Complainant

Respondent

Anonymised Parties

A Customer Service Assistant

A Supermarket

Representatives

Mandate Trade Union

 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-00062660-001

08/04/2024

The Complainant was represented Mandate Trade Union. She gave evidence on affirmation. Legal submissions were received and relied upon. It was the Complainant’s case that she was discriminated against dismissal and be reasonable accommodated in her position as a Sales Assistant with the Respondent on the grounds of her disability.

The Respondent was represented by IBEC. The Colleague Relations Partner, Store Manager 1 , Store Manager 2 and Store Manager 3 all gave evidence on behalf of the Respondent on affirmation.  Legal submissions were received and relied upon.

The parties both requested that the decision be anonymised due to the sensitive personal information in respect of the Complainant’s disability which forms the basis for this complaint.  For these reasons, the decision has been annoymised.

The Complainant gave evidence that she was commenced employment on 20 October 2003 as a Customer Service Assistant, contracted to work 35 hours per week at a rate of €17.09 per hour. She submitted her employment was terminated by the Respondent, with her final date of employment being 16 October 2023.

The Complainant outlined the background to her complaint. In November 2021, she returned to work following a period of mental health-related sickness absence. Two weeks later, she suffered a relapse and remained on sick leave until her employment ended. It was her evidence that she suffers from chronic anxiety and depression, which was further aggravated by the Respondent’s failure to address a grievance first submitted in 2019.

It was her evidence that she submitted the same grievance on three separate occasions. It was the Complainant’s evidence that she sought to have her grievance addressed before her return to work in November 2021 but was informed by her Store Manager 1 that it could not be progressed while she was on sick leave. She stated that, upon her return, she made numerous requests for her grievance to be heard and was eventually told that her file was missing for six weeks. This upset her greatly as she had just returned to work.

The Complainant’s evidence was that the grievance was eventually heard on 2 March 2022, and an outcome was issued on 28 April 2022. She further stated that this outcome was appealed by her trade union, but the appeal was delayed due to a close family member bereavement in May 2022. The appeal was ultimately heard on 18 October and 2 December 2022, with the outcome issued on 9 December 2022.

She also raised another grievance that her pay was stopped during her sick leave which was decided at store level by a member of management who was also hearing her appeal to the outcome of her grievance.

While the sick pay issue was resolved in summer 2023, and she received payment, the Complainant was dissatisfied with the outcome on other matters, which she says caused further stress and exacerbated her already vulnerable health condition.

The Complainant was invited to attend a welfare meeting regarding her ongoing sickness absence on 10 March 2023. During the meeting, the Complainant advised that she had an upcoming appointment with the Community Mental Health Team, and she was also referred to Occupational Health for assessment.

It was her evidence th.at the mental health team appointment, originally scheduled for 25 March 2023, was postponed. She attended an Occupational Health assessment on 30 March 2023, which reported that she had chronic anxiety and depression and that work events appeared to be aggravating her condition. She was on prescribed medication, attending crisis team support, and awaiting intensive psychotherapy from the community mental health team.

She requested that her manager not conduct the many welfare meetings she attended as she felt there had been a breakdown in her trust. This was complied with another Store Manager taking over.

The occupational health report of March 2023 concluded she was unfit to return to work and that her perception of being treated unfairly, along with unresolved workplace disputes, was contributing to her poor mental health. It further stated she would be unable to return to work until the dispute resolution process concluded.

It was the Complainant’s evidence that she worked with the Respondent for 20 years and despite this her manager failed to text her when her brother passed away. It was her evidence that the handling of her grievance contributed to her poor mental health. She continues to receive treatment from mental health services but due to the long waiting list has not been able to access all the services she requires. 

The Respondent did not dispute the Complainant’s disability.

The Respondent submitted that on 24 November 2019, the Complainant commenced a period of long-term absence due to stress and depression. This absence was managed in line with its absence management procedures, with regular Occupational Health assessments. The Complainant returned in November 2021 but went out on sick leave again on 15 December 2021 with the same illness.

