EED062

Background.

The Complainant is a Registered General Nurse and a Registered Midwife. She was employed as a Practice Nurse by the Respondent between 22nd April 2003 and 20th April 2004, when her employment terminated. The Complainant contends that she was dismissed in circumstances amounting to discrimination on the disability ground.

The Respondent contends that the Complainant was employed on a fixed-term contract of one year duration. He claims that the contract was not renewed for reasons which were unrelated to the Complainant’s disability and that it had never been intended that her employment would be extended beyond one year.

The Complainant referred a complaint to the Court pursuant to Section 77 of the Employment Equality Act 1998 (the Act).

Facts

The material facts, as admitted by the parties or as found by the Court are as follows:

The Respondent is a Doctor in private practice. He has been a sole practitioner for many years. At the time material to this complaint the Respondent had a large number of patients and was devoting long hours to his practice. He was contemplating retirement and with that in view was actively considering engaging another Doctor to share the workload and gradually take over the practice.

The Complainant came to work for the Respondent having previously been employed in a senior medical position with a Health Board. Her partner introduced her to the Respondent with whom he was acquainted. The Respondent appears to have been impressed by the Complainant’s experience and qualifications. He considered employing her as a practice nurse to take on some of the clinical work of the practice. The Complainant was interviewed by the Respondent and his Practice Manager who is the Respondent’s wife. The Respondent offered the Complainant employment on the basis of an initial one year contract which could be renewed by agreement between the parties. In the event of one party opting not to renew the contract one months notice to that effect was required.

The practice was located in premises comprising two consulting rooms. One room was used by the Respondent and the other by the Complainant. The Respondent told the Court, and the Court accepts, that he had plans to obtain a larger premises or to adapt his existing premises so as to provide a third room which could accommodate a second Doctor. These plans did not, however, materialise.

At the time the Complainant was employed the Respondent intended to employ another Doctor. In the event of his doing so he did not intend to retain the Complainant. He told the Court that this was one of the reasons why he inserted the “break” clause in the Complainant’s contract of employment.

The Complainant was initially employed on a salary of €25,000 per annum. This was later increased to €30,000 per annum. Her standard working week was 20 hours but she often worked beyond her normal finishing time when the exigencies of the practice so required.

The Complainant contends that on or about February 2004 the Respondent confirmed that her employment was of indefinite duration. It appears that this arose in circumstances where the Complainant was seeking a mortgage and required confirmation from the Respondent as to her salary and employment status. The Respondent does not recall the content of the form which he signed and a copy has not been seen by the Court. However, on balance, the Court accepts that the form did contain the statement recalled by the Complainant but that it was made only for the purpose of facilitating the Complainant in obtaining a mortgage.

On 2nd March the Complainant became ill in the course of her work and was admitted to hospital. On 4th March the Complainant underwent a hysterectomy. The Complainant did not inform the Respondent of the exact nature of her illness and the initial medical certificate furnished by her Doctor merely referred to her having undergone a surgical procedure. However the Court is satisfied that the Respondent did become aware of the nature of the procedure which the Complainant had undergone. While she was on sick leave her pay was reduced by approximately one-third. This arose because the Respondent understood that the Complainant would receive Social Welfare Disability Benefit and deducted the equivalent amount from her pay.

The Respondent told the Court that shortly after the Complainant became ill he had discussed the future arrangements for the practice with his wife. They were conscious that the anniversary of the Complainant’s employment was approaching and if her contract was not being renewed they would have to give the notice required by the contract. It appears that a decision was taken to actively pursue the option of recruiting another Doctor to work in the practice. That in turn reopened the question of the accommodation in the practice. It was decided that rather than renew the Complainant’s contract in its then current terms the Respondent should offer her the possibility of working reduced hours during which she could use one of the consulting rooms at the practice when it was not being used by the proposed new recruit.

The Respondent told the Court that a letter was drafted to the Complainant setting out this offer. This was posted to the Complainant on 18th March 2004 with her wages cheque. There was a postal strike at the time and it appears that while the wages cheque was received the letter was not.

