Complainant

Respondent

Anonymised Parties

A Store Assistant

A Retailer

Representatives

Killian O'Reilly Fieldfisher

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-00049247-001

21/03/2022

This case was the subject of two hearings. 

The first hearing took place on 24 January 2023.  This hearing was adjourned when it became obvious that the Complainant required the assistance of an interpreter.

The second hearing took place on 13 April 2023. An interpreter was present.  Submissions and evidence were given de novo.

The Complainant commenced employment with the Respondent on 20 November 2006 as a store assistant.  His gross pay was €746 per month, his average gross pay between June 2018 and December 2018 was €1,148.

In his complaint form, the Complainant alleges that he was discriminated by the Respondent by reason of his disability.  He alleges that he was discriminated by the Respondent by failing to give him “reasonable accommodation” for a disability and by Conditions of employment. In his complaint form the Complainant stated that the most recent date of discrimination was 3 February 2022.

The Respondent is an international discount retailer operating across the island of Ireland.

At the hearing the Complainant gave evidence under affirmation.

The Complainant stated that having commenced employment with the Respondent in 2006 as a full-time store assistant, in 2009 he developed anxiety and depression.Following professional assessment, he was placed on Disability Allowance (DA).  The Complainant was deemed to be unfit for work and commenced a prolonged period of absence. 

The Complainant submits that, in order to facilitate his return to work the Respondent suggested he work 10 hours per week and his role was to be modified so he only worked at the till.  The Respondent was made aware of his health condition.

The Complaint submits that between 2008 and 2021, the Respondent conducted several investigations for various allegations that were made against him, none of these investigations resulted in the allegations against the Complainant being upheld. He stated that these investigations were carried out on foot of allegations of aggressive behaviour by him; these investigations exacerbated the Complainant’s illness. One of these investigations, into alleged use obscene language, refusal to follow reasonable work instructions and alleged behaviour which could bring the company into disrepute, lasted almost three years, ending in August 2021, and concluded that none of the allegations were upheld. The unreasonable length of this investigation was, according to the Complainant, formally acknowledged by management in 2022.

The Complainant stated that he had been out of work for three years without pay due to being suspended and as a result being unwell with his illness. He was deemed unfit by an Occupational Health Physician (OHP). A meeting was held between the Complainant and HR in May 2019, to discuss alternate roles for the Complainant but there was no follow up.

The Complainant stated that following the conclusion of an investigation in August 2021, he sought assistance from HR to help him return to work, however he was told he would have to return to work in his original role. The Complainant pointed out to HR that returning to his original role as a store assistant would be deleterious for his health. The Complainant initiated the internal Grievance Policy in October 2021 in order to highlight the risk posed by the company’s plan for his return to work.  He believes his points were dismissed both initially and on appeal in February 2022. The numerous meetings involved in this process took a toll on his condition.

Having exhausted the internal processes, the Complainant lodged a Complaint with the WRC. The Complainant believes the Respondent is failing to acknowledge his disability and has repeatedly placed him in situations that have directly resulted in incidents which have resulted in a deterioration of his condition. The Complainant believes that the Respondent has failed to make reasonable accommodations for his return to work.  This has resulted in him being out of work without pay for over three years.

The Complainant stated that his absence from active work and the deterioration in his condition have compromised his ability to seek an alternative role within the company as well as his ability to seek work elsewhere.

In concluding his case, the Complainant stated that he believes the Respondent has refused to make reasonable accommodations for him by not providing access to suitable employment and by enforcing unreasonable terms and conditions of employment.  In essence, the Complainant believes that the Respondent’s stance that he must return to his original role is prohibitive and denies him access to employment with the Respondent.

The Complainant puts forward that the Respondent has not properly consulted with him about a return to work and has not considered whether there are appropriate measures which could be taken to facilitate his return to work.

The Complainant stated that he is being treated less favourably than someone else in his situation e.g. with a physical injury or impediment would have been.

The Complainant is seeking that matters be resolved by:

(i)                  Compensating him for the lost earnings incurred over the period for which he has not been paid.

(ii)                Compensation for the distress and the deterioration caused to his condition by the length of the last of the last investigation and the effect this has had on him in terms of his ability to re-join the workforce.

(iii)               For the Respondent to engage with him in finding a suitable role or if it is deemed that no suitable role is available, to communicate this formally.