It was further submitted that welfare meetings were held on 31 January and 4 February 2022, during which the Complainant raised concerns about her entitlement to sick pay. She was informed that, in line with policy, a store-level decision had been taken to cease payments.

The Respondent stated that on 9 February 2022, the Complainant raised a grievance regarding the cessation of sick pay and a separate matter alleged to have occurred prior to her absence. A Colleague Relations Partner was appointed to investigate, and following a full investigation, the grievance was not upheld. The outcome was issued on 28 April 2022.

The Respondent further submitted that the Complainant appealed the outcome on 3 May 2022 but was asked to provide grounds for appeal. The Complainant’s absence continued to be managed in line with company policy.

The Respondent stated that the Complainant’s absence was managed in accordance with company policy. On 9 August 2022, the Complainant was invited to a welfare meeting with the Store Manager, but declined to attend, citing a mental health crisis risk assessment.

On 16 September 2022, the Complainant submitted an appeal against the outcome of a grievance process that had concluded in April 2022. A different Store Manager was appointed as the appeal officer and conducted a thorough appeal process. On 9 December 2022, the appeal was not upheld; however, due to poor communication regarding sick pay, it was recommended that the Complainant be paid sick pay for 2021 and 2022.

Further welfare meetings were scheduled, including one on 16 December 2022, which was postponed at the request of the Complainant’s trade union representative. Another meeting was arranged for 31 January 2023 but was cancelled due to the Complainant being unfit to attend. The Complainant requested that future welfare calls be conducted by a different manager.

On 18 February 2023, the Respondent issued a registered letter to the Complainant stating that her position could not be held indefinitely and requested her attendance at a meeting and occupational health assessment. The Respondent confirmed that the original Store Manager would no longer be involved in welfare meetings, per the Complainant’s request.

A welfare meeting was held on 10 March 2023 with the Complainant, her trade union representative, and a different Store Manager.

On 30 March 2023 she was reviewed by the Respondent’s Occupational Health physician where she was deemed unfit to return to work where she suffered from “chronic anxiety and depression”. It noted she was on a waiting list for treatment with the local mental health services and efforts were being made to progress her treatment. It also refers to the effect of the workplace grievance on the Complainant. It notes that she will remain unfit to return to work until such time as the workplace grievance is resolved and suggests that she is reviewed again at that stage requesting her job may be kept open for the moment.

The Complainant’s employment was terminated by letter dated 18 August 2023 on the grounds of ill health where there was no foreseeable return to work date.

Correspondence was exchanged between the Store Manager and another manager regarding the referral process for Occupational Health. In line with company procedures, only the employee’s direct manager could issue such a referral, and therefore the original Store Manager proceeded with it.

On 19 May 2023, the Respondent issued a letter inviting the Complainant to a meeting to discuss the outcome of the Occupational Health report. The letter also stated that the Respondent would be reviewing all available information to determine whether the Complainant’s position could continue to be held open. It was noted that the outcome of this review might result in the Complainant being placed on notice of termination due to inability to fulfil her contract on grounds of ill health.

This meeting took place on 25 May 2023. Several action points arose, including a request for the Complainant to provide an up-to-date medical report from her GP.

On 16 June 2023, the Store Manager contacted the Complainant again to request the medical report, which had not yet been submitted. The Complainant responded with concerns about the Respondent’s intentions, including an accusation of attempting to dismiss her without merit, and explained the delay in obtaining the report. The report was submitted later that same day.

On 5 July 2023, the Store Manager wrote to the Complainant regarding the contents of the GP report, which referenced unresolved workplace issues. The Respondent requested further clarification, noting that all known issues had been addressed through the grievance procedure, which had been exhausted.

