Complainant

Respondent

Anonymised Parties

User Interface Designer

Engineering Company

Representatives

Sherwin O'Riordan Solicitors

Management Support Services (Ireland) Ltd

Act

Complaint Reference No.

Date of Receipt

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-00029990-001

31/07/2019

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-00029990-003

31/07/2019

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-00029990-005

31/07/2019

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

CA-00030369-002

19/08/2019

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

CA-00030369-003

19/08/2019

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

CA-00031954-001

01/11/2019

The Complainant commenced employment with the Transferor on 28th September 2016. A transfer of undertakings, within the meaning of Regulation 3 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, took place on 1st February 2019 when the business of the Transferor was taken over by the Transferee (the Respondent).

The Complainant submits that the Transferee did not comply with the requirements regarding information and consultation pursuant to Regulation 8 in relation to her.    

The Complainant, who is Croatian, was diagnosed with breast cancer on 7th December 2018. She was made redundant by the Respondent on 18th August 2019 when the Respondent closed its Irish operation.

The Complainant has submitted complaints of discrimination on the grounds of both race and disability in her conditions of employment. She has also submitted a complaint of discriminatory dismissal on the ground of disability.

The following is a summary of the Complainant’s submission:

A transfer of undertakings, within the meaning of Regulation 3 of the 2003 Regulations, took place on 1st February 2019 when the business of the Transferor was taken over by the Transferee. The employees of the Transferor transferred to the Transferee and they remained in the same offices where they used the same tangible assets and intangible computer-based assets to perform their duties for the Transferee as they had done previously for the Transferor.

The Deputy Director of the Transferee, convened an impromptu meeting of the Transferor’s staff on or about 7th November 2018. The Deputy Director told those present at the meeting that the employment contracts of only two of the Transferor’s staff members had transferred to the Transferee. Neither of the two staff members were present at that meeting. The Deputy Director did not, however, indicate in any way whatsoever to those present at the meeting on 7th November 2018 that their contracts of employment would also be affected by the transfer nor did he furnish the Complainant with details of any implications for her contract of employment. The Complainant had only just been made permanent with the Transferor at the end of September 2018.

By email dated 5th February 2019, the Transferee’s Recruitment and Talent Manager first notified the Complainant that her employment contract had transferred from the Transferor to the Transferee on 1st February 2019.

EH’s email prompted a telephone discussion that afternoon between the Complainant’s colleagues in Dublin and EH, who is based in the Transferee’s head office in another country. Following on from this telephone conversation, one of the Complainant’s colleagues in Dublin sent an email to HR on 5th February 2019 complaining that no staff member had been informed prior to 1st February 2019 that the transfer would take place on that date and he also complained about the lack of information given in terms of the employees whose contracts of employment would be affected as a result of the transfer. The Deputy Director replied to this email on 5th February 2019 and alleged that he had informed all affected employees in October 2018 of the need to move from the Transferor to the Transferee and that he had instructed the Complainant’s line manager to inform her and her colleagues about the date or proposed date of the transfer. The Deputy Director acknowledged in his email that that information had not been communicated to the Complainant and her colleagues, and he apologised for this.  

It is submitted that the Transferee’s apology of 5th February 2019 does not excuse or satisfy its breach of Regulation 8 of the 2003 Regulations.

The following is a summary of the Respondent’s position:

On or about 31st October 2018, the Deputy Director held a meeting with all staff of the Transferor in the Dublin office, including the Complainant. The purpose and content of the meeting was to advise and inform the staff that all resources of the Transferor including staff would be transferring to the Transferee. During this meeting the staff raised no concerns or objections and they were informed that all terms and conditions of employment would transfer with them to the Transferee.

In relation to each specific complaint, the Respondent submits as follows:

CA-00029990-001   The Transferee did not inform employee representatives of certain details of the transfer

A meeting was held with the staff of the Transferor including the Complainant, on or about 31st October 2018. At that meeting all staff, including the Complainant, were given the required information under the regulations. They were informed that all staff the Transferor would be moved to the Transferee. In addition, at this meeting staff were informed that there would be no changes to their terms and conditions. They were was advised that the expected date of the transfer would be the end of November 2018. Ultimately, however, the date turned out to be 1st February 2019.

It is clear that the Respondent met with staff and complied with its obligations, under the regulations to inform the staff of the change and how it affected them.

Ultimately there was no change to the Complainant’s terms and conditions of employment as a result of the transfer.

CA-00029990-003   The Transferee did not consult in relation to the transfer

Section 8 (4) of S.I. No.131/2003 European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 states:

“Where the Transferor or the Transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement”.

The obligation to consult with the Complainant only arises in circumstances where either the Transferor or the Transferee prior to the transfer envisages “measures” in relation to the employees. While there no clear definition of “measures” in the regulations or in case law, the English EAT in Todd v Strain [2011] I.R.L.R. 11, held that “measures” included any action, step or arrangement including the pay arrangements whereby employees were paid earlier in the month.

