Case Number: DEC-E2012-053- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-053- Full Case Report
• Date: 27 April 2012
• Court: Equality Tribunal

EQUALITY OFFICER'S DECISION NO: DEC-E/2012/053

PARTIES

MS. ELIZABETH GRAHAM
(REPRESENTED BY TERENCE LYONS AND CO. SOLICITORS)

AND

ATOLVO ENTERPRISES LIMITED
(REPRESENTED BY CROWLEY MILLAR SOLICITORS)

FILE NO: EE/2009/906

DATE OF ISSUE: 27 April, 2012

1. Dispute

This dispute involves a claim by Ms. Elizabeth Graham that she was discriminated against by Atolvo Enterprises Limited, on the grounds of, her disability in terms of section 6 (2)(g) of the Employment and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, when she was dismissed from her employment, while in hospital recovering from surgery. The complainant has also made claims in relation to promotion, conditions of employment and dismissal on grounds of disability, age and gender.

2. Background

2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 7th December, 2009.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of February, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. A written submission was received from the complainant. No submission was received from the respondent. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 30th March, 2012.

3. Summary of complainant's case

3.1 It is submitted that the complainant was employed by the respondent, for 10 years, in a part-time capacity. It is submitted that, on 1 June 2009, the business came under its current management Terence Sweeney and Karl Sweeney, under which the complainant continued to work under the same terms and conditions. It is submitted that in or around the 5th of July, 2009 the complainant, who had been suffering from back pain, discovered, as a result of tests, that she had a tumour on her kidney and would have to be admitted to hospital to have it removed. It is submitted that the complainant advised the respondent of this, and was told that she could furnish medical certificates, on her return to work. It is submitted that the complainant, underwent surgery on 20th July 2009 and that she received a get well card from the respondent a week before her surgery. It is submitted that the complainant, while recovering in hospital, from surgery, received a letter of dismissal, dated 24th July, 2009 and her P45, from the respondent. The cessation of employment date on the P45 was 7th July, 2009.

3.2 It is also submitted that the complainant who had been working part-time hours was denied the opportunity to move to a full-time position after her hospitalisation as she was dismissed while in hospital. It is submitted that this amounts to discrimination on grounds of her disability in relation to promotion and conditions of employment.

3.3 Age ground- It is submitted that the complainant was discriminated against the age ground in relation to conditions of employment in that in that she was treated less favourably than another employee of a different age has been or would be treated regarding the manner of her dismissal. It is also submitted on the age ground that the complainant was discriminated against in relation to 'promotion or regrading' in that she was denied the opportunity to work full time hours and it is believed full-time employees of a different age were taken on.

3.3 Gender ground- It is submitted that the complainant was discriminated against on the gender ground in relation to conditions of employment in that she was treated less favourably than another employee of a different gender has been or would be treated regarding the manner of her dismissal. It is also submitted on the gender ground that the complainant was discriminated against in relation to 'promotion or regrading' in that she was denied the opportunity to work full time hours when full-time employees were taken on.

4. Summary of respondent's case

4.1 The respondent, by letter to the Tribunal indicated their intention to 'vigorously defend' the claim by Ms. Graham, but did not provide a submission to the Tribunal.

4.2 The respondents, prior to the hearing, submitted a letter, to the Tribunal, indicating that they had ceased trading and would not be attending the hearing. This letter also requested that a copy of the Tribunals determination be forwarded to the respondents when available.

5. Findings and Conclusions of the Equality Officer

5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her dismissal, conditions of employment and promotion. Furthermore, I must also consider whether the complainant was discriminated against, on grounds of age and gender, in relation to promotion, conditions of employment and dismissal. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section...