Complainant

Respondent

Parties

Grzegorz Wojcik

Tesco Ireland

Complainant

Respondent

Anonymised Parties

Grzegorz Wojcik

Tesco Ireland

Representatives

IBEC

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-00026229-001

12/02/2019

The complainant alleges that he has been discriminated against on grounds of disability and that his employer treated him unlawfully by failing to provide him with reasonable accommodation. The complainant states that he was absent from work from 17 October 2018 until 4 December 2018 due to a back injury he sustained while at work. He states that he attended at his GP who prescribed strong painkiller medication for him. He asserts that he also had to attend a number of physiotherapy sessions Despite this, the complainant asserts that when he returned to work he was requested to attend a welfare meeting and following the meeting he was issued with a verbal warning regarding his absence by the respondent under the disciplinary procedure. The complainant contends that the company stated that it was his fault he received the warning as he “failed to arrive for work as scheduled”. The complainant submits that the company threatened him that if he is sick again it may lead to his dismissal. The complainant states that he was not provided with any reasonable accommodation on his return to work.

The respondent states that the complainant commenced employment with the company as a warehouse operative on 27 July 2015. The complainant commenced as an agency worker and subsequently was directly employed by the respondent. The respondent submits that the most recent contract of employment signed by the complainant on 27 July 2018 sets out terms of absence and states that absences will be managed in line with the Absence Policy. The contract also refers to company disciplinary procedures. The respondent asserts that the contract concludes with the following clause; “I accept and agree to be bound by the above terms and conditions of employment… and the company policies and procedures outlined in the Employee Handbook”. The respondent states that in agreeing to the above, the complainant committed himself to be bound by the policies of the respondent. The respondent contends that the claim of discrimination arises out of the application of the respondent’s attendance and illness policies referred to as “Managing your Attendance”. The policies have two distinct purposes, firstly they outline the employee and managers responsibilities around “return to work” meetings. Secondly, they outline the employee and managers responsibilities when dealing with “individual review level” meetings.

The respondent asserts that as recently as July 2017, the complainant has undertaken a comprehensive Induction Programme which includes training on the company employee handbook and the “Supporting your absence management approach”. The respondent asserts that the complainant has signed to confirm attendance at that Induction Programme in July 2017 including his confirmation that he understood all the company policies and procedures. The respondent submits that the training material used in the Induction Programme sets out in detail to staff the applicable Sickness and Absence procedures including the levels of absence that will trigger a formal review by management. The respondent states that this training also clearly states that the management of absence is based around five stages. Each stage covers occasions or absence of a percentage of absence in a specific time period.. and… relates to both certified and uncertified absence. The respondent submits that the complainant’s employment has always been subject to the Absence Policy and the “Guidelines for Sickness and Absence Procedures” which is in place to manage unacceptable levels of non-attendance and sets out the absence reporting procedure staff are required to follow. The respondent maintains that the policy is available to all staff on induction and is well known to employees. The respondent states that it actively supports employees to ensure attendance levels are maintained including welfare meetings during absence to explore what support is required to enable an employee to return to work, referral to Occupational Physicians and/or EAP where appropriate, offer flexibility where possible around rostering to cater particularly for family circumstances. The respondent also offers a generous sick pay scheme under which the complainant receives full basic pay, less social welfare illness benefits for up to eight weeks of sick leave per year.

The respondent submits that all employees who have unplanned absence will have their attendance at work measured; this is referred to as their “individual review level”. An individual review level consists of their unplanned absence percentage over the last 26 weeks and the number of occasions of unplanned absence in the last 26 weeks. The respondent asserts that unacceptable attendance at work over a rolling 26 week period would be when an individual absence percentage is above the acceptable level (over 5%) and the number of occasions of unplanned absence is above the acceptable level (over 2 occasions). The respondent submits that if an employee is in excess of the above, it triggers an Attendance Review Meeting where the employee’s absence may be referred to the Disciplinary Process. After the review meeting, the manager is required to decide the most appropriate course of action working within the constraints of the policy. If the manager deems disciplinary action may be appropriate, a disciplinary meeting is arranged in the normal manner.