The Respondent envisaged no such “measures” in relation to the Complainant and as such the obligation to consult with the employees including the Complainant under Section 8 (4) of the regulations does not apply.

CA-00029990-005   The Transferee did not advise in relation to the transfer

The regulations are silent as to what is meant by “advise” and the current case law is also silent as to what the duty to advise requires.   It is common practice, and the preferred approach of the judiciary in this jurisdiction, that where the legislation is silent as to the meaning or definition then each word should be given its ordinary common meaning. Advise is defined by the Oxford English Dictionary as: offer suggestions about the best course of action to someone. In the Cambridge Dictionary it is defined as: to give someone advice.

It is clear from the regulations that the duty to consult only arises in situations where “measures” in relation to the employee are envisaged. Therefore, giving the ordinary meaning of the word, the obligation to advise, that is to say offer suggestions as to the best course of action only arises as it does with the duty to consult in situations where “measures” are envisaged in relation to the employee.

The Respondent submits that it was not in a position to advise in relation to “measures”, in a situation where no such “measures” existed.   The Respondent contends that, at all times it acted reasonably and responsibly toward its employees.

The Respondent further submits that at all times it complied with its duty to inform the Complainant that the transfer was happening, when it would happen and the effect of the transfer on the Complainant. As no “measures” were envisaged, the requirement to consult and advise does not arise.

CA-00029990-001   The Transferee did not inform employee representatives of certain details of the transfer

Regulation 8(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that “the transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and (d) any measures envisaged in relation to the employees”.

Regulation 2 defines “employees' representatives” as:

“(a) a trade union, staff association or excepted body with which it has been the practice of the employees' employer to conduct collective bargaining negotiations, or (b) in the absence of such a trade union, staff association or excepted body, a person or persons chosen by such employees (under an arrangement put in place by the employer under Regulation 7(2) or 8(5)) from among their number to represent them in negotiations with the employer”.

Regulation 8(1) places an obligation on both the Transferor and the Transferee to inform the representatives of their respective employees affected by the transfer of a number of matters prior to the transfer.  

As the Complainant was not an employee of the Respondent (the Transferee) prior to the transfer of undertakings, I find that the Respondent did not have an obligation to her under Regulation 8(1).

The Complainant has submitted an identical complaint against the Transferor under ADJ-00023614 CA-00029990-002.

It should be noted that, pursuant to Regulation 4(1) “The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

In relation to the complaint against the Transferor, I found that the complaint was not well founded.

I find, therefore, that this complaint is not well founded.

CA-00029990-003   The Transferee did not consult in relation to the transfer

Regulation 8(4) requires that “where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement”.

Regulation 8(4) places an obligation on both the Transferor and the Transferee to inform the representatives of their respective employees affected by the transfer of any measures envisaged prior to the transfer.  

As the Complainant was not an employee of the Respondent (the Transferee) prior to the transfer of undertakings, I find that the Respondent did not have an obligation to her under Regulation 8(4).

The Complainant has submitted an identical complaint against the Transferor under ADJ-00023614 CA-00029990-004.

It should be noted that, pursuant to Regulation 4(1) “The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

In relation to the complaint against the Transferor, I found that the complaint was not well founded.

I find, therefore, that this complaint is not well founded.

CA-00029990-005   The Transferee did not advise in relation to the transfer

Regulation 8(5) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that “where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation”.

Regulation 8(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that “where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d) any measures envisaged in relation to the employees.”

In situations where there are no employee representatives in place, as was the case with the Complainant, Regulation 8(6) places an obligation on both the Transferor and the Transferee to directly inform their respective employees affected by the transfer of a number of matters prior to the transfer.  

The Complainant has submitted an identical complaint against the Transferor under ADJ-00023614 CA-00029990-005.

In relation to the complaint against the Transferor, I found that the Transferor did not comply with the requirements of Regulation 8(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 with regard to the requirement to advise the Complainant, in writing, of a proposed transfer of undertakings and to provide the information required under Regulation 8(6).

It should be noted, however, that pursuant to Regulation 4(1) “The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

In Rotsart de Hertaing v J Benoidt SA Case C-305/94 [1996] ECR I-52927, the ECJ held that:

“Article 3(1) of the Directive is to be interpreted as meaning that the contracts of employment and employment relationships existing on the date of the transfer of an undertaking, between the transferor and the workers employed in the undertaking transferred, are automatically transferred from the transferor to the transferee by the mere fact of the transfer of the undertaking, despite the contrary intention of the transferor or transferee and despite the latter’s refusal to fulfil his obligations.”

I find, therefore, that liability in respect of specific complaint ADJ-00023614 CA-00029990-004 (which is identical to the herein complaint) rests with the Transferee and not with the Transferor.

Accordingly, I find that this complaint is well founded.

