surprisingly.

In a general response to the complaint, the Respondent submitted that, the Complainant did not, at any stage in his employment, make any report or complaint of any of the matters now alleged, notwithstanding that the Respondent has a full Equal Opportunities Policy and procedures for employees who have any concerns in this regard.

The Respondent denies that it discriminated against the Complainant in any way whatsoever or that it failed to provide him with any reasonable accommodation. In this regard, the Respondent also stated that the Complainant had not identified what reasonable accommodation was not afforded to him.

Respondents response to the specific elements of the Complainant’s complaint:

The Respondent submitted that, on one occasion, early in his time with the company, having observed him having difficulty reading something, Ms A spoke to him to enquire if there was anything that the company could do or provide to reasonably accommodate his needs – by way of special glasses or assistive technology to accommodate him and make his job easier. According to the Respondent this was evidence of their trying to afford reasonable accommodation that might assist the Complainant. However, according to the Respondent, the Complainant declined the offer and said that he would use his monocle special glasses.

With regards to the Complainant’s allegations that, at a meeting in August 2017, he had to defend himself against negative feedback about employees of his ex-employer, the Respondent stated that the Complainant had not worked for that employer for several years. According to the Respondent’s submission, at no stage was it suggested that there was any negative feedback or indeed any feedback whatsoever from any source about the Complainant.

The Respondent further submitted, in this regard that, had there been any negative feedback about the Complainant from his ex-employer, it may well have impacted on him being employed by the Respondent in the first instance. However, the fact that the Complainant was employed by the Respondent is indicative of the fact that there were no such negative reports about.

According to the Respondent’s submission, notices issued to employees about job opportunities are issued in the same format and contain the exact same information for every employee. Each employee has the same information from which to decide if they qualify to apply for the position on offer. According to the Respondent, the Complainant unilaterally withdrew his application for the District Support Manager training opportunity. Consequently, the Respondent submitted in evidence that this was the reason the Complainant was not called for interview.

In this regard, the Respondent submitted that, as the Complainant elected not to apply for the position, he did not present or suggest to the Respondent what he was referring to when he speaks of “an alternative way of doing the job”. According to the Respondent’s submission, there was no suitable position for the Complainant in Ennis and that was the reason he was not called for interview.

In conclusion, the Respondent stated that it is wholly committed to a policy of equality of opportunity in relation to the employment of people with disabilities and will reasonably accommodate those who have a disability or the need for support/accommodation when it is highlighted. The Respondent stated that they fill positions on the basis of an individual’s ability to do the job.

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.

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. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

In support of his complaint, the Complainant, in the within case, is inferring that he was discriminated against by reason of his disability and that he was dismissed for the said discriminatory reason, when his contract was not renewed. In this regard the Complainant contends that his disability related to his impaired vision, which resulted from having been born with cataracts.

Section 2 ( 1) of the Employment Equality Acts , 1998 – 2015 defines “disability” as follows:

“Disability 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,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

As can be seen from the above, the Acts set out the broad nature of conditions or impairments which could give rise to disability for the purposes of the Acts. Based on this, I find that the Complainant’s condition satisfies the definition of disability as set out in the Acts. Consequently, I then proceeded to consider other facts that might support the establishment of a prima facie case of discrimination.

The first aspect I considered, in this regard, was whether or not the Respondent was aware of the Complainant’s condition and if they had been requested to provide any reasonable accommodation to assist the Complainant in carrying out his role. I am satisfied that the Complainant did inform the Respondent, at the commencement of his employment, as to the situation with his impaired vision.

However, having carefully reviewed all the evidence adduced, I find none to suggest that the Complainant made any specific requests in relation to reasonable accommodation for his disability. I also note in this regard, the Respondent’s evidence, which indicates that certain accommodations, linked to the fact that the Complainant does not drive, were afforded to him by the Respondent to accommodate him making the daily commute to his position in Galway city. These accommodations included a delayed start time and travelling expenses.

Consequently, based on the above evidence, I find that while the Complainant did not seek specific accommodation from the Respondent, the latter’s accommodations to facilitate him were such that they clearly undermine any suggestion that they acted in a discriminatory manner in this regard.

I also note from the evidence presented by the Respondent, which was confirmed by the Complainant, that when Ms A noticed the Complainant using his magnifier and queried whether or not he was okay, the latter clearly confirmed that he was fine. Clearly, if the Complainant was in need of any accommodation to allow him to carry out his role, then this represented a most appropriate opportunity to have discussed the matter with the Respondent.

