Complainant

Respondent

Anonymised Parties

{A Manager}

{A Launderette}

Representatives

K McVeigh BL  Burns Nowlan LLP Solicitors

Pauline Curran Curran HR Consultancy Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00042323-001

04/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042323-002

04/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00042323-003

04/02/2021

The Complainant was employed as a Manager with the Respondent from 1st May 2015 until 11th August 2020 when she resigned.

CA-0004343-001

The Complainant was a manager with the Launderette. She was employed with the business since 2007. The business was taken over by the current owner in 2015. Her employer was aware of her serious back condition which is aggravated by standing in one place carrying out ironing. The condition is getting progressively worse. The Complainant was asked to iron even though it aggravated her back. She was diagnosed with a hormonal medical complaint in 2019. She was asked to cover a shop which did not have a toilet, so she told the owner about her condition.

The Complainant was carrying out administrative duties from March 2017 until August 2019. The owner knew her back was getting worse. She told the owner about her back surgery which was pending. The administration work ceased when she was requested to cover a colleague on annual leave in another shop. There were two staff in the shop. The owner took on a friend to cover the administration work, so this person could take over when the Complainant had surgery. The owner’s friend was then employed full-time.  In March 2020, the Complainant was laid off due to Covid-19. She was informed the business would reopen on 31st August 2020.

On 27th July 2020 she was given two options for her return, both options included ironing as part of the role. The Complainant was being forced out of her role.

Her role was changed. The company failed to give her a suitable role, she had no alternative but to resign. She informed the company that the new position was unsuitable and put her mental and physical health at risk. The owner could have offered counter work in one shop or administration in the factory, but did not.  The Complainant was not given the grievance procedure. She resigned on 11th August 2020.

CA-0004343-002

The Complainant was not provided with a contract of employment. She has not seen the contract produced and it does not look like her signature.

CA-0004343-003

The Complainant withdraws her complaint of gender discrimination. The Complainant was discriminated against due to her disabilities. No reasonable accommodation was provided for her disabilities which are a serious back condition and hormonal medical condition. She required access to a bathroom.

CA-0004343-001

The Respondent produced a contract of employment signed by the Complainant at the hearing. The owner took over the business in April 2014. The business was inspected by the National Employment Rights Agency in 2012 and all employees were given contracts of employment.

The owner knew about the Complainant’s back condition in 2018. He was told by the Complainant that nothing could be done for her back. In 2019 the Complainant told him her new surgeon wanted her to go for surgery in the UK. The owner was told this was likely to take place very soon. The Respondent says they took on a new member of staff to cover the Complainant’s role. However, six months passed, and they did not receive anything from the doctor about the surgery in the UK. The owner was constantly asking the Complainant when her surgery would take place. The Complainant told him to arrange cover for her role. She suggested the person to cover her role as she knew him.

The owner gave evidence the snow and bad weather affected the business as the shops were closed for two weeks in 2018, then the heatwave. The business lost about fifty thousand euro and was under pressure. He said the Complainant chose to go to the particular shop where there were two employees present, but only one was needed for the shop. The Respondent says very little ironing was required maybe two or three customers per week. He says the Complainant did her own ironing in the shop and never said she had any issue or problem. She never missed a day’s work. She was very good at ironing. He worked alongside her in 2014 and she carried out all jobs.

The owner said he had a meeting with the Complainant’s partner who said she was not able to iron. The Complainant never said this or put anything in writing about this. The owner said the Complainant was given an appropriate amount of ironing and the pressure was very minimal. He did not receive any information from the Complainant or doctor’s certificate confirming there was a problem. He had to be fair to both staff in the shop and share the ironing duties. He trusted and believed the Complainant about her conditions. He has not seen any medical evidence that says the Complainant cannot iron. The Complainant was on the Pandemic Unemployment Payment at the time he asked her to return to work in August 2020. He felt he accommodated the Complainant. The Respondent says the conversation between the Complainant and another member of staff regarding her return to work after Covid-19 was an inquiry to see what staff were available to return and their circumstances.

A colleague of the Complainant attended the hearing. She gave evidence that the staff would provide an express service washing and ironing in the store if the items could be done quickly. If not, they had the option to send the clothes to the factory. She said she saw the Complainant wash, dry and iron her personal items in the shop every week. She said the Complainant told her about her back pain, and that she did not want to do ironing because she cannot stand. She said she never saw the Complainant crying about her back.

The Respondent said the Complainant was on the PUP and refused to return to work on 31 August 2020.

CA-0004343-002

The Respondent says the National Employment Rights Agency inspected the business in 2012. All employees were issued with approved contracts of employment at the time. The Complainant’s signed contract of employment was on file when the owner took over the business in April 2014.

