EDA1129

Factual Background

The material factual background to the case can be summarised as follows:

The Worker, hereinafter referred to as the Complainant, was employed by the second named Respondent, hereinafter referred to as Respondent B, as a production operative between July 1997 and May 2003 when he resigned. He then became a full-time carer for his wife who has a disability. In or about 2006 the Complainant believed that Respondent B was recruiting production operatives and he applied to it for a position in his former role. The first named Respondent, hereinafter referred to as Respondent A, is an employment agency and had been contracted to employ staff to work for Respondent B. The position for which the Complainant had applied was being filled by Respondent A.

Respondent B sent the Complainant’s application to Respondent A together with his CV, which had accompanied the application. The CV disclosed that the Complainant had previously been employed by Respondent B. In line with its normal practice Respondent A contacted Respondent B to enquire as to the Complainant’s suitability for employment. Respondent B informed Respondent A that the Complainant would not be“a suitable hire”.On the basis of this negative reference Respondent A decided not to process the Complainant’s application further and he was informed that his application for employment was unsuccessful. On further enquiry to Respondent A as to the reason for the rejection of his application the Complainant was told that it was because he had received a negative reference from Respondent B.

The Complainant brought proceedings under the Acts claiming that the decision not to consider his application further was based on his caring responsibilities for his wife, who suffers from a disability. In his original complaint he relied upon the family status ground in advancing his claim. He also claimed unsuccessfully before the Equality Tribunal that he was victimised by Respondent B for having sought assistance from the Equality Authority in preparing his claim. Neither of these matters was pursued in the appeal .

Position of the Parties

The Complainant

The primary facts upon which the Complainant relies in seeking to advance his claim are as follows:-

In or about 2001 the Complainant was issued with a “corrective action plan” (which appears to be the first stage in Respondent B’s disciplinary procedure) in relation to his absenteeism record. It is the Complainant’s case that the absenteeism giving rise to the invocation of this process was largely due to his need to take time off work to care for his wife.

The Complainant contends that he twice applied for leave of absence under Respondent B’s work life balance policy; that he received no response and was then forced to attend his doctor and obtain a medical certificate of unfitness for work in order to discharge his responsibilities. He relies on this assertion as evidence of a negative disposition on the part of Respondent B towards his caring responsibilities. He also contends that this period of sick-leave, which he claims was known to Respondent B as being referable to his caring responsibilities, was relied upon in placing him on a corrective action plan.

The Complainant subsequently applied for and was granted carers leave in early 2002. This leave was extended a number of times up to May 2003 when the Complainant resigned, citing his wife’s disability and his concomitant caring responsibilities as the reason for terminating his employment.

In or about 2005 the Complainant’s position improved in that a relative became available to assist in the care of his wife. He considered that he could return to full-time employment and applied for the position in issue. He claims that his application was summarily rejected by Respondent A on the effective instruction of Respondent B and that the reason for the instruction was his wife’s disability or matters relation thereto.

The Complainant contends that these facts are of sufficient significance to raise an inference of discrimination and that it is for the Respondents to show the absence of discrimination.

Respondent A

The Court was told that Respondent A carries out certain recruitment functions for Respondent B pursuant to a contract for services. It is an employment agency within the meaning of the Employment Agency Act 1971. It was submitted on its behalf that if there is liability to the Complainant under that Act (which is denied) it should be fixed on Respondent B as a provider of agency work within the meaning of s.2(5) of the Act.

Without prejudice to its submission in that regard Respondent A contends that it could not be held to have discriminated against the Complainant on the facts of its involvement in the impugned decision. It is Respondent A’s case that it had no knowledge of the Complainant’s wife’s medical condition nor was it aware of his caring responsibilities. On becoming aware of the Complainant’s prior employment with Respondent B it merely enquired of Respondent B if the Complainant was suitable for reengagement. It was told that the Complainant was not suitable for reengagement to work in Respondent B’s facility but no further information concerning the Complainant or his prior employment record was provided. On the basis of that advice it did not process his application further.

