Complainant

Respondent

Anonymised Parties

A Cashier

A Bookmakers

Representatives

SIPTU

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019079-001

11/05/2018

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

CA-00019079-002

11/05/2018

The Complainant is claiming Penalisation contrary to Section 26(1) of the Organisation of Working Time Act, 1997 from being transferred from the Bookmakers close to where she lived and had predominantly worked for 10 years, to other premises further away, in March 2016, after she had successfully taken a case against her employer for a breach of the Organisation of Working Time Act.

The Complainant also claims that she was subjected to Discriminatory dismissal on the grounds of her disability contrary to Section 6(2)(g) and Section 77 of the Employment Equality Act, 1998. She further states that the Respondent failed to provide her with Reasonable Accommodation in accordance with Section 16 of the Employment Equality Acts.

The Complainant worked with the Respondent for over 10 years as a Cashier in a number of its different Bookmaker outlets. She claims that she commenced employment on 11 June 2008 and worked 40 hours per week. She was moved to a particular outlet in the South East in March 2016 and immediately complained of back pain from sitting in the particular chairs that were provided there. She visited her Doctor who deemed her unfit to work for a short period of time. She returned to work on 3 April 2016, but her condition deteriorated, and she was again certified unfit for work and was out of work for a number of months. She said that she kept her employer appraised of her progress and handed in medical certificates regularly.

She said that on 20 November 2017 her Doctor wrote to the Respondent and said all that she would require was an “ordinary chair for her feet to touch the ground when seated”. On 18 December 2017 she wrote to the Respondent and outlined her progress and indicated that she wished to return to work as soon as possible. In her letter she again outlined the difficulty she had with the seating in the shop and asked for an ordinary chair, and if that was not possible she was willing to transfer back to the other shop where she had worked previously and had no problems. She said that she included a medical certificate and sent all correspondence by registered post, which was signed for. She said that she made several attempts to contact her employer but without success. She said she got no response to her letter.

She said that she wrote on 9 February 2018 looking for a return to work date. She sent on a medical certificate on 12 February certifying she was fit to return to work. Both letters were sent by registered post and were signed for. However, she still did not get any reply. On 1 March 2018 she noticed an advertisement on a local website regarding a vacancy for a cashier post for 35 hours per week in the Respondent’s Bookmakers where she worked. The contact person was a family member within the Respondent. The Complainant said that she contacted her Trade Union, who wrote to the Respondent on her behalf on 25 April 2018, seeking a meeting on the matter. There was still no response from the Respondent.

Legal Submission

Penalisation

The Complainant claims that under Section 26(1) of the Organisation of Working Time Act, 1997 she was penalised for having in good faith opposed by lawful means an act which was unlawful under Section 12(1) of the Act where she was awarded compensation in October 2016, which was finally paid one year later after the Complainant pursued the Respondent through the Courts.

It is the Complainant’s claim that she was penalised by being transferred from one of the Respondent’s Bookmaker’s outlets to another, which was much less convenient for the Complainant’s home arrangement. She claims that this was done to allow for the Respondent to continue to operate its business without regard to the requirement imposed on it by the Organisation of Working Time Act. She said that once she was transferred out, the Respondent continued its practice of having only one worker employed in the outlet, working long hours without breaks or sufficient rest periods. She said she perceived her transfer as an act of penalisation for her successfully taking her complaint to the WRC in March 2016.

Discrimination

The Complainant claims that she suffers from chronic back pain and is receiving ongoing medical supports to enable her to manage her condition. She said that the Respondent failed to engage with her and did not allow her return to work, which was discriminatory and based on her disability. She claims that the Respondent’s behaviour throughout this process has been unreasonable and it clearly has failed to consider the Reasonable Accommodation that she required to return to work. The Complainant said that all the Respondent had to do was provide her with an ordinary chair, but instead it simply refused to engage.

The Complainant claims that her condition of chronic back pain led to her incapacity to work and this qualifies as a disability under the Employment Equality Acts. She claims that the Respondent was always on notice of her disability from an early stage, and in particular from April 2016, and she continually provided her employer with the medical certification to support and explain her absence. The Complainant claims that after a period of time out she was medically advised to seek an ordinary chair so that her feet could touch the ground. However, she said the Respondent refused to engage with her at all in exploring with her the opportunity to return to work although she had made several attempts to engage with it and even offered possible alternative solutions.