CA-00029990-001   The Transferee did not inform employee representatives of certain details of the transfer

I find that this complaint is not well founded.

CA-00029990-003   The Transferee did not consult in relation to the transfer

I find that that this complaint is not well founded.

CA-00029990-005   The Transferee did not advise in relation to the transfer

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €2,800 which is approximately four weeks’ remuneration and is the maximum that can be awarded for a breach of Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

CA-00030369-002   Discrimination in Conditions of Employment on the Grounds of Race

The Complainant has submitted a complaint of discrimination by reason of her race in her conditions of employment. The following is a summary of the Complainant’s submission:

After notifying the Respondent of her cancer diagnosis on 7th December 2018, the Complainant commenced working from home on 7th January 2019 on full salary. However, on or about the 18th February 2019 the Complainant informed the Respondent that her chemotherapy had caused a high blood sugar level which made her feel quite ill. She could not work that week and she asked if she could take sick leave for a few days. The Respondent’s Recruitment and Talent Manager informed the Complainant by email dated 19th February 2019 that the Respondent had decided not to afford her paid sick leave and that she would have to apply to the Department of Employment Affairs and Social Protection for illness benefit. EH’s email stated as follows: “we will need that you go to the Social Welfare and ask for a sick leave to get the “social welfare payment”. I’m sorry but, the difference will be not covered by the company.”

The Complainant responded to this email on 20th February to say that she did not anticipate that she would need to take sick leave for more than a week and that in those circumstances she would not be eligible for illness benefit. Having been informed of the decision to refuse her paid sick leave, she suggested that she be placed on unpaid sick leave for one week.  

The Complainant subsequently backtracked and decided against this approach. On 25th February 2019, she informed the Respondent that she would have to take unpaid sick leave and seek illness benefit because she did not want to have to contend with the stresses of work whilst on chemotherapy. She stated in her email that: “My wish is that I want to be stable during chemotherapy treatment all the time and want to work but the true [sic] is that I can’t predict what can it be.”

Seven minutes later, the Respondent replied to the Complainant’s email as follows: “Thanks for your email, no worries about this change. I hope this helps you to get better and recover. I’ll let [colleagues] to know about this.”

The Complainant applied for and obtained illness benefit from in or around the end of February 2019.   She emailed the Respondent a copy of her illness benefit claim form and medical certificate every three weeks from the end of February 2019.

The Complainant submits that she was treated less favourably on the race ground then her Irish colleague, MC who had received full pay during a period of ill health.

Direct evidence of the Complainant

The Complainant asserted that she was surprised by EH’s email of 19th February 2019 in response to the Complainant’s email informing the Respondent that she was not well enough to work that week. In her email, the Respondent’s Recruitment and Talent Manager wrote: “we will need that you go to Social Welfare and ask for a sick leave to get the “social welfare payment”. I’m sorry but the difference will not be covered by the Company.”

The Complainant submits that, because of the terminal nature of her illness, she decided not to fight the Respondent’s email of 19th February 2019.

The Complainant said that she was surprised that HR did not call her. She was surprised at the unsupportive attitude of the Respondent.   There were no discussions about part-time work. The Complainant said that she was devastated to go on sick leave as she did not know how much she would be paid.

The Complainant submitted that she did not know in February 2019 that MC had received her full salary for the duration of her illness.

In response to a question from the Respondent’s representative, the Complainant said that she had been paid for 3 or 4 sick days previously. She thought it was strange that her request in February 2019 was denied but she did not query it as she found it to be so hurtful especially when neither her manager nor HR phoned her. She felt that her manager and HR lacked empathy and she needed someone warmer.

Direct evidence of MC

The Complainant’s Irish colleague, MC commenced as a Project Manager with the Respondent in June 2017.   MC contracted sepsis in August 2018 and was consequently absent from the workplace for the remainder of 2018, returning to the office in January 2019. She was hospitalised on 31st August 2018 and notified her manager AT by email of her condition. On 5th September 2018, she telephoned AT to let him know that she had been discharged from hospital and had been given a sick note covering the period 31st August 2018 to 18th September 2018.

On 18th September 2018, MC telephoned AT and told him that her GP had certified her unfit to work for another week but that she would not be strong enough to return to work on a full-time basis for some time. When MC asked AT what she should do with the sick certs she had received, he informed her that she did not need to submit any sick certs. AT instructed her not to record her absence as sick leave on the attendance tracking system. Therefore, only one week of sick leave was recorded in respect of her absence.

MC was not well enough to work until 24th September 2018 but, having consulted with the Respondent, it was agreed that she could work 2-4 hours per day from the end of September 2018 until late November 2018 when she felt able to work full-time from home. MC asserts that she was paid her full salary throughout this period and submitted a copy of her P60 for 2018 to support her assertion.