Respondent B

Respondent B contends that it is not an appropriate Respondent in this case as it was not the prospective employer of the Complainant. It was submitted on behalf of Respondent B that it was not recruiting staff at the material time and that this function was being undertaken by Respondent A. The Complainant’s application for employment, which was sent to Respondent B, was redirected to Respondent A and had the Complainant been successful in his application he would have been employed by Respondent A. Respondent B contends that if liability is established in this case (which it denies) it should attach to Respondent A as the prospective employer. Respondent B does not accept that it could properly be classified as a provider of agency work within the statutory meaning of that term. In advancing that argument it contended that the services which Respondent A provides to it go significantly beyond the mere supply of agency workers and includes the management and control of the staff which it provides to work in Respondent B’s facility.

Without prejudice to its position on that point Respondent B denies that it discriminated against the Complainant on grounds of disability or at all. Respondent B contends that in the course of his previous employment it had significant performance related issues with the Complainant. It contends that there were issues in relation to the Complainant’s absentee record independent of his wife’s disability. It further contends that, contrary to its sick pay policy, the Complainant failed to report regularly to his supervisor while on sick leave and that he had failed to return to the Respondent disability benefit payments which he had received from the Department of Social Protection . These matters, it was submitted, constituted serious breaches of the Respondent’s sick leave policy in consequence of which the Complainant was the subject of documented counselling, which is the preliminary stage in its disciplinary procedure.

Respondent B contends that the Complainant applied for special leave of absence in relation to his wife’s illness on or about 16th February 2001. Before that application could be considered he submitted a medical certificate on 21st February to the effect that he himself was medically unfit for work and he was thereafter on paid sick leave.

The Court was told that when the Complainant resigned in 2003 he attended an exit interview with his manager. The outcome of this interview was recorded on an official form, a copy of which was put in evidence. This form records that the Complainant was designated as unsuitable for future employment by the manager who conducted the exit interview.

According to Respondent B when it received the Complainant’s application for reemployment in 2006 it was immediately forwarded to Respondent A. Its HR department was then contacted by a representative of Respondent A who enquired if the Complainant would be suitable for reemployment. The Complainant’s former supervisor was contacted and based on his experience of the Complainant’s previous performance record he indicated that the Complainant was not suitable for reemployment. It is Respondent B’s case that the Complainant’s wife’s disability played no part in that decision and that the supervisor in question had no knowledge of her disability.

Summary of the Evidence

The Complainant

The Complainant gave evidence in which he told the Court that his wife was an insulin dependent diabetic. She was employed by Respondent A and worked in the same facility as the Complainant until 2002 when she resigned due to ill health. In early 2001 she became seriously ill arising from her condition and was admitted to hospital. On being discharged from hospital she needed full-time care and he was the only person available to provide that care. At first he took annual leave in order to discharge his caring role but he decided that this was not a viable solution. He approached his then supervisor, Ms M, and asked for unpaid leave of absence. It is the Complainant’s recollection that he first made the request to Ms M in or about the first week in February 2001. He explained to her the reason for the request. He received no response from Ms M. He contacted her shortly after his initial request but again received no response.

The Complainant told the Court that he then had no choice but to attend his doctor and obtain a certificate indicating his unfitness for work due to “stress caused by a family crises”. He presented this certificate on 21st February 2001 and remained on sick leave until mid-March of that year. The Complainant said that following his return to work he developed a condition affecting his leg and he was again absent from work. On his return he was placed on a corrective action plan because of what was regarded as excessive sick leave. He said that 70% of his sick leave related directly to his wife’s disability and had this been discounted he would not have been placed on corrective action. He appealed unsuccessfully against this decision in the course of which he explained that the bulk of his absences were related to his wife’s disability. The Complainant told the Court than he took carers leave in 2002 until 2003 when he resigned to provide full-time care to his wife.

In or about 2005 he became aware that Respondent B was recruiting staff. He was then in a position to resume full time employment and he applied for a job with Respondent B. His application was rejected and he subsequently learned that the reason for his rejection was the fact that he had been placed on a corrective action plan.

In cross-examination it was put to the Complainant that his application for special leave of absence was made on 16th February 2011 and that he later submitted a medical certificate on 21st February, backdated to 22nd January 2001 relating to his own illness and not his wife’s. The Complainant said that he applied for unpaid leave of absence on 7th February 2001 and again on 16th February. He also said that he made it clear to Ms M that the medical certificate that he submitted in February 2001in fact related to his need to care for his wife. The Complainant denied that he had failed to keep in contact with his supervisor while on sick leave. He said that he had telephoned on a number of occasions but had not been put through to his supervisor.