The Complainant wrote to the Respondent on 23rd March taking issue with the deduction made from her salary. This letter was hand delivered to the practice. She pointed out that she had no entitlement to Social Welfare Benefit. On receipt of this letter the Practice Manager, who was also the respondent's wife telephoned her to discuss its content. The Complainant pointed out that because she paid PRSI contributions at a reduced rate in her previous employment she had no entitlement to State Disability Benefit.

It appears that in the course of the telephone call the Practice Manager did not enquire as to the Complainant’s state of health or indicate any concern for her well-being. This was a source of some annoyance to the Complainant. Moreover, in the course of this conversation the Practice Manager made reference to a letter which had been sent to the Complainant offering her reduced hours. The Practice Manager told the Court that due to the impending anniversary of the Complainant’s employment she needed to know if the Complainant was prepared to accept the amended terms since otherwise the employment could not be continued. She asked the Complainant for a response to the letter. On being told that the Complainant had not received the letter the Practice Manager insisted on reading its content to the Complainant over the phone.

There were significant differences of recollection between the Complainant and the Practice Manger as to what ensued. The Practice Manager contended that the Complainant made derogatory remarks concerning both herself and the Respondent. The Complainant forcefully denied having made any comments which could be so construed. The Complainant contended that the Practice Manager was impolite and uncaring regarding her illness and was belligerent. For the purpose of this determination it is sufficient for the Court to accept that there was an acrimonious exchange between the parties without the need to ascribe responsibility for that exchange

Following this conversation the Respondent wrote to the Complainant withdrawing the offer of a reduced hours contract and giving notice of his intention not to renew the Complainant’s contract. The stated reason was the Complainant’s failure to accept the offer of reduced working hours. However in the course of the hearing the Respondent confirmed, and the Court accepts, that the real and dominant reason for this decision was the exchange between the Complainant and his wife. The Respondent has since employed another Doctor and has not replaced the Complainant.

Position of the Parties.

The position of the parties can be briefly stated as follows:

The Complainant’s Case.

The Complainant contends that the Respondent would have known that the Complainant required a lengthy recuperation period of up to 14 weeks. It was submitted on her behalf that in light of this knowledge the Respondent decided to terminate the Complainant’s employment. It was further suggested that in offering the Complainant reduced working hours the Respondent was seeking to coerce her into terminating her employment. The argument was advanced on behalf of the Complainant that in the absence of any reasonable explanation for the termination of her contract the Court should infer that it was because of her illness.

The Respondent’s Case.

The Respondent submitted that the decision not to renew the contract at issue was wholly unrelated to the Complainant’s illness. The Respondent submitted that the contract terminated on the expiry of its term and it was not renewed because the Respondent intended to recruit another Doctor for whom the room used by the Complainant was required.

It was further submitted that the Respondent offered to discuss with the Complainant a reduced hours contract which would have made it possible to accommodate both her and another Doctor in using the same room. However following the altercation between the Complainant and the Practice Manager it was decided to withdraw that offer.

The Law Applicable

The Respondent does not deny that the Complainant’s illness constitutes a disability within the meaning of Section 2(1) of the Act.

Article 2 of Directive 2000/78 (Equal treatment in employment and occupations) provides that the principle of equal treatment shall mean that there shall be no direct or indirect discriminationwhatsoeveron the grounds of disability (emphasis added). It is well settled that in interpreting national law the Court must do so in light of the wording and purpose of a Directive so as to achieve the result pursued by the Directive (seeMarleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135). While the events giving rise to this complaint occurred before Directive 2000/78 was transposed into Irish law, the recent Decision of the ECJ in Case C-144/04Mangold v HelmIRLR 143, makes it clear that this rule of harmonious interpretation applies from the time a Directive enters into force.

Thus if it is established that the decision not to renew the Complainant’s contract of employment was in any sense whatsoever based on her disability she would be entitled to succeed. In that regard it matters not that the Respondent was contractually entitled not to renew the contract. If the exercise of that entitlement was influenced by the Complainant’s disability the decision would be tainted by discrimination and unlawful.