CA-00030369-003   Discrimination in Conditions of Employment on the Grounds of Disability

The Complainant has submitted a complaint of discrimination by reason of her disability in her conditions of employment. The following is a summary of the Complainant’s submission:

The Complainant submits that pursuant to Section 16 of the Employment Equality Acts, employers are obliged to take ‘appropriate measures’ to meet the needs of individuals suffering with a disability. Appropriate measures are effective and practical changes that the employer puts in place, or ought to put in place, that will enable an employee with a disability to carry out his/her duties on an equal footing with others and can include, among other things, flexible working times. An employer is obliged to take appropriate measures insofar as such measures do not constitute a ‘disproportionate burden’ on the employer.

In the within case, the Respondent recognised the Complainant’s requirement to work from home from 7th January 2019 as a result of her disability, and the Respondent was willing to make that accommodation for a period of over a month. This did not constitute an ‘unreasonable burden’ on the Respondent, and it is submitted that it would have been able to make that accommodation on a long-term basis without difficulty similar to the arrangements made with the Complainant’s comparator, MC as described above.

It is the Complainant’s position that the evidence presented demonstrates the Respondent’s failure to provide reasonable accommodation to the Complainant in terms of continuing her remote working.

The Complainant accepts that she informed the Respondent on 19th February 2019 that she was unable to work due to illness. She contends, however, that there is an obligation and an onus on an employer to probe further about ability to work. The Complainant asserts that if the Respondent had communicated with her, she could have remained on salary.

The Complainant submits that her reasonable accommodation of being able work from home was revoked without justification causing significant distress to the Complainant and causing her to be placed on unpaid sick leave from 19th February 2019 up until the date on which her employment was terminated by reason of redundancy on 18th August 2019 which resulted in a significant loss of income.

The Complainant relies on the following precedents: Nano Nagle School v Daly [2019], Humphries v Westwood and A Worker v An Employer [2005] ELR 159

Direct evidence of the Complainant

The Complainant referred to her email of 25th February 2019 in which she wrote the Respondent as follow:

“I am really sorry but I changed my mind since last week.   I was thinking about my situation and everything during the weekend and also talked to my husband. My wish is that I want to be stable during chemotherapy treatment all the time and want to work but the true [sic] is that I can’t predict what can it be. I was scared last week because I had this issue with high blood sugar and then infection so I went to the emergency because I felt terrible, couldn’t eat or drink and the temperature was high. Now I decided that it is better if I don’t have any responsibility and I can take care just for myself so I will go on the sick leave. “

The Complainant indicated that the Respondent just accepted her email and did not explore the possibility of offering her reasonable accommodation so that she could continue to work. The Complainant contends that there was a duty on the Respondent to probe a bit further to see if reasonable accommodation could be offered to her.    

The Complainant submits that there was plenty of work that she could have done from home and that it was her normal practice to work from home on 1, 2 or 3 days per week.

In response to questioning from the Respondent’s representative, the Complainant confirmed that she had not informed the Respondent at any stage after 25th February 2019 that she was fit to return to work. She said that because of the Respondent’s bad attitude, she could not face returning to work. The Complainant submitted that she could not come back to work because she did not want to be hurt again.

CA-00031954-001   Discriminatory Dismissal

The Complainant has submitted a complaint of discriminatory dismissal on the grounds of disability. The following is a summary of the Complainant’s submission:

A meeting of employees of the Dublin office took place on 28th May 2019 in the offices of the Respondent. The Complainant was not present as she had not been invited to that meeting. The Deputy Director informed those present that the Respondent’s lease was due to expire at the end of June 2019 and that it intended to move operations to a smaller office.  

A further meeting took place on 27th June 2019. Again, the Complainant had not been invited to that meeting and was consequently was not in attendance. The Complainant had kept in contact with the Respondent during this period to update them on her recovery. By way of example, she emailed the Respondent on 6th June 2019 expressing her hope to return to work in August or September 2019 and she commented that “the hardest part of curing is behind me.” MP replied on 7th June wishing the Complainant a speedy recovery and return to work. The Complainant also emailed the Respondent’s Recruitment and Talent Manager on 25th June 2019 updating her about her treatment and condition. In that email, the Complainant asked tfhe Respondent’s Recruitment and Talent Manager if there was “any important news in the company?” The Complainant did not receive a response to her query. There was no notification given to the Complainant at that time about her position being at risk of redundancy.

The Deputy Director and the Director travelled from the Respondent's head office to meet all employees on 27th June 2019.   At the meeting, they informed the staff that the Dublin office was not closing but instead the Respondent was looking to downsize to a smaller office with a view to growing the business going forward. There was no indication given to staff members at that meeting that their positions were at risk of being made redundant. However, on 1st July 2019, the Respondent issued ‘At Risk’ letters to its employees but not to the Complainant.  