In relation to the social welfare payments, the Complainant said that these had been paid directly into his bank account as was his salary. He later issued his employer with a personal cheque in the full amount of the social welfare payments that he had received.

The Complainant also accepted that he had been subjected to document counselling for various issues including his attendance record. He also agreed that he had received a performance rating of 1 (the lowest possible) in his 2002 annual appraisal.

In response to a question from the Court the Complainant said that he had told his then supervisor Ms M that the medical certificate dated 21st February 2001 was in reality to cover a period caring for his wife.

Ms B

Ms B, who is HR manager of Respondent B gave evidence. She had commenced employment with Respondent B in 2006 and had no involvement in the events surrounding the Complainant being placed on a corrective action plan in 2001. This witness had no interaction with the Complainant during the currency of his employment with Respondent B.

According to Ms B, Respondent B formally had a policy of not reemploying former employees. This was later changed around 2006 and the Respondent was prepared to reemploy staff who left provided that more than 12 months had elapsed since their departure and they were considered suitable for re-hire.

Ms B told the Court that she received an e-mailed application from the Complainant with an attachment containing his CV. Respondent B was not recruiting at that time but Respondent A was doing so on its behalf. The witness forwarded the e-mail to Mr MC of Respondent A without opening the attachment. She later received a telephone call from Mr MC enquiring as to the Complainant’s suitability for employment. The witness passed the query to the Complainant’s last supervisor, Mr MMC. Mr MMC subsequently left a message on the witness’s answering machine to the effect that the Complainant was not a“suitable hire”.She then conveyed this information to Mr MC in Respondent A. Ms B did not ask Mr MMC the reason for his opinion at that time but she subsequently discussed the matter with him and was told that it was because of performance issues.

Mr MMC

Mr MMC gave evidence. He was the Complainant’s supervisor in September 2001 when he placed him on a corrective action plan. Mr MMC told the Court that in August 2001 the Complainant was absent from work on medical grounds. He said that he was aware that the Complainant has previously been the subject of documented counselling and in these circumstances he considered it appropriate to invoke the first stage in the company’s disciplinary procedures and he placed the Complainant on a corrective action plan. According to the witness the primary purpose of this process is to assist the employee to meet standards required of him or her. It is the equivalent of a verbal warning in a disciplinary process.

Mr MMC told the Court that he found the Complainant’s performance deficient in relation to communication, team working and attendance. He also discussed the Complainant’s performance with colleagues who indicated to him that they had similar difficulties with the Complainant.

The Complainant reported to Mr MMC for some six months before he left to avail of carers leave. The witness accepted that he had never mentioned these shortcomings to the Complainant. He also accepted that the corrective action plan related solely to the Complainant’s attendance record.

According to Mr MMC he initiated the corrective action plan in response to the Complainant’s absence in August 2001 because the Complainant had been the subject of documented counselling in relation to his earlier absenteeism record. Mr MMC did not have any specific recollection of the Complainant telling him that part of the earlier absences was because of his wife’s disability. He said that he approached the matter on the basis that the Complainant had an unacceptable level of certified sick leave and that he was obliged to deal with this matter. The purpose of the exercise was to impress on the Complainant the need to work toward achieving a 100% attendance record. The Complainant was subsequently released from the corrective action plan on 28th February 2002.

The witness went on to tell the Court that he assessed the Complainant’s performance in 2002 and rated him at 1 out of 5. He was aware that the Complainant had previously been rated at 3. The results of the assessment were recorded on a standard form which was then forwarded to the HR department. The witness had no responsibility for the filing or storage of these forms.

Mr MMC recalled receiving a telephone call from Ms B in 2006 asking if the Complainant could be regarded as suitable for re-hire. He said that he had a clear recollection of the Complainant and judged him to be unsuitable for further employment with Respondent B. He conveyed that opinion to Ms B in a message left on her answering machine. He said that his opinion was based solely on his recollection of the Complainant’s overall performance, including his recollection of having placed the Complainant on a corrective action plan in relation to his attendance record. The witness told the Court that while he was aware that the Complainant's wife suffered from diabetes he was not aware of the prognosis of her condition or its effects on her. He told the Court that he was not influenced to any degree by her disability.