In response to the Respondent’s submission the Complainant stated, inter alia, that the Respondent appears to fail to recognise that discrimination occurred not because the Respondent did not treat the Complainant differently, but because indeed it did not (treat him differently). In other words, the Respondent has failed to provide reasonable accommodation. He also stated that the Respondent has not engaged with him in a meaningful way about finding suitable alternative roles. The Complainant has recently applied for four different roles with the Respondent but has received no response. In addition, in response to the Respondent’s written submission, the Complainant submits that the requirement for a Comparator is not applicable in this case as there is no other case comparable to this specific situation and interplay arising from the Complainant’s unique disability and circumstances and chain of events leading to this point.

Under cross examination the Complainant stated, when it was put to him that his original contract with the Respondent was for a 10-hour week, that he could not remember if this was the case. He agreed that the Customer Assistant role involved working with customers he agreed but did not agree that all employees are expected to work in every area of the store. The Complainant was brought through matters pertaining to the investigation referred to above and agreed that his sickness had resulted in pauses having had to be made during the investigation. 

He agreed the Respondent had kept in contact with him during his absence and invited him to attend for medical appointments but was unsure if he had attended these appointments but that he “normally” did. When questioned about not attending a medical appointment scheduled for 4.00pm on 17 October 2022, the Complainant stated that he had not attended because he was sick. When further asked he agreed that he had, at the time, explained his absence was due to the breakdown of his car which took place on the morning of the day and that he might have contacted the doctor’s clinic some 10 minutes before the appointment time.  When asked why he had not attended another appointment scheduled for 1 November 2022, the Complainant stated that he could not remember.

Continuing under cross examination, the Complainant stated that he did not want to return to a customer facing role but wants a role in administration. When asked if he would be willing to work in a warehouse role, the Complainant said he would be until an office job comes up. The Complainant agreed that the Respondent has tried to engage with him since the summer of 2022.  The Complainant denied he had failed to pick up phone calls made to him by the Respondent on some six occasions, but did agree he had missed some calls.

The complainant agreed he had met with a company representative in August 2022 and was told that there were no admin roles in stores. The representative told the Complainant to continue to monitor the internal Opportunities Portal for roles in the company and to continue to send in sick certs to which the Complainant had replied, at the time, that he was fit to return and so why should he continue to send in certs.  The Complainant agreed that he had stopped sending in certs because he was fit to work.   

In response to a question, the Complainant stated that he had worked in the store of another multi-store organisation, when he was absent from the Respondent’s stores.  He said this work was unpaid learning for one month in an administration role and not customer facing.

In concluding, the Complainant stated that his health issues mean he cannot return to a customer facing role.

He hopes he will get a role in administration and that he needs real help to get that role.

The Respondent’s representative provided submissions on behalf of the Respondent.

The Respondent submits that the Complainant has been on sick leave for approximately three years, and that the Respondent continues to engage with the Complainant to support his return to work and remains willing to provide him with reasonable accommodation to assist him doing so.

The Respondent submits that the Complainant commenced employment with the Respondent in November 2006 as a Customer Assistant in one of their stores, an inherent part of this role is dealing with customers.  The Complainant was employed on a 10 hour per week contract, doing two morning shifts per week.

In November 2016, a formal complaint was made by a colleague about the Complainant. No formal findings were made against the Complainant on foot of the complaint.  The Complainant went out on sick leave shortly after the above complaint was made. Following an assessment by the company OHP on 2 December 2016, it was found that the Complainant was physically fit to undertake the duties associated with his Customer Assistant role and advised that he be facilitated with a concentration on till duties on his return. The Complainant remained off work.

On 12 2017, a meeting was arranged between the Complainant and a Sales Operation Executive, after which the Complainant returned to work in a store.

In October 2018, a further investigation was commenced by the Respondent in relation to allegations made against the Complainant. The Complainant made a complaint relating to the same allegations. He went sick and sent in medical certificates for the remainder of 2019 and 2020. The OHP found the Complainant to be unfit for work and not fit to engage in the HR process. The investigation process was paused.

Following another visit to the OHP the Complainant was deemed to be fit to engage in the HR process but not for work.  The Complainant failed to attend a meeting scheduled for 25 June 2019 and remained on sick leave. 

The Complainant attended the OHP on three occasions between September and December 2020. On 2 September the OHP confirmed that the Complainant remained unfit for work but fit to engage in the HR process. In her report the OHP noted that the Complainant was looking for a non-customer facing role.  This was the first time that the Respondent was put on notice of this request.

Following another OHP review on 11 September 2020 the doctor decided that it would be inappropriate to make any assessment about the Complainant’s fitness to engage in any process. The Complainant remained out of work and continued to submit sick certificates.

