THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-045
PARTIES
Laurence O'Rourke
(Represented by Niamh McKenna, O' Mara Geraghty McCourt Solicitors)
-v-
JJ Red Holdings Limited t/a Dublin City Hotel
(Represented by Christine O'Donoghue BL instructed by Terence Lyons & Co., Solicitors
File Reference: EE/2007/469
Date of Issue: 14th April 2010
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2(g)) - disability ground, 6(2)(h)- race ground, 6(1)(b)-discrimination by association, 2(1)- disability definition, not covered by ground, 77A -misconceived. .
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the disability ground and race ground, in terms of Sections 6(1) and 6(2)(g) and (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 and section 16(3) of that Act. The complainant is alleging discriminatory dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal 3rd September 2007 alleging that the respondent discriminated against him contrary to the Acts. In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 12th August, 2009 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 78(1) of the Acts and as part of my investigation, I proceeded to hearing on the on the 5th February 2010 and the final submissions were received on the 1st March 2010.
3. Summary of the Complainant’s Case
3.1 The complainant said that he commenced work with the respondent in January 2007 as a Head Chef. In early July 2007, the complainant was due back at work following his holidays, but he felt unwell and had cramps in his stomach. He attended the hospital for tests. He said that there is a history of cancer in his family and he has tests every two years. When he got the cramps in his stomach he was fearful for his health and decided to get a medical test. He was due in at work and telephoned the hotel and gave a message to the receptionist. He was concerned that the message would not be relayed to his manager. He asked his wife who is a Slovakian national to ring him. When his wife called later in the day to collect him from the hospital she was upset. She told him that the Manager telephoned her while she was at work and he shouted abuse including racial abuse at her concerning the whereabouts of the complainant.
3.2 The complainant said that he was very upset that his wife was abused because she was Slovakian. The complainant also said that his wife received two texts messages containing offensive language from the manager asking where he was. He said that he was on certified sick leave for about 2 weeks. In the meantime, he said that he contacted Mr. Donie McDermott, joint managing director and requested a retraction of the statement and the text messages sent to his wife and an apology. He then had a meeting with Mr. McDermott but no apology was forthcoming. On the 20th July 2007 the complainant emailed Mr. McDermott in which he made allegations that the manager engaged in verbal and racial abuse against the non-Irish staff. The complainant also stated in the email that he was terminating his employment due to the conduct of the employer. The complainant said that he received a response email from the manager, but he did not accept its content. A number of further emails passed between the complainant and Mr. McDermott but the complainant said he could not return to work because he had received no apology in relation to the treatment of his wife. The refusal to give him one left him with no option but to resign.
3.3 The complainant submitted that he considered the actions of the respondent to be a repudiatory breach of his contract of employment and regarded the relationship of trust and confidence between the parties as irrevocably destroyed.
4. Summary of the Respondent's Case
4.1 The respondent said that they were not aware that the complainant had any disability. Mr. Emmett McDermott , joint managing director, stated that he was speaking with the manager when he made the telephone call to the complainant's wife. He said that he clearly heard the conversation and he did not hear any verbal or racial abuse. The manager was concerned about the fact that the complainant was not at work because the hotel was hosting a big function that day. Following the telephone call, the manager told him that the complainant was sick. He said that the complainant was a good worker and the only problem related to his sick leave particularly when he was due back from holidays.
4.2 Mr Donie McDermott, joint managing director, said that the respondent had no notice of the complainant's illness and they were not aware that he had suffered from any ongoing medical problem. He said that the complainant provided no medical certificate for the period of his absence. Mr. McDermott said that he spoke to the manager, Mr. Boland, once he became that the complainant had made a complaint. The subject matter of the complaints were fully investigated by the management. He said that following the investigations the company were satisfied that the there was no basis for the allegations made by the complainant. The complainant tendered his resignation and did not return to work.
5. Conclusions of the Equality Officer
5.1 The complainant’s case is that he was discriminated against by the respondent on the disability ground and the race ground in terms of Section 6(1) and 6 (2)(g) and (h) of the Employment Equality Acts, 1998 - 2008, contrary to Section 8 of that Act. He is claiming discriminatory dismissal. The respondent denies any discriminatory treatment.
