ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002140

Complaint for Resolution:

Date of Adjudication Hearing: 10/08/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant says his employer discriminated against him on the grounds of a disability. This manifested itself in a number of ways.

He was initially told that his probationary period would be three months but when he was presented with a written contract this turned out to be six months. He was not given sufficient time to consider this contract and his signature was demanded following his return from a spell of sick leave.

In addition he understood his reporting line would be to a Partner in the firm but was instead to the Office Manager.

He says he was also pressured into doing additional overtime at a time when he was preparing for vital examinations. The revised contract of employment also made no mention of study leave he had been promised to prepare for vital examinations.

He says that he had a detailed discussion with one of the partners (on what he says was April 31^st) about the medical and related (sleep) difficulties he was experiencing and that the company was fully aware of them although this discussion only lasted about five to ten minutes. He outlined the nature of his conditions, the medication he was taking and the combined impact of both on his general health.

He says that he did not receive a warning letter dated June 19^th which the company says it sent to him, and the same applies to a later letter on July 31^st.

He specifies the disability on which he bases his claim as being the effects of the medication he was taking with the underlying cause being epilepsy. He says that the change of his terms of employment from what he was first told and what was in the written contract was an act of discrimination and links the other complaints; the withdrawal of paid study leave to this.

In support of his claim that the respondent was aware both of the nature and seriousness of his condition he submitted subsequent to the hearing detail on text messages sent to various colleagues to which the respondent’s reply is below.

He also expressed concern about being within the range of a CCTV camera which he was told was not working.

He had a further meeting with a different partner on July 30^th at which he again gave a full account of his medical condition, including the impact of the combination of his condition and the medication on his well-being. Therefore he says the company was well aware of his medical condition and that he was suffering from a disability.

His employment was terminated on July 30^th 2015 and he has no idea how this came about. He was not given any reason.

He is seeking payment for six weeks study leave as per the original contract signed March 10^th, 2015, payment for all overtime worked at the request of one of the partners after post his seizure on April, 17^th 2015, and full pay up to the present date or until he secures new employment, and an apology.

Respondent’s Submission and Presentation:

The respondent submitted a very detailed response on all issues raised by the complainant but raised a number of preliminary issues.

One of these relates to whether the claim was lodged within the time limits and the second relates to whether the complainant’s condition represents a disability within the meaning of the Employment Equality Acts.

It says that the date of most recent date of discrimination stated by the complainant on the complaint form was June 30^th, 2015, although the complainant subsequently amended this to define the last incident of discrimination as having occurred on August 31^st 2015, the date of the termination of his contract. This latter date would bring it within jurisdiction as the complaint was made on February 25^th 2016.

In response to the complainant’s further submissions after the hearing the respondent says that they show only that the complainant had been unwell and that he said he had some sort of seizure on April 17^th 2015.

The respondent says that in the course of his ‘return to work’ interview on he told the interviewer in response to the question as to whether there was any underlying condition that there was none and that he had just been in for tests. It continued that the complainant said ‘the doctor is not know what was wrong and he needed bed rest’.

There is nothing in the content of the messages to support his contention that the employer knew specifically that he was suffering from epilepsy at any time up to the decision to terminate his employment.

Certain other communications between the complainant and colleagues were not known to the managers who were the decision makers.

In summary, the respondent says it was not aware that the complainant was suffering from epilepsy but even if he was this had no bearing on its decision to terminate his employment which related to his failure to fulfil his probationary period satisfactorily. It says there were regular monthly reviews with the complainant and on the only occasion when he acknowledged that he was not able to carry out his duties it was because he was not receiving ‘proper training or support’.

Decision on Preliminary Issue:

The notice to the complainant of the termination of his employment was issued on August 18^th 2015. It clearly states that the employment ‘is terminated with effect from the 31^st August, 2015’. The complainant has made a complaint of discriminatory dismissal and therefore the alleged discriminatory is within jurisdiction.

Findings and Conclusions :

This brief but unhappy relationship between the parties featured a number of disputes of varying degrees of gravity; over the change in a contract of employment, the alleged use of CCTV cameras, about overtime and then, the fairly significant matter of the study leave the complainant felt he had been entitled to. These are mentioned in passing because whatever contribution they made to the relationship, only one issue; that of the claimed discriminatory dismissal on the grounds of the complainant’s disability is for decision in the case.

Insofar as that is concerned the issues arising concern the following related questions.

Whether the employer was aware of the complainant’s health condition, and

Whether the health problems being experienced by the complainant represent a disability under the Employment Equality Act, (see definitions below).

Was the complainant’s condition a significant factor in the termination of his employment, such as to represent a discriminatory dismissal

The Equality Acts (Employment Equality Acts and the Equal Status Acts), which outlaw discrimination on grounds of disability, use the following definition.

"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, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour."

According to the National Disability Authority website,

‘ there is no definitive list of conditions that constitute a disability. Any such list could leave out people with significant but rare conditions. There can also be a wide range of difference between how individuals with a particular condition are affected, ranging from mild to severe difficulties. A person’s environment, which includes the supports they have and the physical or social barriers they face, influences the scale of the challenges they face in everyday life.

