Complainant

Respondent

Anonymised Parties

A complainant

An aviation services company

Representatives

Barnaba Dorda SIPTU

Emma Davey, B.L. instructed by  DLA Piper

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-00042334-001

05/02/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness gave evidence under affirmation, one witness for the respondent gave evidence under affirmation.

As the complainant suffers from a hidden disability, both parties were asked for their submissions regarding anonymisation and had no objection to anonymising matters.  In the circumstances, this decision has been anonymised.

The complainant submitted that although a genuine redundancy situation existed, she was discriminatorily selected for redundancy. She was assigned to work almost exclusively in one service area as accommodation towards her disability which did not allow her to stand for extended periods.  Working in some of these other areas would have led to acquire additional skills and would have led to her scoring higher in the skills matrix that was drawn up to select employees for redundancy.

The complainant submitted that the selection criteria were not fair and that other employees who scored less than her were kept on while she was let go.

The complainant submitted that she had arthritis and had undergone a hip replacement and accordingly could not work in areas that required her to stand for a long period of time.  She submitted that the respondent had made accommodations for her and that she worked in one services area only.

The complainant submitted that while the cut-off score for redundancy was 42 points, she also submitted that the respondent gave her additional points as reasonable accommodation in recognition of the limitations her disability placed upon her gaining experience in other service areas.  She submitted that she was given the average figure for the other employees being considered for redundancy but disputed that this figure was an average as she had calculated it differently.

The respondent submitted that there was a genuine redundancy situation and that it complied a redundancy matrix with objective selection criteria.  the respondent submitted that the complainant’s selection for redundancy had nothing to do with her disability, on the contrary she had been given reasonable accommodation during her employment and during the redundancy selection process.  The respondent submitted that even though it was not in possession of written confirmation of her disability, it had at all times accepted its existence and had acted accordingly at all times.

The respondent submitted that the complainant‘s union had pushed for the inclusion of length of service as a criterion for selection for redundancy and although it initially did not want to include such, it was persuaded to include it as a criteria.  The complainant scored the maximum amount of marks awarded for this criterion.

The respondent submitted that it calculated an average amount for the skill points awarded to its employees and gave this amount to the complainant as reasonable accommodation in respect of only being able to work in one service area.

The respondent submitted that the comparator named by the complainant as receiving lower points on the skills matrix was employed and trained as a ticket agent, a separate skill set to that of the complainant.  As the Covid situation developed, it transpired that this trained cohort needed to be retained and a minimum number of these trained individuals needed to be kept on.

The respondent submitted that it was, for a while, operating with a skeleton staff who needed to be trained and certified in various areas.  The respondent submitted that the complainant did not appeal the awarding of reasonable accommodation to her nor did she pursue a grievance in relation these matters.

The respondent submitted that the complainant’s selection for redundancy was not discriminatory and noted that changing her score by 1 point, as argued by the complainant, the outcome of the selection process would not have changed.  The respondent noted that the complainant lost 7 points under the redundancy matrix for her punctuality.

The complainant submitted that although she was given reasonable accommodation throughout her employment and in the redundancy selection process, she should have been given a higher figure in relation to the reasonable accommodation she was provided with during the selection process for redundancy. 

The respondent noted that it did not possess written confirmation of the complainant’s disability but accepted its existence and gave her reasonable accommodation based on her oral requests during her employment.

A substantial cohort of the respondent’s employees worked exclusively in the same service area as the complainant.  The fact that she worked exclusively in one area was considered by the respondent when it drew up the scoring matrix for the redundancy process and the complainant was given and additional number of skills points as reasonable accommodation in respect of her disability.  This was not disputed by the complainant.  This number of additional skills points allotted to the complainant was equal to the average number of skills points awarded to all other employees under consideration for redundancy.  This resulted in the complainant achieving a score of 40 in the skills matrix.  The complainant disputed this calculation and submitted that the calculation was erroneous and should have resulted in her receiving a score of 41 in the skills matrix.  The cut-off point for redundancy was 42 points.

The complainant noted that some employees who were originally considered for redundancy scored less than she did and yet were retained in employment.  In response to this, the respondent noted that the redundancy took place during Covid and the situation with their customers was very fluid at that time.  In relation to two staff members who scored less than the complainant but were retained, they comprised a different cohort in that they possessed certification from the customer for a three-week service training course that they had undertaken.  As the Covid situation developed, it transpired that this cohort of people had to be retained but this was not related to disability but to training certification (skills) which they had already developed proficiently.

Then complainant confirmed that did not have the skill or certification to undertake the requisite roles that were retained.

The complainant agreed that there were a number of employees who worked almost exclusively in the service area where she worked who did not receive any additional skill points.  She was unaware if they had a disability or not.

Having regard to the written and oral submissions made in relation to this case, I am satisfied that the complainant suffered from a disability as encompassed by the Employment Equality Acts.  I am further satisfied that the respondent gave the complainant reasonable accommodation during the everyday course of her employment.  Arising from the complainant’s oral testimony, I am satisfied that the respondent provided her with reasonable accommodation during the redundancy selection process.  Although the complainant submitted that the calculation of the reasonable accommodation should have differed in that her own skills figures should have been included in the calculation of the average, I am not satisfied that the difference in approach to the calculation can be attributed to consideration or otherwise of her disability.  I am satisfied that the complainant was more favourably treated than her colleagues who worked almost exclusively in the same service area. 

Arising from the foregoing, I am satisfied that the complainant received more favourable treatment than her colleagues who did not have a disability. Section 85A(1) of the Employment Equality Acts, 1998, states 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.

Having regard to the foregoing, I am not satisfied that the complainant has established facts from which discrimination can be inferred.  In line with Section 85A(1) above, the burden of proof does not fall onto the respondent to rebut an inference of discrimination..  Accordingly, I am satisfied that the complainant was not discriminated against.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality Acts – Burden of Proof – discrimination not established