The respondent states that the protocol followed by line managers is to hold a return to work meeting with all employees after each sick absence from work and notify the employee when they are nearing the threshold of unacceptable absence. Once an employee misses 2 or more occasions or reaches 5% absence level, they are advised at their return to work meeting if the matter will be investigated further which may lead to a disciplinary action being taken. The respondent states that the complainant rang the absent phone line on 17 October 2018 advising that he felt back pain in work on 13 October 2018 but failed to report this while at work. He said that he did not know when he would return to work and that a medical certificate would follow. The respondent states that in fact the complainant was absent from 17 October 2018 until 4 December 2018, amounting to 35 days absence with the reason given for absence on his medical certificate as back pain or acute illness or illness.

The respondent states that on 9 November 2018, while still absent, the complainant met with his line manager Mr. S in the context of a scheduled welfare meeting. The respondent states that the complainant said that he was okay, that his GP had diagnosed torn muscle/sciatica that he was off the pain and anti-inflammatory medication that had been prescribed and that his physiotherapist said it could be 4-8 weeks before he could return to work. The respondent submits that Mr. S said “Is there anything else you would like to bring to the company’s attention in relation to your absence? To which the complainant replied “not really”. Mr. S then asked “ is there anything the company could do to support you during your absence” to which the complainant replied “No” Mr. S explained that he would receive a further welfare contact by telephone soon and reminded the complainant that he needed to give 24 hours notice of return to work and must have a fitness to return to work certificate. On 26 November 2018, the complainant was informed in writing that a telephone assessment with the Company Occupational Health Advisor was scheduled for 14 December and that a meeting would follow with HR to discuss the outcome of that assessment.

The respondent states that the complainant indicated that he was returning to work on 4 December 2018 and pursuant to the Policy, his absence triggered a review of his absence (2 occasions or 5% absence within a six month period). The respondent submits that the complainant was informed of the commencement of that investigation at his return to work meeting of 4 December 2018 with his line manager Mr. S. At the return to work meeting, the complainant produced a fitness to return to work certificate from his GP which declared the complainant fully fit to work and gave no indication of the complainant having any disability. The respondent contends that when asked by Mr. S during the return to work meeting about any support, the complainant indicated that he did not require any adjustments to return to work. The review by the respondent’s Occupational Physician which had been scheduled for 14 December was cancelled after the return to work meeting based on the complainant’s fitness to return to work certificate which gave him a clean bill of health. The complainant was then given a letter which confirmed that Mr. S was convening an “Attendance Review Investigation Meeting” that would take place on 5 December 2018 to “obtain information concerning your recent absence from 17 October 2018 until 4 December 2018 – 35 days in total where your absence review level is 26.9% and the complainant was informed of his right to be accompanied by a work colleague or union representative.

The respondent submits that the investigation meeting was convened on 5 December 2018 and the complainant was accompanied by a colleague. The respondent contends that the complainant confirmed his understanding of the Absence Policy and that an absence level of over 5% could trigger a disciplinary meeting. The respondent submits that the complainant stated that the back pain had started a few days before his absence due to an accident at work (although an incident or accident has never been reported by the complainant) and confirmed that he had continued working in pain and had not reported the incident or visited his GP until his absence started. He confirmed that he had finished taking medication and was okay to work. Subsequently, the complainant was invited to an investigation outcome meeting on 7 December 2018 and was again informed that he could be accompanied. The respondent states that at the meeting the complainant was advised that Mr. S had reviewed his absence history, meeting notes, mitigating circumstances and policies and had taken the decision to forward the matter for a disciplinary hearing. The respondent states that the complainant left work on 7 December 2018 during his shift having informed his supervisor that he again had back pain. The respondent submits that although this was an unplanned absence, the supervisor exercised his discretion to support this absence and did not include the absence in the referral for disciplinary consideration.

