FULL RECOMMENDATION
SECTION 83; EMPLOYMENT EQUALITY ACT; 1998 PARTIES : HEALTH SERVICE EXECUTIVE (REPRESENTED BY MCCANN FITZGERALD SOLICITORS) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998.
BACKGROUND:
2. A Labour Court hearing took place on 6th November, 2007. The following is the Court's determination.
DETERMINATION:
Mr T W (the Complainant) was employed by the Northern Area Health Board, the predecessor of the Health Service Executive, (the Respondent) as a porter in a hospital in Dublin. He had a total of 22 years service in that capacity when he retired early on grounds of ill health in 2003. The Complainant suffers from osteoarthritis, which is a disability within the meaning of the Employment Equality Acts 1998 and 2004 (the Act).
The Complainant alleged that the Respondent discriminated against him on the disability ground in October 2002 when he was refused access to his workplace and in April 2003 when he was refused access to his locker. These complaints were referred to the Equality Tribunal and were investigated by an Equality Officer. The Equality Officer found that the Complainant had not been discriminated against. The Complainant appealed against that finding to the Court.
The Complainant’s case.
The Complainant made a comprehensive submission to the Court in which he outlined a number of complaints in relation to various work related incidents which occurred from 2001 onwards. The details of these complaints are fully recited in the report of the Equality Officer and need not be repeated in this Determination. These incidents form the background to the Complainant’s case but do not form the subject matter of his referral under the Act.
The Complainant told the Court that the substance of his complaint of discrimination stems from his attendance at his workplace on 8th October 2002 while he was on sick leave. The purpose of his attendance was to accompany a colleague, Mr M L, in undertaking an inspection, with an insurance engineer, of an area in which Mr M L had been involved in a work related incident in respect of which he was pursuing a personal injuries action. The Complainant told the Court that he was refused access to the Hospital by members of the Respondent’s management. He said that he was told that this was related to insurance issues.
The Complainant contends that the refusal was on grounds of his disability. He said that other employees were allowed access to the workplace while they were absent from work for various reasons including illness. The Complainant told the Court that while he had complained to the Equality Tribunal in relation to a later incident involving a refusal by the Respondent to allow him access to his locker in April 2003, the occurrence of 8th October 2002 was the act of discrimination upon which he was now relying.
Evidence of Mr M L
Mr M L gave evidence to the Court. He told the Court that he attended at the Hospital in which he and the Complainant worked on 8th October 2002. On that occasion he was to accompany an engineer on an inspection of the site of an incident in respect of which he was taking proceedings for personal injuries. He had asked the Complainant to accompany him on this inspection for support. The witness said that he introduced the Complainant to the Engineer. The Engineer than went over to three members of management who were nearby. According to Mr M L the Engineer returned and told him that the Complainant would not be allowed into the hospital. The witness told the Court that he insisted that the Complainant accompany him, and the Engineer went to consult with the management personnel a second time. According to the witness the Engineer returned and confirmed that the Complainant was “barred” from the Hospital.
The Respondent’s case
The Respondent denied that the Complainant was discriminated against in the manner alleged or at all. In relation to the incident complained of by the Complainant, the Respondent relied upon a version of what occurred which was recited in a letter written to the Complainant by the Assistant Hospital Manager dated 19th October. This letter stated, in relevant part, as follows: -
- “In relation to the events you outlined as occurring on 08/10/02 I wish to respond as follows:
“I am not aware that you were not allowed entry to [the hospital]. Neither [named manager] nor myself have issued such an instruction. For my part I certainly would not issue such an instruction against you entering [the hospital].
I have enquired of [a named manager] also in this regard and he confirmed to me that he also did not instruct anyone to deny you entry.
My understanding of the matter is that [the insurance engineer] on behalf of I.P.B.M. requested that no third party accompany himself and Mr[ L’s] Engineer on their business, except for [two named individuals]. Mr[ L’s] Engineer conveyed this message to yourself and Mr [L].”
Conclusions of the Court.
Section 85A of the Act provides, in effect, that the Complainant must establish facts from which discrimination may be presumed before the probative burden shifts to the Respondent. It is settled law that in order to come within the ambit of this section the Complainant must first prove, on the balance of probabilities, the primary facts upon which he relies in asserting that he was discriminated against. He must further satisfy the Court that those facts are of sufficient significance to raise a presumption that he was the victim of unlawful discrimination.
The Complainant must also satisfy the Court that the discrimination complained of is of a type prohibited by s 8(1) of the Act. This Section provides: -
- In relation to—
(b) conditions of employment,
(c) training or experience for or relation to employment,
(d) promotion
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
The Court heard direct testimony from Mr M L as to the events of the 8th October 2002. The Respondent has sought to controvert this version of the incident on the basis of the letter sent to the Complainant dated 19th October 2002, the material parts of which are set out in earlier in this Determination. Mr M L came to Court and gave evidence under oath. He made himself available for cross-examination and was questioned by the members of the Court. It would be fundamentally unfair to reject Mr M.L's evidence on the basis of a document, the author of which did not give evidence or have her recollection tested by the Court. Accordingly the Court accepts that Mr M L’s recollection of the circumstances in which the Complainant was refused access to the hospital on 8th October 2002 is broadly correct. This version is corroborative of the Complainant recollection of events.
However, taking the evidence of Mr M L at its height it does not disclose any causal connection between the refusal to allow the Complainant to accompany the Engineers on their inspection and the Complainant’s disability. Moreover, the Complainant wished to enter the hospital to participate in an inspection in connection with Mr M L’s personal injuries claim. He was not acting in his capacity as an employee of the Respondent nor was he acting in the course of his employment with the Respondent. His purpose in attending at the hospital was unrelated to any of the matters specified in s8(1) of the Act. Consequently any failure to permit him to fulfil that purpose would be incapable of constituting unlawful discrimination under the Act.
Determination
For all of the foregoing reasons the Court has concluded that the Complainant has failed to establish facts from which unlawful discrimination may be inferred. Accordingly his claim cannot succeed.
The appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
18th November, 2007______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.