Burden of Proof

It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities.

Conclusions of the Court.

The only issue for consideration by the Court is whether the Respondent’s decision not to continue the Complainant’s employment was influenced by her disability. The Court is not required to decide if the Complainant was unfairly dismissed or if the Respondent acted unreasonably in not renewing her contract. If the Court was concerned with those questions, by the application of normal standards of reasonableness, the Respondent might have some difficulty in justifying the manner in which he came to the decision to terminate the Complainant’s employment.

It is for the Complainant to prove, as a matter of probability, the primary facts upon which she relies in asserting that the decision to terminate her employment was tainted by discrimination on grounds of her disability. The putative facts relied upon are, in essence, that the impugned termination occurred while she was absent due to illness and following her complaint concerning sick-pay. It is further alleged that the Respondent acted unreasonably in withdrawing the offer to continue the Complainant’s employment on reduced hours without giving her any or any adequate opportunity to consider the offer.

The coincidence in timing between the termination of the Claimant’s employment, her illness and the telephone conversation of 23rd March may give rise to some suspicion. However, these events must be viewed in context. The anniversary of the Complainant's employment was 21st April 2004. It was at this time that the break clause would operate. The Respondent was required to give one months notice if the contract was not being renewed. The Court accepts that the Respondent was contemplating engaging another Doctor to assist in the practice and this would have impacted on the amount of time that the Complainant could work at the practice. The Respondent was thus required to make a decision on the Complainant’s future employment by the end of March 2004 at the latest.

With regard to the assertion that the Respondent was motivated in terminating the Complainant’s employment by the prospect of having to pay her salary during her recuperation, it is of some relevance that the Respondent was not contractually obliged to pay sick pay during this absence. If the Respondent was concerned not to incur the costs of paying the Complainant during this period he could have lawfully declined to pay her salary during her absence. Equally, the mere absence of the Complainant from the practice could not credibly be suggested as a motive for the impugned decision since the Respondent did not replace her and has not since found it necessary to engage a practice nurse. Moreover, it is clear on the evidence that the decision to offer the Complainant continued employment on reduced hours, which was later withdrawn, was made in the knowledge of the nature of her illness and the likely recuperation time which she would require. Such an offer would not have been made if the Respondent considered these factors to be an impediment to the Complainant’s continued employment.

The Court accepts that the reason given by the Respondent for the decision not to renew the Complainant’s contract, namely the altercation between her and his wife, is not a good or reasonable reason for a dismissal. In considering that aspect of the case the Court has had regard to the Judgment of O’Sullivan J inMulcahy v Minister for Justice Equality and Law Reform and Waterford Leader Partnership Limited13 ELR 12.

This was an appeal to the High Court against a decision of this Court under the Employment Equality Act 1977. In that case the Complainant contended that her dismissal was on grounds of her pregnancy. The Court found that the employer had acted unfairly and unreasonably in relation the dismissal but it nonetheless declined to infer from this fact alone that the real reason for the dismissal was her pregnancy. Counsel for the Complainant in that case submitted that because the Labour Court had acknowledged that the employer may have acted unfairly and unreasonably in relation to the explanation offered, as a matter of law it was bound to reject such reasons as being clearly not the real reasons. Thus the Complainant contended that the Court was left with the only other candidate for the real reason, namely pregnancy. In dealing with the submissions that the Court had erred in law in that regard the Judge said the following:

• “ I do not, in fact, agree that it is erroneous either in law or in logic to say that because a person offers a bad reason this necessarily means that the bad reason is not the real one. Rather that seems to me a commonplace observation: one may well truly give as ones reason for dismissing an employee the fact that one doesn’t like her. This ‘bad’ reason may well be repugnant, precisely because it is the real reason. In my view that is all the Labour Court is saying in the sentence under analysis”.

Determination.

It is the determination of the Court that the Respondent did not discriminate against the Complainant. The complaint herein is not well founded and the complaint is dismissed.





Signed on behalf of the Labour Court



Kevin Duffy
24th April, 2006______________________
JB.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.