ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026173
Parties:
| Complainant | Respondent |
Parties | Leah Tierney | Peter Mark Hair Salons Unlimited |
Representatives | Barry O'Donoghue of Ferrys Solicitors | Niamh Ní Cheallaigh IBEC, Claire Cotterell, Maria Byrne, Ruth O’Connor, Sinéad Bradley |
Complaint:
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-00033389-001 | 20/12/2019 |
Date of Adjudication Hearing: 08/04/2021
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Background:
The Complainant was employed as an Apprentice Hair Stylist from 12th September 2016 to 29th August 2019. She was paid €343.98 gross per week. She injured her wrist in a car accident. She had to resign her position and she has claimed that the Respondent did not provide reasonable accommodation to her due to her disability. She is seeking compensation. The Respondent has rejected this claim. |
Summary of Complainant’s Case:
The Complainant was discriminated against on grounds of disability contrary to Sec 6(2) of the Employment Equality Acts in relation to the failure to provide reasonable accommodation to take up relief receptionist work. There was no dispute to the fact that she had a disability, she had an exemplary work record and had previously carried out the role and the fact that her manager had asked her to return to work to carry out this role.
She was involved in car accident and had incurred a serious hand injury, which prevented her returning to continue her hairdressing career. She continues to undergo treatment. It is her wish to return to hairdressing at some stage in the future. She was a highly regarded member of staff. Her case is straight forward and she relies upon Sec 16 of the Act and the N Humphries v WestwoodFitness Club [2004] ELR 296 case, the Labour Court in A School v Worker EDA 30/2014 an the Supreme Court case Nano Nagle. The Respondent’s reliance upon her not having a cash handling course is both risible and unsustainable. The Respondent is seeking to impose a requirement on the Complainant which she had been doing for a considerable period of time.
Following treatment and rehabilitation the Complainant following discussion with her manager who she maintained communication with during her absence offered her receptionist duties one day a week. Unfortunately, the Complainant was unable to accept this offer as it would not be financially viable. She offered to do this on more than one day as it would not negatively impact her illness benefit. The Complainant became aware of an advertisement for a relief receptionist and she was very optimistic that she would be suitable for this post and she discussed this with her manager who undertook to raise it with the Area Manager. She was most disappointed to be advised that she would not be considered for the post as she was not formally trained in cash handling. No other information was provided and she was very surprised as she had been asked to do this role one day a week in her own salon. She felt so disappointed and isolated by this decision that she believed that she had no other alternative but to resign her position on 29th August 2019. The Respondent failed to properly engage with her in any meaningful way. It appears that the provision of reasonable accommodation was not properly considered by the Respondent.
Burden of Proof
It is well known that the apportionment of the burden of proof is governed by Sec 85A of this Act. The Complainant’s case in terms of its statutory duties which has been breached by the Respondent is premised on the two staged process laid down in N Humphries V Westwood Fitness Club. Once the Respondent was placed on notice of the Complainant’s disability it was obliged to assess the disability and how long it would last, examine the appropriate steps to be taken to reasonably accommodate the disability. These steps should have resulted in the Complainant taking up the relief receptionist duties. They should have considered the discriminatory nature and context of what was happening. They should have been sensitive to the fact that she suffered a disability and was entitled to respect and dignity in applying legal protections to her. Further case law was supplied to support her position, Nevens v Portroe Stevedores [2005] 16 ELR 282, Barton v Investec Henderson Crosthwaithe Securities Ltd [2003] 1 L.C.R. 1205 (an English decision).
She was discriminated against on disability grounds because she was denied the role of relief receptionist which she had done previously. Sec 6(1)(g) provides that discrimination on disability grounds occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability. If the Complainant were not disabled, the failure to accommodate would not have arisen. Sec 16(3)(a) provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if with the assistance of special treatment or facilities would be fully capable of carrying out those duties. Sec 16(3)(b) then goes on to place an obligation on employers to do what is reasonable to provide such treatment or facilities. The only facilitation that was required was a cash handling course. It could not be considered that such an accommodation could be considered unreasonable or disproportionate. It is clear that the Respondent has failed to give any consideration to reasonable accommodation. The rationale for imposing such an obligation on employers goes beyond the legislative framework and must be considered in the light of rights of individuals suffering with disabilities to enjoy and exercise their fundamental rights to work and earn a livelihood. The duty which the UN Convention on the Rights of Persons with Disabilities Article 5 of the Directive 2007/78/EC and Sec 16(3) of the Act imposes on the employers is a means to that end, when an employer completely ignores its obligations it deeply offends the fundamental rights of the worker. The Complainant is seeking compensation for the indignity and distress caused which forced her to resign her position.