The first written notification the Complainant received about her position been at risk of redundancy was on the afternoon of 12th July 2019 when the employee representative, TK copied the Complainant and other staff members on an email sent to the Deputy Director and the Director. In his email, TK set out a number of discussion points in advance of a scheduled meeting on 18th July 2019 and also some queries which he asked to be addressed prior to face-to-face meetings.   The Director replied to this email on Monday, 15th July 2019. She maintained that “consultation meetings with each of you” were in progress at that point. It is submitted that the Complainant was not invited to any such 1:1 meeting.   In her response email, the Director also spoke about the retention of positions, and “the office space/facilities that will be retained, the minimum duration and working conditions.”   She gave an assurance that the affected employees would be consulted “to ensure we arrive at a mutual agreement in relation to an alternative.”

The Complainant submits that the Respondent breached Section 8 of the Employment Equality Acts by denying the Complainant the same treatment as her peers in relation to the redundancy consultation process. In this regard, the Complainant relies on decision in Boucher v Irish Productivity Centre UD882/1992 where the EAT found:

“It is not for the tribunal to consider whether input would have made any difference, butits denial is a denial of the right of the natural and constitutional right to defend oneself which is not at the gift of the employer or of this tribunal but is vested in every citizen no less in any enquiry affecting their employment, than when the enquiry might affect their liberty.”

It is further submitted that the Complainant was denied her natural and constitutional right to engage in the consultation process by reason of her disability.

In its letter to the Complainant dated 18th July 2019, issued within three working days of the Respondent’s email to the employees’ representative, the Respondent acknowledged its failings and stated: “We are reticent that we have not made you aware of this possibility beforehand…”   This was in reference to the closure of the Dublin office and the consequent redundancies.

The Respondent invoked a consultation process following the issuance of ‘at risk’ letters to its employees of the Dublin office on 1st July 2019. Unlike her abled-bodied colleagues, the Complainant did not receive this letter and she was not invited by the Respondent to any 1:1 or group consultation meetings which took place thereafter. She did, however, receive notification from the Respondent dated 18th July 2019 of termination of her employment which acknowledged that it had “not made you aware of this possibility beforehand” because the Complainant was on “sick leave”. It is quite clear that the Complainant was discriminated against on the grounds of her disability by the manner in which she was excluded from the consultation process.

The Complainant also submits that she was discriminated against because she was dismissed whilst on unpaid sick leave.

The Complainant relies on the following precedents in support of her claim: Callaghan v Olok Limited UD219/2009 and Boucher v Irish Productivity Centre UD882/1992.

CA-00030369-002   Discrimination in Conditions of Employment on the Grounds of Race

The following is a summary of the Respondent’s submission:

In or around December 2018 the Complainant approached the Respondent and informed it that she had been diagnosed with breast cancer. The Respondent discussed working arrangements with the Complainant. As a result of their discussion, the Complainant and the Respondent agreed that the Complainant could work from home for a period of time to allow her to attend appointments and manage her own work and medical requirements.

Subsequently the Complainant took sick leave and a short time after that enquired if the Respondent would pay her for sick leave. The request was denied, in line with the Respondent’s practice that long term illness benefit is not paid.

The Complainant has claimed that she has been discriminated against on the grounds of race, in relation to the refusal of the Respondent to grant sick pay. The Complainant states that another employee was granted sick pay. It is the Respondent’s submission that no other employee has ever been paid while on long term sick leave.

Furthermore, it is the submission of the Respondent that the Complainant’s terms and conditions of Employment at section 8.2 are clear, where it is stated as follows:

“Any payments of salary during periods of absence due to sickness or injury are made at the absolute discretions of the Company”.

The Respondent has paid 14 individual employees including the Complainant sick pay within the last 2 years. The longest period of absence by any employee prior to the Complainant was 3 weeks. However, circumstances surrounding that payment were completely isolated. In that specific situation the employee concerned worked from home for a period of one month, and following that was out sick for a period of three weeks.

It is the position of the Respondent that at all times the Complainant has been treated in a manner consistent with all other employees. The Complainant has not been treated in any way differently to any other employee and has not been discriminated against by the Respondent. It has always been the position of the Respondent to assess each absence on its merits and this particular case was no different.

The Respondent acted in accordance with the Complainant’s terms and conditions of employment and simply exercised its discretion as was its contractual right as set out in the Complainant’s terms of employment which the Complainant agreed to at the time she accepted the employment.

Direct evidence of the General Manager

The General Manager refuted the Complainant’s claim that she was discriminated against on the grounds of race. He contended that the reason she had not been paid sick pay was purely financial.

The General Manager said that when the Complainant applied for sick pay, the Respondent was struggling financially and was not in a position to pay sick pay. He wished that the Complainant had contacted the Respondent to explain her situation and was disappointed that they did not have a conversation with her.

The General Manager said that no employees of the Respondent had ever been on long-term sick leave. He contended that decisions in relation to sick leave were made on an ad hoc basis.

