Background
The Complainant was employed as a hair stylist from 12th September 2016 to 29th August 2019. The Complainant was involved in a car accident on 29th April 2019 and suffered a serious hand injury which prevented her from returning to her role in hairdressing. There was no dispute that the Complainant had a disability within the meaning of section 2 of the Employment Equality Acts 1998-2015 and as of the date of the hearing, the Complainant was continuing to undergo treatment in respect of her injury.The Complainant's case
The Complainant argued that she was discriminated against on grounds of her disability. She claimed that she was forced to resign her position and that the Respondent failed to provide her with reasonable accommodation by permitting her to take up relief receptionist work, which was available.Following a discussion with her line manager, the Complainant was offered receptionist duties for one day a week. The Complainant rejected this offer on the basis that it was not financially feasible. Subsequently, the Complainant became aware of an advertisement for a relief receptionist and discussed this with the Respondent. She was informed that she would not be considered for the post as she was not formally trained in cash handling. The Complainant was disappointed by the fact that she was offered the role of receptionist for one day a week but was told that she was not qualified to carry out the role on a more regular basis. No other reason for the refusal was given and the Complainant felt she had no choice but to resign in light of the decision.
The Complainant submitted that the Respondent failed to engage with her in any meaningful way and no consideration was given to reasonably accommodating her.
The Respondent's position
The Respondent denied that the Complainant had been discriminated, as alleged. The Respondent argued that the Complainant failed to demonstrate that she was treated less favourably that a person of a different status i.e. to identify a comparator and that the Complainant failed to discharge the initial burden of establishing a prima facie case of discrimination.According to the Respondent, the Complainant informed her manager about the accident on the 30th April 2019 and provided a doctors certificate stating that she was unfit to return to work. The Complainant later informed the Respondent that she be in a hard cast for a further period of time and so was not in a position to work. The Complainant attended the salon in late June/ early July and indicated to her manager that she was bored at home, and the manager suggested that she could assist on reception. On the 4th July, the Respondent submitted that the Complainant informed her manager that she had damaged tendons in her wrist and was advised not to return to work by her doctor, to prevent long term injuries. At the same time, Complainant also inquired about receptionist duties on this date. The Respondent submitted that the Complainant rejected the notion of working as receptionist for one day a week as it would interfere with her social welfare benefits. The Complainant's manager agreed to follow up with the Area manager in relation to any receptionist vacancies. The Respondent submitted that the Complainant was also informed that she would need to complete reception and cash up training before working at reception on a regular basis.
The Respondent notified the Complainant on 9 July 2019 that it was unable to provide the reception hours requested by the Complainant as she was not trained to undertake the role, however, they were hopeful that she would return to her original position in the coming weeks. The Complainant was subsequently placed in a soft cast for a further six weeks. The Complainant corresponded with HR, regarding sick pay and medical certificates on 20 June, 11 July and 1 August 2019, but apart from this, there was no other communications between the Complainant and the Respondent during this time. On 29 August 2019 the Complainant attended the salon and provided her letter of resignation. In her resignation letter she expressed thanks to her manager and indicated she was resigning for medical reasons and that her occupational therapist had advised her to find light work elsewhere. The Respondent maintained that reasonable accommodation was not mentioned in any of these communications nor on the date the Complainant resigned.
The Law
Section 2(1) of the Employment Equality Acts defines a disability as meaning —
"(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)(a) of the Employment Equality Acts provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties. Section 16(3)(b) of the Employment Equality Acts further places an obligation on the employer to do all that is reasonable to accommodate the needs of a person with a disability by providing such treatment or facilities.
As part of her complaint, the Complainant also sought to rely on the well-established decision in N Humphries V Westwood Fitness Club in which it was determined that once an employer is on notice of a disability they are obliged to assess it, consider how long it will last and take steps to provide appropriate reasonable accommodation.
Findings and Conclusions
The Adjudication Officer was satisfied that the Complainant had established a prima facie case of discrimination and the burden of proof therefore shifted to the Respondent to rebut this presumption.
The Adjudication Officer was also satisfied that the Complainant's injury did constitute a disability, within the meaning of the Employment Equality Acts, albeit a temporary one.
On the question of a comparator, while the Adjudication Officer found that the Complainant had not identified a comparator, he found that this was insignificant as there was an obligation on the Respondent to provide reasonable accommodation pursuant to Section 16(3).
The Adjudication Officer concluded that the Respondent had a duty to investigate the Complainant's disability and ascertain whether special provision could have been made and that it failed to do so in this case. As a result, he found that the Respondent failed to comply with its obligations under section 16 of the Employment Equality Acts and therefore discriminated against the Complainant on the grounds of disability.
The Adjudication Officer made an award of compensation in the amount of €6,000 (approx. 17 weeks' pay) in favour of the Complainant.
What this means for employers?
Employers should be mindful that even a temporary injury suffered by an employee has the potential to meet the very broad definition of a disability, under the Employment Equality Acts.
Once an employer is on notice of an employee's disability, they have a duty to engage with the employee to ascertain what accommodations are required, if any. Employers would be well advised to seek advice from a medical professional/ occupational health to determinate what accommodations, if any, would assist a disabled employee to perform their role.
Open and transparent engagement with the disabled employee is key and while an employer is not obliged to create a new role for a disabled employee, we can see from this decision that all options should be meaningfully considered before a decision is made.
Authors - Alison Martin, Senior Associate and Thomas Bulfin, Trainee Solicitor
