Complainant

Respondent

Anonymised Parties

A Retail Worker

A Service Station

Representatives

Jill Griffin , Solicitor of Farrell McElwee Solicitors

William Maher BL instructed by Nichola Delaney of O'Flaherty & Brown Solicitors

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-00020696-001

13/07/2018

The issues in contention concern a complaint by the Complainant that she was Discriminated against on the Grounds of Race and Disability. She was denied Reasonable Accommodation and was Discriminatorily dismissed.

The Complainant was employed on a full time, 40 hours a week, basis, without incident, in the Respondent Premises since 2009. In September 2017 she experienced severe domestic/family law issues and had to go on Sick Leave from the 5th September. She remained on sick leave for the remaining duration of her employment.

In late September the Respondent sought to contact her to arrange what they called a “Welfare meeting”. The Complainant was simply too unwell to attend any meetings. A meeting was eventually arranged for the 2nd of November 2017 with Mr. A, the Shop Manager. A further meeting took place on the 13th December and she also communicated with Ms. B, the Respondent General Manger.

Throughout these meetings the Complainant sought a changed shift pattern and reduced hours. Her medical condition was well known, she was suffering from Depression and full-time work would have been impossible for her. She sought to be “Reasonably Accommodated” with reduced hours on a fixed pattern. Two other fellow employees of Irish Nationality had such hours and it was not an unreasonable demand that she be facilitated likewise. The failure to afford her such hours was racial discrimination against a non-Irish employee.

The Respondent offered her an 8-hour single shift per week- this was completely inappropriate and in the context of the case was clearly discriminatory on Race and Disability grounds against a previously full-time employee.

Her final Dismissal was clearly Discriminatory on all of the above grounds.

The Complainant was an exemplary employee until September 2017. Her marriage regrettably broke down at this time and she went on Sick Leave from the 4th September 2017. Her medical illness was never specified. The Respondent requested permission to talk to the Complainant’s GP, but this was not forthcoming. Depression, as a medical issue, was not mentioned until the 22nd January 2018.

Numerous letters/e mail were sent to the Complainant in an effort to establish contact. Eventually in the meetings with the Respondent, beginning on the 2nd November with Mr. A, the Shop Manager, the Complainant made it abundantly clear that she did not wish to return to full time hours and would need any new arrangement to facilitate her childcare arrangements. She was now, in the absence of her former partner, a single mother with very limited child care options. In addition, she alleged that she had to weigh up the financial costs of childcare as against the financial benefits of working.

This remained her position through out. The Respondent offered an 8-hour shift as an option towards getting the Complainant back to work. It was recognised that the 8-hour shift was very likely to involve additional hours per week and was not as minimal as it appeared. Ms. B, the General Manager was very sympathetic but the there were limited options for the business.

The two other Irish nationality Employees on part time hours had these arrangements as a legacy “TUPE” issue from a former owner of the business. It would not have made any good business sense to further expand this pattern of working.

In summary the Respondent made numerous efforts to attempt to facilitate the Complainant’s requests for specific hours/patterns of work, but this proved impossible due to the very inflexible request of the Complainant.

Eventually the Respondent felt that they had no choice but to end the Employment relationship which they did on the 9th February 2018. An Appeal was offered but was not taken up by the Complainant.

3:1       The Law in Employment Equality cases – the Burden of Proof – Section 85A of the Employment Equality Act.

The law in this area was comprehensively stated in both parties’ submissions. The area is also set out at length in Employment Equality Law by Bolger, Bruton and Kimber - Round Hall - 2012.

Suffice to say that the key questions in this case are

1.      Did the Complainant’s evidence give rise to an inference of discrimination sufficient to shift the burden of proof to the Respondent?

2.      Did prohibited Discrimination, as alleged, occur on Race and Disability Grounds?

3.      Was Reasonable Accommodation required and if so was it properly offered?

4.      Was the eventual ending of the Employment relationship a Discriminatory Dismissal?

Legal precedents, not withstanding, all cases must stand on their own local facts and evidence.

I will consider these next.

3:2       Consideration of the Facts and Evidence as presented.

The written submissions of both parties were detailed and focused much on the issue of whether or not the Complainant had a qualifying Disability (depression had not been mentioned until late January 2018) and whether or not the Respondent had taken appropriate steps to provide “Reasonable Accommodation”. However, an initial background observation is relevant.

3:2:1       Initial Observations – The “Earnings” Gap between working and remaining on Social Protection benefits.

A key witness was the Complainant herself.

The following facts became clear to me from her evidence.

She had been employed in a 40 hour a week minimum wage job earning approximately €376.64 a week nett.

The Complainant’s nett eligibility for a range of Social Welfare supports was approximately €300 per week nett.

In other words, her “Income gap” between working a 40-hour week for the Respondent and Social Welfare benefits was approximately €80 per week. In addition, in this context, there were a range of other SP Benefits such as a Medical Card, Back to School allowances etc to be considered.

Without any doubt on my part or indeed on the part of any parties present at the Oral Hearing this was a major factor in the Complainant’s decision-making processes.

However, taking the legal Questions posed above as a guideline I will further consider the evidence presented.

3:2:2       Did the Complainant establish an Inference of Discrimination on Race and Disability Grounds sufficient to shift the Burden of Proof to the Respondent.?

