Complainant

Respondent

Anonymised Parties

A Catering Assistant

A Contract Caterer

Representatives

SIPTU

Peninsula Business Services

Act

Complaint/Dispute Reference No.

Date of Receipt

(ADJ-00018759) Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00024178-001

17/12/2018

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

CA-00024178-002

17/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00024178-003

17/12/2018

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

CA-00024178-004

17/12/2018

(ADJ 20699) Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027325-001

06/03/2019

(ADJ 21283) Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027828-001

29/03/2109

(ADJ 21283) Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027829-001

29/03/2109

The complainant had referred three sets of complaints on various dates and which were assigned ADJ numbers 18759, 20699 and 21283. One of the complaints under the latter (CA-00027829-001) was withdrawn at the hearing.

The complainant had transferred to the respondent under a Transfer of Undertakings which took place on August 31st, 2018.

She had been employed by the transferor since September 2010 as a catering assistant on a contract for thirty-five hours per week. She went on sick leave in October 2017 following a diagnosis of Achilles Tendonitis and returned to work on June 18th 2018 subject to a number of conditions.

These included variety between seated and standing duties, weight restrictions and a reduction to a three-day week. This was agreed by the transferor and she returned to work on this basis including a twenty-hour week on a temporary basis as part of reasonable accommodation, and subject to review.

Then, in September 2018 she transferred to the respondent.

The complainant was on annual leave for the first week in September and was not paid. She says she was given a written warning in September without any fair process.

She advised the respondent of the reasonable accommodation arrangement with her previous employer but despite this was assigned heavy duties, and the chair she used at the till for support was removed.

She raised this issue on numerous occasions with the respondent.

In November, she requested annual leave for March 2019 and this was refused, even though she provided evidence of the prior booking she had made.

Around this time, she submitted further medical evidence of deterioration in her medical condition, and that this was likely to continue. She says the respondent told her that if she was not happy she could leave. SIPTU wrote at this stage outlining a number of grievances; the change in duties, her hours of work, holiday pay, the request for annual leave and the administration of the oral warning.

Following an unsuccessful meeting the matter was referred to the WRC (first referral; ADJ 18759).

There was further correspondence between the parties, but the complainant continued to be put on heavy duties in defiance of the medical advice and the union’s representations.

Despite producing evidence of a doctor’s appointment she was refused leave to attend and told she was leaving work without permission. She eventually was certified unfit to work on January 18th.

Her doctor repeated a request that she be facilitated with light duties.

The respondent sought the complainant’s permission to contact her GP and this was given. She was then asked to attend for independent medical assessment on March 29th but the complainant could not do so as she was going to be abroad.

She offered other, earlier dates and she eventually attended on March 21st.

At this stage another complaint were referred to the WRC.

The complainant went on holidays to Spain but was upset to note that the respondent was on the same flight and, ultimately in the same accommodation complex, and close to the complainant.

Following this a further complaint was referred to the WRC.

The first tranche of complaints referred related to the disciplinary sanction (CA-00024178-001), the failure to provide reasonable accommodation (CA-00024178-002), the failure to transfer her conditions as part of the TUPE transfer (CA-00024178-003) and a claim for outstanding annual leave (CA-00024178-004).

The first of these relates a disciplinary sanction which the complainant is appealing, as the complainant says that no procedures were followed and that her rights to fairness were not observed. The warning should be removed from her file.

In respect of the reasonable accommodation agreed with the transferor when the complainant moved to the respondent she was placed on heavy duties; the heavy pot wash and had the chair removed. The respondent could not produce a risk assessment to justify its claims about the chair being obtrusive.

The TUPE complaint relates to, the fact that the complainant’s contract terms (thirty-five hours) were not transferred as required. This had a ‘knock on’ effect on her annual leave entitlement given that her entitlements were calculated on the basis of a twenty-hour week, giving rise to the final of the first batch of complaints.

The later complaints (CA-00027325-001) was one of victimisation related to the organisation of the visit to the occupational Health doctor in March 2019. She was also denied the right to have her full-time union official present at a meeting.