On 7 July 2023, the Complainant’s trade union representative submitted medical notes from the GP stating that the Complainant would be unavailable to engage with the Respondent for a period of 2–3 weeks. The Complainant did not make direct contact with the Respondent during this time.

This decision was appealed by the Complainant on 23 August 2023 with the decision being upheld by letter dated by letter dated 19 December 2023.

Section 6 of the Employment Equality Acts 1998-2015 (the “Acts”) provides the definition of discrimination:

“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—

(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”),”

Disability is defined in Section 2 of the Act as

“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.”

Section 16 (3) provides the nature and extend of the employer’s obligations to employees with a disability:

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, an

(iii) the possibility of obtaining public funding or other assistance.”

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility, or thing that the person might ordinarily or reasonably provide for himself or herself;”

Section 16(3) of the Act requires an employer to take appropriate measures, where needed, to enable a person with a disability to have access to employment, to participate in and advance in employment or undergo training.  MacMenamin J in Nano Nagle v Daly [2019] IESC 63 held that the Section 16(3) of the Act places mandatory duty on the employer to take all “appropriate measures” unless any measure would constitute a “disproportionate burden” for the Respondent employer. The employer must demonstrate that they have fully considered the reasonable accommodation question.  In its judgment the Supreme Court held that the test is one of reasonableness and proportionality.

Burden of Proof

Section 85A of the Employment Equality Act 1998-2015 sets out the burden of proof:

“(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”.

Therefore, the burden of proof is on the Complainant to show that he was treated less favourably on account of her disability and was not reasonably accommodated in the workplace.

Findings

There was no dispute regarding the Complainant’s disability.

While the Respondent submitted that the Complainant was dismissed due to medical incapacity, the evidence presented by both parties was uncontested that the dismissal was entirely a result of her disability. This is supported by the Occupational Health report dated 30 March 2023.

Consequently, I find that the Complainant was dismissed as a result of her disability. Therefore, the burden of proof shifts from the Complainant to the Respondent.

The next consideration is whether the Respondent was justified in dismissing the Complainant on the grounds of her disability.

The Occupational Health report of 30 March 2023 and her GP’s letter of 16 June 2023 both note that she would benefit from the resolution of her workplace grievance and was unlikely to be fit to return to work until its conclusion. However, despite these statements, the grievance was resolved through internal procedures, with an Investigation Report issued on 28 April 2022 and an appeal in May 2022. While the investigation took a considerable amount of time and there were issues with misplaced documentation, the Respondent discharged its duty by thoroughly investigating the grievance and issuing a reasoned decision in a detailed report dated 28 April 2022, with the appeal varying the decision. The fair application of internal procedures by a Respondent does not amount to discrimination.

Over the following year, the Respondent engaged with the Complainant and requested that she provide a medical report from her treating doctors. This course of action was entirely reasonable, particularly where the Complainant’s disability was ongoing for several years and her own medical attendants were best placed to offer a fully informed opinion on her prospects of returning to work. Unfortunately, no such medical report was forthcoming until 16 June 2023, which contained inaccurate information regarding the grievance procedure. Further requests were made for the Complainant to provide her own medical report, but the only report provided was on 7 July 2023, requesting a stay of 2–3 weeks, stating that the Complainant was unfit to engage, with no further details.

While it is accepted that the Complainant faced lengthy waiting lists for access to the treatment she required, which compounded her disability, the Respondent was at all times reasonable in its efforts to engage with the Complainant in the hope that she would return to work. However, and unfortunately for the Complainant, after being on sick leave since 24 November 2019, except for a two-week period in November 2021 when she returned to work before being deemed medically unfit again, I find that the Respondent did not fail to reasonably accommodate the Complainant in her disability. Furthermore, I find that the Complainant was not treated less favourably by reason of her disability in the termination of her contract of employment and that the Respondent was objectively justified in its decision to terminate.

For the reasons outlined above , I find the Complainant was not discriminated against by the Respondent.

Discrimination