The Complainant went on Sick leave on the 4th September 2017. Her illness was not specified on her certificates until the change of Doctor in January when Depression was first mentioned on the 22nd of January. In all meetings and communications between the parties prior to this date the evidence pointed to the Complainant repeatedly stating that her main and principal issue was her marriage breakup and her subsequent child-minding difficulties. She continuously stated that a full-time job, her former position, was now impossible for her. She could not come back to this 40 hour a week role. The meetings of the 2nd November and the 13th December refer.

It is also worth noting that the Respondent had asked the Complainant to provide details of her GP and give permission for Respondent Medical advisors to follow up regarding her illness.   Surprisingly this was never forthcoming.

However, by the 14th December the issues in contention were clear – the Complainant wanted reduced Hours and a Fixed Shift pattern to facilitate her child care needs. She also had a major issue with the question of whether or not it was “worth her while” working.

The question of Discrimination was never raised during this period. Witness evidence from all sides confirmed this point.

On the Race grounds the principal plank of the Complainant’s argument was that two former colleagues had different hours from the standard shift pattern in the Shop. A two-shift system operated 06:00 to 14:00 and 14:00 to 22:00 hrs for all employees save the two other ladies. It was stated by the Respondent that this was a legacy issue from a former owner and had been TUPE to the new owners. Race had nothing to do with it as it was purely co incidental that the two Legacy Ladies happened to be Irish. They could have been of any Nationality in a business that employed a range of employees of other than Irish origin.

I had to accept this argument- I could see no specific basis in evidence of any form of Racial discrimination.

In relation to Disability and Reasonable Accommodation for same the evidence pointed to the fact that the Complainant had been certified with Depression in late January 2018. Depression has been recognised as a qualifying Disability in precious cases. Rattigan v Connacht Gold Co-Op [2008]ELR 354

Good Legal precedent from cases such as Humphries v Westwood Fitness [2004] ELR 296 would require an employer to take steps to become fully informed of the Complainant’s medical situation and to consult fully with her on its implications and how this might impact on any steps to arrive at Reasonable Accommodation. No Respondent medical inquiries were made in this case.

The offer of a single 8-hour shift as a basis for a return to work has, accordingly, to be questioned in this case. However, the oral evidence from Ms. B - the General Manager- indicted a person willing to try and find a workable solution.

The Oral evidence from the Complainant and her written presentation indicted strongly that her main issue was how to balance going back to work with her Child care arrangements and most importantly the Social Protection “Income Gap”.

In discussions at the Hearing it was clear that what the Complainant was requiring was effectively a new work arrangement from approximately 10:00 hrs and finishing at approximately 14:00 to facilitate school hours. Any work outside these hours would involve her having to pay for Childcare and effectively being at a financial loss v/v the Lone Parent and Associated Benefits.

Carefully considering this entire situation and having heard all the evidence I had to come to the conclusion that while the Respondent (evidence of Ms. B the General Manager) was willing to be as facilitative as possible no employer could resolve the Income Gap situation.

Accordingly, I concluded that there was no Discrimination on the part of the Employer in regard to Reasonable Accommodation as understood in the Employment Equality Act,1998.

3:3         Discussion of Section 16 of the Employment Equality Act,1998 as it applies in this case.

Sub Section 1 of Section 16 is quoted below

Nature and extent of employer’s obligations in certain cases.

16

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

( 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.

In this case the evidence pointed to the Complainant’s unwillingness to work unless the Social Protection issue was resolved. This was beyond the reasonable responsibility of the Respondent. As such a Section 16(1) defence appears appropriate.

On balance though is Section 16(3) where Reasonable Accommodation and Appropriate Measures are considered.

(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.

The onus is placed on the Respondent to consider what measures of financial aid/supports etc are available in a case. In this case it could be argued that the Respondent should have sought further advice from the Department of Social Protection etc as to how a special work package could be designed to suit the Complainant.

A recent Supreme Court decision in the Nano Nagle School v Daly [2019] IESC 63 gives ,in the view of most Legal commentators , gives a precedence to Sub Section 16(3) over Sub Section 16 (1).

However, on a general   common understanding of Social Protection and HSE rules regarding benefits it is virtually impossible to see how the Complainant’s current “at home” income position could be satisfactorily replicated in a work context.   I did not see how a Sub Section (3) reference, with even exhaustive SP or HSE inquires , could assist the Complainant in this case.

3:4           Discriminatory Dismissal

In the Oral evidence it was clear that the Complainant was not unduly upset by losing her position.

She did not, for example, lodge any Formal Appeal. In a case under the Unfair Dismissals Act,1997, which this case was not, the non-participation in an Appeal process would be problematic for the Complainant.

The ending of the Employment on the 9th of February 2018 was characterised by the Respondent as simply the only option left to them. They could never create a situation to match the Complainant’s Social Protection arrangements and the employment had to come to an end.

I did not find this Dismissal as being Discriminatory as normally set out in the Employment Equality Act, 1998 and Legal precedents in this area of Dismissal.

3:5       Final Summary

Having considered all the evidence and in particular the Oral evidence from the Parties I concluded that the evidence did not support a complaint of either direct Racial Discrimination or Disability Discrimination in failing to arrive at a Reasonable Accommodation. The Dismissal was not Discriminatory as understood in the Employment Equality Act,1998.

The issue of the “Income Gap” between work and benefits, which completely dominated this case, is not one that the Employment Equality Act,1998 can Address,

The claim is Not Well founded.