The last two complaints to be made (CA-00027828-001 and 002) were also of victimisation related to meeting the complainant on holiday. These were duplicates and CA-00027828-002 was withdrawn.

The respondent says that on its acquisition of the business it was given documentary evidence that the complainant’s contracted hours were twenty and not thirty-five. This is the basis on which it calculates her annual leave and says that on that basis no annual leave is owed to her.

The respondent received a Job Description from the transferor (dated June 2018) but it did not make any reference to reasonable accommodation or light duties. This was the document agreed to facilitate the complainant’s return to work after her sick leave.

Regarding compliance with the medical requirements for reasonable accommodation it states that the stool used by the complainant when working at the till was obtruding and was a trip risk for customers. In any event the complainant did not spend prolonged periods at the till that would require her to sit for extended periods.

The respondent does accept that it was told that the complainant should be assigned to till duties on a continuous basis.

Similarly, regarding the weights the maximum specified was five kilograms and the respondent has no pots over four kilograms.

In respect of the reasonable accommodation complaint the respondent offered the complainant alternative employment (although this was over five days, which did not suit the complainant.

The complaints regarding the visit to Spain are without any foundation. The respondent manager against whom the complaint was made was not aware of the details of the complainant’s travel planes.

This is a most unfortunate case which should have been easily resolved between the parties with some effort and good will; both of which appear to have been lacking on the respondent’s side in particular.

There was evidence from the complainant of a continuing attitude of negativity towards the complainant, which is regrettable.

The problem originates, at least in part as a result of the transfer of undertakings and the adequacy of the information which passed from the transferor to the respondent.

The respondent says that in the transfer documentation it was told that the complainant’s contract was for twenty hours; and this contributes to two of the complaints.

It is clear from the evidence that while that was the position at the time of the transfer and given the complainant’s medical condition may remain that way for some time.

It is also clear that while that is what was communicated to the respondent her initial contract is for thirty-five hours, and that it has been temporarily varied with the consent of both sides, to accommodate the complainant’s medical condition.

However, that variation will only last as long as the conditions which gave rise to it persist.

Moving on from that in time there is the issue of the warning.

This warning has now expired but I accept the complainant’s evidence that the process was not conducted in line with the requirements of fair procedure and the respondent should inform himself as to what is required in that regard to comply with them in the future.

The issue at the core of the case is the provision of reasonable accommodation and that expressed itself in two ways; the removal of the seat at the till and the deployment of the complainant to the heavy pot wash.

While I accept that, in the nature of the role the complainant would not be assigned to till duties for extended periods no satisfactory explanation or risk assessment was offered to justify the removal of the seat or support.

It should not be beyond the ingenuity of the respondent to acquire a device that will both support the complainant and avoid tripping up his customers.

An Adjudicator has only limited resources to assess the precise weight demands placed on a complainant as a result of being asked to wash heavy pots. While the respondent says that none are over four kilograms, other factors must be taken into account, most obviously the weight of any water in them etc.

This suggested a reluctance on the part of the respondent to look for solutions that worked well for both the operation of his business and the complainant’s health, which are not incompatible objectives.

He is required to do so and I find that he failed to make sufficient effort in this regard and provide the complainant with the accommodation she was entitled to (and which had been agreed with the transferor.

The remaining two complaints under the Act relate to victimisation; that is where a person is penalised for making a complaint under the Equality Acts, (among others).

The first relates to the sequence of events commencing in January 2019 which started with her sick leave on January 18th prior to which the respondent had made it difficult for her to attend her GP.

She was invited to an informal meeting on February 1st but she declined to attend as her full time union official was refused permission to attend the meeting, which seemed to form part of the complaint.

Thereafter, up to the end of March there was much to-ing and fro-ing about arranging a medical appointment and the complainant bases her complaint of victimisation on ‘the ongoing and constant correspondence regarding her sick leave’ and the ‘unreasonable behaviour of the respondent’.

There is no basis for this complaint.