The Disability Act 2005 sets out the following definition:

“disability”, in relation to a person, means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment

When pressed at the hearing to define the disability the complainant said that it was the effects of the medication he was taking, resulting in sleep loss and other symptoms, although he said the underlying cause of this was epilepsy. Later there was also some reference to the effects of a football injury which only came to notice in July.

The episode on April 17^th 2015 was described as his ‘first ever seizure’ and this was just over a month after he commenced work with the respondent; the diagnosis of epilepsy followed a few days later on April 21^st. He took a total of six days off and returned to work on April 29^th.

Around the time of the diagnosis the correspondence by text with the respondent is of a very general nature and relates to his taking a week’s sick leave as he adjusts to the newly prescribed medication. There is nothing specific on his condition.

As noted in the respondent submission above in the course of his ‘return to work’ interview on April 29th he told the interviewer in response to the question as to whether there was any underlying condition that there was none and that he was just in for tests. It continued that the complainant said ‘the doctor does not know what was wrong and he (the complainant) needed bed rest’.

In fact, the complainant stated that he had been diagnosed as having epilepsy on April 24^th. But in the course of a conversation five days later he did not reveal the nature of the specific diagnosis; on the contrary he appears to have created the opposite impression.

He had a conversation with one of the partners about the medication on April 30^th (referred to as 31^st in error).

It is not clear what the employer knew of the complainant’s condition. The respondent claimed very limited knowledge and none in detail of anything that would represent a disability, although it was aware of the situation regarding the complainant’s medication.

There was no further incidence of illness until July 30^th when he went home sick, including with a new condition which had not previously featured. Between the two episodes he submitted no evidence that his ongoing condition was discussed with the respondent in relation to the discharge of his duties.

The complainant continued to attend at work while being on prescribed medication. He said he could not financially afford to miss work and there was also the important matter of his upcoming examinations. He went on study leave on July 31^st and on August 18^th was told that he had not passed his probation and that his employment would terminate on August 31^st, (although the respondent says a letter was also set on July 31^st)

I have no doubt that, in theory, epilepsy, including the effects of related medication could quite easily fit the definition of a disability, as envisaged by point (e) above of the definition in the acts.

However, certification of a medical condition of any sort, and most definitely something which might be relied on as a condition of disability is a matter for decision by a medical practitioner, it is not reasonable that an employer should be expected to know on the basis of an assertion by an employee, or on the basis of astute observation.

Likewise, it is unreasonable to expect the respondent to reach conclusions about the complainant’s state of fitness for work in the absence of either a clear indication from him to the relevant manager (which there had not been for a full three months) or medical certification.

Because, between the time of the initial diagnosis, (which was not communicated to the respondent, indeed a contrary impression was given) including the conversations with partners, one on April 29^th (the Return to Work Interview) and the second about medication on April 30^th there is no evidence that the complainant submitted medical certification to the respondent to support the contention he now makes that he was suffering from a disability, what the extent of that disability was and whether any special accommodation of it needed to be provided. Or even that he was, in any general sense, unwell.

The complainant’s case seems to that his employer ought to have known he had a disability on the basis of various conversations, text messages to co-workers etc.

I find that the identification of a condition sufficient to fit such the description in the Act is in the first instance a matter for medical certification. In the absence of such certification, and bearing in mind the complainant’s continuing, if very unwise attendance at work, any responsibility the respondent may have in relation to any rights under disability provisions can hardly be said to be triggered.

The complainant raised no issue about his health between the initial episode in April and July 30^th.

A particular concern in the case is that the complainant continued to attend for work, when it appears according to his evidence that he may not have been well enough to do so. Quite whose responsibility this may have been is hard to say, but on balance, as it is the complainant who is experiencing the symptoms, this again is a matter that should be laid before a doctor for a decision, regardless of the consequences, and then communicated to the respondent.

The respondent’s contention that the decision was purely based on performance is not helped by a dispute over a warning letter it claims to have issued on July 19th following an appraisal meeting the previous day. The letter submitted in evidence outlines deficits in the complainant’s performance which he flatly denies having received. This letter purported to put the complainant on notice that if his performance did not improve his probation would not be successful and her would be dismissed.

The complainant said at the hearing that he had never seen this letter before. He also says he did not receive a letter terminating his probation on July 31^st but did receive one dated August 18^th. These conflicts might be more relevant in cases under the Unfair Dismissals Act but are less so in the context of a discriminatory dismissal.

So, I can reach no conclusion on this conflict in the evidence although some onus of proof falls on the respondent which should have ensured the transmission of the letter was witnessed or its receipt acknowledged in writing by the complainant for certainty. The complainant also denies having received the letter of July 31st terminating his employment and which stated the reasons why.

But to the extent that the only issue to be decided is the complainant’s case that his dismissal was a result of his disability I find that there is insufficient evidence here to support it and I conclude, on balance that it was a consequence of his performance. The respondent had no proper medically supported indication of a disability, nor indeed little indication of poor health of any sort to the point where it affected his fitness for work.

In conclusion, in the absence of such indications or certification I find that the respondent acted on the basis of the complainant’s performance and terminated the probation for that reason.

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons outlined above complaint CA-00002868-001 fails and I dismiss it.

Dated:   07/11/2016