FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : SWAN O SULLIVAN ACCOUNTANTS & REGISTERED AUDITORS (REPRESENTED BY MR PADRAIG LYONS, B.L.; INSTRUCTED BY LAVELLE SOLICITORS) - AND - SEAMUS COUNIHAN (REPRESENTED BY MS SHARON DILLON LYONS, B.L.; INSTRUCTED BY COGAN DALY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision
BACKGROUND:
2. The Claimant 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 9th January, 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Séamus Counihan against the decision of an Adjudication Officer in a claim that his former employer Swan O’Sullivan Accountants & Registered Auditors had discriminatorily dismissed him on the ground of disability contrary to the Employment Equality Acts 1998 to 2015 (“the Acts”). TheAdjudication Officer found that the complaint was not well founded and dismissed the complaint under the Acts.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Séamus Counihan will be referred to as “the Complainant” and Swan O’Sullivan Accountants&Registered Auditorswill be referred to as “the Respondent”.
The Complainant referred his claim under the Acts to the Workplace Relations Commission on 25th February 2016, a hearing was held on 10th August 2016 and the Adjudication Officer’s Decision was issued on7th November 2016.
Background
The Complainant commenced employment as an Audit/Accounts Semi-Senior on a traineeship with the Respondent on 10th March 2015 and was dismissed on 31st August 2015.
The Respondent is a small accountancy practice, which practices mainly in the preparation of non-audited and audited accounts, tax returns and some insolvency work primarily for SME’s and general sole traders.
Position of the Parties
The Complainant was represented by Mr Padruig Counihan, AGNA, at the hearings held on 17th May and 6th September 2017. He was represented by Ms Sharon Dillion Lyons, B.L., instructed by Cogan Daly Solicitors, at the hearing held on 9th January 2018.
Mr Counihan on behalf of the Complainant stated that the Complainant suffered from epilepsy. He contended that the Complainant’s dismissal was on grounds of his disability and amounted to unlawful discrimination. He disputed the Respondent’s contention that the dismissal was for performance reasons. Furthermore, he disputed the Respondent’s contention that it was unaware that the Complainant suffered from epilepsy.
Mr Counihan told the Court that on 17th April 2015 the Complainant suffered a seizure while at work. He was hospitalised the following day, diagnosed as suffering from epilepsy and discharged from hospital on 21st April 2015. He returned to work on 29th April 2015.
The Complainant’s representative said that the Complainant had ongoing discussions with members of management about his health and that his work colleagues were more than aware of his medical condition.
Mr Counihan submitted that the Complainant had never been advised that his performance was an issue. He assumed his performance at work had been satisfactory, therefore, the only conclusion he could reach was that the Respondent did not want to continue his employment because of his epilepsy.
Mr Padraic Lyons, B.L., instructed by Lavelle Solicitors on behalf of the Respondent submitted that theComplainant was dismissed because the Respondent was not satisfied with his performance and he was not successful in his probation, which was not in any way connected to any illness,absence or disability as alleged by the Complainant.Mr Lyons contended that theComplainant has failed to establish facts from which it may be presumed that he suffered unequal treatment by reason of a disability and therefore his appeal must fail. He had failed to tender any medical evidence of a diagnosis of epilepsy or the existence of other persuasive evidence of a relevant disability.
The Respondent was simply not aware that the Complainant suffered from epilepsy as alleged. Mr Lyons said that the Complainant had not, despite numerous requests from management, delivered a certificate in relation to his absence following the episode in April 2015. The Respondent was never made aware, formally or otherwise, up until the time that the Complainant's employment was terminated, of the nature of his illness and the Respondent has never at any stage had sight of any evidence or
certification, that he suffers from epilepsy or otherwise. Therefore the Respondent could not have discriminated against him in circumstances where it was not aware of the alleged disability.
In these circumstances Mr Lyons submitted that the Complainant allegations amount to nothing more than a mere assertion of discrimination, and therefore submitted that the Complainant had failed to discharge the onus of proof resting upon him.
- Witness Testimony – The Complainant
The Complainant told the Court that on the evening of Friday 17th April2015 he felt unwell at work. He was given a lift home from work and retired to bed. The following morning when he woke, he realised from bruising on his body that he must have had a seizure and he attended at St Vincent’s University Hospital Emergency Department. He said that on admittance medical staff suspected that he had had an epileptic seizure. He had a CT scan and an EEG to eliminate symptoms such as a stroke or a brain tumour. The EEG confirmed that he was in a post-seizure state. He was informed that he would require follow up tests, such as an MRI and would need to have an appointment with a neurologist. He was given anti-epileptic medication.
He said that he received a text message from management on the Friday enquiring as to his well-being. He responded on Saturday and said that he had had some sort of seizure on Friday night and was having tests to determine what was wrong.
