Key Learnings
This case shows the importance of consulting with employees regarding proposed changes to job roles and demonstrating the effort of facilitating employee concerns around any altered terms of employment. Also highlighted is the importance of correct and up-to-date employment contracts to ensure compliance with the law.
Background
The employee resigned her management role from a Laundrette which she held since 2007. In August 2020, the business was restructured following Covid-19 restrictions, and the role the complainant was offered upon reopening was not suitable for her due to medical reasons. The employee felt that the company failed to give her a suitable role and that she had no alternative but to resign. She also raised a complaint about the lack of a signed employment contract and maintained that she was discriminated against due to her disability.
Summary of Complainant’s Case
The complainant was a longstanding employee with the Laundrette and maintains that the employer was aware of her serious back condition which is aggravated by standing in one place carrying out ironing. Furthermore, she was diagnosed with a hormonal medical complaint in 2019 which she informed her employer about.
From March 2017- August 2019 the complainant carried out administrative duties. She informed her employer about back surgery which was pending. Her administrative duties ceased when she was requested to cover a colleague on annual leave in another shop. A friend of the owner took over the administrative duties, so the business had cover for when the complainant had her surgery.
The complainant was also asked to provide cover for a shop that did not have toilet facilities. In March 2020 the complainant was laid off due to Covid-19. She was informed the business would reopen on 31st August 2020. She was given 2 options for her return, both options including ironing as part of the role and cover of the shop without toilet facilities. She informed the company that the new options were unsuitable putting her mental and physical health at risk and giving her no alternative but to resign. The Complainant was not given the grievance procedure.
The complainant also claimed she was not provided with a contract of employment and did not recognise the document or her signature on a contract that was produced by the respondent.
The complainant believes she was discriminated against due to her disabilities and that no reasonable accommodation was made to provide for her medical conditions.
Summary of Respondent’s Case
The owner knew about the complainants back injury since 2018. In 2019, the complainant informed the respondent that she was recommended to go for back surgery in the UK, so the respondent took on a new member of staff to cover the complainant’s role. Six months elapsed and despite asking for updates the owner was given no update on when the surgery would take place.
The Laundrette faced several business challenges and financial losses from 2018. The owner said the complainant chose to work in a shop where there were 2 employees present but only 1 was needed. He felt the complainant was given an appropriate amount of ironing and that the pressure was very minimal. But he had to be fair to both staff members in the shop and share ironing duties. The complainant was on the Pandemic Unemployment Payment at the time he asked her to return to work in August 2020 which she refused. He felt he accommodated the complainant.
The respondent produced a contract of employment signed by the complainant at the hearing. The current owner took over the business in April 2014 and said the complainant’s signed contract was on file when he took over the business.
The respondent denied any discrimination and said they accommodated the complainant.
Findings and Conclusions
This complaint relates to the Unfair Dismissals Act 1977-2015. The Act defines “dismissal” in relation to an employee as:
“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.
In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached her contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.
The respondent was deemed not to have acted reasonably regarding the complainant’s return to work in 2020. There was no evidence of any consultation with the complainant regarding proposed changes to her role due to the business restructuring or an attempt to facilitate her concerns about the changes.
There was no explanation why the complainant did not return to the administration role, as the employee providing cover had left. No effort was made to resolve the issues after the complainant resigned. The complainant was found to have been unfairly dismissed and awarded compensation of €21,640.00.
With regards to the complaint relating to Section 7 of the Terms of Employment (Information) Act, 1994. The complainant claimed she never received any contract of employment and the adjudicator held that the complaint was well-founded and awarded one week’s wages of net €460.00 compensation.
Finally, with regards to the discrimination complaint relating to the Employment Equality Act, 1998 the adjudicator noted the burden of proof as set out in Section 85A (1) of the 1998-2015 Acts which provides:
“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.”
Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.
Reference was also made to Section 6 of the Employment Equality Acts 1998-2015 which states that, “discrimination occurs where a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned”.
The complainant did not provide any evidence of less favourable treatment by her employer due to her disability and the respondent denied any discrimination or failure to reasonably accommodate the complainant for her disability. In this case, discrimination grounds of disability were not found, and the complaint failed.
Decision
It was found that the complainant was unfairly dismissed and awarded compensation of €21,640.00. It was also found that there was no contract of employment in place and complainant was awarded €460.00 compensation. The complaint of discrimination on the grounds of disability was not upheld.