CA-00030369-003   Discrimination in Conditions of Employment on the Grounds of Disability

The Respondent refutes the complaint.

The Respondent submits that it facilitated the Complainant in working from home. The Respondent submitted when the Complainant indicated that she was unfit for work on 19th February 2019, she did not ask to be facilitated in working from home unlike her colleague MC who had asked to work from home during a period of ill health.

The Respondent asserts that it is in no way obliged to provide reasonable accommodation for an employee who is not fit to work. The Respondent submits that the issue of reasonable accommodation only arises where an employee indicates that they are willing to work but cannot do the full job.

Direct evidence of the General Manager

At the hearing, the General Manager referred to the Complainant’s email of 25th February 2019 and said that the Complainant had indicated that she was not fit to work. When he was asked by the Complainant’s representative if he had ever thought of picking up the phone and talking to the Complainant, he responded that he did not want to put her under undue pressure.

CA-00031954-001   Discriminatory Dismissal

The following is a summary of the Respondent’s submission:

The Complainant has made a claim of discriminatory dismissal under the Employment Equality Acts. Under the complaint specific section of the Workplace Relations complaint form, the Complainant has stated: “I was denied my right to participate in a redundancy consultation process and I was dismissed whilst on unpaid sick leave”.

In or around July 2019, the Respondent met with its staff to inform them that their positions within the organisation were at risk of redundancy. It was an unfortunate error that the Complainant was not contacted at this time due to an administrative oversight. The error was noticed on or about 18th July 2019 when notice was given to all its employees that the decision had been made to close the Respondent’s Dublin office. As soon as the Respondent became aware of the mistake, it issued a letter immediately informing the Complainant of the mistake, and advising her that the decision had been made to close the Respondent’s Dublin office.   A further letter was issued to the Complainant to advise her that the Respondent would like to meet with her to discuss the matter. The Complainant responded to the letter agreeing to meet and discuss the arrangements for the redundancy.

The Respondent submits that during the course of the consultation process, the staff had been dealing with Respondent through a series of emails which were copied to all staff, including the Complainant. Even though the Complainant was on a period of long-term absence at the time, she had remote access to those emails.

The Respondent submits that there is no provision under the Employment Equality Acts which prohibits termination of employment that would otherwise be legally valid simply because the Complainant was on unpaid sick leave. In addition, denial of the Complainant’s right to be participate in a redundancy consultation process is not a dismissal in and of itself.

Furthermore, the Complainant does not appear to be claiming that her dismissal was based on disability or any of the other 9 equality grounds. What the claim appears to be stating is that she was “denied her right to participate in the redundancy process.”

In that regard, the Respondent refers to the EAT decision in the case of Nigrell v Sandra Graham 690/2013 where the EAT stated as follows:

“The Respondent’s representative accepted that there was a genuine redundancy situation and that Respondent’s complaints related to a failing on the employer’s part in affording fair procedures”.

The Tribunal was not persuaded by the Complainant’s arguments that in all instances an employer must

·         Afford the affected employee an opportunity to respond to the proposed redundancy or

·         Facilitate the employee by having a representative present or to have the employee’s views on the redundancy fairly and impartially considered or

·         Have the right to appeal the decision

Such may be good and prudent practice and is probably found in larger enterprises. However, the Tribunal is not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them.”

It is the Respondent’s submission that the same principles must apply in the instant case. The redundancy was genuine as it arose from a decision of the Respondent to cease carrying on the business in which the Complainant was employed in line with section 7(2) of the Redundancy Payments Act. In such circumstances the Respondent contends that there is no legal requirement for it to consult with any of its employees.

The Respondent submits that there was no treatment of Complainant that was in any way less favourable on the grounds of her disability. The simple fact of the matter in this particular case is that the Complainant was not contacted directly by the Respondent due to a mistake. However, the Respondent did not contact any of its staff directly and for the purpose of the consultation process dealt with the staff through their representative. At all times the Respondent attempted to engage with staff in an open an honest manner follow best practice and give the Complainant and her colleagues as much clarity as could be given.

In addition, the Respondent submits that the Complainant was included in all the correspondence between the Respondent and the staff representative. While this does not excuse the administrative error of not contacting the Complainant prior to the consultation process, it does show a genuine willingness on the part of the Respondent to engage with all staff in the process.

It is the position of the Respondent that at all times it acted responsibly and reasonably towards the Complainant. The Respondent contends that it fulfilled its obligations to the Complainant under the Employment Equality Acts.

The Respondent rejects the claim of discriminatory dismissal on the grounds of disability and contends that the failure to notify the Complainant was a simple error.   The Respondent submits that the Complainant’s dismissal was solely due to redundancy.

The Respondent submits that the issue in contention in Boucher was selection for redundancy – whereas in the herein case all the Respondent’s staff were made redundant.

