Complainant

Respondent

Parties

Claire  Kelly

Tesco Ireland Limited

Representatives

Elizabeth-Ann Kirwan BL

Cathy Mc Grady BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00053959-001

01/12/2022

The complainant has been employed by the respondent as a Customer Assistant since June 2018. She earns €331.91 per week. At the beginning of 2021, she required a work pattern due to her disability. Although this was facilitated, issues arose when the planned rosters did not match what the complainant understood to be agreed. These issues arose in May 2021 and again in January 2022. Her complaints are discrimination due to disability, and the non-provision of reasonable accommodation. Her second complaint is that she was victimised arising from the earlier grievances made.

The following is a summary of the complainant’s case from the submissions made. There was no direct testimony required on the preliminary issue. There was sufficient documentary evidence on all relevant issues.

In early 2021, the complainant returned from sick leave and requested from her manager a certain work pattern due to her disability. Although the complainant was granted this work pattern, another manager informed her in May 2021 that she may be moved to checkouts. The complainant raised a formal grievance about this change and other incidents that had occurred. The complainant was not satisfied with the outcome of the investigation into her grievance and appealed the findings in August 2021.

The complainant was then on sick leave from August 2021 to January 2022 after undergoing an operation. The complainant returned to work on 31st January 2022. In February 2022, she withdrew her appeal of the grievance. After a few weeks back in work, she queried the planned roster as it was not in line with what she understood as agreed. The complainant was then on sick leave due to Covid. She queried her pay over this period. There was also a disagreement on the minimum number of nights the complainant would work. The complainant also raised her removal from the messaging group whilst on sick leave.

There were two welfare calls from management in April 2022 as the complainant had been on sick leave since February 2022.

On 3rd May 2022, the complainant submitted another grievance on the issues concerning her return to work in January 2022. Although the complainant was on sick leave, she was certified by her GP to attend meetings on her grievance. These meetings took place in May, June, and August 2022. On 8th June 2022, a further welfare meeting took place, and the complainant attended an occupation health meeting at the end of August 2022.

The investigation report on the grievance issued in September 2022. The complainant appealed the outcome on 4th October 2022. The appeal process was ongoing when the complainant referred her complaints to the Workplace Relations Commission which were received on 1st December 2022. 

The respondent denies the claims in full. The respondent raised a preliminary issue that the complaints are out of time.

Without prejudice to the jurisdiction issue, the respondent representative denies that discrimination or victimisation has taken place and submits that all reasonable and appropriate measures were afforded to the complainant.

The respondent representative submitted that all issues raised by the complainant were thoroughly investigated.

The Law

Section 77(5) of the Employment Equality Act provides:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

Section 77(6A) provides:

For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when the person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.

Section 74 (1) of the Act states-

“victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs

The test for establishing whether there has been victimisation is as follows-

In Department of Defence v Barrett EDA 1017 the Labour Court stated-

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

Section 79 provides:

(3A) If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) ……….

(c) ………..

(d) ………..

the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

Complainant Submissions on Preliminary Issue

The complainant’s representative submitted that there was a continuous regime and failure to treat the complainant’s situation and disability seriously. She was not referred to occupational health over an extended period. The first reference to attending occupational health was at the welfare meeting on 8th June 2022. It was submitted that there was an extended period where the complainant did not receive support, and this continued into the reckonable period.  

On the victimisation complaint, it was submitted that despite the grievances, management did not take her issues seriously. This lack of support which continued during the cognisable period was adverse treatment towards the complainant.

The respondent representative submitted that events were included after the complainant submitted her complaint form. These were included to provide context and were of probative value. The treatment of the complainant improved which demonstrated the unsupportive regime in place during the cognisable period.

The representative submitted the relevant cases of County Cork VEC v. Hurley EDA 1124 and Department of Foreign Affairs v. Cullen EDA 116.

Respondent Submissions on Preliminary Issue

The respondent representative submits that the cognisable period for discrimination or victimisation runs from 2nd June 2022 up until 1st December 2022. The complainant was not in the workplace over this period as she was on sick leave from February 2022. It is submitted that the complainant has failed to identify discriminatory treatment or adverse treatment during this period. There was also no failure to provide reasonable accommodation during the cognisable period.

The respondent representative contests the assertion that no supports were in place. It was submitted that regular welfare calls took place over.  There was no significance in the occupational health referral in August 2022, particularly as the respondent had regular welfare meetings to support the complainant.

The representative relies on Brothers of Charity v. Kieran O’Toole EDA 177 and Business Mobile Security Ltd t/a Senaca Limited v. John Mc Evoy EDA 1621.

Finding

As per section 79(3A) of the Act, and as per Hurley and Cullen, a preliminary issue can be decided if it could be determinative of the whole case.

