Complainant

Respondent

Anonymised Parties

 Complainant

Respondent

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-00044043-001

13/05/2021

The Complainant commenced employment with the Respondent on 28 October 2020 as a Sales Assistant. He stated that he was discriminated against as a result of his disability both when he was harassed by a colleague and when his work hours were reduced. He further asserted that the Respondent failed to make reasonable accommodation for his disability.

The Complainant stated that he made the Respondent’s HR Manager aware of his disability, namely that he had PTSD, on 23 December 2020 after displaying symptoms at work and being concerned about how this might impact on his performance. He requested that information about his disability remain confidential for fear of being stigmatised or ostracised amongst his co-workers. He stated that that the initial correspondence with the HR Manager was positive and she assured him that the Respondent did not discriminate against people with disabilities. He asserted that this was not the case at the store level however as he was harassed on an ongoing basis by an employee which exacerbated his PTSD symptoms. He stated that he exhausted all of the avenues at local level prior to reporting the continued harassment from his co-worker on 2 March 2021.

He also stated that no reasonable accommodation was made by the Respondent from the time he made them aware of his disability on 23 December to the date on which he made his complaint to the WRC. Specifically, he asserted that no assessment was carried out by the Respondent to evaluate how he could be accommodated and integrated within the store. He asserted that, as a result of such accommodation not being made for him, he felt forced to accept an offer from his manager to work 20 hours per week. He further alleged that if reasonable accommodations had been made for him, he would have been fit to continue working at full capacity.

He further stated that his hours continued to be systematically decreased from the initial 20 hours per week to 14 hours and then to 8 hours per week after he filed his grievance even though the hours of three of his colleagues who also worked part-time were increased.

On 23 December 2020, the Complainant informed the Respondent by e-mail that he suffered from the condition Post-Traumatic Stress Disorder (PTSD). The Complainant also sought support from the Respondent in terms of informing his manager of his condition. He asked the HR Manager to keep news of his disability strictly confidential. On 24 December 2020, the HR Manager also informed him that the Respondent would support him in informing his manager of his condition and also that they would not discriminate against him based on this condition. In addition, the HR Manager advised the Complainant that he could avail of the Employee Assistance Programme and passed on the details for this.

On 4 January 2021, the Complainant e-mailed the HR Manager alleging that he had been subjected to bullying behaviour by his colleague, Mr X. He also informed his manager, Mr Y, that he would like his weekly hours to be capped at a maximum of twenty hours per week. On 5 January 2021, the HR Manager tried to call the Complainant but received no reply. She then e-mailed the Complainant to explain that she had been trying to call him since receiving his e-mail. The Complainant responded by e-mail to explain that his phone number had changed. On 12 January 2021, the HR Manager contacted the Complainant in order to ask him when would it suit for a phone call. On 14 January 2021, the Complainant e-mailed the HR Manager to say that he was in-store and that he was available to meet in-person. She then arranged to meet with the Complainant in the week beginning 18 January 2021.

On 21 January 2021, the Complainant e-mailed the Respondent to say that he was exhibiting COVID-19 symptoms and would not be able to attend at work. The Complainant was paid enhanced sick pay until his return. On 4 February 2021, the Complainant returned to work following the period of paid sick leave. The HR Manager met with him on 20 February to discuss his complaint and to explain the options available to him under their policies. On 25 February 2021, following requests from the HR Manager to indicate how he wished to proceed with his complaint, the Complainant indicated that he wanted to utilise the formal route with his complaints against two of his colleagues – Mr X and Mr Y. On 2 March 2021, the Complainant submitted the full details of his formal complaint against his colleague Mr X via email to the HR Manager. No formal complaint was received in respect of Mr Y.

On 18 April 2021, the Complainant emailed the HR Manager alleging that his working hours had been reduced since he had raised his grievance against Mr X. The HR Manager responded to the Complainant to remind him that he was on an eight hour contract and that additional hours were only given when available. She advised him that if he was interested in obtaining more hours, she could look to see if roles with more hours were available in other stores.

On 6 May 2021, the Complainant emailed the HR Manager and questioned her impartiality as the Investigator of his complaints. Despite rejecting this allegation entirely, the HR Manager decided to refer the investigation to an independent third party investigator. On 6 May 2021, the Complainant was informed that an appointment had been made for him on 12 May 2022 to attend Occupational Health for the purpose of obtaining medical advice on what, if any, reasonable accommodation could be considered to best support him.

On Wednesday 12 May, the Complainant attended an Occupational Health appointment. The medical report stated that the Complainant was unfit for work due to unnamed symptoms but that he would be fit to return in four weeks’ time, on a phased basis.

On 13 May 2022 the Complainant made the within complaint to the Workplace Relations Commission. Between 31 May and 27 August 2021, an external HR Consultancy conducted a comprehensive de novo investigation of the Complainant’s allegations against Mr X and it was found that there was no basis to the allegations put forward by the Complainant. Following his return to work in June of 2021, the Complainant worked one more shift with the Respondent prior to resigning from his employment with them on 4 July 2021.

The Law

Discrimination

Discrimination in accordance with the Acts is set out in section 6 and states:

6.— (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,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

Section 16 of the Employment Equality Act states:

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 Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

Findings

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as prima facie evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he was discriminated against because he had a disability. 

The Respondent, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant stated firstly that he was discriminated against because he was bullied and harassed by his colleague. No evidence was presented however to show that this bullying and harassment was as a result of the Complainant’s alleged disability and the Complainant accepted in evidence that the perpetrator, Mr X, was unaware of his alleged disability. In the absence of any evidence to show that Mr X knew of the Complainant’s alleged disability, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

The Complainant’s also asserted that that the Respondent failed to provide reasonable accommodation for his alleged disability. The Respondent’s witness stated in evidence however that the Complainant had provided no medical certification to demonstrate that he suffered from PTSD. I note that in A Worker v An Employer EDA 1927, the Labour Court stated that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and that the Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”As there was no medical certification presented to the Respondent to show either that he had a disability or required reasonable accommodation, I find that the Complainant has not established a prima facie case of discrimination in respect of this aspect of his complaint.

The Complainant also asserted that his hours were reduced by the Respondent following the grievance that he made. As there was no evidence presented to suggest that either the grievance or the reduction of hours related to his alleged disability or that the Complainant’s line manager, Mr Y, who was responsible for scheduling the hours, was aware that he had a disability, I find that the Complainant has not established a prima facie case of discrimination in respect of this aspect of his complaint.

I find that the Complainant was not discriminated against for the reasons set out above.