Mr. T, Team Manager invited the complainant on 11 December to a disciplinary meeting on 13 December to “discuss your unsatisfactory attendance” as set out in the investigation meeting. At the meeting, the complainant confirmed that he had put forward all his submissions at the investigation meeting. Mr T invited the complainant to a Disciplinary Outcome meeting on 13 December 2018 where Mr. T informed the complainant that he did not find mitigating circumstances that were sufficiently satisfactory and had decided to issue a first stage verbal warning for absenteeism. This verbal warning was confirmed in writing on 20 December 2018 and set out that the verbal warning was in effect for three months and that “an immediate and sustained improvement is required” to avoid further disciplinary sanctions. The complainant lodged a letter of appeal to Mr. D(Shift Manager) on 31 December 2018 where the complainant quoted at length from the Absence Policy and set out that he had followed the absence reporting rules, that his absence was certified by a doctor and contended that he had not received any support as set out in the Absence Policy.

On 2 January 2019, Mr. D informed the complainant that he was convening an appeal hearing on 4 January 2019. At the appeal hearing the complainant was supported by a colleague. At this meeting, the complainant confirmed his understanding of the absence policy but maintained that it was the first absence since he started work and did not understand the decision to issue a verbal warning as he had provided all the documentation required by the Absence Policy. The complainant acknowledged that he had been supported by the company on many occasions to take time off work including many shift swops to facilitate childminding that avoided absence being recorded. The respondent states that when asked about the nature of his absence, the complainant said it was because of “my back pain- main problem was with my muscles, that’s all I want to tell you, there is nothing else to say, that is enough for my employer to know, the rest is for doctor and me”. At the conclusion of the meeting, the Appeal Officer confirmed with the complainant that he had said all he wanted to say and he would check the information given, give the matter consideration and review the investigation and disciplinary meetings to ensure that they were procedurally correct. The complainant was invited to an appeal outcome meeting on 18 January. At the meeting, the Appeal Officer explained in detail why he was upholding the warning and confirmed his outcome in a letter dated 8 February 2019.  

In conclusion the respondent submits that the complainant has not demonstrated that the condition he refers to in his complaint form satisfies the definition of disability under the Acts and therefore no duty to provide “reasonable accommodation” arises. The respondent submits that it is clear that neither the complainant or his doctor indicated in any way that the complainant required any assistance to return to work, indeed his doctor confirmed that he was fully fit to return to work. In addition the complainant, when asked both at a welfare meeting and his return to work meeting, stated he did not need any accommodation.

I have considered all the evidence both written and oral presented to me. 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 him. If he 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, 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;

At the outset, I am satisfied that the complainant refers to back pain which he experienced and was absent from work as a result which was certified by his doctor. However, the complainant has not established that he had a disability within the meaning of the definition as outlined above. While the complainant alleges that he suffered an injury at work, there is no evidence to substantiate this assertion. I note that no incident report was completed at the material time and there is no medical reports to substantiate this allegation. Having adduced the totality of the evidence, I am satisfied that the respondent applied its absence management policy to the complainant in the same manner as it would apply to any other employee. The respondent submitted that unacceptable attendance at work over a rolling 26 week period would be when an individual absence percentage is above the acceptable level (over 5%) and the number of occasions of unplanned absence is above the acceptable level (over 2 occasions). The respondent stated that if an employee is in excess of the above, it triggers an Attendance Review Meeting where the employee’s absence may be referred to the Disciplinary Process as happened in the case of the complainant. The respondent stated that the purpose of such a policy is to promote good attendance and to regulate the management of absence for employees. Having examined the evidence in the instant case, I consider that the complainant has not demonstrated that he has a disability within the meaning of the definition as outlined in the Acts and therefore has not demonstrated a prima facie case of discriminatory treatment on grounds of disability.

I find that the complainant did not demonstrate a prima facie case of discrimination on grounds of disability against the respondent and his complaint therefore fails.

Disability, reasonable accommodation, no prima facie case