Summary of Respondent’s Case:
The Complainant alleges that she was discriminated against by not being reasonably accommodated for a disability. The Respondent strongly refutes the claim in its entirety. The Complainant’s claim of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent as prescribed by section 85A of the Employment Equality Acts 1998-2015. The Respondent contends that the Complainant has failed to demonstrate that she was treated less favourably than a person of a different status as per the grounds of discrimination specified by the Complainant. The Respondent respectfully requests that the claim fails. Background to the Respondent The Respondent has grown into Ireland's best-known hairdressing brand and one of Europe's most successful hairstyling groups, with salons nationwide. The Respondent recruits and trains all the Trainees in-house to become stylists, in line with a succession management system. They pride themselves on their customer satisfaction levels and exceptional customer service is an integral part of the brand. Background to the Complainant The Complainant commenced employment with the Respondent on a Fixed Term Contract from 12th September 2016 until 12th September 2020 as an Apprentice Hairdresser. The Complainant’s rate of pay was €343.98 per week gross. On 29 April 2019 the Complainant was involved in a road traffic accident which resulted in an injury to her wrist. The Complainant resigned from her employment with the Respondent on 29 August 2019 as a result of the injury to her hand. Background to the claim On 29 April 2019 the Complainant was in a car accident which unfortunately left her with a small wrist fracture along with other minor injuries. The Complainant informed her manager about the accident through a WhatsApp message the following day, 30 April 2019, attaching images of the car post-accident and a doctor’s certificate stating that she was unfit to return to work. The Complainant sent her manager a WhatsApp message on 13 May 2019 informing her manager that as a result of her hospital appointment, she would now be in a hard cast for the next four weeks, and thus not in a position to work. As stated, the Complainant’s cast was removed four weeks later on 10 June 2019 which was also communicated to her manager through a WhatsApp message. Between 24 June and 4 July 2019, the Complainant was in the salon and said to her manager that she was bored at home. Her manager said to her that she could use help on the salon reception on a Friday. On 4 July 2019 the Complainant informed her manager that the tendons in her hand were in fact damaged and the doctor had requested that the Complainant did not return to work to prevent any long-term injuries. Within this message, the Complainant referred to receptionist duties, stating that she would ask her physiotherapist if she could undertake receptionist duties. She asked her manager to check with the Area Manager, if there were any available receptionist jobs. She said that she couldn’t work 1 day per week as it would affect her illness benefit. Her manager responded to the request, stating that she would ask if there was a possibility of any positions available covering the reception area. Her manager also informed the Complainant that in order to work at the reception on a regular basis, she would have to complete full reception training and cash up training. Her manager notified the Complainant on 9 July 2019 that the Area manager was unable to provide the reception hours requested by the Complainant as she was not trained to undertake the role and that they remained hopeful that the Complainant would be able to return to her original position in the coming weeks. On 19 July 2019, a total of 80 days after the Complainant was subject to a car accident, the Complainant was diagnosed with tendonitis and nerve damage. The Complainant was subsequently placed in a soft cast for a further six weeks. The Complainant exchanged correspondence with the HR Generalist, regarding sick pay and medical certificates on 20 June, 11 July and 1 August 2019, but apart from this, there was no other communications between the Complainant and the Respondent during this time. On 29 August 2019 the Complainant attended the salon and issued her letter of resignation to the Respondent. This letter bared no resentment towards the company with the Complainant stating that “I would like to thank her for being there for me as my manager” and “I would love to return to hairdressing in the future when I am healed”. The Complainant also laid out her reason for resigning which “was due to medical reasons” and due to the unforeseen length of time it may take for her injuries to heal. The Complainant finally mentions within her letter of resignation that it was her Occupational Therapist who “advised that she should find light work elsewhere” with the Complainant believing that resigning “was the best option for me at the moment”. The Area manager was in the salon when the Complainant resigned. They had a conversation during which the Complainant did not once mention reasonable accommodation, nor did she enquire about receptionist roles. She embraced the Complainant and told her that if there was anything she could do for the Complainant to let her know. The Complainant subsequently submitted a complaint form to the Workplace Relations Commission on 20 December 2019. Respondent’s Arguments Prima Facie Case of Discrimination: It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. As per Section 85A of the Act, which provides that: “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”. This requirement has been explored in several cases, including the case of Melbury Developments Limited v Arturs Valpeters, EDA 0917wherein the Labour Court stated as follows: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. 