ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033062

Parties:

	Complainant	Respondent
Parties	Nicoleta Muresan	Newpark Hotel Ltd

Representatives

Peter Behan – General Manager

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-00043748-001	26/04/2021

Date of Adjudication Hearing: 08/06/2022

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the sworn oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).

An Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates, or such other date as may be set out in Section 41(6) of the WRC Act of 2015. In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. No issue has been raised regarding the expiration date as this Complaint herein has been brought within the six months from the date of the occurrence.

Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has arisen regarding this obligation.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated the 26th of April 2021) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her disability (as detailed in Section 6 of the 1998 Act (as amended)). The Unlawful behaviour complained of includes failing to give reasonable accommodation for a disability and discrimination by reason of her disability.

The Operative Section is Section 6 of the Employment Equality Act 1998 where: -

Sub Section (1) For the purpose of this Act…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) (referred to as the “discriminatory grounds”) …

Sub Section (2) As between any 2 persons, the discriminatory grounds ...are…

(g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …

The nature and extent of the Employer’s obligations, including the employer’s obligation to provide reasonable accommodation for an employee with a disability is governed by section 16 of the Employment Equality Act 1998 (the “1998 Act”)

Section 16(1), (2) and (3) provide as follows:

(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(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 —

(iv) the financial and other costs entailed,
(v) the scale and financial resources of the employer’s business, and
(vi) 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.

In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or of the victimisation etc.. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act). This can include re-instatement or re-engagement.

Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House -v- Fox EED036 :

“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.

Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the Complainant herself must establish facts which show that she suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the Respondent to rebut any inference of discrimination that has been raised. The inference must be such that the Complainant has established a Prima Facie case that she has been treated less favourably than another person is, has been or would have been treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “disability ground”.

Prima Facie evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

The Labour Court’s (and the WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):

“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

In Nevins, Murphy & Flood v Portroe Stevedores (EDA 051) the Labour Court held in adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite:-

“That since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden…. mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.

The Adjudicator must therefore determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of by the Complainant.

Background:

This matter was heard on the 8th of June 2022 by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

Summary of Complainant’s Case:

The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 29th day of November 2021. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The oral Evidence adduced by the complainant was challenged as appropriate by the Respondent.

In the Workplace Relations Complaint Form dated the 26th of April 2021 the Complainant has stated that she has been discriminated against by her Employer by reason of her disability. The Complainant alleges that she has been constructively dismissed by reason of an unlawful discrimination arising out of her disability and in particular a failure by her Employer to provide reasonable accommodation to allow her to return to the workplace.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute

Summary of Respondent’s Case:

The Respondent entity was represented by the General Manager Mr. Peter Behan. The Respondent provided me with a comprehensive written submission dated the 3rd of June 2022. All Mr. Behan’s evidence was heard following an Affirmation. The Respondent was questioned by the Complainant.

The Respondent rejects that there has been a discriminatory Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully considered the evidence adduced in the course of this hearing.

The Complainant herein commenced her employment with the Respondent Hotel in June of 2019. The Respondent is a substantial and busy 137-bedroom hotel. The Complainant did a 40-hour week in the role of accommodation supervisor. The role involved the supervision of up to ten people and was a highly pressurised and physical job. The Complainant confirmed that she was generally overseeing the work of others, checking the rooms, and making sure that the standard was at an appropriate level. I would have to accept that even in a supervisory role, the Complainant would need to be physically hands on. She described checking behind and under beds and furniture that she would personally move around. She was expected to be able to double check the tops of wardrobes for dust. Even as a Supervisor, the Complainant was expected to carry laundry and cleaning goods and push the housekeeping trollies down the corridors.

The Complainant said that the Hotel appeared to be understaffed. She said that when people went out sick or otherwise missing, it had a negative impact on those left behind who would have to be drafted in to do extra hours and give cover.

The Complainant had an unfortunate accident in the workplace in and around September of 2019 only three months after she started the employment. The Complainant was out of work with a fracture to her leg until the beginning of December. The Complainant stated that her return to work was out of necessity and because she was determined. I note that the Complainant was paid an amount of sick leave at just over half her normal pay while she was out sick.

Three months later of course, the Hotel was forced to close down by reason of the Covid Pandemic. The Complainant was laid off and became entitled to the PUP payment in the circumstances. Some months later the Complainant returned to the workplace in and around July of 2020. Again, the Complainant felt that the workplace was understaffed and that her role was becoming more labour intensive and physical. The Complainant developed a shoulder injury and was certified unfit to work by her G.P. The Complainant was either on disability benefit or back on the PUP at this time, and was unsure which. As it happens, the Hotel closed down again in the September as the country went back into a lockdown.

The head of HR contacted the Complainant on the 26th of November 2020 to indicated that from the 2nd of December the Complainant’s position would no longer be subjected to lay-off and that there would be a change in circumstances such that she, the Complainant, would need to notify social welfare that she should be eligible for illness benefit if she was not returning to work.

I understand that when writing this letter, the head of HR had been notified by the Complainant’s line Manager that the Complainant was not available to work and that in fact, the Complainant had provided the workplace with a medical report (which was disclosed to me) from her General Practitioner and which stated that the Complainant:

“…has a right shoulder injury and left gluteal strain which causes chronic pain. I would advise that she would only return to work if there is an understanding that she does no lifting of any object heavier than a clipboard, carrying or bending.”

There can be no doubt that this report severely curtailed the Employer’s expectation of what the Complainant could now do in the workplace. The Employer was limited in what tasks, if any, it could ask the Complainant to perform. A common law duty of care was bound to apply in these circumstances.

The Complainant wanted to return to work in line with what her GP had suggested. I am told that the line Manager Ms. E sent an email (a copy of which I have seen) to the Complainant explaining that:

“…supervisor only roles are not available and as always cleaning would be a part of the role. In this regard I will require a letter outlining the expected recovery timeframe so I will be in a position to plan.”

The Complainant was upset that she was being excluded from the workplace and believed that the Employer should have taken steps to accommodate her and provide her with a “light duty” supervisory role. In fact, I note the Employer did carry out a risk assessment (with their appointed Health and Safety Officer) which confirmed the Employer’s instinctive belief that it would be highly problematic allowing an employee to re-engage with the labour intensive accommodating/housekeeping department when she was not capable of carrying anything heavier than a clipboard.

I accept that the Complainant had a disability as recognised under the Acts, and that this disability prevented her returning to the workplace alongside her colleagues who were returning at the beginning of December 2020. It seems to me that the Employer was bound to exercise appropriate care and attention not to exacerbate the injury and chronic pain described in the Complainant’s own medical report. No amount of “reasonable accommodation” could get over the fact that the Complainant could not perform her duties or any part thereof. There was no accommodation the Employer could implement which would allow the Complainant be capable of performing the functions she was engaged to perform. The Respondent’s response was perfectly reasonable in all the circumstances.

I note that in her Complaint Form the Complainant suggests that a Discriminatory Constructive Dismissal has arisen. In fact, the parties appeared to agree in the course of evidence that the Complainant never tendered a resignation and nor was she ever terminated and therefore the Employment relationship subsists.

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

Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998 CA – 00043748-001 The Complainant herein was not discriminated against and the Complaint does not succeed.

Dated: 10th October 2022

Workplace Relations Commission Adjudication Officer: Penelope McGrath