ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001445

Complaint for Resolution:  

Date of Adjudication Hearing: 21/11/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998, 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: 

Background

The Complainant has been employed since 14^th March 1997. She is currently Commercial Production Manager. She is paid €55,546 per annum. She has claimed that she has been discriminated against on grounds of her disability of mental illness. She has sought compensation.

Preliminary Point - Sec 19 Equal pay

Respondent

The Complainant made reference in her complaint form to “I have not received equal pay”. She then went on to concentrate on an alleged breach of Sec 6 that she had been discriminated against on grounds of her mental illness. The Respondent has sought that the complaint under Sec 6 is the only complaint before this hearing.

Complainant

The Complainant confirmed that the only complaint being prosecuted is an alleged breach of Sec 6 discrimination on grounds of disability / mental illness.

Decision

The only complaint being investigated and adjudicated upon is discrimination on grounds of disability/mental illness.

Complainant’s Submission and Presentation: CA -00000892-001

Over the last number of years the Complainant’s health both physical and mental has deteriorated significantly. She lost the sight in one eye, was diagnosed with MS, she had an ovary removed, and she struggled with anxiety, depression and work related stress. This was all well known to the Respondent. She at all times carried out her work diligently. The Respondent had no HR department at that time and so she could not voice her grievance. There was no grievance procedure. On 18^th March 2015 she was called to the office of the Sales Director and told that she was being suspended for “texts and stuff”. She was not provided with any further information and she was told to go home. She became overcome with stress, anxiety and fear. She was off her medication as she could not afford it and could not think straight. This led to an attempt at suicide. She was hospitalised for a number of weeks. On 16^th April the Respondent wrote to her to advise that her sick pay would be stopped by the end of April 2015. This communication was shocking to her. The Respondent was requested to reinstate her salary and pay her during her sick leave as it had done throughout her career. She was unaware of a sick pay policy. In any event the policy states “normal maximum company sick pay is 20 days. This clearly indicates that there may be time, which is deemed not normal. The Respondent’s letter of 20^th May 2015 admitted that sick pay had been paid in the past without deduction. This clearly gives rise to a clear inference that the Respondent had removed her from the sick pay scheme. She further implored the Respondent to pay her sick pay; this was done through her legal advisers. Eventually she had no option but to refer the matter to the Workplace Relations Commission (WRC). Her position is that she was removed from the sick pay scheme due entirely to the fact that she was and is suffering from a psychological condition rather than a physical one. And that removal for that reason constitutes discrimination on grounds of disability pursuant to Sec 6(2) (g) of the employment Equality Act 1998. Indeed Sec 6(2)(g) specifically confirms that discrimination can arise where one person is treated less favourably than “a person with a different disability” by an employer and it is submitted that this is indeed the factual situation before this hearing. A prima facie case has been established as she has been diagnosed with an ongoing depressive illness.

It is an implied term of her contract that she is entitled to long term sick pay where it has been the clear position of the Respondent to pay it. They cited Charleton v HH The Aga Khan’s Studs Societe Civille [1998] IEHC186, Marrisson v Bell [1939] I All ER 745 and Collette Rooney v Ossie J. Kilkenny and Brian P Murphy [2001] ELR 129.

She was discriminated against on grounds of disability and was treated less favourably than other members of staff. Upon learning that the Complainant’s illness was psychological in nature rather than a physical condition the Respondent removed her sick pay. She has always been paid during sick leave without limitation however the previous illnesses were physical. The Respondents treatment of the Complainant indicates a failure to recognise its obligations towards her living with a recognised and diagnosed disability.

She is seeking compensation.

Respondent’s Submission and Presentation: 

The Respondent stated that she commenced employment in 2002, not 1997 as alleged. The contract that she was issued in 2002 under Sick Leave Clause states “The Company will pay the first four weeks of certified sick leave. Payment thereafter will be at the discretion of the Company.

In October 2014 the Group, which comprises of ten companies of this Respondent is one, engaged the services of a HR Consultant in order to support the creation of the tenth company and the transfer of staff to the new entity and secondly to do an audit and review of HR practice and governance across the Group to ensure compliance and consistency. By 1^st January 2015 the updated contracts and Staff handbook were put in place in each company. This did not have any material changes for the staff in this Respondent Company. It was agreed amongst all companies that a sick pay benefit of 20 days per annum would apply. There was no change in the policy or contract for employees in this company. This had always been the benefit in this company. Since January 2015 no employee in any of the 10 Group Companies other than the Complainant has been paid more than 20 days. The Complainant has been paid 31 days. In September 2013 she was spoken to by the Chief Executive Officer regarding the sick pay scheme upon her return from sick absence. He affirmed that the entitlement was 20 days and that there was discretion for employers. On 18^th March 2015 she was invited to an internal meeting regarding serious issues with social media. She was suspended with pay pending the conclusion of the investigation due to commence on 23^rd March 2015. She became very upset and had to leave to see her G.P. She has been on continuous sick leave since. She was paid up to the end of April 2015 which is a total of 31 days. Despite not receiving any communication from her regarding her absence the Respondent wrote to her in April 2015 advising that she would be paid up to the end of April. The Respondent received a letter from her Consultant Psychiatrist advising of her financial and work related stress. The first medical certificate was received on 15^th July 2015. There has been no communication from herself directly since she went out sick despite the fact that she is a manager. The Respondent received a solicitor’s letter pointing out that she had no knowledge of a sick pay scheme. Her contract of 2002 referred to above clearly contradicts that assertion. Correspondence was exchanged between the parties over the following months. It is clear that since 2002 there has been a sick pay scheme in operation. The policy of providing 20 days benefit has been in force in this company for many years. She has had occasions in the past where she was paid in excess of 20 days.

