Complainant

Respondent

Parties

Lionel  Luis

Lb Retailing Ltd

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Elaine Hill, HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00057827-001

21/07/2023

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

CA-00058194-001

09/08/2023

The Complainant was employed as a Deli Assistant from 06/09/2022 until he resigned on 29/09/2023.  He worked 19-20 hours per week and was paid €231 gross per week.  He submitted his complaint of discrimination to the WRC on 09/08/2023.  The Respondent denies that it discriminated against the Complainant.

The Complainant gave evidence on affirmation.  He submitted that there were issues with staff since he commenced employment on 06/09/2022.  The Complainant gave an example that occurred after one of the staff did not turn up for work and he had to work alone and could not finish his shift at 3.00pm.  The following day the supervisor approached him and told him that he should have stayed after 3.00pm and the Complainant submits that he was not asked to stay on.  The Complainant stated that this incident took place in 2023. He spoke to the General Manager who undertook to sort out matters, but this never happened.  On another occasion he spoke to the owner, and he did not have a meeting.  The Complainant believes that he was discriminated against on the grounds of race when another employee told him that he was a better worker than him.

In relation to the complaint of discrimination under the grounds of disability the Complainant gave evidence that he was diagnosed with Type 2 Diabetes in 2022.  This required him to have a drink close to his work station but he was advised by a staff member that he could not keep a drink in the fridge at the deli counter.  He was told that he needed a letter from his doctor to confirm that he needed a drink in order to assist with the management of his diabetes.  The Complainant submits that no other member of staff was requested to provide such a letter. In response to a question from the Adjudication Officer the Complainant confirmed that he did not inform his employer when he commenced work that he was a diabetic and did not inform his employer of any specific accommodations that might be required.  The Complainant confirmed that he did inform his employer when he was asked to provide a letter from his doctor.

The Complainant also submitted that he was discriminated against in relation to his terms and conditions of employment.  Specifically, he was denied his breaks.  The Complainant gave evidence that on each shift a list was drawn up of the duties and scheduled breaks.  This involved getting one 15-minute break and one 30-minute break.  The Complainant was spoken to if he was late back from his assigned break, but this never happened to other staff.  He was often late taking his breaks due to pressure of work and other staff arriving in late for their shift.  The Complainant outlined that he worked three days including a Saturday and Sunday and his breaks were always delayed and, on some occasions, this could range from 30 minutes to one hour.  The reason he took longer for some breaks was that he worked longer the previous day and he was taking time back.  The Complainant confirmed to the Adjudication Officer that he informed his employer, and he was told that the three employees should work this out between themselves.  The Complainant stated that he was told by the owner, Mr Byrne, to take his breaks when they were due, and he was told by the General Manager not to go on his breaks.  He did not know what to do.   The Complainant stated that breaks were important for him in relation to his diabetes management regime and he needed to eat at regular intervals in order to keep his blood sugar levels stable.  The Complainant stated that on some occasions his blood sugar readings were 3.6 and this is well below the expected value.  The Complainant gave evidence that as a result of the difficulties he encountered he was on sick leave for about two months.

The Complainant also gave evidence that he was victimised when employed by the Respondent.  He stated that “I was picked on” in a rude and aggressive manner by another employee and this arose when bins were not emptied, and various cleaning tasks were not done.  This happened when he was unable to complete his tasks when short staffed or when other staff did not complete their own assigned tasks.  The Complainant stated that he was picked on by another employee who blamed him for these situations.  The Complainant did complain to the General Manager, and he still had to clean this up.  The manager stated that she would follow up with mediation, but this did not happen.

The Complainant also had an issue in relation to the use of a staff record form.  He was not using the Kelsius temperature process correctly and he was given a written warning due to this.  The Complainant stated that what happened was that he did undertake the food temperature checks but he did not input these until later when he had time to do so.

The Complainant was cross examined on behalf of the Respondent.  It was put to the Complainant that he submitted a complaint of discrimination by reason of disability, and he was asked if he would agree that he gave the letter from his doctor to the Respondent on 07/03/2023 and he agreed that was correct.  The Complainant was asked what the response of the Respondent was to that letter, and he confirmed that he was allowed to have a drink at this work station.  The Complainant was asked if he received any correspondence in relation to breaks at work and he confirmed that he did receive the correspondence that was issued to all staff from Mr Byrne. 

The Complainant confirmed that he did not tell anyone he was going on a break as his colleague was missing.  He confirmed that he gave the dates he missed his breaks to Mr Byrne.  The Complainant also confirmed that Mr Byrne told him that he was happy to accommodate him in relation to the availability of drinks and breaks.  The Complainant stated that despite this his breaks were still delayed. It was put to the Complainant that his records were incomplete, and he stated that he had two screen shots of his blood sugar readings, and this would show that they were recorded as low when he did not get a break.

