EDA094

Introduction
This is an appeal by the Minister for Justice Equality and Law Reform against the decision of the Equality Tribunal in a complaint of discrimination brought by a Worker under the Employment Equality Acts 1998 to 2007 (the Act). In this determination the parties are referred to using the designation prescribed by s.77(4) of the Act. Hence the Minister for Justice, Equality and Law Reform is referred to as the “Respondent” and the Worker is referred to as the “Complainant”.

Background
The factual background in which this case arose is not seriously in dispute and can be briefly stated. The Complainant is a prison officer. She commenced her employment in that capacity on 7th October 2002. Her employment was subject to a probationary period of two years.

From January 2003 onwards the Complainant took successive periods of sick leave all of which were supported by medical certificates. By the time her probationary period was due to expire in October 2004, the Complainant had accrued 70 days sick leave. In consequence of this level of sick leave the Prison Governor extended the Complainant’s probationary period by a further six months. The Complainant’s extended period of probation was due to expire in February 2005. At that time the total sick leave, which the Complainant had accrued since the commencement of her employment, was 158 days. On that account the Prison Governor again extended her probation by a further six months. At the end of this further period the Complainant was confirmed in her appointment.

The certified reason for most of the Complainant’s absences was “work related illness”or“work related depression / stress”.The Complainant also furnished the Respondent with a letter from her General Practitioner, dated 6th September 2004, wherein it was stated that the Complainant was suffering from“anxiety and sleeping difficulties as a result of abuse and bullying at work”.

The Complainant had complained to the Prison Governor that she was being bullied and abused by a fellow female prison officer. The management of the prison investigated this complaint. The investigation concluded that the Complainant had not been subjected to bullying behaviour as alleged.

In or about the month of October 2004 the Prison Governor caused an advertisement to be posted in the prison inviting applications for the post of acting clerk 2 in the general office and stores area of the prison. At that time the Complainant was absent on sick leave. She was not notified of the vacancy. On 18th October 2004 the Prison Governor sanctioned, with immediate effect, appointments to the temporary post which was the subject of the advertisement.

The Complainant contends that she suffered, and continues to suffer from a depressive illness which is a disability within the meaning ascribed to that term by s.2 of the Act. She contended that the Respondent discriminated against her on the disability ground in (a) extending her probationary period and (b) in failing to provide her with an opportunity to compete for the temporary clerical post which became vacant in or about October 2004.

The complaint was referred to the Equality Tribunal and was investigated by an Equality Officer. The Equality Officer found that the Respondent had discriminated against the Complainant in extending her probation. But she found that the Respondent’s failure to inform the Complainant of the temporary vacancy in the general office did not amount to discrimination. The Complainant was awarded compensation in the amount of €8,000 for the effects of the discrimination that she was found to have suffered.

The Respondent appealed to this Court.

Position of the parties.

The Complainant.

The Complainant contends that at the times material to the case she suffered from a depressive illness. This, she contends, is a condition, illness or disease that affects a persons thought process, perception of reality, emotions or judgment and which results in disturbed behaviour. It was therefore submitted that the Complainant’s condition comes within the definition of the term“disability”which the Act itself provides. In reliance on previous decisions of this Court the Complainant contends that it is not open to the Court to go outside the statutory definition in deciding what constitutes a disability.

While the Complainant contended before the Equality Officer that she was treated less favourably than another prison officer without a disability in being deprived of the opportunity to apply for the temporary clerical officer post, she did not pursue that contention before this Court. She contends, however, that she was brought to less favourable conditions of employment because of her disability in having her probation extended.

The Complainant further contends that the quantum of compensation awarded by the Equality Officer is now inadequate in all the circumstances of the case.

The Respondent.

The Respondent conceded that the Complainant was subjected to less favourable treatment in having her probation extended. However it denies that this amounted to unlawful discrimination because, it is contended, the condition from which the Complainant suffered does no amount to a disability within the statutory meaning. The Respondent conceded thatclinicalormanicdepression amounts to a disability. But it submitted that the Complainant’s General Practitioner diagnosed her condition aswork related depression/stressand that this, in the Respondent’s submission, cannot amount to a disability for the purposes of the Act.

The issues before the Court
Having regard to the position adopted by the parties there are two net issues before the Court, namely whether the Complainant suffered from a disability at the material time and, if so, whether the quantum of compensation awarded by way of redress is adequate in the circumstances of the case.

The evidence.
Prof. Patricia Casey gave evidence on behalf of the Respondent. Prof. Casey is Professor of Psychiatry at University College Dublin and is Consultant Psychiatrist at the Mater Misericordiae Hospital Dublin.

Prof Casey told the Court that she had reviewed a number of documents relating to the Complainant’s condition. These included copies of the sick notes provided by the Complainant’s GP and reports on her condition prepared by Dr Gillian Byers, Consultant Psychiatrist, Blackrock Clinic. Dr Byers report was prepared at the request of the Complainant’s Solicitors.

