ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033646
Parties:
| Complainant | Respondent |
Parties | Chloe Winters | Holland And Barrett Limited Holland And Barrett |
Representatives | Self | Avril Daly Mason Hayes & Curran |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044518-001 | 08/06/2021 |
Date of Adjudication Hearing: 24/08/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing 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.
Background:
The complainant states that: I was victimised for taking an action set out in Section 74 of the Employment Equality Acts And section 74 of the Act states: (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to — ( a ) a complaint of discrimination made by the employee to the employer, ( b ) any proceedings by a complainant, ( c ) an employee having represented or otherwise supported a complainant, ( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, ( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, ( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or ( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. The employee alleges victimisation arising from raising a grievance that she was being treated badly by the management of a supermarket for not wearing a mask: I raised a grievance with my Employer relating to my health and my exemption from the requirement to wear a face covering and the bullying I had been subjected to due to this. Following same, I was informed that I was being investigated on foot of an anonymous complaint and I have been disciplined over same. I believe that the disciplinary process ensued due to my lodging a grievance Her employer has a concession in a large supermarket store and while working at Holland and Barret she states that she experienced persistent haranguing from the supermarket line management. She raised a grievance with her own employer and concurrently she was also complained about by a customer of the store. That complaint gave rise to an investigation and a written sanction. This would not have occurred but for the grievance that she raised alleging discrimination. Her employer states that the two matters were entirely separate and no causal link exists between the grievance and the subsequent disciplinary investigation; that determined a sanction was appropriate. That sanction was given solely based on the allegation made by a customer that the employee had been argumentative and disrespectful to her. The disciplinary process related to conduct of the employee not to the fact that she had raised a grievance alleging victimisation. |
Summary of Complainant’s Case:
The complainant arising from a disability was designated as a person who was exempt from wearing a face mask. Despite this exemption she experienced repeated hostile exchanges and communication from others, who questioned why she was exempt. Eventually this level of questioning by others gave rise to her raising a complaint with her employer that she was being discriminated against. She has done nothing wrong. A customer raised a complaint about her and in turn her employer initiated an investigation that resulted in a recommendation of a written warning that is being appealed. The complaint by that customer is further evidence of discrimination. The disciplinary sanction only arose and was initiated because she had raised a grievance alleging discrimination on the ground of disability. |
Summary of Respondent’s Case:
The employee has recognised that the respondent employer has been sympathetic to the complainant relating to disability and that she is exempt from wearing a mask. That has created issues and at times conflict with others. The respondent has looked at a number of options so that the circumstances that give rise to those exchanges are minimised and proposed several possible solutions including wearing a badge saying that the complainant was exempt; changing shift times to reduce contact with others or moving to a standalone shop where she did not have to interact with others. The shop was located in a large supermarket. However, none of these were accepted as a reasonable accommodation. However, the complaint before the adjudicator relates to victimisation alleging that the employee was punished or sanctioned because she raised a grievance alleging discrimination. This is rejected. The disciplinary investigation and subsequent sanction arose based on alleged unacceptable conduct by the employee towards a customer. That sanction is being appealed. The process was fair and conducted independent of any connection to the grievance and did not commence in reaction to or to retaliate for the raising of the grievance. |
Findings and Conclusions:
The complainant in her written form states: I wrote a grievance letter to my Holland & Barrett HR on the 22nd of January, and a conference call had been set up on the 1st of February while I was working, to explain the ongoing discrimination I was dealing with Tesco. This hearing was electronically recorded also. When I finished my hearing, approximately one hour after, I went to take a break and done some shopping in Tesco. While I was out in Tesco, I had made a very minor sneeze (while covering my mouth of course) and when returning back to work, I met a customer coming out, which I was quickly told by my colleague that she had made a complaint about me because I sneezed. I was very emotional after my hearing, and I had met with her again out in Tesco and I approached her, which I understand I should not have done, but was genuinely confused and wanted to know how I had upset her. When I caught up with her, i did not attack her in any way, i just simply asked her what I had done wrong for her to complain about me. She went on to also discriminate against me, and gave out to me for sneezing. I didn't stay talking to her for any more than a minute, as she was not making a lot of sense, and eventually I walked away from her On oath the complainant accepted that her own employer had treated her well. They accepted that she had an exemption and did all they could to accommodate her. The Holland and Barrett store in this case is located within a TESCO supermarket. It is not stand alone. It is important to note that the alleged incidents occurred at the height of the Pandemic when new cases were surging and the country was in lockdown. The employer again based on evidence given under oath and accepted by the employee had explored a number of options with her; so that the conflict and