Taking all of the above into consideration, I find that, while the Respondent was aware of the Complainant’s condition, they were not provided with any evidence to suggest it was impacting on his ability to carry out his role and they were not requested to provide any specific accommodation in this regard either.

The next aspect considered was whether or not the Complainant had provided comparators in furtherance of his claim of discrimination. In order to establish that an act of discrimination has taken place, the Complainant is required to demonstrate that he was treated less favourably as compared to another person in a similar position.

Section 61 of the Acts states that:

“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 “.

With regard to discrimination on the grounds of disability, Section 6(2)(g) states that: “As between any two persons, the discriminatory grounds (and the description of those grounds for the purpose of this Act are - that one is a person with the disability and the other either is not or is a person with different disability “.    

Having carefully reviewed the Complainant’s complaint, I am satisfied that a key element of his allegation of less favourable treatment relates to his contention that changes to the job requirements in relation to the Career Progression/Development Opportunity advertisement which issued on 20 March 2017 were directly targeted at him and his disability. The alleged change in question related to the inclusion of a requirement that the successful candidate must be a driver in order to fulfil the role.

Given that 60% of the role in question required travelling to the Respondent’s shops in different locations, I find that the inclusion of the requirement, that the successful candidate be qualified and licensed to drive, to be reasonable and objective in the circumstances.

In order to demonstrate that the inclusion of such a requirement amounted to an act of discrimination against him, on the grounds of disability, it is incumbent on him to show that a comparator who either had no disability or a different disability was treated more favourably, in this regard, by the Respondent. The Complainant failed to identify any comparators in this regard. However, evidence adduced by the Respondent suggests that an applicant who was only in possession of a provisional driving licence was eliminated from the process. This clearly indicates that it was the absence of a full driving licence rather than an inability to drive, whether linked to a disability or not, which was the disqualifying criteria.

Consequently, having carefully considered all the evidence presented by the Complainant, I find none to suggest that he identified a comparator who was treated more favourably than he in the circumstances.

Finally, I considered the Complainant’s contention that the discriminatory act, that of dismissal, was directly related to his poor sight. In support of this, the Complainant alleged that on three different occasions the Respondent, in the person of Ms A, raised the issue of his sight in a manner which he contends was unnecessary/inappropriate and made him feel uncomfortable and/or embarrassed.

Having reviewed the evidence, it is clear that two of the occasions on which the Respondent referred to the Complainant’s eyesight were at points in his employment when contract extensions were being discussed. Given that the Respondent provided the Complainant with two extensions to his initial contract and that this happened when the Respondent was (a) aware of the Complainant’s disability and (b) was allegedly influenced in their employment decisions by that disability, I am satisfied that the Respondent’s actions in this regard support their contention that they did not discriminate against the Complainant in this regard.

In addition, I am satisfied that the evidence submitted by the Respondent clearly establishes that the original position offered to the Complainant was that of a hosting role which was introduced for the first time by the Respondent for the specific purpose of opening, what they described as their “flagship” shop in the centre of Galway city. I also note that for the entire duration of his employment, with the Respondent, the Complainant carried out the same role.

Consequently, I am satisfied, from a review of the evidence adduced, that the termination of the Complainant’s employment with the Respondent resulted from a decision to discontinue the hosting role and, therefore, cannot be construed as an act of discrimination on the part of the Respondent. In addition, I am also satisfied that the evidence does not support the Complainant’s contention that the Respondent’s decision not to retain him in employment, in an alternative role, after the hosting role had been discontinued, was linked to his disability.

For the record, I am not convinced that the decision to terminate the Complainant’s employment was   influenced by alleged unfavourable performance reports from his previous employer. In any event, even if this were the case, there is nothing to suggest that those alleged reports had anything to do with the Complainant’s disability and, therefore, could not be considered to support a claim of discrimination.

Consequently, taking all of the above into consideration, I find that the termination of the Complainant’s employment occurred as a result of the Respondent’s decision to discontinue the role he had been employed to carry out and that no link has been established, in this regard, to his disability.

Therefore, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of discriminatory dismissal based on the grounds of disability is not well founded and is, therefore, rejected.

Employment Equality Acts

Reasonable Accommodation