The ‘ongoing and constant correspondence’ is an exaggeration and refers to the invitation to the ‘informal’ meeting, a request to contact her doctor, and several attempts to arrange a consultation. This was done in line with the respondent’s sick leave policy and return to work protocol and following advice from its HR advisor.

I find nothing untoward in the conduct of the respondent in this sequence of events.

In retrospect, it is a pity the complainant did not see fit to attend the ‘informal meeting’ and her reason for not doing so has no basis; an employer may seek to meet an employee without a full time trade union official present (and should have been so advised by her union), and this initiative by the respondent may have been a missed opportunity to put matters between the parties on a better footing.

The final act concerns the complainant’s holiday in Spain.

She initially contended that she had told the individual about whose presence on the trip she complains about of the details of her holiday. It turned out that she had not done so but had told his son.

At its best, the idea that the respondent decided to book a trip to Spain at exactly the same time, and in the same place as the complainant simply to cause her upset and intimidation in retaliation for her making a complaint to the WRC was always going to be difficult to prove and it appeared fanciful.

The key element of it, that he was aware of her travel arrangements was not established by her and the respondent gave evidence that he was not aware of it. She recalled in the course of the hearing that in fact she had told the owner’s son.

In addition, he said he had no role in selecting the accommodation which was part of his travel package. He said in evidence that he made regular visits to the resort in question.

In any event, while it was undoubtedly very upsetting for her this cannot be seen as a detriment of the type envisaged in the legislation and for all these reasons I do not uphold it.

In summary I find as follows.

In relation to the disciplinary sanction (CA-00024178-001), I uphold the complaint and find that the respondent did not comply with the requirements of fair procedure. All reference to the incident should be expunged, if it has not already been.

In respect of the failure to provide reasonable accommodation (CA-00024178-002), I uphold the complaint and make my award below.

Regarding the alleged failure to transfer her conditions as part of the TUPE transfer (CA-00024178-003) I uphold the complaint and find that the complainant’s contracted hours are thirty-five but make no award as the respondent acted honestly on the basis of the information provided to him.

I repeat the point made above that that the contract had been temporarily varied with the consent of both sides (in the employer’s case the transferor), to accommodate the complainant’s medical condition, and that the variation should only last as long as the conditions which gave rise to it persist.

The claim for outstanding annual leave (CA-00024178-004) is a more difficult matter. The established formula for calculating annual leave based on hours worked is well known. The respondent accepts that the complainant is owed some annual leave.

The evidence (from records of the transferor) was that she had thirteen days leave due to her at the time of the transfer.

She took but was not paid for five days leave she took in September 2018 and the respondent says this is because she took time off without approval.

I find she is owed thirteen days leave (or, in the case of the days taken payment for the days taken).

Complaints CA-00027325-001 and CA-00027828-001 are not upheld and complaint CA-00027828-002 was withdrawn.

I uphold Complaint CA-00024178-001 and recommend that all reference to the incident should be expunged from the complainant’s file, if it has not already been. I recommend that the respondent acquaint himself with the requirements of fair procedure in respect of the administration of workplace discipline.

I uphold Complaint CA-00024178-002 and award the complainant compensation in the amount of €850.

I further order the respondent to provide reasonable accommodation for the complainant in respect of her disability while she is working on the till and to continue to have regard to the weight limits recommended, or any other provision necessary to accommodate her disability.

I uphold Complaint CA-00024178-003 and direct that the complainant’s contract and employment details be amended to take note of her contracted hours, and the basis on which the variation to the current, lower level was agreed. Her contracted hours should be reinstated when she is certified medically fit to undertake them and applies to have them reinstated.

I uphold Complaint CA-00024178-004 and find that the complainant is entitled to thirteen days‘ annual leave for which eight should be assigned as leave and payment should be made in respect of the five taken.

Complaints CA-00027325-001 and CA-00027828-001 are not upheld and complaint CA-00027828-002 was withdrawn.

TUPE, Annual Leave, Fair procedures.