It was put to the Complainant that he never received a written warning.  He was written to on 11/08/23 in relation to food safety matters but this was not a warning.  The Complainant was reminded that the purpose of this letter was to remind him that food safety regulations required the temperatures to be recorded at the time they were taken.  The Complainant stated that he thought the letter was a written warning as it made reference to disciplinary action.

It was put to the Complainant that there were numerous letters and e-mails which showed that the Respondent was trying to engage with him in order to discuss his issues.  The Complainant stated that there were, and he had a chat with Mr Byrne and most of the things were discussed.

It was also put to the Complainant that he was offered various options including mediation, grievance procedure or formal procedure on 03/07/3023 which was the date he also submitted his complaint to the WRC.  The Complainant stated that everything was discussed, and he was made feel that he was in the wrong and he did not know what else he could do.

The Complainant confirmed that he received the minutes of the meeting he had with Mr Byrne on 11/08/2023.  He agreed that the issue of recording the food temperatures correctly was discussed at the meeting.  The Complainant also agreed that all staff were subsequently reminded about the correct method of recording on the Kelsius tablet system.

The Complainant was asked if he informed the Respondent about the interaction he had with a colleague and he stated that he informed the General Manager who said they would have a meeting, but this never took place.  The Complainant also stated that he spoke to Mr Byrne, and he was also to arrange a meeting, but this did not take place. It was put to the Complainant that the minutes of the meeting on 11/08/2023 stated that the employee involved apologised to him.  The Complainant confirmed that he did but in doing so he told him (the Complainant) that he was in the wrong.  It was put to the Complainant that Mr Byrne asked him to meet and sort things out, but he did not want to.  The Complainant stated that this was not correct.

In response to questions from the Adjudication Officer the Complainant stated that the Respondent could have organised a meeting with all staff to discuss these issues.  The Complainant confirmed that the Respondent offered to move him to another nearby store, but he did not take up this offer as he provided relief cover there on one occasion and he formed the view that breaks were not properly taken there.

In a closing submission the Complainant stated that all the efforts made by the Respondent did not sort anything out. He feels that his concerns were disregarded, and nothing was done.  The Complainant stated that he did not get his breaks on time, and this was the reason he submitted these complaints.

Mr Louis Byrne, store owner,  gave evidence on behalf of the Respondent.  He stated that the Complainant provided a medical certificate on 07/03/2023 which confirmed that the Complainant had diabetes and that he would need to have juice at his place of work and in a location where this would not normally be permitted.  The Respondent confirmed that the Complainant’s manager was immediately told about this and that it was confirmed to the Complainant that there were no issues with him having drinks as required and to have his breaks as required.  He was also asked to let the Respondent know if there was anything else that may be required to facilitate his condition.  The Respondent made a contemporaneous note of this on the Complainant’s medical certificate.

Mr Byrne confirmed that he received an e-mail from the Complainant on 03/07/2023 stating that he was discriminated against and unfairly treated.  Mr Byrne confirmed that they have a Dignity at Work policy in place and this forms part of their employee handbook.  Training is also provided for all staff and Mr Byrne noted that they employ 17 staff from very diverse backgrounds.  Mr Byrne sent an e-mail response to the Complainant on 04/07/2023 after he examined the Complainant’s clock records.  He offered the Complainant a meeting to discuss his complaint in more detail and he also offered him the grievance procedure.  Mr Byrne stated that any matters of alleged discrimination are taken very seriously, and he proposed an informal meeting and mediation in an attempt to resolve the Complainant’s grievances.  The option of a formal process was outlined in the letter.  The Complainant agreed to a meeting but cancelled this for personal reasons.  The Complainant sent a further e-mail on 09/07/2023 in relation to issues in the workplace where certain tasks were not done.  This was investigated by the Respondent and the Complainant was offered an opportunity to discuss this with the other employee if he so wished.  The Respondent sent a reminder e-mail to the Complainant on 24/07/2023 about the cancelled meeting and inviting him to meet.  The Complainant replied that he did not feel that there was a need to meet.  The Complainant restated his accusations about breaks and that he had recorded a seriously low blood sugar reading.  The Respondent examined the clock records and noted that the Complainant took his break 72 minutes after starting and there was no evidence of a delayed break.

The Respondent sent a e-mail to the Complainant and outlined that he should take his break regardless of what other staff were doing and was asked to let his colleagues know so that service levels can be maintained.  The Complainant was also advised to discuss his low blood sugar levels with his doctor and also provided him with contact details for their Employee Assistance Programme (EAP).

Mr Byrne noted that he issued a general memo to all staff and outlined the procedures in relation to timekeeping, clocking in, absence reporting and recording of tasks and checklists on the Kelsius tablet.  Mr Byrne gave evidence that this was done to that no individual staff member would feel that they were specifically targeted.

