FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : AN POST (REPRESENTED BY MR CATHAL MCGREAL BL; AS INSTRUCTED BY MR PAUL CARROLL, SOLICITOR, AN POST) - AND - CLAIRE STEPHENS DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No. DEC-E2018-006.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 25 October 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Claire Stephens against the decision of an Adjudication Officer/Equality Officer under the Employment Equality Act, 1998 - 2011 (the Act) in her claim of discrimination and victimisation on the disability ground by her employer, An Post.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Claire Stephens will be referred to as “the Complainant” and An Post will be referred to as “the Respondent”.
The Adjudication Officer/Equality Officer in Decision no DEC-E2018-006 found that the Complainant had not established aprima faciecase of discrimination and accordingly had failed to shift the burden of proof to the Respondent. He found against her claim of victimisation as he was satisfied that the Complainant did not satisfy any of the terms of Section 74(2) of the Act.
Background
The Complainant was employed by the Respondent as a Postal Operative in the Galway Mail Centre from 11th June 2001. She worked 37 ½ hours per week on nights, over five nights per week. The Complainant’s employment terminated on 5thFebruary 2016.
On 5thMarch 2015 the Complainant referred a claim under the Act to the then Equality Tribunal. The Adjudication Officer/Equality Officer issued his Decision on 26thJanuary 2018, the Complainant appealed the Decision to this Court on 8thFebruary 2018.
This appeal was heard at the same time as a number of other appeals submitted to the Court by the Complainant. Extensive submissions and documentation were submitted in the course of the appeal which the Court has summarised in this Determination.
Summary of the Complainant’s Case
The Complainant appeared before the Court as an unrepresented party.
She told the Court that shesuffered from agoraphobia, gaze aversion, anxiety and depression. She claimed that she was discriminated against in her conditions of employment and she was victimised.
The Complainant detailed the background to her claim of discrimination and victimisation. She alleged that by being placed on special leave in May 2014 and in being asked to consider moving work location she was discriminated against on the ground of her disability as others without a disability were not treated in the same manner. She also claimed that on her return to work her conditions of employment were discriminatory. Lastly, the Complainant claimed that she was victimised after she instituted proceedings against the Respondent.
Special Leave
She told the Court that on 2ndMay 2014 due to work related incidents, including alleged sexual harassment by a male colleague, she wrote a two-page suicide note, photocopied it 80 times at work, and handed it out to all her work colleagues, after which she was placed on special leave.
An investigation into the alleged sexual harassment was carried out by Mr Fergus Byrne on behalf of the Respondent (the Byrne Review).
The Complainant alleged that she was the only employee removed from the workplace to facilitate the review taking place. She contended that the sole factor in the Respondent’s decision was her disability as she was not facing any disciplinary charges. Therefore, she claimed that this was discrimination on the ground of her disability.
The Complainant returned to work on 22ndSeptember 2014.
On 9th October 2014 the Complainant was involved in an incident at work with Ms B a work colleague. As a result of this altercation, the Complainant was placed on paid suspension from work on 13th October 2014, pending the result of an investigation into the incident and due to her aggressive interactions with her Managers at the meeting on 13th October 2014. A disciplinary process involving the Complainant commenced at that stage.
Request to Move Location
The Complainant met Mr Gerry Verschoyle, HR Management based at the GPO, Dublin, in the Galway Mail Centre, in August 2014 when she was on sick leave. At this meeting Mr Verschoyle asked her would she consider moving from the Galway Mail Centre to Loughrea Mail Centre, or commute to Athlone Mail Centre.
She said that she was never asked and/or requested to relocate to a different Mail Centre before she became sick and gave out the suicide note. She contended that had she not become sick she would not have been asked to relocate. Others involved in the alleged incidents were not asked to move. Therefore, she claimed that this was discrimination on the ground of her disability.