On 21 September 2021, the Complainant was again reviewed by the OHP who found that he was fit to return to work, (for the first time in three years).  The OHP again reported that the Complainant had expressed a preference not to work in a store environment.

On 22 October 2021, the Complainant initiated a grievance which was not upheld. The matter was appealed by the Complainant but was not upheld.

The Complainant filed a complaint with the WRC on 21 March 2022.

The Respondent submits that it has continued and continues its efforts to engage with the Complainant.  His store manager attempted to contact him several times by phone in August 2022.  Ultimately the Respondent scheduled a meeting with the Complainant on 1 September 2022 to discuss his continued absence and how it might assist him in returning to the workplace.

At the meeting the Complainant furnished the store manager with a print out of the Respondent’s internal opportunities portal for a role that he wanted to be placed into. The role is question was a Talent Acquisition role in the Human Resources.  The Respondent submits that there are only three such roles in the country and it is a role which requires specific recruitment qualifications and experience. The Complainant has never demonstrated any suitable experience or relevant qualifications for this or according to the Respondent, any other role. The Respondent got the impression that the Complainant believed that a new role of his choosing would simply be given to him.

The Respondent has confirmed to the Complainant that if he wishes to apply for an alternative role within the organisation, it will support him in his application and will assist him with interview skills and other relevant training.

The Respondent scheduled OHP appointments for the Complainant on 17 October and 1 November 2022; the Complainant failed to attend either appointment. A further OHP appointment was scheduled for 16 January 2023, at which the Complainant attended.

A Sales Operations Manager gave evidence under Affirmation at the hearing. She stated that she had carried out the investigation of the Grievance initiated by the Complainant, referred to above.  She stated that she had investigated the matter but did not uphold the complaints.

A Sales Operation Director gave evidence under Affirmation at the hearing.  He had heard the appeal of the Complainant’s grievance and had not upheld the appeal. The witness stated that he had confirmed in writing that the appeal had not been upheld.  Included in this letter was an undertaking from the organisation that it was willing to help (clarification of the role, how to apply etc.) to the Complainant but that the initiative must come from the Complainant.

A Store Manager gave evidence on Affirmation at the hearing. In response to a question, the manager stated that all Customer Assistants deal with customers. 

The manager stated that he contacted the Complainant in August 2022 but the Complainant did not always engage and he was absent and not submitting sick certs. The witness stated that a meeting with the Complainant on 1 September 2021, he, the Complainant, had said he wanted to come back to work and had a particular role in mind.  The manager told him to apply through the internal portal and that he would assist him with his application.

The manager stated that he had assisted the Complainant in setting up an application through which he could apply for roles. As it transpired the manager was aware that the Complainant has applied for at least two roles. At a meeting he had with the Complainant on 7 March 2023, the Complainant was wondering if he could do a warehouse job until he got another role.  However, the Complainant stated that the nearest of the organisation’s warehouses was too far for him.  The manager told the Complainant that there was no specific warehouse role in stores and that people who work in the warehouse are Customer Assistants.  The manager stated that the Complainant had told him that he was willing to come back to a store in a non-customer facing role, on restricted hours.   When asked if there were any employees in the store he managed (the Complainant’s store), who are not customer facing, the witness replied, “zero”.

In cross examination the manager stated that he had asked the Complainant to continue to send in sick certs as he was not cleared by the OHP to return to work.

The Respondent submits that it has made and continues to make repeated efforts to engage with the Complainant and remains open to engaging with the Complainant with a view to establishing:

i. Any medical reasons for his inability to undertake the role for which he is employed.

ii. What role he can actually undertake

iii. The accommodations (reasonable or otherwise) that he will require to seek an alternative role within the organisation.

The Respondent submits that as matters stand and despite being requested to do so, the Complainant has furnished no medical evidence whatsoever to support his stated inability to undertake the role for which he is employed. Furthermore, he has furnished no medical evidence whatsoever to identify what accommodations he will require to seek an alternative role in the organisation. He has simply stated that he wishes to be provided with an alternative role which is (i) not in store and (ii) is not customer facing.

According to the Respondent all roles in all the organisations’ stores are customer facing roles. The only non-customer facing roles are in the distribution centres.

The Respondent submits that it has made it clear to the Complainant that it will assist him in applying for other roles in the organisation.

Regarding a Protected Ground, the Respondent argues that a mere assertion, unsupported by medical evidence, can never be considered to fall within the scope of the definition as stated in s.2 of the Act.  The Respondent submits that it is for the Complainant to prove that he is a person with a disability.  This must be done by means of medical evidence.  In this case, the Complainant has not, despite requests, provided nay medical evidence of his asserted disability or of the accommodations he may require.