upset she was experiencing could be contained. This included moving to another store and also explored a different shift pattern to minimise contact with TESCO staff or wearing a badge to show that she was exempt. A complaint of victimisation does not depend on the complaint being upheld; rather because of the complaint being made the complainant is penalised or punished. In this case on the facts the employee was reasonably accommodated; however, there did come a point where interactions between the employee and others had become tense. The employer then attempted to look at alternatives to address the concerns raised by the employee. The Act states that at Section 16: (3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer. ( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability — (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer. ( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of — (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer ’ s business, and (iii) the possibility of obtaining public funding or other assistance. (4) In subsection (3) ‘ appropriate measures ’ , in relation to a person with a disability — ( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned, ( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but ( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; The employee accepted that her employer had treated her well and had been flexible and understanding concerning the fact she was exempt from wearing a mask. The employer relies on case law and section 85(a) that states: 85A. — (1) 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. The employer states that the complainant has not established facts where it may be presumed that there has been victimisation in relation to her. And section 74 requires the employee to show that: (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to — ( a ) a complaint of discrimination made by the employee to the employer They rely on the legal test that requires the complainant to prima facie raise the presumption that but for the grievance being raised by her; the disciplinary process would not have commenced. In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test: “The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.” Up to the point where the customer made a complaint about the employee; the employee accepts that her employer was understanding of her situation. It is a fact that a customer made a complaint about the employee. The employer made a decision that it should be investigated. The employee approached the customer when told by a colleague that the customer had complained about her. The disciplinary investigation arose within a factual matrix of an employee being exempt to wear a mask; an employer who was accommodating and understanding; a customer complaint; a customer and the complainant having an interaction about her making that complaint. The main tenant according to the employee had taken issue with her not wearing a mask. They were receiving complaints from staff members who shared the canteen with the complainant and management of the supermarket, in their own right had concerns about the fact that within their store a staff member of Holland and Barret was moving freely within the store to avail of canteen services and to purchase product without wearing a mask and the public health risk and staff employee relations issues that was creating. The environment that all parties were operating under was very stressful and retail was an essential service that was required to stay open and to operate under public health regulations and guidelines. At this time hospital admissions and infection levels were rising exponentially. The employee sneezed in the store, was not wearing a mask and a customer made a complaint about her. When it was pointed out to the employee what happened, she approached that customer and asked why she had complained about her? On the facts it is this event that gave rise to an investigation that also concluded that the employee was in breach of the standard of conduct that they expected from their employees when interacting with the public and customers. That decision is being appealed. The grievance made by the employee was not an operative cause of the disciplinary investigation commencing. The disciplinary process was commenced because of the alleged inappropriate conduct that occurred between the employee and a customer who had made a complaint. The employee has not made out a prima facie case based on primary facts that tend to show that but for her raising the grievance the disciplinary process would not have commenced. The disciplinary investigation commenced based on a sequence of events; probably put in train by the employee sneezing in the store, was not wearing a mask (as she was exempt), a customer complaining and then a reaction and interaction occurs between the employee and customer that is heated and intense. It is this factual matrix that on the balance of probabilities gives rise to the investigation and not her grievance. It is the conduct of the employee towards a customer, who she approached out of the store, that became the focus of the investigation and was not started as a reaction to or because of the grievance that she made alleging discrimination. While the employee is accepted to have a disability, did raise a grievance, the facts that she relies upon to show that the presumption has been established to ground her claim of victimisation are based on the following primary facts: 1. She had a disability 2. She raised a grievance about being discriminated because of her disability 3. The disciplinary process was essentially flawed as it was based on a customer complaint and at the hearing that person’s identity was anonymised. 4. She had never done anything wrong; was not wearing a mask, because she was exempt and it was others who took offence because of this. She was the victim not the cause of any offence to others, including the customer, who she alleges was also complaining about her. 5. Because of the fact that she was exempt others took issue with that fact and she had become too problematic and difficult arising from her disability 6. It was because of this that the employer initiated the disciplinary hearing and ultimately gave her a sanction In her written statement the employee states that I was very emotional after my hearing, and I had met with her again out in Tesco and I approached her, which I understand I should not have done.