The import of Prof. Casey’s evidence was that the Complainant suffered from a condition properly described as adjustment disorder rather than a depressive illness. The witness told the Court that adjustment disorder represents a position mid way between normal distress or unhappiness and clinical depression. It is, the Court was told, an exaggerated form of unhappiness.

According to Prof. Casey the term adjustment disorder is used to describe the overall reaction of individuals to situation or events which threaten to disrupt their physical or psychological wellbeing, referred to as stressors. The symptoms overlap with those of depressive illness. In consequence adjustment disorder is often conflated with depressive illness. It was Prof Casey’s evidence that what distinguishes a depressive illness from an adjustment disorder is whether the symptoms persist after the removal of the stressor.

The Court was told that the prognosis for adjustment disorder is excellent since it resolves spontaneously when the stressor is removed. Further, those who suffer from adjustment disorder are not at risk of further psychiatric illness. Prof Casey’s evidence was that antidepressants do not impact on the symptoms of adjustment disorder but tranquillizers do lead to relief.

Prof Casey gave it as her opinion that adjustment disorder could not be properly classified as a disability since it involves a normal human reaction to stressful or unpleasant circumstances.

In relation to the instant case, Prof Casey told the Court that according to the reports which she had seen the Complainant’s difficulties arose from her experience of being bullied at work and her disappointment at not being promoted. Moreover, the witness said, thirteen medical certificates were provided by the Complainant’s GP all of which, save one, gave the reason for the absences to which they related as“work related depression”. The one exception gave the reason as“work related stress”.

Prof. Casey noted that the Complainant’s GP had initially prescribed antidepressants and that this medication had limited effect. Subsequently the Complainant was prescribed another antidepressant with a small dose of sedative and that on this combination the Complainant had improved. The witness further noted that Dr Byers had found that the Complainant’s mood is euthymic whilst she is off work.

Having regard to all of these factors Prof. Casey gave it as her opinion that the condition from which the Complainant suffered should properly be classified as adjustment disorder rather than a depressive illness. The witness based her opinion on the fact that the cause of the condition could be traced to a particular set of circumstances which she experienced at work and that the symptoms ceased when she was removed from the stressor causing her condition. The witness was further influenced in her opinion by the fact that the Complainant had not responded positively to antidepressants but had responded when she was placed on sedatives.

In response to questions from the Court Prof. Casey accepted that adjustment disorder was a condition or illness which could produce symptoms identical to those characterising depressive illness. In that regard the witness accepted that the condition could give rise to at least some of the effects referred to at paragraph (e) of the statutory definition of disability.


Dr Gillian Byers gave evidence on behalf of the Complainant. Dr Byers is a Consultant Psychiatrist who carries on practice at the Blackrock Clinic in Dublin. Dr Byers told the Court that the Complainant was referred to her for assessment in relation to the within proceedings. The witness saw the Complainant on 25th May 2005.

Dr Byers outlined the psychiatric symptoms with which the Complainant presented. These symptoms are recorded in a report from the witness dated 1st July 2005, which was put in evidence. It is unnecessary for the Court recite those symptoms in this Determination. Based on her assessment Dr Byers concluded that the Complainant has suffered a depressive episode with marked features of anxiety.

Dr Byers gave it as her opinion that the distinction between adjustment disorder and depressive illness is often one of degree. In the instant case the witness was satisfied that the symptoms with which the Complainant presented placed her in the depressive illness category. Dr Byers was referred to paragraph (e) of the definition of disability contained at s.2 of the Act and she agreed that the symptoms displayed by the Complainant comported with the provisions of that paragraph.

The Court was told that the Complainant remains on treatment for her condition although the circumstances initially giving rise to her difficulties have since been resolved. Dr Byers opined that the Complainant’s depressive episode has incompletely resolved and that she remains vulnerable to further episodes of depression in the future.

Dr Patrick O’Mathuna gave evidence. Dr O’Mathuna is a General Practitioner who has treated the Complainant since July 2004. This witness gave evidence of his assessment of the Complainant’s condition and the treatment which he prescribed. Dr O’Mathuna diagnosed the Complainant as suffering from depression and anxiety secondary to bullying at work. The witness told the Court that he prescribed antidepressants and referred the Complainant for counselling. He said that the Complainant condition went beyond mere stress or unhappiness at her work situation. Dr O’Mathuna told the Court that he would not prescribe antidepressants to patients who were merely suffering from negative feelings or unhappiness at a particular situation or occurrence. He said that he was satisfied that the Complainant suffered from a depressive illness and that he had treated her accordingly.

The witness told the Court that as of October 2008 the Complainant continues to receive treatment for stress, depression and anxiety. She remains on medication for depressive illness (details of which was provided to the Court). The Court was told that when the Complainant stopped her medication the symptoms of which she originally complained returned.