Conditions in the Workplace
The Complainant alleged that the Respondent treated her differently to others when she returned from sick leave. The HR Manager advised her Working Leader that if the Complainant started getting loud on the floor she should be reminded of the conditions on which she had been returned. She contended that it was not in her nature to do so and accordingly alleged that the HR Manager clearly viewed her as a loud trouble maker and was imparting this to her direct Supervisor, who more than likely viewed her in a negative way before she even returned from sick leave.
The Complainant alleged that before this she had always been treated fairly by the Respondent therefore this unfair treatment only started after she became ill and gave out the suicide note on 2ndMay 2014.
The Complainant alleged that other work-related changes affecting her but not her colleagues were directly related to her disability such as directions on where she was to locate her freepost.
Suspension
The Complainant told the Court that on 9th October 2014 she had an altercation with a work colleague, Ms B, the woman she named in her suicide note. She alleged that Ms B left her freepost in a place where she couldn’t find it. When she brought this issue to the attention of management she was suspended with immediate effect.
The Complainant alleged that she was the only person suspended in order to facilitate an investigation over the incident and she was the only person investigated for wrongdoing over the “altercation”. Ms B was not suspended.
Offer of a Settlement to Leave
The Complainant said that she was offered a settlement deal to leave her employment in November 2014, before any disciplinary hearing was held, which she refused to entertain. She alleged that she was the only person offered money to leave their job. She submitted that the Respondent offered her the settlement deal months after she became ill, whereas the Respondent wished to retain others with no illness and/or disability. That she claimed was discrimination.
Victimisation Claim
The Complainant stated that on 25th May 2014 she sent a letter to the Respondent, informing them, that she was instigating legal action, for psychological injuries sustained in the workplace.
The Complainant submitted a personal injuries claim to the Injuries Board in late June 2014.
She submitted that as soon as she informed the Respondent that she was taking legal action, the Respondent reacted with malice and victimised her by the following acts: -
- •Refusal to allow her return to the workplace when her own Doctor and the Respondent’s CMO declared her fit for work and placed her on special leave two days after she informed the Respondent of her personal injuries claim.
- •Being the only person asked to relocate to Loughrea Mail Centre or Athlone Mail Centre in August 2014.•Being the only person suspended from the workplace on the 9thOctober 2014.
- •Being the only person offered money to leave her job in November 2014. This offer of money to leave her employment occurred on the same day her Solicitor served the Personal Injury Summons on the Respondent
- •Putting her down as suspended on the work roster for all her work colleagues to see. The roster had not reflected that she was suspended prior to her submitting a claim to the Equality Tribunal in mid-January 2015 for the Respondent’s alleged failure to afford her reasonable accommodation for her agoraphobia.
- •Failure to progress and conclude the Disciplinary Process. Having been suspended on 13th October 2014 to facilitate an investigation into the 9thOctober 2014 incident she was left on paid suspension for months. She wrote to the Respondent in April 2015 seeking reasons for the delay. She said that by letter dated 22nd April 2015 the Respondent replied to her queries. She said that this was the very first time she was aware that the Respondent had not conducted an investigation into the 9thOctober 2014 incident prior to her dismissal. She asserted that the Respondent had not spoken to Ms B or to any employee present on the day of the incident.
Summary of the Respondent’s Position
Mr Cathal McGreal, BL instructed by An Post Legal Services, on behalf of the Respondent, stated that the Complainant has taken so many overlapping claims, appeals and complaints that it is not possible to extricate one from another. He said that these claims had placed an enormous, unfair and unlawful burden on the Respondent. Yet, Mr McGreal said that nothing put forward by the Complainant was remotely related to the necessary nexus on which to ground a case for victimisation.
Does the Complainant Have a Disability?
Mr McGreal questioned whether or not the Complainant had a disability within the meaning of the Acts. While accepting that the Complainant has medical issues he contended that it was difficult to discern precisely what her specific illness or disability was. The Complainant referred to depression, anxiety and agoraphobia in her claim form. However, despite the many opportunities given to furnish medical evidence of such a diagnosis, the Respondent had never been given confirmation of these conditions.