Discrimination on Disability Ground

As per County Cork VEC v Hurley EDA 1124 for a discrimination complaint to be in time, there must be discriminatory treatment within the cognisable six-month period. In this case, from 2nd June 2022 to 1st December 2022. The date of the most recent occurrence can then allow for a continuum outside of the initial six-month period.

In Hurley, the Labour Court described the statutory provision under subsection 6A as follows-

An act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank v Kapur I.R.L.R 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion.

In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued.  

The complainant representative submits there was a continuous regime or practice within the cognisable period. This regime or practice was a lack of support and refusal to take the complainant’s needs seriously. This was evidenced by the first reference to an occupation health referral on 8th June 2022. It was submitted that this was a serious omission as this referral should have taken place much sooner.

To assess whether there was a continuous discriminatory regime or practice into June 2022, it was necessary to examine prior events. There were two ongoing events prior to and leading into the cognisable period.

·       The contact between the respondent and complainant through the welfare meetings on a return to work.

·       The ongoing complainant’s appeal of her grievance which related to issues on her return to work in January 2022.

On the first issue, the complainant clarified during the welfare meetings that she wanted the appeal of her grievance concluded before she could return to work.

On the second issue, the documents from February 2022 onwards all relate to the complainant’s grievance and subsequent appeal. The issues concern the planned roster and other related issues where the complainant feels she was unfairly treated.

Having reviewed the documents over the period into June 2022, I find no evidence of a regime or practice that was discriminatory. The events in January 2022 mainly related to a dispute on the earlier agreed ‘reasonable accommodation’ on the planned rosters. The reasonable accommodation was for the complainant not be rostered on certain evenings. There were no further requests to management on any other requirements. There was no requirement to attend occupational health as the reasonable accommodation needs were clear from the outset and did not require a medical opinion. From the beginning, the complainant was clear that she wanted her situation to remain private.  

I do not consider the delayed occupational health referral as a continuing discriminatory regime or practice. Although it is good practice to have regular occupational referrals, this was insignificant as the accommodation needs were clear from the outset. The complainant’s representative relies on this non-referral to occupational health up to 8th June 2022 as significant as it is evidence of a continuous regime not to involve occupational health and not to support the complainant’s needs. The occupational health advice when obtained in August 2022 solely confirmed what the respondent already knew from the welfare meetings. The complainant wanted to conclude the grievance appeal before she could consider returning to work.

Section 85A of the Act sets out that facts need to be established by the complainant in the first instance to demonstrate a presumption of discrimination before the respondent is required to prove the contrary. In Melbury Developments Ltd v Valpeters [2010] ELR 64 the court stated that ‘mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.’

I am satisfied the need for an occupational health referral was insignificant and not part of a discriminatory regime or practice towards the complainant. I find that there was no evidence of discriminatory treatment towards the complainant during the cognisable period.

Reasonable Accommodation

During the grievance and appeal process there was ongoing contact from management on the complainant’s requirements for a return to work. Despite this ongoing contact, the complainant did not raise any issue that the reasonable accommodation was inadequate or in need of a medical review. The grievances of the complainant related to planned rosters back in January 2022. When this issue was raised, there was no indication that the reasonable accommodation would not continue to be provided. During the welfare meetings, the complainant was asked about her needs for a return to work. The occupational health advice when obtained was insignificant. There were no further accommodation needs and the complainant’s grievance appeal was ongoing in any case.

During a grievance process, the onus is on both management and the complainant to continue with normal working arrangements as much as possible. The raising of a grievance does not stop the clock on the statutory period. In Mc Evoy, the Labour Court outlined the option of taking a grievance or statutory route. Although both are mutually exclusive and can run in parallel, the onus is still on the complainant to ensure a statutory complaint is made within time.

I find no evidence that the respondent was unwilling to provide reasonable accommodation to the complainant during the cognisable period.

Victimisation

I am conscious that discrimination or victimisation will never be too overt and may be conducted in a discrete manner. As in Hurley though, the Labour Court commented that-

It is clear from the passage just quoted that in order for acts or omissions outside the time limit to be taken into account, there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which has been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous within the time limit.

It is accepted that the complainant had made a protected act. To fulfil the test on victimisation, there was insufficient evidence to demonstrate adverse treatment during the cognisable period. Due to the complainant’s formal grievance and appeal, there was a record of all the engagements during the cognisable period. The complainant was not in work over this period and there was nothing contained in documents which indicated adverse treatment towards her.

As there was no application to extend time due to “reasonable cause” under section 77 5(b), there is no requirement to enquire further into this matter.

For the reasons outlined, I decide there was no discrimination or victimisation during the cognisable period. On the reasonable accommodation complaint, I decide that reasonable accommodation was provided although not availed of by the complainant, during the cognisable period.

On the preliminary issue, I decide that the complaints are out of time. I have no jurisdiction to hear the substantive complaints.

Jurisdiction