Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Shop

Representatives

  Complainant

Rory O'brien McIntyre O'Brien Solicitors

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-00048314-001

25/01/2022

The complainant is alleging discrimination in relation to reasonable accommodation for a disability and discriminatory dismissal.

At the outset of the hearing it was agreed to correct the legal title of the respondent. Due to the complaint relating to mental health difficulties of the complainant, I have decided that both parties should not be named in the Decision.

Evidence was given under oath/affirmation by the complainant, and both co-owners of the business for the respondent.  All evidence was subject to cross examination.

Included in the complaint is the complainant’s assertion that the respondent did not pay statutory notice. I note the finding of the High Court in Co Louth VEC v Equality Tribunal [2009] IEHC 370 that;

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.

Applying this dictum, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the respondent knows the issues it faces. In this case, the issue of notice is clearly raised in the complaint form. The respondent was supplied with the complaint form and knew of the issue of claimed outstanding notice. I find therefore, that I have jurisdiction to deal with the claim of unpaid notice.

In late November/early December2021 the complainant made the respondent aware of her mental health difficulties. She told the respondent that she had come off her medication a few months prior but had been struggling recently. She asked if it would be possible to work four days a week instead of five. The complainant’s contract stated that she would work in excess of 30 hours a week which could easily be done in four days. The respondent said they would look into this when drafting the next rota. No reasonable accommodation was made for the complainant as she was dismissed just a few weeks later.

On the 9th of December 2021 the respondent asked the complainant if she wanted to take three weeks off during the Christmas period as they had a lot of staff available around that time. The complainant declined as her mental health issues were not affecting her ability to do her job. After this the complainant had a period of illness due to a throat infection. The respondent informed her that she would be taking her off the rota for a week due to this illness because she could not take the risk that she would not be able to come into work. After returning to work on the 28th of December, the complainant contracted COVID 19 on the 30th of December. On the day that she finished her isolation, the complainant was asked by the respondent via text message to meet with her to talk. During this meeting on the 10th of January the complainant was dismissed. The complainant had been scheduled to work on the 13th of January and therefore was given no notice of this dismissal. The respondent informed her that she had been paying her holiday pay, without the complainant’s knowledge, over the period when she was isolating with Covid. This proves that the respondent knew that she was going to dismiss the complainant for weeks, without making her aware or giving any notice. The respondent stated that the complainant’s absences from work were an issue and that she could tell that the complainant was struggling mentally. The complainant was told that she should go and sort out her mental health. The respondent stated: “You are in no physical or mental state to be working here, or anywhere else for that matter.” However, the respondent also stated during the meeting that she was aware that the complainant was genuinely ill on every occasion she was unable to attend work.

The respondent also said that, due to the size of the company, they could not cover any days of absence that the complainant needed due to issues with mental or physical health. She also made comments on how the complainant looked ill and very pale when she was at work. While the complainant did have a few periods of absence due to physical illness, she made the respondent aware that she had doctors’ certificates to cover these days. The complainant felt completely humiliated as she had previously opened up to the respondent about her mental health struggles, which is not something that is done easily. The complainant felt that these issues were now being used against her as a reason for her dismissal. Her mental health issues did not at any time prevent her from carrying out her work duties adequately just like every other employee. Prior to this meeting on January 10th, the respondent had never stated that the complainant’s mental or physical health were interfering with her job. She was never informed, verbally or in writing, that her performance in this job was below standard or inadequate, for any reason. This is why the complainant was extremely shocked to be dismissed so abruptly. While the respondent did not explicitly say the complainant was being dismissed due to her mental health, it was heavily inferred due to the comments outlined above. It was also evident due to the timeline of making the respondent aware of her issues and being dismissed only a few weeks later. Since the complainant was dismissed abruptly and with no notice, she was left with no source of income.

The complainant commenced employment on 16/8/21. She was employed as a Sales Assistant. The employment was terminated on 10/1/22.

At some point in December 2022, the complainant said to co-owner of the business, Ms A, that she had been suffering from mental health issues. The complainant asked for a 4-day week. Ms A said she would allow her a 4-day working week but only after the busy Christmas period, to allow everyone the days off they had requested over Christmas.

Ms A said to the complainant on several dates prior to dismissal and during the employment that her performance was unsatisfactory. The complainant would consistently stay behind the tills and fail to do other jobs to be done on the shop floor such as stocking, facing off, sweeping floors, cleaning coffee machine, label checking etc.  Mr B, the other co-owner, also spoke to the complainant on a number of dates to say she must complete jobs without constantly having to be asked.  The complainant consistently claimed of being sick, being tired and having migraines. The complainant never specified an overall medical condition to the respondent as being the cause. The other staff complained about having to work with the complainant as they felt they were doing their own work and the complainant’s also on the days the complainant was working. In December 2021, the complainant made a joke to a member of staff of the fact that “she had never lifted a floor brush”, a standard job for every member of staff. Other staff expressed their concern about the complainant working over the Christmas period as they felt she would ring in sick and they would end up having to cover her shifts.

