Complainant

Respondent

Parties

Rachel  Dunne

Ewn Retail Limited, T/a Roches Spar

Representatives

  Self-represented

David Gaffney, Gaffney 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-00050666-001

17/05/2022

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 a witness for the respondent gave their evidence under affirmation.

The complainant submitted that she suffers from Diabetes.  She submitted that on 5 March 2022 she was not feeling well and sought to leave work early.  She submitted that although she was allowed to leave at 1 pm, but by then it was too late and resulted in her being hospitalised with her condition.

The complainant submitted that her employer thought that she was simply hungover and did not provide reasonable accommodation to her regarding her disability.

The complainant stated that she was not hungover.  She said that she was not feeling well and sought to go home early.  This was around 12 noon.  She stated that she was asked to stay until 1 pm but that she could leave then.

The complainant stated that her condition deteriorated quite quickly and that when her boyfriend came back shortly before 1pm, he had to assist her to get the short distance to her home.  Subsequently an ambulance was called to take her to hospital, and she received assistance from the ambulance staff before and during the journey to hospital and receive treatment at the hospital.

The respondent submitted that it did not discriminate against the complainant on the basis of a disability, nor did it fail to afford her reasonable accommodation. The respondent submitted that the complainant has not established facts from which discrimination may be inferred.

The witness for the respondent stated that although the complainant had never mentioned to him directly he was aware that she had diabetes.  He stated that when the complainant sought to leave early, she mentioned that she was unwell but did not specifically mention diabetes, having a diabetic problem, or that she had low blood sugar.  He said that when she sought leave early, he asked her could she stay on until 1:00 PM and she agreed.

The witness confirmed that he thought the complainant was hungover and that it never occurred to him that it was anything to do with her diabetes as she never explained anything in that regard.

When giving her evidence the complainant was inconsistent as regards the detail of what happened on the morning of five March 2022 and outlined that she was suffering from a type of brain fog that day and accordingly did not know what she was doing.  In the circumstances I cannot consider that her recall of events is perfect.  Based on the foregoing, I do not find the complainant credible.  On the other hand, the director of the respondent gave his evidence in a clear and concise manner which I found to be credible.  On balance, I prefer the evidence of the respondent director in relation to the events 05 March 2022. 

In summary the complainant was feeling unwell and sought to finish early, the respondent complied with this request but asked her to remain until 1:00 PM. The complainant's condition deteriorated rapidly and given that the complainant did not bring this to anyone's attention, nor had she previously outlined how serious her condition could get, I am not satisfied that the complainant brought her disability or connected her symptoms to the disability on the date in question.

The complainant submitted that she thought that the director believed that she was hungover.  The witness for the respondent confirmed that this is what he believed as one of the staff mentioned seeing the complainant out the previous night.  I am not satisfied that the complainant has established that she was treated any differently on account of her disability.

Section 85A(1) of the Act relates to the Burden of Proof and 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 regards to all of the foregoing, I find that the complainant has not established facts from which it may be inferred that she was discriminated against, and the burden of proof does not fall upon the respondent.  Therefore, I find that the complaint of discrimination is not well founded.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the compliant is not well founded.

Employment Equality – credibility of testimony – Burden of Proof – complaint not well founded.