Conclusions of the Court

The Law

In light of concessions made by the parties the only issue which the Court must decide is whether the condition from which the Complainant suffered is a disability within the statutory meaning ascribed to that term. That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability contained at s.2 of the Act and the application of that definition to the facts as admitted or as found by the Court. The statutory definition provides: -

• "disability" means—
  • (a) [ not relevant]

    (b) [not relevant]

    (c) [not relevant]

    (d) [not relevant]

    (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

• “shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”

• 
  It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a court may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. (See the decision of the Supreme Court in Mason v Levy [1952] I.R. 40.)

The Complainant condition.
The Court heard expert evidence in relation to the Complainant’s condition. The witnesses who gave that evidence are eminent practitioners in the field of psychiatric and general medicine. They differed on whether the condition from which the Complainant suffered should be classified as adjustment disorder or a depressive illness. They agreed, however, that the symptoms of both conditions overlap and in many respects they are the same. It is accepted that depressive illness or clinical depression is a disability within the statutory meaning. It would appear to follow that adjustment disorder, which manifests itself in the same symptoms as depressive illness, should be likewise classified as a disability.

However, Mr Kerr B.L. for the Respondent argued that a strictly literal interpretation of the statutory definition would produce the result that mere unhappiness or ordinary stress or disappointment which effects a person’s emotions would have to be classified as a disability. This, it was submitted, would be an absurd result. There is considerable cogency in that argument.

The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (seeBank of Ireland v Purcell[1989] IR 327). Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity. But it is not necessary for the Court to reach a concluded view on that point in the instant case because the Complainant is not contending for such an interpretation of the statute.

The case advanced on the Complainant’s behalf is that she suffered and continues to suffer from a depressive illness of a type which is a known psychiatric disability. In advancing that argument her Counsel, Ms McKenna B.L., relied upon the evidence given by Dr Byers and Dr O’Mathuna. In considering the expert evidence tendered the Court notes that Prof. Casey, through no fault of her own, did not have an opportunity to examine the Complainant. Dr Byers did have such an opportunity. Furthermore Dr O’Mathuna has been involved in the care of the Complainant since July 2004. Both Dr Byers and Dr O’Mathuna are satisfied, as a matter of professional opinion, that the Complainant suffers from a depressive illness rather than adjustment disorder. Moreover, it emerged from Dr O’Mathuna’s evidence that the Complainant continues to show symptoms of her illness notwithstanding the removal of the circumstances giving rise to her condition. This, on the evidence before the Court, is more suggestive of depressive illness than of an adjustment disorder.

In these circumstances the Court is satisfied, as a matter of probability, that the Complainant did suffer from a depressive illness. It is also satisfied that this condition is a disability for the purposes of the Act. Accordingly the Court is satisfied that the findings of the Equality Tribunal are correct.

Quantum of compensation
Ms McKenna B.L. submitted that having regard to the manner in which the appeal had been run by the Respondent the Complainant was obliged to incur significant additional expense in advancing her case. Counsel submitted that this should be taken into account in measuring the quantum of compensation to which the Complainant is entitled.

Mr Kerr B.L. on behalf of the Respondent pointed out that the Court cannot incorporate an award of costs into any redress which it might order. Counsel submitted that the Complainant had not suffered any actual or potential financial loss in consequence of having her probation extended. He submitted that in these circumstances the award of €8,000 made by the Equality Officer is adequate.

The jurisdiction of the Equality Tribunal, and of this Court on appeal, to award redress is grounded on s. 82 of the Act. Section 82(1)(c) of the Act provides that the Court may make an order for compensation for the effects of acts of discrimination. Where this mode of redress is decided upon the Court is required to follow the decision of the ECJ inVon Colson andKamann[1984] ECR 1891. Here the ECJ held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. This means that the compensation awarded must fully compensate the complainant for the economic loss which he or she sustained as a result of the breach of his or her Community rights. It must also contain an element that reflects the gravity of the infringement and acts as a disincentive against future infractions.

The Court has no jurisdiction under either the Act or the dicta inVon Colson andKamanntomake an award of costs or an order for the recovery of expenses incurred in the prosecution or defence of a case under the Act. The Court accepts that the Complainant was required to incur additional costs in providing medical reports and expert evidence in order to meet the case made by the Respondent. However it has no jurisdiction to increase the award made by the Equality Officer in order to allow for recovery of all or part of those costs.

It is accepted that the Complainant suffered no pecuniary loss or other disadvantage in terms of her conditions of employment in consequence of the discrimination which she suffered. In these circumstances the Court is satisfied that the award of €8,000 made by the Equality Officer is appropriate and that it adequately meets the criteria enunciated by the ECJ inVon Colson.

Determination
The appeal herein is disallowed and the decision of the Equality Tribunal is affirmed.







Signed on behalf of the Labour Court



Kevin Duffy
25th March, 2009______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.