CA-0004343-003

The Respondent denies any discrimination and says they accommodated the Complainant. The owner was never informed by the Complainant that she could not iron. He did not receive any medical evidence of this. The Respondent accommodated the Complainant when she said she could not work in a store as she needed a toilet.

I heard and considered the written and oral evidence of the parties, their witnesses and submissions.

Due to the nature of the Complainant’s medical conditions, I am anonymising the identities of the parties to the complaints.

CA-0004343-001

The Complainant’s claims unfair dismissal pursuant to S 6 of the Unfair Dismissals Act 1977-2015 and that she has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached her contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Complainant had long service with the Respondent having commenced working for the business in 2007. The Complainant says she never had a written contract of employment. She denies receiving the contract of employment which was on file when the current owner took over in 2014. The Complainant says she was not aware of any grievance procedure. It is accepted that the Complainant had a long-standing back complaint.

The Complainant was working in an administration role in 2017 which suited her back. She was moved to cover other staff in 2019, when another member of staff was employed to cover her role while waiting for her back surgery. She then worked in a shop with another colleague. The Complainant says she has to move around with her back condition. She has difficulty standing in one place doing ironing. The Complainant accepts she continued to carry out ironing.  

The Respondent knew about the Complainant’s back complaint. The owner says he was unaware that she had any difficulty carrying out ironing. The Complainant never provided any medical certificate saying she could not iron or raised it with the owner.  

The Complainant was laid off during the Covid-19 pandemic. She was initially contacted regarding her return to work in the shop full-time which she agreed. Later she was asked if she could take on laundry and ironing duties in the shop and cover other shops if necessary. This included one shop without a toilet which she previously said was not suitable. She would be working by herself and taking on all laundry and ironing duties. The Complainant said she felt forced out as the owner knew she would not be able for this with her back condition. She could have worked in the factory administration role or at the counter in the shop, but they did not offer these positions. She felt she had no option but to resign.

Having considered the evidence, I am not satisfied the Respondent acted reasonably regarding the Complainant’s return to work in 2020. The Complainant was a manager of long-standing who had an excellent relationship with the owner. The Respondent was well aware of the Complainant’s serious back condition. She was moved out of her administration role in 2019 in anticipation of back surgery which was not scheduled. After the pandemic, the business restructured. However, there is no evidence of any consultation with the Complainant regarding proposed changes to her role due to the restructuring or attempt to facilitate her concern about the changes.  There is no explanation why the Complainant did not return to the administration role in the factory, as the employee providing cover had left. No effort was made to resolve the issues after the Complainant resigned.

I find the Complainant was unfairly dismissed. The appropriate redress is compensation. The Complainant has financial loss of €21,640.00 and continuing loss of €80 per week. In all the circumstances, it is just and equitable that the Complainant be awarded her financial loss of net €21,640.00 and I direct payment by the Respondent.

CA-0004343-002

The Complainant complains she never received any contract of employment in breach of S7 of the Terms of Employment (Information) Act 1994. I find the complaint to be well founded and award one week’s wages of net €460.00 compensation for the breach and I direct payment of this by the Respondent.

CA-0004343-003

The Complainant alleges that she has been (i) discriminated against in terms of S6 (2) (g) of the Employment Equality Acts 1998-2015 on the grounds of disability and (ii) that the Respondent failed to afford reasonable accommodation for her disabilities pursuant to S16 of the Employment Equality Acts 1998-2015.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

S16 of the Acts provides that 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. 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.

The Complainant suffers from a deteriorating back condition and a hormonal medical condition. Following the hearing the Complainant provided medical notes evidencing her hormonal medical condition which is a disability within the meaning of the Employment Equality Acts 1998-2015.

The Complainant informed the owner about her back condition in 2018 and pending surgery in 2019. She did not provide any medical recommendations from her doctor seeking accommodation for a difficulty with ironing for her employer. The Complainant has not provided any evidence of less favourable treatment by her employer due to her disability. The Respondent denies any discrimination or failure to reasonably accommodate the Complainant.

I find a prima facie case of discrimination on the disability ground has not been raised by the Complainant, and the complaint fails.

CA-0004343-001

The Complainant was unfairly dismissed. I award compensation for financial loss of net €21,640.00 and I direct payment by the Respondent.

CA-0004343-002

The complaint is well founded. I award one week’s wages of net €460.00 compensation and direct payment by the Respondent.

CA-0004343-003

No prima facie case of discrimination has been raised and the complaint fails.

Constructive dismissal, reasonableness, lack of consultation on restructure, discrimination no prima facie case