It is the Respondents position that she has had many periods of absence of varying lengths over the years of her employment. She has been on continuous sick absence since March 2015.

No staff member in the entire group of companies has been paid in excess of 20 days with the exception of the Complainant. The policy has been applied consistently across 400 employees in 10 companies. The complaint is rejected.

Findings

It is the Complainant’s case that she has a disability within the meaning of the Employment Equality Acts 1998-2015. Disability is defined in the Employment Equality Act 1998, section 2(1) as “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;

I find that she has a disability as defined by the Act.

She has claimed that she was discriminated against because of her disability of mental illness and that she was discriminated against because her disability was mental as distinct for physical.

In order to succeed with her complaint she has to establish a prima facie case of discrimination. 

Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed. 

I note the detailed written and verbal submissions made by both parties. 

1) Sick Pay Scheme 

I note conflict of evidence concerning the application of the sick pay scheme. It is the Complainant’s position that she was unaware of the existence of a scheme. She is employed as a manager and would have been expected to manage staff attendance and so would be expected to know if one exists.

The Respondent states that the contract of employment issued in 2002 confirms the sick pay scheme. This was submitted in evidence.

I note that this contract states as follows: “The Company will pay for the first four weeks of certified sick leave. Payment thereafter will be at the discretion of the Company “.

Therefore I find that the Complainant was aware of the existence of a sick pay scheme since 23^rd May 2002, which provided for 20 days sick leave.

I also note that these HR policies were posted on the company’s intranet and available to all users.

On the balance of probability I find that there was a sick pay scheme and that the Complainant was aware of it as far back as 2002.

She registered for Social Welfare benefits in 2015. She would not do so if she believed that she would be paid in full by her employer.

I note that all sick pay schemes were aligned for common application in the Group.

I note that there was no change to the sick pay scheme in this particular company within the Group.

I find on the balance of probability that the Respondent did not alter any aspect of the Complainant’s sick scheme.

2) Discretion in application of the sick pay scheme.

I note the conflict of evidence regarding the use of discretion.

The Complainant provided three named comparators at the hearing asserting that they had been paid in excess of 20 days up to two years.

I note that the Complainant was unable to provide any direct evidence from these named comparators to support their position that significant discretion was used.

I note that the Respondent advised that this was hearsay only and no factual evidence was produced.

I find that the named comparators were not present to give evidence and that the statement from the Complainant could only be described as hearsay evidence.

I note that the Respondent strongly denied that there was discretion applied along the lines as suggested by the Complainant.

I find that the Complainant was unable to substantiate her assertions that she was paid in excess of 20 days ongoing in the past. She was unable to provide comparators who also received discretionary payments.

I note the direct evidence from the Respondent’s main witness (Financial Controller) who asserted that this was not the case with the exception of the Complainant.

I also note that since 1^st January 2015 nobody in this company or the 10 members of the Group has received sick pay in excess of 20 days with the exception of the Complainant.

3) Implied term of her contract

In DP Refinery (Westernport) Pty Ltd v Shire Hastings [1978] 52 AJLR 43 the Court set out the test that would normally be applied before a term may be implied into a contract as follows: “it must be reasonable and equitable, it must be so obvious that it goes without saying, it must be capable of clear expression and it must not contradict any express term of the contract” etc.

Where particular circumstances are not addressed by the written employment contract, a term may be implied into the contract to deal with those circumstances.

I find that terms are implied which give the contract “business efficacy” and because the implied term represents “the presumed intention” of the parties. One means of determining the presumed intention of the parties is to use the “officious bystander” test. That test was first set down in Shirlaw v. Southern Foundaries Ltd. where McKinnon J. stated “prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying: so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in the agreement, they would testily suppress him with a comment of “Oh of course”

In this case I did not find that discretion was an implied term.

I find that the original contract of employment stated “The Company will pay for the first four weeks of certified sick leave. Payment thereafter will be at the discretion of the Company “.

I note the Respondent’s evidence that no discretion has been used from 1^st January 2015.

I also note that no implied term has been established showing the Respondent applying sick pay on an unlimited basis.

Therefore it does not pass the officious bystander test.

I find that the Complainant has not established that unlimited discretion has applied in the application of the sick pay scheme.

4) Discriminated against because of her mental disability rather than physical disability.

I note the conflict of evidence concerning whether she had a mental or physical disability in the past.

I note that the Respondent clearly stated that she had suffered from both physical and mental disabilities in the past and they had never differentiated between them.

You cannot discriminate between disabilities, for that in itself is discrimination.

I find that the Complainant has failed to provide any evidence of such a practice.

On the balance of probability I find that she had suffered from both physical and mental disabilities in the past.

I find no basis for this allegation.

Decision:

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.

I have considered the verbal and written submissions.

I have decided that the Complainant has not established a prima facie case of discrimination.

For the above stated reasons I have decided that this complaint fails.

Eugene Hanly

Adjudication Officer

Dated:   08 February 2017