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Dublin: 13°C Monday 21 September 2020

Bartender awarded €20,000 after discrimination by employer over her 'extremely painful' condition

The woman found her hours greatly reduced after she underwent a surgical procedure aimed at alleviating her condition.

shutterstock_113900062 File photo Source: Shutterstock/sima

A FEMALE BARTENDER who suffers from an extremely painful condition unique to women has won a discrimination case against her employer.

In the case, the Workplace Relations Commission (WRC) has ordered that a publican pay the woman (referred to as Ms D) €20,000 after it found that he discriminated against her on the grounds of gender and disability.

Ms D suffers from endometriosis, a disorder in which the tissue that ordinarily lines the uterus grows in other parts of the body such as the ovaries, the fallopian tubes and on the bladder, causing chronic pain.

Endometriosis – which can also cause infertility – affects one out of every 10 women, although only a fraction of those cases will ever be diagnosed.

The case before the WRC described how Ms D underwent a surgical procedure for her endometriosis in October 2015 and was supplied with a doctor’s certificate stating that she was only capable of light duties and to not undertake any lifting on returning to her workplace.

However, on returning to work, she found that her hours were reduced sharply.

Ms D asked why she couldn’t continue with her normal hours in the bar and was told that it was her employer’s opinion that working in the bar and the reception involves heavy lifting.

She was then handed a letter which stated: “From a health and safety point of view, we will be unable to offer you any work until you inform us that you are fit for work.”

Prior to the surgical procedure, as Ms D was the only female member of staff, she had been asked to carry out room-cleaning duties at the business.

Extremely demanding

Ms D told the hearing that when the two other male barmen came in for work she was sent off to do the rooms.

She said that work was physically much more demanding than her role as a bartender as she was required to carry heavy linens, lift heavy mattresses when making beds, and carry heavy items up three flights of stairs.

Ms D said that she found the work extremely demanding because of her endometriosis.

Her hours began to be reduced significantly in comparison with those of her two male colleagues.

The two male employees who took up employment after the woman were consistently provided with full-time hours in their roles as bar staff, leaving Ms D only with whatever remaining hours were available.

In her decision that Ms D was discriminated against on the grounds of gender, WRC Adjudication Officer Niamh O’Carroll Kelly said that the employer had provided no reasons that could objectively justify why Ms D was treated less favourably than her male counterparts.

O’Carroll Kelly also found that the publican discriminated against the woman on the grounds of disability after finding that he was fully aware that she had undergone a small surgical day-procedure and was certified fit to return to work with the caveat that she only carry out light duties for a period of one week.

The WRC officer also found that the employer took no steps whatsoever to consult with Ms D or her medical advisers in order to ascertain what reasonable accommodations or appropriate measures could have assisted her in maintaining her work role.

‘Bizarre decision’

O’Carroll Kelly said that, without any knowledge, assessment, consultation, or even reading the doctor’s certificate submitted, the employer made “what can only be described as a bizarre decision” to take Ms D off the roster from the Thursday onwards, which led to the woman resigning her position shortly afterwards.

Awarding her €20,000, O’Carroll Kelly found that Ms D had “established a prima facie case of discrimination on the grounds of gender and disability”.

She found that the employer had failed to objectively justify the cutting of the woman’s hours. Furthermore, the employer had failed to provide reasonable accommodations in relation to Ms D’s disability.

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Gordon Deegan

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