Direct evidence of the Director

The Director submitted that she was in the Dublin office on 27th June 2019 to make the salesperson redundant. She took the opportunity to talk to the other members of staff while she was there and she indicated to them that the Respondent was considering downsizing the Irish operation. The Director emphasised that this was an impromptu meeting and confirmed that no written communication was issued to the Complainant about what had transpired at the meeting.

A decision was made to issue “At risk” letters to the Respondent’s Irish staff on 1st July 2019. From 1st July to 18th July 2019, the Respondent engaged in ongoing discussions to see if it was possible to retain the Dublin operation.

The Director acknowledged that the Complainant did not receive a letter on 1st July 2019 and was not included in discussions but rejected any suggestion that this was due to her absence on sick leave.

The Director met the Complainant on 16th August 2018.

The Complainant has submitted complaints of discrimination on the grounds of both race and disability in relation to her conditions of employment. She has also submitted a complaint of discriminatory dismissal on the disability ground.

I will investigate each complaint in turn.   Before I do so, I will set out a brief explanation about the burden of proof applicable in relation to complaints made pursuant to the provisions of the Employment Equality Acts.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“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.”

There are two components to a valid prima facie case. The first component of a valid prima facie case is the requirement to identify a comparator who received more favourable treatment than the Complainant did. I will deal with the issue of a comparator separately in relation to each complaint.

The second component of a valid prima facie case is that the Complainant establishes the facts from which less favourable treatment could be inferred. 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.

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:

 “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”.

Further, in Determination EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, 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.

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

CA-00030369-002   Discrimination in Conditions of Employment on the Grounds of Race

The issue for decision with regard to the herein compliant is whether or not, the Respondent discriminated against the Complainant on the race ground in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015.

I must, therefore, assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination on the race ground has been established.

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different race who received more favourable treatment than she did.     This is specified in section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person 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)”, which includes the ground of race on which the complaint was brought.

Thus, the Complainant must be the subject of less favourable treatment in comparison to another person on grounds of race i.e. because she is Croatian.

I find that the Complainant has identified MC who is Irish as a comparator who was in a “comparable situation” to the Complainant within the meaning of the Acts, to serve as a valid comparator within the meaning of section 6(1) of the Acts.

It is clear from the evidence adduced by MC that she was paid her full salary from the entirety of her period of ill health which occurred in the latter half of 2018.   The Respondent did not require her to apply to the Department of Employment Affairs and Social Protection for illness benefit and facilitated her in working from home even when she was unable to work all of her normal hours.

However, when the Complainant indicated in February 2019 that she was unable to work for a week due to the side effects of her cancer treatment, the Respondent informed her that she would have to apply to the Department of Employment Affairs and Social Protection for illness benefit and that it would not cover any loss of income.

The Complainant has demonstrated that she was treated less favourably than MC had been when MC was in a “comparable situation” to the Complainant within the meaning of the Acts. The only difference between the Complainant and MC was that MC was of a different race.

As the Complainant has established a prima facie that discrimination took place due to her race, I must now decide whether has the Respondent has adduced sufficient evidence to rebut the claim of discrimination?

The Respondent has put forward the view that the only reason that the Complainant was not granted sick leave was due to the financial difficulties which it was experiencing at the time and that it could not afford to pay sick pay to the Complainant.

Additionally, the Respondent contends that it did not pay long term sick leave. From the evidence adduced by the Complainant, it is clear that the Complainant was not initially seeking long term sick leave but that she indicated that she was unable to work for one week and asked the Respondent to pay her for her absence during that week. It was only subsequent to the Respondent’s refusal to pay her sick leave for a week that she went on long-term sick leave.

The Respondent did not adduce any evidence to show that its financial situation had altered significantly between the final four months of 2018 when MC was paid her full salary while on sick leave and February 2019 when the Complainant’s request for one week’s paid sick leave was denied.

Bearing in mind the totality of the evidence adduced, I conclude the Complainant has established a prima facie case of discrimination on the grounds of race which has not been rebutted by the Respondent.

I find, therefore, that this complaint is well founded.

CA-00030369-003   Discrimination in Conditions of Employment on the Grounds of Disability

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:

“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 definition of a disability has been interpreted in an extremely broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt BoligselskabC-335/11 and C337/11  where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.

From the evidence adduced, it is clear to me that it is not in dispute between the parties that the Complainant is a person with a disability within the meaning of Section 2(1) of the Acts. I note that the Complainant suffered from breast cancer and I agree that she is a person with a disability within the meaning of the Acts.

Section 16(1)(b) of the Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the Section, of performing the duties for which the Complainant has been employed. However, Section 16(3)(b) of the Acts provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if she/he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.

In the case of Nano Nagle School -v- Daly [2019] IESC 63 the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of Section 16 of the Acts. In this judgement MacMenamin J. held at paragraph 84 that: “… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even on the provision of reasonable accommodation, then there is no discrimination at issue.

