Complainant

Respondent

Parties

Aisling O'Mara

Zac Global Promotions Ltd.

Representatives

Maurice Walsh, Lacy Walsh Solicitors

Martin Moloney, M.P. Moloney Solicitors

Act

Complaint

Reference No.

Date of Receipt

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

CA-00025311-001

18/12/2018

The Complainant is an actor and was employed by the Respondent on the 17th of September 2018 and was dismissed on the 23rd of September 2018. She was paid €500 per week. She is claiming that she was dismissed because of her disability.

The Complainant said she was diagnosed with dyslexia when she was in fifth year at school and she had reasonable accommodation doing her exams. She said she went to Trinity College Dublin and obtained a first-class honours BA in acting. In dealing with dyslexia, she said that writing on yellow paper and having scripts beforehand is helpful as it is difficult for her to “cold read” a piece of text. She said she has plenty of experience as an actor and has also written her own play in which she acted. In August 2018 her agent referred her for an audition for a part in a musical production being produced by the Respondent. At the first audition on the 20th of August 2018, the Complainant said she told the Director about her dyslexia. She was successful at this audition and 10 days later she was called back for a second interview which took place on the 29th of August 2018. She said that she informed the Director about her dyslexia at this audition also. She was successful in this audition and she commenced rehearsals on the 17th of September 2018 with two other actors. She said she had no difficulty with the rehearsal. There were rewrites to the script and by the end of the week they were all still reading from the script. On Friday 21st of September, they performed the first act in front of the Company Director and the Director. All the actors were still reading from the script and the Complainant said she asked for feedback and Director told her that she was to get off book for the next week.

On Sunday the 23rd of September 2018 she got a call from her Agent to tell her that she had had received an email from the Respondent to tell her that in his creative opinion she was not suitable, and she was being released from the role. Her Agent said that she would email the Respondent seeking her pay and to find out the reason. Her Agent received a response on the 27th of September 2018 from the Respondent’s solicitor stating that the Complainant’s dyslexia was hampering her progress. The letter went on to state that had the Respondent known from the outset that the Complainant had dyslexia arrangements could have been put in place to accommodate her. The Complainant disagreed and said that she had informed the Respondent from the outset. She said it never had been brought to her attention that there had been any difficulties with her performance. She said that she would accept that if she was let go for creative or artistic reasons as this is a valid reason in the entertainment industry, but she believes she was let go because of her disability. The Complainant said that, while she must work harder to master scripts, her dyslexia has never stopped her acting in drama productions including one which was broadcast on RTE and also a film.

The Complaints solicitor submitted that is clear from the two emails sent to the Complainant that she was dismissed for reasons to do with your disability. He further submitted that the Respondent failed to provide the Complainant with reasonable accommodation in accordance with Section 16 of the Employment Equality Acts.

The Respondent’s Company Director said that he is a small production company and due to budget restraints, he had only a 2-week lead in time for the musical production. He said it is not unusual to have a two-week lead end time because it gets too expensive if it takes any longer.

He said he was not aware that the Complainant had dyslexia until after she was dismissed. He said that the Director called him to a run through of the first act of the musical for Friday the 21st of September. Afterwards they both discussed the Complainant’s character role and they both concluded that the character the Complainant played was not working out.   He said the reason for the dismissal was that the Complainant could not keep up to speed and in his creative opinion the character she played was too aggressive and they decided they needed to recast her character. He said the decision was based on the Director’s judgement and it had nothing to do with her dyslexia. He said he did not instruct his solicitor to say that the dyslexia hampered the Complainants progress.

The show Director said that he learnt the Complainant had dyslexia on the first day of rehearsals when they went for coffee. He told her that was no problem, but he did not ask her if she wanted any particular assistance. They all sat around a table and started reading the script and adapting it and changing it to suit the characters. The Complainant was playing a character with a Dublin accent. The script has been changed for everyone up to the Friday of the first week of rehearsals. If the Complainant slipped on up on a word during rehearsals, she mentioned it was because of her dyslexia. He said he gave the actors notes during the week specifying matters such as delivery, methodology and timing. He had to tell the Complainant on occasions to be less aggressive as a piece was a comedy and more jovial and light-hearted than she acted it. He said the Complainant was progressing, but her progression was not as noticeable as the other actors. Nobody was off book by Friday as changes to the characters were still ongoing. He said he was concerned that the characterisation for the Complainant’s part was not right and was not developing for the piece and the two other characters were becoming work more comedic. There was a run through with the Respondent on Friday the 21st of September. He said he was concerned that the Complainant was not getting the character right and they both decided they would have a think about it. He said judging from the week's work he was concerned about whether the Complainant would be able to deliver the portrayal of the role which would best suit the show. He said that the following day he telephoned the Respondent and told him that it was not going to work out with the Complainant staying in the role. They decided between the two of them to release the Complainant from the role. He said that the following week he mentioned the Complainant’s dyslexia to the Respondent. He said he did not tell the Respondent that the dyslexia was hampering the Complainants progress. He said that the Complainant’s failure to keep up to speed was hampering her progress in developing her character and the overall portrayal of the character.

