ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00041120

Parties:

Complaint:

Date of Adjudication Hearing:  01/02/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent discriminated against the Complainant by not shortlisting her for a job on grounds of disability.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent on 19th September 1998 and has had an unblemished record of 25 years’ service.  She was out on sick leave from March to December 2021 due to a hip operation.  She had been working as a Stand In position as a Sterilisation Operator for over 4 years, working week-end shifts and also coming in for hours outside this when required by the Respondent.

In November 2021 she was informed that a fulltime Sterilisation role was becoming available and she was asked when she would be returning to work.  In September 2021 she applied for the position and was the sole applicant.  No interview or selection process took place at that time. 

In November 2021 the position was re-advertised, and the Complainant applied on her return to work in December 2021.  She was informed in writing in January 2022 that her application was unsuccessful due to her “timekeeping and attendance”.   She was not shortlisted or interviewed or given an opportunity to state her case in relation to a position for which she was trained, skilled and capable of doing for almost 5 years.  She was obviously distraught and telephoned HR who sympathised but said they had to be fair to other applicants.  In the interim she was kept in the role and came into work including working outside her normal working hours.

She appealed and lodged a grievance which was not upheld.  It was argued that the fact that it was a planned absence, and she had an exemplary record should have been taken into account.  She was so aggrieved she relinquished her stand in position.

The Complainant applied for two other positions and was unsuccessful.  One was on the basis that she was not a member of the shift although this was not stated on the advertisement.    Her stand in position became available in early 2023 and she was successful in obtaining the position.

It is contended that but for her disability the Complainant could have been interviewed and be permanently in the role.  

It is contended that the Complainant was discriminated against under Section 6(A) of the Employment Equality Act.  This was planned hip surgery and associated complications. The decision not to call her for interview was based solely on her disability and was discriminatory.

She had an exemplary record as demonstrated as follows:

2022 no absences to date

2021 March to December certified sick leave due to hip surgery

2020 no absences

2019 1 late and 2 weekends sick leave

2018 1 late and no sick leave

It is argued that the Respondent directly discriminated against the Complainant.  They treated her absenteeism that was due to her disability and medical intervention to correct that disability.  Hence a discriminatory and punitive action.

It appears that the Respondent has an internal criteria for internal positions within the plant.  These were not part of any policy or procedure agreed with the Union.

It appears that the Respondent applies a 3.5% absenteeism bar on selecting for internal positions.  If this is the case, then it is submitted that this is indirect discrimination.  If any policy or criteria excludes persons with a disability then this constitutes discrimination. (Barclays Bank Plc v Kapur)

It is argued that the burden of proof as in Section 85A of the Act is discharged by way of at the appeal stage the Respondent did not accept mitigating circumstances.

Case law was cited in relation to access to promotion. In  An Employee v A Government Department EDA 061/02 the Labour Court found “the procedures followed in the instant case and the result it produced were so discordant with normal standards of reasonableness and objectivity that they must constitute facts from which it may be presumed that there was discrimination.”

Article 2 of Directive 2000/78 provides that there should be no direct or indirect discrimination whatsoever on the grounds of disability and it is argued it is necessary for the Respondent to prove that the rejection of the employee for promotion was in no way connected to her disability.

As per Section 82 of the Act the Adjudicator is requested to uphold the Complainant’s complaint and award her maximum compensation.

The shop steward gave evidence to refute the Company’s position that the 3.5% cut off point was a norm.  She stated that the Union strongly disagreed with it and following a breakdown in talks it was unilaterally imposed. 

Summary of Respondent’s Case:

The Respondent categorically denies that it has discriminated against the Complainant either directly or indirectly in relation to her getting a job or other matters on the grounds of disability within the meaning of Section 6 (2) (g) and contrary to Sections 6, 8 and 16 of the Employment Equality Acts 1998 to 2015.

The Respondent employs 1700 staff and is engaged in the production of contact lenses and eye care products.