Ms MD

Ms MD, who is HR Director with Respondent B, gave evidence in relation to the system used by Respondent B in undertaking performance appraisals. She said that the forms are completed in respect of each employee by his or her supervisor. They are then sent to the HR department and filed on computer. The Complainant sought a copy of his last appraisal under the Data Protection legislation. A thorough search of the system had been undertaken but this appraisal form could not be located.

Mr MC

Mr MC gave evidence on behalf of Respondent A. He recalled receiving the Complainant’s application and his CV in 2006 in relation to positions then being filled on behalf of Respondent B. Having looked at the Complainant’s CV he noticed that the Complainant has previously been employed by Respondent B. In line with normal practice he sought direction from Respondent B as to whether the Complainant was regarded by them as suitable for reemployment. He directed his query to Ms B of Respondent B. H was subsequently told that Respondent B did not regard the Complainant as suitable for further employment with it. He was not given any further information on the Complainant nor did he seek any further information. The Complainant told the Court that he did not know that the Complainant’s wife had a disability although he accepted that the Complainant’s CV recorded that he was a full-time carer.

Conclusions of the Court

Preliminary Objections by the Respondents

The Court first considered the submissions of both Respondents on the question of their potential liability for any discrimination found to have occurred. This question involves consideration of a number of statutory definitions.
Respondent A is an employment agency within the meaning of the Employment Agency Act 1971. It is clear that had the Complainant been employed he would have entered contractual relations with Respondent A. Section 2(1) of the Act defines a contract of employment as follows: -

• contract of employment means, subject to subsection (3)—

  (a) a contract of service or apprenticeship, or

  (b) any other contract whereby—

  • (i) an individual agrees with another person personally to execute any work or service for that person, or

    (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

  whether the contract is express or implied and, if express, whether oral or written;

• “agency worker” means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;
  

• “employer” , subject to subsection (3) , means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
  

It is clear that had the Complainant been employed he would have entered into a contract with Respondent A, which, by operation of paragraph (b) (ii) of the statutory definition, would be regarded as a contract of employment. Consequently Respondent A, as the person with whom he would have entered into that contract, is to be regarded as his prospective employer for the purposes of the Act.

The Act also applies to ‘a provider of agency work’. This terms is defined by s.2(5) of the Act as follows: -

• “A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act 1971 , obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the “provider of agency work”.

• In relation to—
  • (a) access to employment,

    (b) conditions of employment,

    (c) training or experience for or in relation to employment,

    (d) promotion or re-grading, or

    (e) classification of posts,

  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 Substantive Claim

The essence of the Complainant’s case is that he was refused employment on grounds of his wife’s disability. There is no issue as to the fact that the Complainant’s wife is a person with a disability. Direct discrimination on grounds of disability arises where a person is treated less favourably that another person, is, has been or would be treated in a comparable situation on grounds of disability (s.6(1) of the Act). Section 6(1)(b) expressly provides that discrimination can arise by association. Moreover, the decision of the CJEU inColeman v Attridge Law[2008] IRLR 722 makes it clear that associative discrimination on grounds of disability comes within the intendment of Directive 2000/78/EC, which the Act is intended to transpose in domestic law.

Two related arguments were advanced by the Complainant in support of his claim. Firstly he contends that the decision to place him on a corrective action plan in 2001 was because he was required to take time off work to care for his disabled wife. The events giving rise to that decision cannot now be relied upon for the purpose of obtaining redress under the Acts because they are demonstrably outside the time limit prescribed by s.77(5) of the Act. If, however, the Complainant can establish that the decision taken in 2001 was plainly and unambiguously an act of direct discrimination, and that it was relied upon in 2006 to effectively disqualify him for employment, the now impugned refusal to consider his application would itself be tainted with discrimination and therefore unlawful.

Secondly, the Complainant suggested that the decision to summarily reject his application for employment is 2006 may have been influenced by a belief that because he was caring for a person with a disability he could not be a reliable employee. The Court can find no evidence to support this second proposition.

