Complainant

Respondent

Parties

Karen  Rice

Tesco Ireland Limited

Representatives

Setanta Landers Setanta Solicitors

Niamh Ní Cheallaigh , IBEC

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-00060862-001

05/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00060862-002

05/01/2024

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

CA-00060862-003

05/01/2024

The Complainant commenced her employment on 12 November 2007 as a General Assistant at the Respondent’s Ballyfermot store. Her salary when she went on sick leave in June 2020 was €416.75 per week. She stated that she was discriminatorily dismissed on 5 October 2023.

Following a referral of a complaint to the WRC in respect of the Respondent’s failure to reasonably accommodate her, the Respondent wrote to the Complainant in mid-2023 to arrange a meeting. They informed her that they had engaged an Occupational Health Consultant to complete a report. The Complainant attended this meeting in or around 5 June 2023 and a report was subsequently compiled. The report was inadequate. It did not address the Complainant’s absence from work in a material fashion. It failed to evaluate how she could return to work with alternative working arrangements. A sizeable proportion of the report was centred on how the condition affects her personal and home life. It also suggested what NCBI assistance and grants the Complainant could apply for. Out of three recommended adjustments in the report, two pertained to personal life adjustments. The bulk of the justification section in the report were links to externals sites. The single reference to the viability of a return to work was seven lines long and stated that the nature and complexity of the Complainant’s conditions meant that it was extremely difficult to recommend equipment that would enable her to carry out any role efficiently and effectively. The Complainant asserted that there was no substance to the conclusions of the report or no basis for how this assessment was reached. There was also no explanation provided as to how the Complainant’s conditions prevented her from carrying out her role “efficiently and effectively”.

The Complainant subsequently received a letter on 5 October 2023 terminating her employment. The decision relied on the deficient report of June 2023. The Complainant appealed that decision but it was upheld.

The Respondent did not dispute that the Complainant had a disability within the definition of the Act. However, they rejected the allegation that she was discriminatorily dismissed from her employment for having a disability. It was asserted that the decision to terminate her contract of employment was based on medical evidence and followed an extensive support period where every effort was made to establish if the Complainant could return to work in any capacity. The Respondent stated that the Complainant was not fit to perform the duties associated with any role and no adjustments could be made to support a return to work in line with the report from their external consultant.

The Respondent took reasonable steps to inquire of the capability of the Complainant to return to work and to perform her role through a referral to occupational health. The Complainant was absent from work in excess of 30 months prior to the termination of her contract of employment.

Ultimately, the Respondent had to make a business decision with the information available to them, and all material facts concerning the Complainant’s capability. The Complainant was given fair notice that the possibility and question of dismissal for incapability were being considered. She was given the opportunity to participate fully in these investigations and to influence the Respondent’s decision.

CA-00060862-001:

The Law

Section 6 (1) of the Employment Equality Acts 1998 – 2015 defines discrimination as:-

“(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,”

Section 6 (2) continues:-

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

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”),

Section 85A of the Employment Equality Acts 1998 to 2015 provides 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.

As such, the burden of proof in this matter is on the Complainant. If the case meets the threshold set out above, then the burden of proof shifts and it is on the Respondent to rebut the presumption of discrimination.

I find firstly, based on the letter of termination issued to the Complainant on 5 October 2023, that her dismissal was attributable to her inability to return to work and that she has therefore established a prima facie case of discrimination on the disability ground.

In examining the Respondent’s rebuttal of the inference of discrimination, I note that as well as a report from their doctor in 2021, the only other evidence presented to justify the dismissal was an analysis carried out by Ms X, an employee of a training and consultancy company, to examine if the Complainant’s role was capable of adaptation. This analysis, compiled following a meeting with the Complainant on 5 June 2023, took place more than two years after the Complainant met with the Respondent’s doctor.

As Ms X was not present at the hearing to give evidence, I am unaware what qualifications, if any, she had and note there was no suggestion that she was medically qualified. In her report, she stated that it was not possible to recommend any adjustment to the Complainant’s role because there were “various complexities to her eye conditions”. Inexplicably, in coming to her conclusions, Ms X decided that there were “various complexities to her eye conditions” without either any apparent reference to a medical report or querying why the Complainant had not been referred to a consultant ophthalmologist as recommended by the company doctor . The assertion that there were “various complexities to her eye conditions” is also particularly extraordinary when the report also states that it does not “offer medical advice”. It was also notable that, despite the assertion in the doctor’s report which followed the Complainant’s appointment in April 2021, there were “mental health issues”, as well as her eye condition, which also rendered her unfit to work at the time, no reference was made to such issues by Ms X.

As well as relying on a medical report from 2021 and a June 2023 report from a training consultant, who appeared to have no relevant qualifications and failed to address the Complainant's mental health issues, the Respondent also ignored the recommendation made by their own doctor in his 2021 report that the Complainant should be referred to a consultant ophthalmologist. In addition, they never sought any further medical opinion on whether either her sight or her mental health issues had improved to the extent that a return to work might have been possible in the almost 30 months period between the only medical opinion having been obtained and her dismissal in October 2023.

I also noted that the letter of termination stated that “you were unable to provide an alternative medical opinion to that of the occupational health therapist. Consequently, we must assume that the occupational health therapist’s medical opinion (my emphasis) is not in dispute”. I find that the latter assertion is utterly bizarre and disingenuous given that the report from Ms X, clearly stated that it did not “offer medical advice” and the only actual medical opinion the Respondent relied on was given over two years earlier following a meeting with the company doctor in April 2021.

Prior to deciding to terminate the Complainant’s employment, the Respondent needed to be in “full possession of all the material facts” surrounding her condition as the Labour Cour stated in Humphreys v Westwood Fitness Club EED 037. At the very least, the Complainant should have been referred to a consultant ophthalmologist, as recommended by the company doctor in 2021. Additionally, the company doctor should have re-examined her shortly before the decision to dismiss her was made. This would have determined her fitness for work and allowed for an assessment of any improvements in her eyesight and mental health during the more than two years since her last health assessment.

Considering all of the foregoing points, I find that the Complainant has established a prima facie case of discrimination that she was dismissed from the Respondent on the basis of her disability, which the Respondent has failed to successfully rebut.

The Act provides for the following redress:

82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission] under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified;

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

(2)

(3) The types of redress for which the Circuit Court may provide on a reference under section 77(3) are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 6 years before the date of the referral;

(b) an order for equal remuneration from the date of the referral;

(c) the orders referred to in paragraphs (c) to (f)] of subsection (1);

and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration which may be ordered by the Circuit Court by virtue of this subsection.

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be

(a) in any case where the Complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the Complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000.

I have found, as set out in ADJ 44777, that the Complainant was discriminated against when the Respondent failed to afford her reasonable accommodation in respect of her disability. I am also of the view that that her subsequent dismissal, which I have found to discriminatory for the reasons set out above, was consequential. Accordingly, I have decided to make one award in respect of both complaints. This is in line with the decision of Kevin Roberts v United Parcel Service of Ireland EDA 2136, where the Labour Court made only one award although the Complainant had succeeded in both complaints.  

In deciding on an award of compensation, I noted the extent of the discrimination, the impact it had on the Complainant, the considerable period of time over which the discrimination occurred and the fact that she is unlikely to find work again.  I have also taken into account that the sanction must be “effective, dissuasive and proportionate” (Von Colson CJEU C14/83.)

In all of the circumstances of this case, I decide that it is just and equitable to order the Respondent to pay to the Complainant compensation in the amount of €40,000.

CA-00060862-002:

This complaint was withdrawn.

 CA-00060862-003:

This complaint was withdrawn.