Barmaid’s hours cut after diagnosis

A barmaid, who suffers from a painful medical condition unique to women, has won a discrimination case against her employer.

The Workplace Relations Commission (WRC) has ordered that a publican pay the barmaid, referrred to as Ms D, €20,000. The commission found that he discriminated against her on the grounds of gender and disability.

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

Author and creator of the hit US show, Girls, Lena Dunham, has endometriosis and has had five operations in the past year.

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

In the case before the WRC, Ms D underwent a surgical procedure for her endometriosis in October, 2015, and was supplied with a doctor’s cert, stating that she was only capable of light duties and for her not to undertake any heavy lifting.

However, on returning to work, Ms D had found that her hours were reduced sharply.

She asked why she couldn’t continue with her normal hours, as before, and was told that the bar and the reception involved heavy-lifting.

Ms D 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, because Ms D was the only female on the staff, she was asked to carry out chamber-maid duties.

Ms D told the hearing, at the Ashdown Park Hotel, in Gorey, Wexford, that when the two male barmen came in for work, she was sent off to do the rooms.

That work was physically much more demanding than her role as a barmaid and 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 to her two male colleagues.

The two males, who took up employment after the barmaid, were consistently provided with full-time hours as bar staff, thus leaving Ms D only with whatever remaining hours were available.

In her decision that Ms D was discriminated against on the ground of gender, the 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.

Ms O’Carroll Kelly also found that the publican discriminated against the barmaid on the grounds of disability, because the publican was fully aware that Ms D had undergone a small, surgical day procedure and was certified fit to return to work, albeit was restricted to light duties for one week.

Ms O’Carrroll Kelly also found that the employer took no steps whatsoever to consult with Ms D, or with her medical advisors, in order to ascertain what reasonable accommodation, or appropriate measures, could have assisted her in maintaining her work role.

Ms O’Carroll Kelly recorded that without any knowledge, assessment, consultation, and without having read the submitted certificate, the employer had made “what can only be described as a bizarre decision” to take Ms D off the roster, from the Thursday onwards.

Ms D resigned her position shortly after that.

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

Ms O’Carroll Kelly found that the employer had failed to objectively justify the cutting of Ms D’s hours.

Furthermore, the employer had failed to provide reasonable accommodation in relation to Ms D’s disability.