He accepted that the Complainant asked for more time to read the script because of her dyslexia. He said that he told the Complainant a few times that her portrayal of the character and timing was wrong, but he did not warn her that she would just be dismissed if she did not improve.

The Respondent’s solicitor submitted that the sending of the letter suggesting that dyslexia was the reason for the dismissal was his mistake as he did not receive instructions to say that. He submitted that the Complainant was dismissed not because of her dyslexia, but because the Respondent concluded in his view that she was not the right person for the role. He said that in the entertainment industry the practice is that creative differences are good reasons to terminate a contract of employment. He further submitted that the Complainant never requested help for her disability.

The matter for decision is whether the Complainant was dismissed for reasons connected with her disability. The Complainant submits that she was dismissed because of her disability. The Respondent said that she was dismissed because it was not working out and it was their creative opinion that the Complainant was not suitable for the role.

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;”

I am satisfied that the Complainant’s disability which is dyslexia comes within the definition of a disability outlined above.

Section 6(1) of the Employment Equality Acts provide:

“discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’)”

Section 6(2) provides:

“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”),

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and

a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work

shall be taken to discriminate against an agency worker unless (on one of the

discriminatory grounds) that agency worker is treated less favourably than another

agency worker is, has been or would be treated.

…….

(5) Without prejudice to the generality of subsection (1), an employer shall be taken

to discriminate against an employee or prospective employee in relation to access to

employment if the employer discriminates against the employee or prospective

employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom

employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements

for employment which are not specified in respect of other persons or

classes of persons, where the circumstances in which both such persons or

classes would be employed are not materially different,”

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a Complainant 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."

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act 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.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was discriminated against on the disability ground. It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case raised.

The Complainant said in evidence that she had told the Respondent and the show Director that she has dyslexia at the auditions and again of the first day of rehearsals. She said that she was concerned that she had not sight of the script before the rehearsals because it is difficult for her to do a cold read due to her dyslexia. The Complainant was dismissed after the first week of rehearsals. The Respondent in giving reasons for the dismissal, in an e-mail dated 23rdSeptember to the Complainant’s agent, stated inter alia that “Through no fault of her own, (Complainant) unfortunately has not been able to keep up to speed with rehearsals or deliver a satisfactory result over the past week.” In a further response e-mail to the Complainant’s agent dated 27th September the Respondent’s solicitor stated inter alia “..when problems arose that she is someone who deals with dyslexia and this is hampering her progress.”

The Director in evidence said that he knew that the Complainant had dyslexia as she had mentioned it to him on the first day of rehearsals and during rehearsals when she had difficulty with some of the script. I do not accept the Respondent’s evidence that he did not know about her dyslexia until after he made the decision to dismiss as it is clear from the content of his letters that he did. It is clear from the correspondence with the Complainant’s agent that the dyslexia was the reason for the Complainant’s dismissal. For all the above reasons. I am satisfied therefore that the Complainant has established a prima facie case of discriminatory treatment on the disability ground.

Where a prima facie case is made out the onus shifts to the Respondent to rebut the inference of discrimination raised. An employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. Section 16 (1) of the Acts 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.”

Section 16(1) must 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 s(he) 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.

(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.”

In relation to the practical requirements and obligations placed on employers The Labour Court has found in Humphreys v Westwood Fitness Club [2004] E.L.R. 296 that:

“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."

The Labour Court has found in An Employer and A Worker EDA 0413 that the reasonable accommodation test is an objective one:

“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus, it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.”  

The Respondent in this case knew that the Complainant had dyslexia but made no enquires or discussed with her what measures she needed to accommodate her disability before dismissing her. The Respondent therefore is in breach of his statutory duty to provide reasonable accommodation.

Therefore, the Respondent has failed to provide satisfactory evidence to discharge the burden of rebutting the prima facie case of discriminatory treatment on the disability ground raised by the Complainant.

I find that the Respondent discriminated against the Complainant on the disability ground.

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. Section 82(4) provides:

The maximum amount which may be ordered by the Director General

of the Workplace Relations Commission by way of compensation under subsection

(1)(c) or (1)(f) shall be—

(a) in any case where the Complainant was in receipt of remuneration at the date

of the reference of the case, or if it was earlier, the date of dismissal, an

amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the

Complainant would have received at that date but for the act of discrimination

or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000.

The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate.     In deciding the amount of compensation, I note that the Complainant said that, as the entertainment industry is small, she suffered reputational damage because of the dismissal and it also had an impact on her confidence as an actor. Taking all these matters into consideration and in accordance with Section 82 of the Act, I order the Respondent pay the Complainant €20,000 in compensation for the distress caused to her and the effects of the discriminatory treatment.

The total award is for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

Employment Equality Act, Disability, Failure to provide reasonable accommodation, Dismissal