The Complainant is employed as an Operative since 1998 and works the weekend shift.  In March 2021 she underwent hip surgery and was out on sick leave for a period of 8 months.  In September 2021 a role became available for a permanent Sterilisation Operator and was advertised internally.  The Complainant applied for the role.  Unfortunately for the next 2 months she was not in a position to return to work .  There were engagements with Occupational Health and they were not in a position to give a return to work date.  There was a business need for the role so the position was re-advertised in November 2021.  The Complainant and 2 other employees applied for the role.  The Complainant returned to work on 14th December 2021.  She was not shortlisted for the job and the position was explained to her by letter dated 7th January 2022.  The Production Manager and the HR Business Partner explained the Company’s position to the Complainant.  She continued to fulfil her role as Stand in until March 2022. 

In line with Company procedure, the Complainant appealed the decision not to shortlist her for the role.  A grievance meeting was held and the Company’s policy about the 3.5% rule was discussed.  The outcome of the appeal was that the Complainant’s complaint was not upheld. 

Following on from this, the Complainant relinquished her role as Stand in.  She applied unsuccessfully for a number of other permanent roles.  She was successful in January 2023 for a Stand in Sterilisation role and she remains in that position.

Disability

The Respondent states that at all times during her absence the Respondent kept in touch with the Complainant, and assessments during the period indicated no return to work date was possible as there was no medical reason and her mobility was severely restricted.

The Respondent strongly states that the Complainant was treated no differently than any other employee who may be absent from the workplace due to a disability or illness during the recruitment process. 

As per Section 7.3 of the Recruitment policy (provided) the employee’s attendance record is looked at over a twelve month period and two years if an employee has more than 3.5% absence as may be due to having a poor year.

The Respondent engaged with the Complainant throughout and initially kept the position on hold for two months.

The Respondent strongly refutes the argument that it has discriminated against the Complainant.

Section 2 (1) of the Employment Equality Act defines disability.

Direct discrimination is defined as occurring when one person is treated less favourably than another is, has been or would be treated if that person is of a different race, gender, civil status, family status, sexual orientation, religious belief, age, disability or membership of the travelling community.

Southern Health Board v Mitchell (2001) ELR 201 states that

The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that the claimant must prove on the balance of probabilities, the primary facts upon which they rely in seeking to raise a presumption of unlawful discrimination.”

Other case law cited is Green Line Pallets Ltd v John Whyte (2012) EDA 1225 and Melbury Development Ltd v Valpeters EDA 0917.

It is argued that the Complainant has failed to adduce any evidence to demonstrate that she was discriminated against on grounds of disability.

The HR Business Partner gave evidence that the 3.5% sick leave cut off was used since she was in the role.  It was used for shortlisting, pay progression, and the recruitment process.  It was widely known and staff would come to HR seeking explanations for not being shortlisted and it was explained to them.  It was a universal rule, applied to everyone.

Findings and Conclusions:

The issue in this complaint relates to the failure of the Respondent to shortlist the Complainant for a role for which she had the skills and experience due to the fact that her sick leave record exceeded a barrier of 3.5%.  The Complainant contends that this is discrimination on grounds of disability.

The applicable law

Section 6 (1) of the Act provides:

“(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..

Section 6 (2) (g) states:

(2)  As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act are –

(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”).

There is no dispute that the Complainant suffered a disability when she was on protracted sick leave following hip surgery.

Comparator

While no comparator was cited, it is noted that in cases involving less favourable treatment, a comparator can be actual or hypothetical. (Determination EDA1310, Henry Denny v Rohan, in which the Labour Court followed the decision of the House of Lords to that effect in Shamoon v Chief Constable of the RUC [2003] IRLR 258). A hypothetical comparator can be constructed by asking why the complainant was treated as she was. If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic. It was submitted that the Complainant in this case was deprived of the opportunity to be shortlisted for a role because of her disability and her inability to conform to the Company rule regarding the 3.5% absence threshold.   It follows that an appropriate comparator is a person in a similar situation who does not have a disability or a person who has a different disability. In this case no named comparator was put forward for consideration.  The Respondent established that the 3.5% threshold rule applies to all employees.