The Prima Facie test and the burden of proof that a complainant must establish to give rise to the presumption of discrimination has been extensively dealt with by the Labour Court, a frequently referenced case is Mitchell v Southern Health Board [2001] ELR 201 where the Court detailed what constitutes presumed prohibited conduct also referred to as a prima facie case:
“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 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 was no infringement of the principle of equal treatment.”
And in Cork City Council v McCarthy [EDA 21/2008] elaborated further on what this meant:
“At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
At paragraph 6.4 the respondent states:
As established in Public Appointments Services v Roddy EDA 1019, in order to meet the burden of proof under section 85A of the EEA, the Claimant must demonstrate that there is a causal connection between her taking a grievance and the alleged adverse treatment by the Respondent. The Claimant must demonstrate the primary facts from which it can be inferred that the Respondent has victimised the Claimant and that these facts are of a sufficient weight to raise a presumption of discrimination in order for her to meet the burden of proof required of her and for the burden of proof to shift to the Respondent. In accordance with the decision in Kealy v Brothers of Charity Services (Clare) Ltd DEC-E2012-042, in order to meet her burden of proof, the Claimant must demonstrate that a conclusion of victimisation can reasonably be inferred or drawn from the facts. It is submitted that the Claimant has failed to demonstrate this.
The complainant has not established facts of significance where I could reasonably conclude that victimisation is within the range of inferences which can be drawn from the facts that she relies upon. In fact the complainant accepts that she should not have approached the customer and engaged in discussion about why the customer complained about her:
that I was very emotional after my hearing, and I had met with her again out in Tesco and I approached her, which I understand I should not have done. It is this interaction that on the balance of probabilities along with the complaint made by the customer that gave rise to the disciplinary process.
On the facts the complainant has not been victimised.
|
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 determined that the complainant was not victimised arising from raising a grievance alleging discrimination as she has not established facts that give rise to an inference or presumption of victimisation that would be required to be rebutted by the respondent employer. On the facts the complainant has not been victimised. |
Dated: 8th September 2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Victimisation-Disability-Face Mask |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033646
Parties:
| Complainant | Respondent |
Parties | Chloe Winters | Holland And Barrett Limited Holland And Barrett |
Representatives | Self | Avril Daly Mason Hayes & Curran |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044518-001 | 08/06/2021 |
Date of Adjudication Hearing: 24/08/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing 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.
Background:
The complainant states that: I was victimised for taking an action set out in Section 74 of the Employment Equality Acts And section 74 of the Act states: (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to — ( a ) a complaint of discrimination made by the employee to the employer, ( b ) any proceedings by a complainant, ( c ) an employee having represented or otherwise supported a complainant, ( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, ( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, ( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or ( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. The employee alleges victimisation arising from raising a grievance that she was being treated badly by the management of a supermarket for not wearing a mask: I raised a grievance with my Employer relating to my health and my exemption from the requirement to wear a face covering and the bullying I had been subjected to due to this. Following same, I was informed that I was being investigated on foot of an anonymous complaint and I have been disciplined over same. I believe that the disciplinary process ensued due to my lodging a grievance Her employer has a concession in a large supermarket store and while working at Holland and Barret she states that she experienced persistent haranguing from the supermarket line management. She raised a grievance with her own employer and concurrently she was also complained about by a customer of the store. That complaint gave rise to an investigation and a written sanction. This would not have occurred but for the grievance that she raised alleging discrimination. Her employer states that the two matters were entirely separate and no causal link exists between the grievance and the subsequent disciplinary investigation; that determined a sanction was appropriate. That sanction was given solely based on the allegation made by a customer that the employee had been argumentative and disrespectful to her. The disciplinary process related to conduct of the employee not to the fact that she had raised a grievance alleging victimisation. |
Summary of Complainant’s Case:
The complainant arising from a disability was designated as a person who was exempt from wearing a face mask. Despite this exemption she experienced repeated hostile exchanges and communication from others, who questioned why she was exempt. Eventually this level of questioning by others gave rise to her raising a complaint with her employer that she was being discriminated against. She has done nothing wrong. A customer raised a complaint about her and in turn her employer initiated an investigation that resulted in a recommendation of a written warning that is being appealed. The complaint by that customer is further evidence of discrimination. The disciplinary sanction only arose and was initiated because she had raised a grievance alleging discrimination on the ground of disability. |
