Case Number: DEC-E2016-053. Workplace Relations Commission

• Judgment Date: 01 March 2016
• Court: Workplace Relations Commission
• Docket Number: DEC-E2016-053
• Parties: Colman Murphy -V- Xtra-vision Ltd

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-053 PARTIES Colman Murphy (represented by Eamon Kirwan) AND Xtra-vision Ltd (Represented by IBEC) File reference: EE/2013/127 Date of issue: 29 March 2016 Introduction:

1.1 This complaint concerns a claim of discrimination on the grounds of disability. The complainant outlines that he was unlawfully selected for redundancy at a time that he was on certified sick leave and because of his disability, a degenerative eye condition, and that he was discriminated against with regard to access to employment. The respondent has a network of retail outlets, and at the time of the hearing had entered receivership.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 3rd March 2013 under the Employment Equality Acts. On the 16th June 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 4th September 2015. The complainant attended in person and was represented by Eamon Kirwan. The respondent was represented by IBEC and the Managing Director, a former Senior HR Manager, the Company Chairperson and the current HR Manager.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Submissions and evidence of the complainant:

2.1 The complainant outlines that he was unfairly selected for redundancy at a time that he was on certified sick leave and that his dismissal was discriminatory on the grounds of disability. In submissions, the complainant outlines that he was discriminated against in contravention of section 6(2)(g) of the Employment Equality Acts; that he was penalised in not being given access to employment contrary to section 8(1)(a) and 8(5)(a); that he was treated differently to other employees in contravention of section 28(1) and that he was victimised contrary to section 74(2)(d) when he was selected for redundancy and subsequently dismissed.

2.2 The complainant outlines that he held a senior role managing aspects of the respondent’s store network and his job title was “Senior Property and Projects Manager”. Driving was part of this role. In December 2010, he developed a degenerative eye condition and continued working until the 24th April 2012 when he could no longer drive. At this time, he went on certified sick leave for two weeks and on his return was informed that he would no longer be involved in the management of a project. This was confirmed in an oral conversation with the respondent Chairperson, who told him that a particular person would be fulfilling his duties (referred to in this report as “the Colleague”). The complainant raises the manner in which the Chairperson dealt with him, where he said “would you like me to sugar coat that for you?” Later that same day, three individuals were informed that the complainant would be taking time out to address his medical issue and that he should provide a job description of the jobs he was working on. The complainant then went on further certified sick leave. Over the next few months, he met with the Managing Director of the respondent. In the meeting of the 14th August 2012, they discussed his condition and the division of operational duties in his absence. At this stage, the complainant mentioned his going back to work. The Managing Director suggested that the complainant remain out on leave. In respect of the meeting of the 31st August 2012, the complainant met again with the Managing Director as well as with the Colleague who had taken on his duties. The complainant said that his Colleague raised issues regarding a contractor and he felt that he was being blamed for the problem. The complainant said that he offered solutions to his Colleague. After addressing operational issues, the complainant said that he would be returning to work and was offered a large screen. His Colleague also asked after the complainant’s health.

2.3 The complainant’s return to work was delayed for medical reasons and the complainant attended an occupational health assessment on the 7th November 2012. He emailed respondent to say that he had been given the “all clear” and expressed his wish to return to work. He said that he also spoke with the HR manager but did not receive confirmation of his return. The finding of the occupational health assessment was confirmed in a letter of the 8th November 2012. After this, he met with the Managing Director on the 16th November 2012. This meeting was the first occasion that the Managing Director raised the possibility of the complainant’s redundancy. He acknowledged at the hearing that he had been aware of redundancies in 2012, but this was a shock. He said that he had an outstanding mortgage, that he had a young family and that he wanted to go back to work and that there had been no consultation. The complainant outlines that he proposed alternatives to his redundancy but was told that they were not viable and that he was redundant. He replied that there was still a job for him to do.

2.4 The complainant received an email from the HR manager inviting him to a meeting on the 30th November 2012 to discuss his possible redundancy. He met with two HR managers and was told that his position had been made redundant. He sought to raise alternatives to redundancy. At a follow-up meeting on the 11th December 2012 attended by the complainant, the Managing Director and the HR manager, the complainant was offered an alternative position of store manager. At this time, the complainant made a presentation about cost-savings of €600,000 that could be obtained through restructuring. The complainant’s competencies were not discussed during the meeting. Furthermore, he was not permitted to return to work and was deprived of access to his work email. No explanation was provided for this latter act. The complainant acknowledged that in an email of the 13th December 2012, he did not challenge his lack of access to his work email account and did not ask for access to be restored. The issue is mentioned in the context of using the complainant’s private email address in correspondence. On the 18th December 2012, the complainant met with the HR manager who said that the respondent had examined his proposals and that the respondent had concluded that they were not viable; the HR manager confirmed his redundancy. The complainant replied that he would appeal this decision. The complainant’s redundancy was confirmed in a letter from the respondent of the 8th January 2013. The complainant attended an appeal hearing with the Chairperson of the respondent on the 25th January 2013. They discussed the fact that the Colleague had taken on his property-related duties and that her title had changed to that of “Property and Estates Manager.” She was involved in the roll out of at least one new store and there were procedures and processes being drawn up for additional stores. These were all aspects of his role. The complainant said that there should have been a matrix to consider both his and this Colleague’s position in the company. He also raised the fact that this Colleague dealt with him on behalf of the respondent when he was on sick leave, in particular her lead role at the meeting of the 31st August 2012. After the appeal hearing, the complainant’s redundancy was confirmed in a letter of the 7th February 2013. The complainant outlined that he received his P45 and RP50 prior to the hearing of his appeal, demonstrating that this was a “done deal”.

2.5 The complainant outlines that he was discriminated against in having duties removed from him after his return from the first period of sick leave in June 2012; he states that his position was transferred to the Colleague. He states that he wished to return to work and subsequently was certified as fit to do so; the respondent prevented his return to work. The complainant challenges the veracity and the process around his redundancy, stating that the alternatives he proposed were not considered and that no matrix was used to assess candidates for redundancy. He states that he was treated differently to other employees who faced redundancy as they were allowed continued access to their email and to attend the workplace. He said that he had effectively been locked out. No other employee had been made redundant while on certified sick leave. The complainant also outlined that when he returned after the first period of sick leave, the only task that he could not do was to drive. The respondent should have provided him with reasonable accommodation to allow him return to work. He said that he maintained that the respondent had breached the Employment Equality Acts and said that the act of penalisation occurred when he was told that if he returned to work, he would be made redundant.

2.6 In respect of redress, the complainant outlined that he had incurred losses of €77,500 as a result of the discriminatory dismissal and...