Respondent B’s state of knowledge

In relation to the first point advanced by the Complainant, there was considerable conflict in the evidence adduced as to Respondent B’s state of knowledge concerning the reasons for the absences giving rise to the Complainant being placed on a corrective action plan. The Complainant gave evidence that at all material times he informed his supervisors, including Mr MMC who designated him as unsuitable for reemployment, that the bulk of his absences were for the purpose of caring for his wife. Mr MMC in his evidence could not recall having been so informed. The events in respect to which the witnesses testified occurred over ten years ago. It is perfectly understandable that differences would emerge in recalling those events and evidence based solely on human recollection at such a remove would have to be treated with considerable caution. However, for the reasons that follow, the Court does not consider it necessary to decide which version of the evidence on this point is to be preferred in order to decide the case.

Direct Discrimination

On the facts relied upon by the Complainant what he is contending for is a finding of direct discrimination. Direct discrimination arises where person is discriminated againstbecause ofa protected characteristic or because of a criterion which is indissociable from that characteristic (see Opinion of Jacobs AG inSchnorbus v Land Hassen[2000] ECR 1 10997) In a recently handed down decision of the Court of Appeal for England and Wales inJP Morgan Europe Ltd v Chweidan[2011] IRLR 673, Elias LJ (Ward and Moore-Brick LLJ concurring) pointed out, at par 5, that: -

• “ Disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability. This means that a reason for the less favourable treatment – not necessarily the only reason but one that is significant in the sense of more than trivial – must be the claimant’s disability”

The‘reason why’test

In this case the reason why the Complainant was placed on a protective action plan was because his combined period of certified sick leave exceeded what Respondent B considered to be an acceptable level. In that regard it is of considerable importance to note that in the period between January and March 2001,during which Complainant was caring for his wife, he was himself certified as being unable to work due to his illness and that he was paid under his employer’s sick leave scheme. There is nothing in the evidence before the Court from which it could be inferred that a hypothetical comparator, who was not associated with a person with a disability, would have been treated differently to the Complainant if his or her sick leave record was similar to that of the Complainant.

It seems clear to the Court, on the evidence, that the criterion relied upon by Mr MMC in placing the Complainant on a corrective action plan was the amount of sick leave of which he had availed and the fact that he had been the subject of earlier documented counselling in relation to his absence record. That could not be regarded as a criterion indissociable from associative disability in the sense that only a person who was caring for a disabled dependant could be affected by that criterion.

Indirect discrimination

At the material time in 2001 /2002 the Complainant could, of course, have mounted a challenge under the Act to the decision placing him on a corrective action plan, or to the claimed failure of Respondent B to allow him special leave. He could have claimed that the manner in which his employer’s absence control policy operated was indirectly discriminatory on the disability ground by bearing more heavily on employees in his circumstances than those who were not. He might also have claimed that his employer failed in its duty to provide reasonable accommodation for his wife’s disability. But any cause of action which might have existed at that time has long since been extinguished by the statutory time limits and are now statute barred.

The law applicable in 2001 /2002

Crucially, however, any claim taken at that time would have been governed by the law then applicable. The law then in force was the Employment Equality Act 1998, before its amendment by the Equality Act 2004. In its original form the Act of 1998 did not expressly proscribe associative discrimination and the statutory provisions on indirect discrimination on non-gender grounds were very different from those in the Acts as amended. . Moreover, Directive 2000/78/EC, which brought discrimination on grounds of disability within the purview of European law (and under whichColeman v Attridge Lawwas decided), had not yet come into force. On the law as it then stood it is difficult to see how the facts relied upon by the Complainant in the instant case, taken at their height, could have given rise to liability for indirect discrimination on the disability ground.

The events of 2006

Turning to the circumstances in which the Complainant's application for employment in 2006 was rejected, the Court accepts that Mr MMC advised Ms B that the Complainant was unsuitable based on his assessment of his previous work performance. The Court also accepts that the fact that the Complainant had been placed on a corrective action plan also influenced Mr MMC’s opinion to a significant degree. There is no evidence before the Court from which it could be inferred that all of these factors would not have been similarly taken into account is assessing the suitability of another person who is not the carer of a disabled dependant.

Determination

For all of the reasons set out herein, the Court is satisfied that the Complainant has failed to establish facts from which discrimination on grounds of disability could be inferred. Accordingly his claim cannot succeed.

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

Signed on behalf of the Labour Court



Kevin Duffy
22nd November 2011______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.