Mr McGreal said, crucially, the report of the Complainant’s own doctor, Dr Egan GP, sought by the Respondent in mid-2013 did not mention any clinical illness. Her GP said she suffers from “anxiety”. She does not refer to anxiety disorder or the particular anxiety disorder considered to be part of the family of disorders described as anxiety disorder. The Respondent’s solicitors did receive a Form B as part of the Injuries Board procedure for initiating a personal injuries action. This mentioned agoraphobia as an injury sustained at work and was received by the Respondent in late 2014. However, Mr McGreal said that any such document would naturally be contentious. Importantly, he said that Dr John Sheehan, the Consultant Psychiatrist commissioned by the Chief Medical Officer in mid-2014 to examine the Complainant, and with whom the Complainant does not appear to take particular issue, does not himself necessarily agree with such a diagnosis.
On 18thAugust 2014 Dr Sheehan in his diagnosis stated it“could be construed as secondary phobic anxiety disorder with social anxiety and agoraphobic features”.He also refers to the writing of the suicide note and said there was a voluntary component to her symptoms.
Victimisation Claim
Mr McGreal contended that the Complainant had failed to identify a complaint on which the victimisation claim is based. The Complainant had failed to identify a complaint or proceedings pursuant to section 74(2) of the Act. Therefore, he contended that there was no causal nexus of victimisation and the Complainant had failed to shift the burden.
He said that the Complainant was suspended because she did not go to a manager about a conduct issue with Ms B but rather confronted the employee herself when she had been instructed not to approach other than on work-related matters. She was also suspended for mistreating her managers at a meeting on 13thOctober 2014. The Complainant also breached confidentiality concerning a report she had been told (and had agreed) to keep confidential. In any event, he said that suspension is a neutral act and not a finding of guilt.
“Offers of Settlement”
On behalf of the Respondent, Mr McGreal said that it could not engage on the truth or otherwise of the Complainant’s reference to “offers of settlement” because if it were true, or even if they were false, to engage on the issue would be to breach the privilege which attaches to it. He submitted that the Complainant did not seem to understand the concept of hearsay and legal professional privilege.
Abuse of process
Mr McGreal contended that the Complainant was engaged in an abuse of process. He said that she had many claims based on the same factual matrix, the same key incidents and perceived perpetrators as her other claims. He said that she had made no effort to distinguish the relief she seeks in this case from the relief she seeks elsewhere nor the factual distinction of her various claims.
Witness Evidence
Summary of Mr John Keegan’s Evidence
Mr. John Keegan, Head of Organisational Development at the material time, [he is now Head of HR] gave evidence on behalf of the Respondent. He told the Court that he was tasked to hear the Complainant’s appeal of her dismissal. When questioned if he had treated the Complainant and Ms B differently with regard to the incident that occurred on 9thOctober 2014, he said that he was influenced by an account of the incident given by Mr Séan Madden, HR Manager, when the Complainant told him that she had unfinished business with Ms B. He said that he was also influenced by Ms Triona Healy, Working Leader, who recounted the events of 9thOctober 2014, and told him that she witnessed the Complainant making allegations against Ms B. which caused Ms B great distress. He said that there were no disciplinary findings against Ms B and for that reason he was only dealing with the Complainant’s appeal of the disciplinary action against her. Ms B had not been accused of any wrongdoing.
Summary of Dr Frank O’Reilly’s Evidence
Dr Frank O’Reilly, Chief Medical Officer, gave evidence on behalf of the Respondent. He said that he has been practicing medicine for 37 years and had been the Respondent’s Chief Medical Officer for 12 years. He is formally trained in cognitive behaviour. He is an accredited specialist in occupational health and is competent to interpret psychiatric reports. He was asked if the Complainant had a disability within the meaning of the Act. He said “no” she did not and that he had not at any time told her that she had such a disability.