Summary of Respondent’s Case:
The employee has recognised that the respondent employer has been sympathetic to the complainant relating to disability and that she is exempt from wearing a mask. That has created issues and at times conflict with others. The respondent has looked at a number of options so that the circumstances that give rise to those exchanges are minimised and proposed several possible solutions including wearing a badge saying that the complainant was exempt; changing shift times to reduce contact with others or moving to a standalone shop where she did not have to interact with others. The shop was located in a large supermarket. However, none of these were accepted as a reasonable accommodation. However, the complaint before the adjudicator relates to victimisation alleging that the employee was punished or sanctioned because she raised a grievance alleging discrimination. This is rejected. The disciplinary investigation and subsequent sanction arose based on alleged unacceptable conduct by the employee towards a customer. That sanction is being appealed. The process was fair and conducted independent of any connection to the grievance and did not commence in reaction to or to retaliate for the raising of the grievance. |
Findings and Conclusions:
The complainant in her written form states: I wrote a grievance letter to my Holland & Barrett HR on the 22nd of January, and a conference call had been set up on the 1st of February while I was working, to explain the ongoing discrimination I was dealing with Tesco. This hearing was electronically recorded also. When I finished my hearing, approximately one hour after, I went to take a break and done some shopping in Tesco. While I was out in Tesco, I had made a very minor sneeze (while covering my mouth of course) and when returning back to work, I met a customer coming out, which I was quickly told by my colleague that she had made a complaint about me because I sneezed. I was very emotional after my hearing, and I had met with her again out in Tesco and I approached her, which I understand I should not have done, but was genuinely confused and wanted to know how I had upset her. When I caught up with her, i did not attack her in any way, i just simply asked her what I had done wrong for her to complain about me. She went on to also discriminate against me, and gave out to me for sneezing. I didn't stay talking to her for any more than a minute, as she was not making a lot of sense, and eventually I walked away from her On oath the complainant accepted that her own employer had treated her well. They accepted that she had an exemption and did all they could to accommodate her. The Holland and Barrett store in this case is located within a TESCO supermarket. It is not stand alone. It is important to note that the alleged incidents occurred at the height of the Pandemic when new cases were surging and the country was in lockdown. The employer again based on evidence given under oath and accepted by the employee had explored a number of options with her; so that the conflict and upset she was experiencing could be contained. This included moving to another store and also explored a different shift pattern to minimise contact with TESCO staff or wearing a badge to show that she was exempt. A complaint of victimisation does not depend on the complaint being upheld; rather because of the complaint being made the complainant is penalised or punished. In this case on the facts the employee was reasonably accommodated; however, there did come a point where interactions between the employee and others had become tense. The employer then attempted to look at alternatives to address the concerns raised by the employee. The Act states that at Section 16: (3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer. ( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability — (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer. ( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of — (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer ’ s business, and (iii) the possibility of obtaining public funding or other assistance. (4) In subsection (3) ‘ appropriate measures ’ , in relation to a person with a disability — ( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned, ( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but ( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; The employee accepted that her employer had treated her well and had been flexible and understanding concerning the fact she was exempt from wearing a mask. The employer relies on case law and section 85(a) that states: 85A. — (1) 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. The employer states that the complainant has not established facts where it may be presumed that there has been victimisation in relation to her. And section 74 requires the employee to show that: (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to — ( a ) a complaint of discrimination made by the employee to the employer They rely on the legal test that requires the complainant to prima facie raise the presumption that but for the grievance being raised by her; the disciplinary process would not have commenced. In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test: “The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.” Up to the point where the customer made a complaint about the employee; the employee accepts that her employer was understanding of her situation. It is a fact that a customer made a complaint about the employee. The employer made a decision that it should be investigated. The employee approached the customer when told by a colleague that the customer had complained about her. The disciplinary investigation arose within a factual matrix of an employee being exempt to wear a mask; an employer who was accommodating and understanding; a customer complaint; a customer and the complainant having an interaction about her making that complaint. The main tenant according to the employee had taken issue with her not wearing a mask. They were receiving complaints from staff members who shared the canteen with the complainant and management of the supermarket, in their