Burden of proof

It falls to the Complainant in the first instance to establish facts from which an inference of discrimination may be made.  Facts must be established which would demonstrate the Complainant being treated by the Respondent less favourably than another employee has been or would be treated in a comparable situation on any of the discriminatory grounds.   

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must :

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a 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 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 Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

 In Margetts v Graham Anthony & Company Ltd EDA038, the Court concluded on the discharge of the evidential burden as follows:

“the mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The Complainant must adduce other facts which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.

In this instant case, the Respondent has a rule that employees who exceed a 3.5% absence rate over a period are not shortlisted for positions.  This rule applies to all employees.  I note the only reference to time and attendance contained in the Respondent’s standard personnel procedure on criteria for internal selection which was submitted by the Respondent states at 7.3:

To be considered for interview, employees must demonstrate good attendance over the previous twelve months.  

I note the difference of opinion between the Union and the Company in relation to the introduction of the 3.5% rule.  The Union argues that it is not an agreed threshold and I note it is not written into the procedure.  However, notwithstanding this, because the rule applies to all employees, the Complainant cannot be said to have been directly treated in a less favourable manner than others in the employment.  The Complainant has failed to demonstrate that she was treated differently or less favourably than another person who does not have a disability or with a different disability.    I find that the Complainant has failed to establish a prima facie case of direct discrimination.

Indirect Discrimination

I now turn to the question of whether the imposition of the 3.5% rule by the Respondent has resulted in indirect discrimination.  The Complainant’s representative made a point during the hearing that an employee working weekend shifts would only have to have two weekends sick leave to fail to satisfy the 3.5% rule.   This may affect employees on the gender ground, especially if weekend workers constitute a majority of women.  However, this argument was not advanced and no statistical evidence was provided by either side in this case. 

Indirect discrimination occurs where a worker or group of workers or job applicants are treated less favourably as a result of apparently neutral provisions that they might find hard to satisfy.

Section 22 of the Employment Equality Act 1998 as amended provides that indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being A or B) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

Part IV of the Act contains provisions as to equality between other categories of persons (relating to non-gender issues).          Section 31 of the Employment Equality Act 1998 as amended provides that this applies in relation to C and D as they apply in relation to A and B. 

Dealing with indirect discrimination, Section 28 (1) of the Act provides that ‘C’ and ‘D’ represent 2 persons who differ

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities.

This effectively means that indirect discrimination occurs where an apparently neutral provision would put persons with a disability at a particular disadvantage to others without a disability or with a different disability in procuring employment or promotion.

In this instant case, the Complainant had surgery which resulted in her being absent for a considerable time longer than anticipated.  She thus suffered a disability.  The imposition of the 3.5% rule is applied universally across the company, regardless of whether a person has a disability.  This policy which has been presented as a ‘neutral provision’ applicable to all employees, practically affects more employees with the protected characteristic of disability.  It has resulted in operating to the disadvantage of the Complainant and I find it constituted indirect discrimination.  I find the Respondent indirectly discriminated against the Complainant on the grounds of disability. 

Decision:

Having completed my investigation under Section 79 of the Act, Section 82 of the Employment Equality Act 1998 as amended requires that I make a decision as to the type of redress which may be ordered.

I have decided that the Respondent has indirectly discriminated against the Complainant.

Under Section 82 of the Act, I have decided the following is appropriate in the circumstances:

The Respondent should pay to the Complainant compensation in the sum of €7,000 for the effects of discrimination.

The Respondent should revise their 3.5% rule for internal recruitment policy to take into account the potential effect of indirect discrimination.

Dated:  25th March 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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