 On 26/10/21 the complainant texted Ms A to say she had a flu and had booked a covid test. No doctor’s cert was furnished.  On 9/11/21 the complainant texted Ms A to say out sick with flu again. No doctor’s cert was furnished. On 2/12/21 the complainant texted Ms A to say her doctor told her to stay off. She furnished a doctor’s cert. On 5/12/21 Ms A texted the complainant to say someone could cover for her if she needed an extra couple of days off. The complainant responded “that would be great as my migraines are still coming on very bad”.  On 9/12/21 Ms A texted the complainant to say she had plenty of cover over Christmas if the complainant wanted to take some time off. The complainant said she did not want time off. On 17/12/21 the complainant was out sick again “waiting for my antibiotics to kick in” and furnished a doctor’s cert. On 30/12/21 the complainant advised Ms A that she was positive with Covid.

The respondent does not pay sick pay. The contract of employment does not provide for sick pay. It was custom and practise that if staff were out sick, the respondent paid annual leave, especially if it was coming to the end of the year, as annual leave does not carry over into the next year. The complainant was receiving payments while out sick and was emailed a payslip every week which detailed that her payment was holidays and she never queried this.

On 10/1/22 Ms A had a meeting with the complainant and dismissed her due to performance and level of absence. Ms A said the complainant should get her health checked but she was referring to physical health in the context of the complainant having been absent frequently from work reporting different physical illnesses. The complainant’s contract of employment states:-

“A poor record of attendance may lead to disciplinary action up to and including dismissal”.

There was a 6 months’ probation clause in the contract of employment which stated:-

“However, should Management deem you to be unsuitable at any point during this period despite all reasonable efforts, management reserve the right to terminate your employment at any stage during your probation”.

The complainant was not discriminated on the grounds of her mental health. The respondent did not terminate the complainant’s employment due to any mental health issues. The complainant’s absences were for different isolated physical illnesses of flu, migraine and Covid 19 (2 of which were covered by doctor’s Cert). The complainant never attributed her absence as being due to mental health, either in certificate form or otherwise. The complainant was out sick 5 times in 10 weeks (with physical illnesses).

Ms A herself previously suffered from Post Natal Depression on two occasions and there was a history of mental health issues in her immediate family. Ms A was sympathetic to any mental health issues and did not dismiss because of such issues.

There are two issues to be addressed in relation to the claims made under the Employment Equality Act;  Firstly, was the complainant denied reasonable accommodation as required under the Act and; secondly, was the complainant discriminatorily dismissed because of her disability?

Reasonable accommodation

Section 16(1) of the Employment Equality Act recognises the fact that there is no legal obligation of an employer to retain an employee who, even with the provision of reasonable accommodation, is not able to perform the essential functions of their jobs.   However, where reasonable accommodation does render them able to do their full duties, any purported dismissal would be considered unlawful. Forms of reasonable accommodation include the adaptation of premises and equipment, patterns of working times, distribution of working tasks, provision of training, etc.   The obligation of reasonable accommodation placed on employers is capped at the limit of not greater than what constitutes a disproportionate burden on the employer.

What was being sought by the complainant in this instance was an adjustment to her working hours and seems to me to fall within what could be considered to be a reasonable accommodation without placing a disproportionate burden on the employer.  The evidence of the complainant is that, when she first made the request to work 4 days per week, the respondent did not tell her that she would make the adjustment in the hours after Christmas, but rather that she would ‘look into it’.  The respondent, on the other hand, says that she said she would allow the adjustment but only after Christmas.   Given that the rota was already in place for the Christmas period I don’t think it unreasonable that the respondent should wait until the next rota was being drawn up before implementing the change requested.  It is clear that the respondent indicated, at a minimum, that she would consider the request.  Whether or not she would have implemented the revised hours is not known as the complainant was dismissed shortly after Christmas. Accordingly, I conclude that the respondent did not refuse reasonable accommodation.

Discriminatory Dismissal

The issue of dismissal is not in dispute.  The question is whether this dismissal was discriminatory, relating to the complainant’s disability.

As per section 85(a) of the Act, the burden of proof in these cases lies with the complainant in the first instance to establish primary facts, or ‘prima facie’ from which an inference of discrimination may be made. This means that the onus is on the complainant to establish fundamental facts that on first inspection may indicate that an act of discrimination has taken place. Only after this prima facie case has been made does the burden of proof switch to the respondent.

Southern Health Board v Mitchel[2001] E.L.R. 201  l.  is a leading decision on the shifting of the burden of proof.  This test requires that facts relied upon by a complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In Valpeters v. Melbury Developments Limited [2010] 21 E.L.R  the Court  found that;

Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit…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 speculation 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 establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The respondent has produced significant evidence that the complainant was dismissed on the basis of her poor performance and poor attendance,  which, although related to ill health, was not related to the specific disability under which the complainant alleges discriminatory dismissal.  I accept that the complainant was dismissed for reasons primarily related to her poor attendance and I conclude that the complainant has failed to establish a prima facie case  that she was discriminatorily dismissed.

Minimum Notice

The respondent did not pay the complainant the notice required under the Minimum Notice and Terms of Information Act 1973 and therefor is in contravention of that Act. 

1)      The complainant was not discriminated against.

2)      I order the respondent to pay the complainant the sum of €277 in respect of one week’s notice.

Discriminatory dismissal, reasonable accommodation, burden of proof, minimum notice