own right had concerns about the fact that within their store a staff member of Holland and Barret was moving freely within the store to avail of canteen services and to purchase product without wearing a mask and the public health risk and staff employee relations issues that was creating. The environment that all parties were operating under was very stressful and retail was an essential service that was required to stay open and to operate under public health regulations and guidelines. At this time hospital admissions and infection levels were rising exponentially. The employee sneezed in the store, was not wearing a mask and a customer made a complaint about her. When it was pointed out to the employee what happened, she approached that customer and asked why she had complained about her? On the facts it is this event that gave rise to an investigation that also concluded that the employee was in breach of the standard of conduct that they expected from their employees when interacting with the public and customers. That decision is being appealed. The grievance made by the employee was not an operative cause of the disciplinary investigation commencing. The disciplinary process was commenced because of the alleged inappropriate conduct that occurred between the employee and a customer who had made a complaint. The employee has not made out a prima facie case based on primary facts that tend to show that but for her raising the grievance the disciplinary process would not have commenced. The disciplinary investigation commenced based on a sequence of events; probably put in train by the employee sneezing in the store, was not wearing a mask (as she was exempt), a customer complaining and then a reaction and interaction occurs between the employee and customer that is heated and intense. It is this factual matrix that on the balance of probabilities gives rise to the investigation and not her grievance. It is the conduct of the employee towards a customer, who she approached out of the store, that became the focus of the investigation and was not started as a reaction to or because of the grievance that she made alleging discrimination. While the employee is accepted to have a disability, did raise a grievance, the facts that she relies upon to show that the presumption has been established to ground her claim of victimisation are based on the following primary facts: 1. She had a disability 2. She raised a grievance about being discriminated because of her disability 3. The disciplinary process was essentially flawed as it was based on a customer complaint and at the hearing that person’s identity was anonymised. 4. She had never done anything wrong; was not wearing a mask, because she was exempt and it was others who took offence because of this. She was the victim not the cause of any offence to others, including the customer, who she alleges was also complaining about her. 5. Because of the fact that she was exempt others took issue with that fact and she had become too problematic and difficult arising from her disability 6. It was because of this that the employer initiated the disciplinary hearing and ultimately gave her a sanction In her written statement the employee states that I was very emotional after my hearing, and I had met with her again out in Tesco and I approached her, which I understand I should not have done.
The Prima Facie test and the burden of proof that a complainant must establish to give rise to the presumption of discrimination has been extensively dealt with by the Labour Court, a frequently referenced case is Mitchell v Southern Health Board [2001] ELR 201 where the Court detailed what constitutes presumed prohibited conduct also referred to as a prima facie case:
“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 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 was no infringement of the principle of equal treatment.”
And in Cork City Council v McCarthy [EDA 21/2008] elaborated further on what this meant:
“At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
At paragraph 6.4 the respondent states:
As established in Public Appointments Services v Roddy EDA 1019, in order to meet the burden of proof under section 85A of the EEA, the Claimant must demonstrate that there is a causal connection between her taking a grievance and the alleged adverse treatment by the Respondent. The Claimant must demonstrate the primary facts from which it can be inferred that the Respondent has victimised the Claimant and that these facts are of a sufficient weight to raise a presumption of discrimination in order for her to meet the burden of proof required of her and for the burden of proof to shift to the Respondent. In accordance with the decision in Kealy v Brothers of Charity Services (Clare) Ltd DEC-E2012-042, in order to meet her burden of proof, the Claimant must demonstrate that a conclusion of victimisation can reasonably be inferred or drawn from the facts. It is submitted that the Claimant has failed to demonstrate this.
The complainant has not established facts of significance where I could reasonably conclude that victimisation is within the range of inferences which can be drawn from the facts that she relies upon. In fact the complainant accepts that she should not have approached the customer and engaged in discussion about why the customer complained about her:
that I was very emotional after my hearing, and I had met with her again out in Tesco and I approached her, which I understand I should not have done. It is this interaction that on the balance of probabilities along with the complaint made by the customer that gave rise to the disciplinary process.
On the facts the complainant has not been victimised.
|
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 determined that the complainant was not victimised arising from raising a grievance alleging discrimination as she has not established facts that give rise to an inference or presumption of victimisation that would be required to be rebutted by the respondent employer. On the facts the complainant has not been victimised. |
Dated: 8th September 2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Victimisation-Disability-Face Mask |