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”. The Labour Court in the case of ICON Clinical Research v Tsourova, EDA 071 stated that if: “The Court is satisfied that if the complainant can establish facts from which discrimination can be inferred the onus of proving the absence of discrimination shifts to the respondent. The test normally applied by the Court to determine if the probative burden shifts to the Respondent is that formulated in Southern Health Board v Mitchell [2001] E.L.R. 201. This requires the complainant to prove the primary facts upon which he or she relies and to satisfy the Court that those facts are of sufficient significance to raise a presumption of discrimination.” The Labour Court in Southern Health Board v Mitchell, [2001] ELR 201stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those 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 is no infringement of the principle of equal treatment”. In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” In this instance, the Complainant has alleged that the Respondent discriminated against her on the grounds of disability and that they failed to provide reasonable accommodation. The Act under Section 2(1) defines disability as follows: “In this Act, unless the context otherwise requires— ... “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;” Section 6 of the Act states: “(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, The Complainant has not set out how any alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the Complainant being the victim of discrimination. It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Complainant has not established facts from which discrimination can be inferred. The Respondent contends that the Complainant has failed to establish a prima facie case of discrimination in that she has not provided any evidence to demonstrate that she was treated less favourably than any other employee on the ground specified. Furthermore, the Complainant has failed to provide details of any comparator on which she wishes to rely. It should be noted that the Respondent has a number of employees with disabilities in their employment. These employees have conditions such as chronic back pain, cancer, substance abuse issues. The Respondent has reasonably accommodated employees by financially supporting them through rehabilitation programmes, reducing working hours, phasing returns to work for example. In other examples, a Stylist was diagnosed with MS, lost vision in one eye and moved into a Salon Co-ordinator role following an application to the role and successfully completing an interview and assessment. A Trainee Stylist developed dermatitis and also moved into a Salon Coordinator role having applied and successfully completing an interview and assessment. In response to the claim that the Respondent failed to reasonably accommodate the Complainant, it is the Respondent’s position that given the restrictions imposed on the Complainant, the Respondent was not in a position to allow the Complainant to return to work as an apprentice stylist. No reasonable accommodation could be made to the duties associated with the Complainant’s role which would satisfy these restrictions. The Respondent has a duty of care to all of its employees to ensure their health, safety and welfare at work and not permitting the employee to return to work before she was fully fit cannot be seen to amount to discrimination. Furthermore, when the Complainant casually enquired about a receptionist role she was advised that she would have to undergo training. He manager had offered the Complainant one day a week in her salon on reception but that is different to fully undertaking the duties of a salon coordinator/ receptionist. If she had been helping out in the salon one day a week she would have been answering calls and dealing with clients. However, the role of Salon Co-ordinator is far more detailed and involves specific training in order to carry out cash management, hygiene management and stock and retail management amongst other things. It should also be noted that whilst the Complainant casually enquired with her manager about a receptionist role, she did not enquire with HR about any availability. In the Respondent organisation, roles are advertised online through jobs portals. Managers would not be aware of roles that are posted. If the Complainant had enquired with HR about a receptionist role, she would have been directed to the relevant website to apply for it. This would involve interviewing for the position and undergoing 4 weeks of training. Conclusion The burden of proof rests with the Complainant to show that she has been treated less favourably than a comparable employee on the ground of disability. It is the Respondent’s position that the Complainant has failed to provide facts from which it may be inferred that discrimination has occurred and has therefore failed to establish a prima facie case of discrimination. |
Findings and Conclusions:
I note that Sec 85 A5(1) of the Employment Equality Act states, “Where is 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
I find that it has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.
I note that the Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those 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 is no infringement of the principle of equal treatment”.
I also note that In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the court stated in respect of the provision in S 85A that; “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 must 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.”
1) Prima Facie I find that the Complainant has alleged that she had a disability. I find that she has alleged that the Respondent has not provided reasonable accommodation to her. I find that she has established sufficient facts from which it may be presumed that there has been discrimination in relation to her with regard to how they addressed her injury to her hand. I find that these facts are of sufficient significance to raise a presumption of discrimination. Therefore, I find that she has established a prima facie case od discrimination and it is for the Respondent to prove the contrary. 2) Comparator I find that the Complainant has not named a comparator. However, I find in this case where there is an allegation of a failure by the Respondent to provide reasonable accommodation and as there is an obligation in law for the Respondent to address its obligations, then I find that a hypothetical comparator suffices. 3) Disability I find that the question of her disability was not challenged by the Respondent. Therefore, I find that the Complainant’s injury constitutes a disability, albeit a temporary one within the meaning of disability within the Act. 4) The Facts of the case I note that on 29th April 2019 the Complainant was in a car accident which resulted in her getting a wrist fracture along with other minor injuries.