Under cross examination by the Complainant the witness was asked about his opinion of her medical condition. The Complainant mentioned the fact that she had been referred by the Respondent to Occupational Support Services; to Dr Sheehan, Consultant in Liaison Psychiatry, Department of Adult Psychiatry, UCD and to the Respondent’s Occupational Nurse. She asked the witness if he disagreed with Dr Sheehan’s report on her condition which diagnosed her with social anxiety and agoraphobic features. Dr O’Reilly replied that he did not disagree with Dr Sheehan’s report on her condition, however, he said that she did not have agoraphobia, he said agoraphobia was a term for a generalised disorder, a pervasive disorder.
Dr O’Reilly said that she does have some agoraphobic features that developed out of her social anxiety as demonstrated by her blushing and shyness, which she has had from many years without treatment, but she does not have agoraphobia. Dr O’Reilly said that she has features of cognitive distortion, but she does not suffer from psychosis. He said that if Dr Sheehan had any concerns he would have recommended medication/treatment but instead said that she could benefit from counselling and should return to work. Dr O’Reilly said that a lot of her thinking was very fixed which could only be treated with cognitive behaviour therapy.
Dr O’Reilly said that in writing her suicide note to her colleagues the Complainant had no insight into the impact of her actions on her colleagues and as she was misconstruing events, he was concerned about her. For that reason, he decided to send her to be psychologically assessed by Dr Sheehan. He said that he agreed with Dr Sheehan’s diagnosis that there was a voluntary element to her symptoms, he said that in his view she had another agenda, her behaviour was manipulative and voluntary.
Dr O’Reilly told the Court that the Complainant does not have a “disability” as defined by the Act. Furthermore, he confirmed that he is a qualified Occupational Physician and as such is familiar with the definition of “disability” in the Act and was satisfied that the Complainant does not come within the definition as a person with a “disability”.
Summary of the Complainant’s Evidence
The Complainant confirmed that her submission to the Court which she read out at the hearing on 24thOctober 2018 was her evidence in chief to the Court.
Mr McGreal had no questions for her in cross examination.
In answer to questions from the Court the Complainant was asked about proof of her disability and how was the Respondent to know that she was a person with a disability. She relied upon Dr Sheehan’s report as proof.
She said that for 14 years she had been treated fairly by the Respondent, then after she gave out her suicide note she was treated differently. She said that she had never been suspended before all this happened and therefore she said that she presumed that it was because she was ill that she was treated differently than others.
It was put to the Complainant that during Dr O’Reilly’s examination of her and as contained in his report on her medical condition on 28thMay 2014, she had described herself as currently well with no symptoms and he described her as fit to return to work. Dr Sheehan’s report recommended that a return to work would be beneficial for her overall wellbeing. She said that even though the CMO declared her fit to return to work Mr Madden placed her on special leave.
The Law Applicable – Discrimination Claim
In order to establish aprima faciecase of discrimination, the onus is on the Complainant to prove that she had a disability at a time material to her claim or that one was imputed to her.
The Court must decide 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 section 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,
- (a) [ not relevant]
Findings of the Court
The Complainant stated that she suffers from agoraphobia, gaze aversion, anxiety and depression. She relied upon the Medical Form B of the Injuries Board, for her Personal Injury claim in the High Court which was filled out by GP to prove that she suffers from these conditions.
The Court heard evidence from Dr O’Reilly, an eminent practitioner. The Court was presented with Dr Sheehan’s report to the Respondent, an expert in the field of psychiatry. This report was not in dispute and indeed the Court notes that the Complainant relied upon it to support her case.