The Complainant in support of her case cited the decision in A Health and Fitness Club v. A Worker EED037 upheld by the Circuit Court (Humphreys v  Westwood Fitness Club [2004] ELR 296) where she claims that at the very minimum the Respondent is obligated to be in full possession of all the material facts, which it was not in this case before me for consideration. She also cited the decision of the Equality Tribunal in Kavanagh v. Aviance UK Limited DEC-E2007-039, where the Respondent was deemed to have discriminated on the grounds of disability when it refused to allow the Complainant return to work after an accident.

The Complainant claims that she has suffered significant loss and suffered extreme distress and anxiety due to the discrimination she was subjected to.

The Respondent failed to engage in the process and did not attend nor was it represented on the day of the hearing.

The Workplace Relations Commission received an email from a third party after the hearing to say that the Respondent’s owner was ill and offered an apology for his non-attendance.

The Workplace Relations Commission wrote to the Respondent on 11 March 2019 and stated that an email was received from a third party and should it wish to apply for an adjournment of the hearing, and therefore a possible relisting of the case, that that application should be made within a certain time period.

I waited until that time had passed and on confirmation that no application was made, I proceeded to write this decision.

CA-00019079-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant maintains that she issued proceedings under the Organisation of Working Time Act, 1997 and accordingly, she was subsequently moved from her ordinary place of work to a different outlet which was wholly inconvenient to her and deems these as acts of penalisation under the Organisation of Working Time Act.

The Relevant Law.

Organisation of Working Time Act, 1997

Refusal by an employee to co-operate with employer in breaching Act.

26.- (1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act or the Activities of Doctors in Training Regulations.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

Workplace Relations Act 2015

Presentation of complaints and referral of disputes

41. - (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

…

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause

I sought clarification from the Complainant of what she deemed as the nature of the penalisation under the Acts and it was made clear to me that the following is what she deems as the penalisation. Namely, that there was an adverse change in how the Complainant was treated, particularly in relation to an unsolicited transfer from her workplace to another outlet, which placed additional costs on her and was much more inconvenient for her. This, she claims, occurred in March 2016.

I note that this complaint was received in the WRC on 11 May 2018, some two years plus since she was transferred to work in the less convenient location.

Section 41(6) of the Workplace Relations Act 2015 sets the time limits for the referral of a complaint under the Act, and that is 6 months from the date of the contravention subject to Section 41(8). I am satisfied that the time limit to refer the complaint has well passed and I have no application before me for consideration requesting an extension of the time limits.

Accordingly, I find that the Complainant has failed to submit her complaint within the required time limit and no reasonable cause has been established to enable me to consider extending the time limit. Therefore, I do not have jurisdiction to hear the case.

CA-00019079-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

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 it may be presumed that there has been discrimination in relation to her. 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 these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. In a previous Determination, the Labour Court in Melbury Developments v Arturs Valpetters [EDA 0917], whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. Section 85A 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.”  

Disability is defined in Section 2 of the Acts:  

‘‘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;  

The Complainant has set out the particulars of her disability and provided medical details of that in her evidence. I am satisfied that the Complainant’s disability (acute back pain) falls within the definition outlined above.

I am satisfied that it is commonly acknowledged that unlike other protective grounds, disability can be a causative factor in not retaining a person as an employee, because of the possible consequences of that disability on work output. However, Section 16 (1) of the Acts should be noted here, which states: “Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual

 ….                

(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.”

However, Section 16(1) must also be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between being able to do the job and not being able to do the job:

(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.  

Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose a disproportionate burden, namely where,

“(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.”

The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court in the case of A Health Club and A Worker, as referred to above by the Complainant.  The relevant paragraphs read:

“This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Reasonable Accommodation

The Complainant submits that she was not provided with reasonable accommodation in her employment and further submits that she was discriminatorily dismissed on grounds of her disability by the Respondent’s stark refusal to communicate with her once she went out on sick leave and in particular when she attempted to return to work. Therefore, I must consider whether the Respondent provided the Complainant with appropriate measures in accordance with Section 16 of the Acts.