Mr Byrne confirmed that the Complainant did not follow the grievance procedure and that all staff are aware that he maintains an open-door policy so that he can deal with issues.  Mr Byrne also noted that the Complainant and the other employee he had issues with met informally and his offer to meet with them was declined.

Mr Byrne denied that the Complainant was discriminated against.  He confirmed that the Complainant was accommodated in every respect.  Mr Byrne stated that he had no personal knowledge of diabetes and that was why he asked him to contact his doctor in relation to low blood sugar levels and also to see if there was anything else that the Respondent needed to do or be aware of.  Mr Byrne confirmed that they had no issues in relation to accommodating the Complainant in relation to hydration or breaks. 

Mr Byrne outlined that the issue which arose on 11/08/2023. He observed during a spot-check that none of the hot food cooking temperatures were recorded on the Kelsius Tablet.  He was concerned about this as he had issued a memo to all staff about the importance of this a few weeks before.  Failure to do these checks is a serious breach of the food safety regulations.  Mr Byrne established that the Complainant was responsible for this omission, and he spoke to him in his office as this was a critical issue. The General Manager was also present and made a note of this meeting which was sent to the Complainant.  At the end of the meeting, he asked the Complainant if he wished to discuss the complaints in his earlier e-mails and following this, he also requested an update from his doctor in relation to any further accommodations that may be required.  The doctors letter confirmed the existing arrangements and he reminded the Complainant to take his breaks and to revert if there were any issues or anything further was needed.

Mr Byrne confirmed that breaks are not supervised, and specific break times are not noted.    There is a sequential process whereby the first member of staff on break first, followed by the second and then the third person on duty takes their break.  If the store is busy, it may not be feasible to take breaks at the exact time, but staff are aware that they need to look for opportunities to take their breaks at the correct time.

Mr Byrne was cross examined by the Complainant.  It was put to Mr Byrne that the Complainant’s screen shots of the blood sugar levels would show that he got his breaks later than was required.  Mr Byrne noted that he does not have any access to the Complainant’s blood sugar levels.  He relies on their staff clocking system and this shows no discrepancies in relation to the Complainant’s breaks.

In a closing submission on behalf of the Respondent, Ms Hill noted that the Respondent refutes the claim of discrimination by reason of disability or victimisation.   The Respondent sought to engage with the Complainant after he submitted his complaint, and the Complainant eventually attended a meeting on 11/08/2023.  The Respondent is not a medical professional, and they were dependent on the Complainant’s doctor to provide details of any recommendations which needed to be put in place to accommodate the Complainant.  The Respondent immediately put those measures in place and relaxed its policies and confirmed its commitment to the Complainant.

The Respondent always followed up and dealt with all of the Complainant’s correspondence and the Complainant was at all times encouraged to use the Respondent’s processes and procedures in order to deal with his concerns.

At no stage was the Complainant treated any differently to any other employee apart from putting in place the reasonable accommodations recommended by his doctor.  The Complainant was informed by the Respondent to take his breaks at the appropriate times regardless of what other staff may have done.  The Respondent’s records show the actual clock in, clock out and break times as recorded by the Complainant himself and these clearly show that he was taking his breaks.

CA-00058194-001: The Complainant submitted a complaint to the Workplace Relations Commission on 21/07/2023 that he was discriminated against by the Respondent on the grounds of disability, terms and conditions of employment and victimisation. The Respondent submits that the complaint is not well founded as no discrimination took place and the Complainant was provided with reasonable accommodation immediately the Respondent was informed of his disability.

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

“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 basis that the Complainant was discriminated by the Respondent because he had a disability. 

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.”

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, he has been discriminated against because of his disability.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

I note firstly that the Respondent did not dispute that the Complainant had a disability, namely Diabetes, and I am satisfied that this constitutes a disability under the Act.

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of his evidence given at the hearing. In the first instance, I note that it was disputed between the parties regarding whether the Complainant was able to take his breaks and accordingly manage any dietary requirements in relation to his diagnosis of Type 2 Diabetes.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“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 the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In conclusion, I prefer the clear evidence presented by the Respondent. Consequently, I find the Complainant, on the balance of probabilities, has failed to establish a prima facie case of discrimination (for the purposes of this Act) on the grounds of disability, or that he was victimised or   discriminated against in relation to him. On the basis of the foregoing, I find that this complaint is not well founded.

CA-00057827-001:  This complaint was withdrawn at the hearing.

CA-00058194-001: In reaching my decision I have taken into consideration all the written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the hearing on 30/01/2024.

I find that the Complainant, Mr Lionel Luis failed to establish a prima facie case of discrimination and that he was therefore not discriminated against by the Respondent, LB Retailing Limited.  

Discrimination.  Disability