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I note that on 13th May 2019 the Complainant informed her manager that she would be in a hard cast for four weeks and so not in a position to work. The cast was removed four weeks later on 10th June 2019.
I note that between 24th June and 4th July 2019, the Complainant visited her place of work and advised that she was bored at home and her manager offered her work on reception duties on Fridays.
I note that she declined this offer, as one day a week would impact on her illness benefit.
I note that on 4th July 2019 the Complainant informed her manager that the tendons in her hand were in fact damaged and the doctor had requested that she could not return to work to prevent any long-term injuries.
I note that she asked her manager to check with the Area Manager, if there were any available receptionist jobs, which involved more than one day a week in order to make it worth her while.
I note that she was advised that she would have to complete full reception training and cash up training, which would take four weeks.
I note that at this stage the Respondent believed that she would be able to return to work within weeks.
I note that her manager notified the Complainant on 9th July 2019 that the Area Manager was unable to provide the reception hours requested by the Complainant as she was not trained to undertake the role and that they remained hopeful that she would be able to return to her original position in the coming weeks.
I note that on 19th July 2019, which was a total of 80 days after she had the car accident she was diagnosed with tendonitis and nerve damage. She was subsequently placed in a soft cast for a further six weeks.
I note that she exchanged correspondence with the HR Generalist, regarding sick pay and medical certificates on 20th June, 11 July and on 1st August 2019. There was no other communication between the Complainant and the Respondent during this time.
I note that on 29th August 2019 the Complainant resigned in person at the salon and supplied a letter confirming this. It stated, “I would like to thank her for being there for me as my manager” and “I would love to return to hairdressing in the future when I am healed
I note that she set out her reason for resigning which “was due to medical reasons” and due to the unforeseen length of time it may take for her injuries to heal.
She also stated that in her letter of resignation that it was her Occupational Therapist who “advised that she should find light work elsewhere” with the Complainant believing that resigning “was the best option for me at the moment”.
I note that she submitted a complaint form to the Workplace Relations Commission on 20th December 2019, some four months after her resignation.
Conclusions
I find that Sec 16 (3)(b) states, an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities.
So, it is clear that once an employer is aware that an employee has a disability, albeit a temporary, it has an obligation to investigate that disability and to determine if some special treatment or facility should be provided.
I find that the Respondent was advised of the hand injury as a result of the car accident.
I find that initially the Respondent, as did the Complainant, believe that this was a temporary injury in the minor category and that she was expected to return to normal duties.
I find that between 24th June and 4th July 2019 the Complainant visited work and complained of being bored at home and the Respondent offered receptionist duties on one day a week.
I find that the Complainant declined this offer as it would impact negatively on her illness benefit.
I find that on 4th July 2019 the Complainant informed her manager that the tendons in her hand were in fact damaged and that she was advised by her Doctor that she could not return to work in order to prevent any long-term injuries.
I find that she then asked her manager to check with the Area Manager, if there were any available receptionist jobs in the Group.
I find that on 9th July 2019 she was advised that no job was available as she would have to undergo a four-week training programme and they had hoped she would be able to return to work in a number of weeks.
I find that the Respondent failed to adequately investigate the hand condition, they did not seek to rely upon any medical assessment.
I find that the Respondent was aware that the Complainant was seeking alternative work in the company that would not damage her injured hand.
I find that the Respondent failed in its obligation required by Sec 16 of this Act.
Therefore, I find that the Respondent discriminated against the Complainant because of her disability.
I find that the Complainant is entitled to compensation.
I have to take into consideration the fact that the Respondent did offer some accommodation of work on one day per week, but the Complainant declined it as it did not suit her financial situation.
Therefore, I am obliged to take this refusal of alternative work into consideration when arriving at the quantum of the award.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have decided, based on the findings as set out above, that the Respondent has discriminated against the Complainant on grounds of her disability.
I have decided that the Respondent should appraise itself of its obligations and responsibilities under Sec 16 of this Act.
I have decided that the Respondent should pay the Complainant compensation of €6,000 within six weeks of the date below.
Dated: July 9th 2021
Workplace Relations Commission Adjudication Officer: Eugene Hanly Key Words:
Failure to provide reasonable accommodation following a hand injury in hairdressing business |