Having carefully examined the only evidence available to me on this matter, I find that the issue of reasonable accommodation was a recurring theme throughout the Complainant’s employment since 2016 and constantly to the forefront as to why she was unable to perform her duties. I note that this was very much highlighted when the Complainant’s Doctor wrote a letter to the Respondent on 20 November 2017 outlining the relatively minor accommodation the Complainant would require facilitating her return to work.

I note another letter was sent on 18 December 2017 to say the Complainant was fit to return to work with a change to her working chair, and again on 8 February 2018, 12 February 2018 and 15 March 2018 the Complainant sought engagement with the Respondent on her return to work. Without reply. Finally, two attempts were made in April 2018 by her Trade Union, again no reply or engagement from the Respondent.

I am satisfied from the evidence before me that the Respondent chose to avoid dealing with this issue and by simply doing so prevented the Complainant from getting back to work. I have heard of her efforts to engage with the Respondent and it is evidently clear she was ignored throughout.

Having considered the evidence, and applying the steps in the relevant case law above, I note that the Respondent took no interest in determining what condition the Complainant’s health was in, it was not looking to be in full possession of all the material facts concerning the employee's condition or engage with the employee to allow her an opportunity to influence the employer's decision. It was not interested at looking at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. It is clear that this was not considered, at all. Accordingly, I find that the Complainant has established a prima facie case that the Respondent did discriminate against her in relation to the provision of reasonable accommodation within the meaning of the Act at Section 16(3). This was not rebutted by the Respondent because of its failure to attend the hearing.

Discriminatory dismissal

I will now examine the discriminatory dismissal element of the complaint.

Having considered the evidence before me, and in particular following on from my findings above, I note that the Complainant has deemed that she has been dismissed by the Respondent. That perception is born out of the multiple attempts she has tried to engage with the Respondent without success. I note that she wrote to the Respondent to seek a return to work, she asked her Doctor to write to explain what she needs to return to work, she sought assistance from her Trade Union to engage with the Respondent to seek clarification of her work status and to seek a return to work.

The Complainant is understandably frustrated by the Respondent’s lack of interaction. She was clear that she has not resigned but was de facto discriminatory dismissed by the Respondent. Accordingly, I must then consider was there a dismissal or is the Complainant still employed or has the Complainant just left.

The evidence before me has established the following facts,

The Complainant has continually sought to come back to work.

The Respondent has simply refused blank to engage with the Complainant.

The Complainant has sought clarification on her employment status and nothing is forthcoming.

The Complainant’s evidence is that during this time she noted that a cashier position was advertised for the outlet she works in, which she deems to be ‘her’ position. The Complainant presented as a good witness and I am satisfied that this is also true.

Accordingly, I am satisfied that on the balance of probabilities the factors suggest that the Respondent action, or lack thereof, amounts to a dismissal.

The Complainant claims that this dismissal is due to the fact that she has an ongoing disability and that motivated the Respondent’s decision. Having considered all the evidence available to me, I am satisfied that the Complainant has demonstrated a sufficient nexus in relation to her dismissal on grounds of her disability and therefore, I find that she has established a prima facie case of discrimination in relation to her dismissal, which was not rebutted by the Respondent, because of its failure to attend.

CA-00019079-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I have found that the complaint is not well founded.

CA-00019079-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

In reaching my decision, I have taken into account all the submissions. Having investigated the above complaints, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts.  

I find that  

(I)  the Respondent did discriminate against the Complainant in relation to the provision of reasonable accommodation within the meaning of the Act at Section 16 (3).

(ii) the Respondent did discriminate against the Complainant on grounds of her disability in relation to her dismissal 

Therefore, I find for the Complainant. 

In accordance with my powers under section 82 of the Acts, I hereby order that the Respondent pay the Complainant €25,000 (Twenty-Five Thousand Euro) by way of compensation for the breaches of the Employment Equality Acts which represents one year’s salary.

The award is arrived at having regard to the seriousness of the discrimination, which has effectively cost the Complainant her job, the effect on the Complainant, which was still very much apparent on the day of the hearing and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

Employment Equality Act - reasonable accommodation – disability – compensation - discriminatory dismissal - Organisation of Working Time Act - penalisation