MacMenamin J. returned to this point at par 107 of the judgment where he said:

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that Complainant, and whether the Complainant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a Complainant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.”

In setting out this test, the Court did accept that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

The Labour Court has stressed, however, that 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”: Humphreys v Westwood Fitness Club [2004] E.L.R. 296, 300. The Court (whose decision — DEE-7/2003 — was upheld by Judge Dunne in the Circuit Court) went on to say:

“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 is 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.

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.”

In Shannon Regional Fisheries Board v A Worker EDA 18/2013, the Labour Court said that the general principles set out in Humphreys require an employer to make a bona fide and informed decision concerning a disabled employee's capabilities before concluding that he or she is unable to perform the duties of their employment. The test was an objective one “to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability”. At a minimum, it required the employer “to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive”.

It is clear, from the extensive legal precedent concerning reasonable accommodation cited above, that the Employment Equality Acts place an unavoidable obligation on an employer to carry out an assessment to ascertain if measures can be put in place to enable an employee with a disability to continue in employment before making any decisions to their detriment.

However, in the instant case the Complainant indicated to the Respondent on both 19th February 2019 and 25th February 219 that she was unfit to work due to her cancer treatment. She did not indicate on either occasion that, with reasonable accommodation, she would be fit to work. I accept that the Complainant was upset because the Respondent did not telephone her and discuss her situation more fully with her when she emailed it with regard to her incapacity. I am of the view, however, that once an employee indicates that they are unfit for work due to illness, and does not suggest that this situation can be altered through the provision of reasonable accommodation, then the Respondent is not obliged to act pursuant to section 16(3) of the Employment Equality Acts and to assess if reasonable measures, within the meaning of the Acts, could be put in place to enable the Complainant to return to work.

I find, therefore, that this complaint is not well founded.

CA-00031954-001   Discriminatory Dismissal

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. This has been addressed in my decision in relation to CA-00030369-003 above where I noted that the Complainant suffered from breast cancer and I agreed that she is a person with a disability within the meaning of the Acts.

In order to make a valid prima facie case of discriminatory treatment on the ground of disability, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator who does not have a disability who received more favourable treatment than she did.     This is specified in section 6(1) of the Employment Equality Acts, which provides that discrimination shall be taken to occur where “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) ….”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability".

Thus, the Complainant must be the subject of less favourable treatment in comparison to another person on grounds of disability.

Whilst the Complainant has not named comparator, she appears to be claiming that she was treated less favourably then all of her colleagues due the fact that the Respondent failed to consult with her in a timely manner.

Whilst it is regrettable that the Respondent failed to consult appropriately with the Complainant in in relation to her redundancy, I accept the Respondent’s contention that, in line with the findings of the EAT in the Nigrell v Sandra Graham UD690/2013, there is no mandatory requirement for an employer in such a situation to facilitate a redundancy consultation process.  

I note that the Complainant relies on the decision in Boucher v Irish Productivity Centre UD882/1992 in support of her position.   That case, however, is differentiated from the herein case as the findings in Boucher were made in the context of a redundancy selection process is a situation where all employees were not being made redundant.  From the evidence adduced at the hearing, it is clear that the herein Respondent closed its entire Irish operation and made all of its staff, including the Complainant, redundant.

I note that the Complainant also grounds her claim in the fact that she was dismissed while on unpaid sick leave due to her disability. I am of the view, that in situations where an employer makes its entire workforce redundant, employees on sick leave are also encompassed by the redundancy.    

Overall, I am not satisfied that the evidence adduced by the Complainant is of sufficient significance to satisfy the test set by the Labour Court in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd above.

On balance, and after much deliberation, I am of the view that the Complainant did not establish facts from which it may be presumed that she was treated by the Respondent less favourably than a person who does not have disability or who has a different disability is, has been or would be. Accordingly, I find that the Complainant did not establish a prima facie case of discrimination on the grounds of disability in her dismissal for discriminatory reasons.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

CA-00030369-002   Discrimination in Conditions of Employment on the Grounds of Race

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that the Respondent discriminated against the Complainant on the race ground pursuant to sections 6(2)(h) of the Acts, in relation to her working conditions.   Accordingly, I find that this complaint is well founded.

In accordance with Section 82 of the Acts, I order the Respondent to pay the Complainant the sum of €20,000 by way of compensation for the distress suffered as a result of the discrimination. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.

CA-00030369-003   Discrimination in Conditions of Employment on the Grounds of Disability

I find that the Complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the Acts.   Accordingly, I find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts.

CA-00031954-001   Discriminatory Dismissal

I find that the Complainant has failed to establish a prima facie case of discrimination within the meaning of the Acts in relation to her dismissal for discriminatory reasons. I find, therefore, that this complaint is not well founded.

Transfer of Undertaking – information and consultation. Discrimination in conditions of employment – Discriminatory dismissal – race and disability grounds