Regarding the Burden of Proof, the Respondent submits that the initial onus is on the Complainant to clearly establish the facts from which it can be presumed discrimination has actually occurred.  The Respondent submits that the Complainant has provided no evidence or facts that he has been treated differently to any other employee.

The Respondent submits that the Complainant has failed to identify an actual named comparator, which the Respondent submits, is a fundamental requirement of a valid claim and that the Complainant’s failure to do so is fatal to his claim.

Regarding Reasonable Accommodation the Respondent accepts that if the Complainant is medically certified by his treating physician to be actually suffering from a disability, it is required to provide him with reasonable accommodation. The Respondent submits that it has engaged and continues to engage with the Complainant to fully establish his capacity. However, the Respondent is not required to invent a role for the Complainant.

 In concluding, the Respondent submits that the Complainant’s claim must be limited to the content of his complaint form in circumstances where no additional detail has been provided by him in advance of the hearing.

The Respondent submits that the Complainant has not satisfied the onus of truth in that it has not established any facts from which it can be presumed that any discrimination has occurred.

The Respondent submits that the Complainant has not been discriminated against either directly or indirectly.  He has not been treated any less favourably than any other employee at his level and has been treated exactly the same as the other employees in a similar situation. He has failed to identify a comparator.

The Complainant’s asserts that he suffers from a disability and that he has not received reasonable accommodation.

Section 6 of the Employment Equality Act, 1998, states:

Discrimination for the purposes of this Act.

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”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

This complaint is made pursuant to the Employment Equality Acts on the disability ground. 

Disability

The interpretation section of the Employment Equality Acts provides the following definition of disability:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

Burden of Proof

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, 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 continued:

 “It is only if 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 was no infringement of the principle of equal treatment.”

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, it is clear to me from reading the medical reports provided by the OHP between the years 2016 and 2021, that a disability had been identified and the existence of this disability would have been obvious to anyone reading the reports. Therefore, the Complainant has passed part one of the three tier test.

Tier two requires the Complainant to establish that the specific treatment alleged has actually occurred.  In this instant case it is the Complainant’s contention that the Respondent has failed to provide him with the reasonable accommodation he requires in order to return to work.  He is looking for a non-customer facing role, and, in his evidence, he put forward that the Respondent has failed to engage with him in any meaningful way in finding such a role.

 The Respondent on the other hand has argued that it has made great efforts to engage with the Complainant, has offered him assistance in finding a role he might accept and going so far as to offer him a role in a Distribution Centre (which he declined due to the distance the centre is from his home). The Respondent maintains that all store roles are customer facing and there are no other store roles that could be offered to the Complainant if his demand not to be customer facing remains. Overall, the Respondent submits that the Complainant failed to engage in this, let us call it, “exploration process,” in a meaningful way. 

Regarding the second-tier test, the question for me to answer is whether the Respondent has fulfilled its obligations in relation to reasonable accommodation.

At its most basic, reasonable accommodation is where an employer makes a change to how a job is carried out or makes changes to the workplace to allow the employee with a disability to fully do the job and enjoy equal employment opportunities.

The Law

Section 16(3) of the Act provides:

• “(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.”

Section 16 of the Act was the subject of far-reaching judicial analysis by the Supreme Court in Nano Nagle v Marie Daly [2019] 30 ELR 221.

Charleton J unequivocally pointed out at paragraph 10 of his judgment in Nano Nagle that section 16 of the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired:

• “The requirement to redeploy does not arise under the 1998 Act in this jurisdiction. Thus such cases as cited above [i.e. Archibald v Fife Council [2004] UKHL 32, [2004] I.C.R. 954 and Chief Constable of South Yorkshire Police v Jelic [2010] I.R.L.R. 744] from the England and Wales jurisdiction would not carry the same imperative here.”

In this instant case I find that from the outset the Respondent has acted in a responsible manner and with integrity. The Respondent has genuinely endeavoured to engage with the Complainant to find an alternate role which would be acceptable to the Complainant.  I find the Complainant has not reciprocated; he has not engaged in a meaningful way in this process as he should. In such circumstances, the second-tier test, that is, establishing that the specific treatment alleged (failure to provide reasonable accommodation) has actually occurred, has not been established. Therefore, the Complainant has not passed tier two of the three tier test, the burden of proof does not shift and the complaint must fail.

I find that the complainant has not established a prima facie case and his complaint therefore his complaint fails.

The Complainant was not discriminated against.

Reasonable accommodation, disability, burden of proof, engagement.