In his evidence to the Court, Dr O’ Reilly gave his opinion on the Complainant’s condition; on Dr Sheehan’s assessment of the Complainant’s condition and on the Complainant’s own GP’s diagnosis of her. Dr O’Reilly was emphatic that the Complainant was not suffering from agoraphobia but rather that she had some agoraphobic features which had developed out of her social anxiety as demonstrated by her blushing and shyness and noted that she was not prescribed any medication or treatment. He said that a lot of her thinking was very fixed which could only be treated with cognitive behaviour therapy.
Dr Sheehan examined the Complainant on 28thMay 2014. In his report, which is not in dispute, he states that she was vulnerable to mental health problems due to her personal history. He described the Complainant’s condition“could be construed as secondary phobic anxiety disorder with social anxiety and agoraphobic features”and that there was avoluntary component to her symptoms. His report stated that“she laughed when recounting the details of the letter she wrote to her co-workers in May 2014. Her mood was euthymic, and she expressed no suicidal ideation. She had no perceptual abnormalities and no delusional beliefs. In terms of her diagnosis, her history suggests that her initial gaze avoidance in 2005 was a conscious, voluntary behaviour.”
The Court notes that in his report Dr Sheehan stated that the Complainant had described herself as currently well and he declared her fit to return to work.
Equally, the Court notes that apart from filling out the form for the personal injuries claim, which Mr McGreal contended was contentious, the Complainant’s GP did not diagnose her with agoraphobia and reported that she found her well.
The Court notes that the medical practitioners, as a matter of professional opinion were not at odds with one another and were satisfied that theComplainant did not have a disability within the statutory meaning.
On the question of whether a disability was imputed to her, the Court is satisfied that the Respondent was concerned for her and made sufficient enquires of eminent medical practitioners to establish the nature of the Complainant’s condition to determine the precise details of her condition. In such circumstances, the Court is satisfied that it did not impute any particular condition/disability to her which might have amounted to a “disability” within the meaning of the Act.
Based on the uncontroverted medical evidence tendered in this case, the Court must find that the condition from which the Complainant alleged she suffered from does not amount to a disability within the statutory meaning. Therefore, the Court finds that the Complainant has failed to establish aprima faciecase of discrimination. Accordingly, the claims herein must fail.
The Law Applicable – Victimisation Claim
Victimisation is defined by Section 74(2) of the Act as follows: -
- (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
- (a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
- (a) a complaint of discrimination made by the employee to the employer,
- i.The Complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),
ii.The Complainant was subjected to adverse treatment by an employer and,
iii.The adverse treatment was in reaction to the protected action having been taken by the Complainant.
The Law enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such“measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”
The question the Court must first examine is whether the Complainant has taken an action of a type referred to at Section 74(2) of the Acts (a protected act).
The Complainant informed the Court that on 26thMay 2014 she instigated legal proceedings against the Respondent. On 20th June 2014, she had completed Medical Form B of the Injuries Board for her personal injuries claim in the High Court.
The Complainant submitted that this action - the initiations of personal injuries proceedings - comes within the definition of “victimisation” as contained in Section 74(2)(b) “any proceedings by a complainant,”.
To be encompassed within the ambit of section 74(2)(b) “proceedings” must come within the definition asdefined by Section 2 under Interpretations:
- “proceedings” means—
- (a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and
(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act;”
- (a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and
Under the Act the Complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts. The Court is being asked to accept that the initiation of personal injuries proceedings constitute a “protected act” and be combined with her alleged adverse treatment by the Respondent in this case. The Complainant was not relying on proceedings under “this Act”, i.e. the Employment Equality Act 1998 to substantiate her claim. The basis of the claim of victimisation she submitted to the Equality Tribunal on 5thMarch 2015 was due to the personal injuries proceedings she initiated in May 2014.
Therefore, in the Court’s view the facts as presented do not come within the ambit of a protected act and consequently do not come within the intendment of Section 74(2) of the Acts.
Determination
For the reasons set out above the Court determines that the appeal is disallowed, and the decision of the Adjudication Officer/Equality Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
17 December 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.