5.2 The first matter I have to consider is whether the complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:
‘‘disability’’ means—
(a) the total or partial absence of a person’s bodily or mental
functions, including the absence of a part of a person’s
body,
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of
a person’s body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
malfunction, or
(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,
and 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;
5.3 The complainant said that he had stomach cramps on the day he was due to return to work after his holidays in early July 2007. He attended hospital for tests. He has concerns about his health because of a family history of cancer and for this reason he gets a test every two years. He said that he was not diagnosed with any illness. The complainant provided no medical reports or certification to support his case. In response to a question from me he stated he had no disability as such and that the illness, namely stomach cramps, for which he attended the hospital cleared up very quickly. The complainant's legal representative submitted that the treatment of the complainant by the respondent while he was in hospital constitutes discrimination on the disability ground.
5.4 The respondent in their legal submission stated that the complainant had failed to disclose that he was suffering from a chronic disease or illness within the meaning of the above mentioned Section 2(1) and therefore he does not fall within the definition of disability contained in this section. They submitted that the one day illness the complainant complained about does not constitute a disability within the meaning of the Act. They further submitted that the monitoring of the complainant for cancer because of a family history is not a disability within the meaning of the Act. Their legal representative stated that the respondent had no notice either express or implied that the complainant was suffering from a disability within the meaning of the Acts.
5.5 I note that the complainant produced no medical evidence to support his claim. He has not satisfied me that he comes within the definitions of disability as set out in Section 2(1)(a) to (d). In relation to paragraph (e) as set out above, the complainant has not only to establish that he has an illness but he also has to establish the affect that that illness had on him. In applying paragraph (e), I have taken into account the reasoning of the Labour Court in the case of A Government Department and A Worker [ADE/07/23] where the Court was considering the definition in paragraph (e) and stated: "the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded."
The Court went on to say:
"It is now well settled that where a terms used in a statute is defined by the statute itself a Court cannot look outside that definition in construing that term. As this Court stated in Gemma Leydon Customer Perceptions Ltd, Determination EED0317 and again inA Worker v A Government Department 17 ELR 225: -
It is settled law that where a statutedefines 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.)
Hence the question for the Court is whether the condition from which the Complainant suffered had any of theeffects or symptoms referred to at paragraph (e) of the statutory definition."
5.6 In applying the above mentioned Labour Court test, Iamsatisfied that the complainant has failed to establish that he suffered any effects or symptoms as outlined in paragraph (e).The complainant had a one day illness which cleared up very quickly and in my opinion a short one day illness does not satisfy the test. The medical tests were also clear. I am not satisfied that the medical precautions the complainant takes because of a fear of getting an illness due to a family history of cancer can be regarded as a disability within the meaning of the Act. Likewise I am not satisfied that the complainant has established that he has any condition, illness or disease which comes within any of the definitions of disability under the Act.
5.7 In considering this case, I have also taken into account the Judgment of the European Court of Justice in the case of Sonia Chacón Navas v. Eurest Colectividades SA [C -13/05]. This case concerned a person who claimed discrimination on the disability ground because she suffered from sickness. The ECJ was asked to interpret the meaning of disability in the Council Directive 2000/78 which lays down a general frame work prohibiting discrimination on the disability ground. The ECJ held "In order for the limitation to fall within the concept of 'disability', it must therefore be probable that it will last for a long time". The Court went on to state "There is nothing in Directive 2000/78 to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness." While I accept that the definition of disability in the Irish equality legislation is much broader than the Directive, I am of the view that in the light of the ECJ Judgment above, that the definition of disability at paragraph (e) does not cover the circumstances of the present case. I find therefore that the complainant is not covered by the disability ground and his complaint cannot succeed.
5.8 The next matter I have to consider is whether the complainant is covered by the race ground. The complainant claims that he was subject to discrimination by association in that his wife who is Slovakian was discriminated against by the respondent on the race ground. Section 6(1) provides that:
6.—(1) For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where—
For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified insubsection (2)(in this
Act referred to as the ‘‘discriminatory grounds’’) which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person—
(i) is treated, by virtue of that association, less favourably
than a person who is not so associated is, has been
or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the
discriminatory grounds would, by virtue ofparagraph
(a), constitute discrimination.
5.9 The complainant's legal representative submitted that the complainant's wife was the victim of aggressive treatment both by telephone and text messages from the respondent and this amounts to racial discrimination on the race ground. His solicitor submitted that because the complainant is associated with his wife in the eyes of the respondent, he was discriminated against on the race ground. In support of the case the complainant's solicitor referred me to the European Court of Justice Judgment in the case of Coleman v Attridge Law (C-303-06). In this case the Court held that the Article 2(2)(a) of the Council Directive 2000/78/EC prohibited discrimination on the disability ground, in a situation where a the mother of a disabled child, who herself was not disabled, but was the primary carer of a disabled child, was treated less favourably than another employee in comparable circumstances. The complainant's solicitor submitted that the complainant was in a comparable situation.
5.10 The respondent's legal representative submitted that the above mentioned authority was not relevant to the complaint herein in that the complainant has not disclosed a case of discrimination by association. They also submitted that in order to come within the remit of section 6(1)(b) the complainant and his comparator would have to be employees of the respondent.
5.11 I note that the complainant himself is claiming discriminatory treatment by association on the race ground. He states that discriminatory treatment was directed at his wife, but she is not an employee of the respondent. In order for the complainant to establish discrimination by association he would have to establish that the discriminatory treatment was directed at him. He then has to establish that, because he is associated with another person covered by the race ground, in this case his Slovakian wife, that he was treated less favourably than a person in comparable situation (that is another employee of the respondent) and who is not so associated. It would appear that there is no requirement in the section for the person the complainant is associated with to be in the employment of the respondent.
5.12 In the above mentioned ECJ case, the complainant was the mother of the disabled child, but the discrimination complained about was directed at her personally in the workplace because she had a disabled child and she could establish that employees who had not got a disabled child were treated more favourably. Therefore she was able to establish discrimination by association. Furthermore the complainant was the primary carer of a disabled child. For these reasons the ECJ decision can be distinguished from the case herein. The
complainant is the employee of the respondent and under the provisions of the Act he is the only person who can claim discrimination by association. He has provided me with no evidence that there was any discriminatory treatment directed at him and that he was treated less favourably than another employee in similar circumstances. I am satisfied therefore the complainant cannot establish discrimination by association. I am of the view that the complaint is misconceived.
5.13 Section 77A of the Act provides:
"The Director may dismiss a claim at any stage if of
opinion that it has been made in bad faith or is frivolous, vexatious
or misconceived or relates to a trivial matter."
A claim is misconceived if it is incorrectly based in law. On considering the definition of misconceived I have taken into account the High Court Judgment In Dornan Research and Development Ltd v The Labour Court & Ors [1998]ELR 256. Geoghegan J found an application for judicial review ‘misconceived’ because it could only have the effect of removing the applicant’s limited right of appeal (under the Employment Equality Act, 1977) and not of extending that right of appeal (which was the purpose of the application). In Keane v Minister for Justice [1994] 3IR 347 Lynch J held that the Minister for Justice had no statutory power to relieve Leitrim County Council of its duty to provided courthouse accommodation in Carrick-on-Shannon and that her direction to the council to this effect was therefore ‘wholly misconceived and invalid’. In my view this complaint is similarly misconceived, as noted above, the respondent is not the employer of the person claiming the discriminatory treatment. The complainant, who states he himself was not subjected to any discriminatory treatment, is attempting to pursue a claim of discriminatory treatment on behalf of his wife and such a claim is not covered by the Act. Therefore the complaint of discrimination on the race ground is misconceived and cannot succeed.
6. DECISION OF THE EQUALITY OFFICER.
6.1 On the basis of the foregoing, I find that the complainant is not covered by the disability ground in accordance with Section 2(1) of the Acts. I also find that the complaint on the race ground under Section 2(1) and in terms of Section 6(1)(b) of the Acts is misconceived in accordance with Section 77A of the Acts.
___________________________
Marian Duffy
Equality Officer
14th April 2010