He was absent from his employmentforseven working days, from 20thuntil29th April 2015.On his return to work, he had a meeting with a member of management and informed him that he was on medication; he said that he had inadvertently given the incorrect name of the medication. He called it “Keppro” instead of “Keppra”. He said that the manager was empathetic towards him and assured him in relation to his workload. He said that at a later meeting with this manager he confirmed the correct spelling of the medication and he was of the view that the manager had “googled” it.
In his evidence the Complainant said that he had had several conversations with management about his medical condition. He said that he often suffered from insomnia and headaches as a result of the medication. On such occasions he was asked if he wished to go home but decided not to as he was still capable of doing his work.
In cross-examination, the Complainant was asked when and by whom was he diagnosed as suffering from epilepsy. The Complainant said that it was a default diagnosis, as other symptoms had been ruled out, e.g. a stroke and/or a brain tumour. In such circumstances, he said that it was normal in a post-seizure state, to prescribe anti-epileptic medication as a precautionary measure, pending further tests. When pressed further on the question, he said that he had been given a provisional diagnosis by Dr E. Kelly, Acute Medical Physician, before he left the hospital. He said that following his discharge from hospital he attended Dr. C. McGuiggan, Primary Care Physician for out-patients. However, the Complainant could not be clear as to when he was diagnosed as having epilepsy, or by whom. He said that it was obvious from his seizure and the medication he was on. He said that his family, friends and work colleagues understood that he had the condition.
The Complainant was questioned about medical certification of his condition. He accepted that he had not supplied the Respondent with certification of his absence from work contrary to his contract of employment. He denied that he had been asked for medical certification, he said that if he had been asked to produce such evidence he would have done so.
- Witness Testimony – Ms Lynda Davison
Mr Counihan wrote to the Court seeking a witness summons for Ms Lynda Davison to be subpoenaed to the Court to give evidence. The request was granted. The Court made it clear to Mr Counihan that in doing so she would be appearing as a witness on behalf of the Complainant.
Ms Davison told the Court that she has been employed by the Respondent since 2000 and as an Audit Manager since 2012. She continues in that role.
When the Complainant commenced, she was appointed as his Line Manager, responsible for his day to day activities. The witness was directed to notes she compiled as part of assessments she carried out into the Complainant’s performance. She stated that the Complainant’s performance was not great, he did not take direction well, his manual work was skimmed over and not done correctly. She said that he did not follow up on outstanding work. She said that when giving him direction he spoke over her and did not listen to what she was asking him to do.
Ms Davison accepted that her notes inaccurately stated that he did not follow up with clients regarding queries and outstanding items on any jobs, however, she said that while he did not have direct contact with the clients, he was required by the senior person assigned to the client to follow up on jobs but did not do so. Ms Davison disputed the Complainant’s assertion that he was not made aware that his performance was unsatisfactory. She said that he was made aware of this on many assignments.
The witness was asked about a conversation between her and the Complainant, where the Complainant asserted that he spoke to her about time off to attend hospital appointments and whether such time off could be taken as paid leave. It was put to the witness that she had ascertained from senior management that the Complainant could only avail of annual leave for such appointments. The witness denied that such a conversation had taken place with her and stated that she had no role in such a matter, and that such decisions were for senior management to make.
Ms Davison stated that all employees are appraised on both a monthly and on an annual basis.
In cross-examination, the witness was asked about her knowledge of the Complainant’s illness. She said that she was informed by a work colleague that he had had a seizure at work, but as she was in hospital herself at the same time, she had heard little about his condition. She said that she did not discuss his condition with anyone in the office on her return. She said that she was aware that he was absent on 27thand 28thMay 2015 as it was her duty to bring such absences to the attention of senior management for payroll purposes. However, she said that she was not aware why he was absent on those days.
The witness was questioned about the Complainant’ work regarding a particular named client. Ms Davison said that when he had completed his work on this client, she was required to complete a performance assessment of his work. She said that his technical ability was poor. Her overall assessment was that he must improve his basic reconciliation skills. The comments made by her in the review stated that he showed an unsatisfactory level of ability; required a significant amount of assistance to complete basic control accounts; displayed aggressive behaviour towards the manager who assisted with completion and he was unable to follow direction. When she had completed the review it was then forwarded to the Complainant for his feedback, however, he did not follow up on the comments made. She said that when she raised these concerns with him that he was irate with her and raised his voice.
In answer to questions from the Court, Ms Davison said that she was not aware that the Complainant’s suffered from epilepsy until the case was referred under the Acts. She said that his absences consisted of a day here and there.
Evidence of Mr Kevin O’Sullivan, Partner
Mr Kevin O’Sullivan gave evidence on behalf of the Respondent. He said that on 30th April 2015, he held a return to work meeting with the Complainant, as is the normal procedure when an employee is absent due to illness. He enquired of the Complainant’s health and was told that he was in hospital for tests, the doctor did not know what was wrong with him and that he needed bed rest. The witness said that a sick certificate was sought from the Complainant however, he never produced one.
Under cross examination the witness was asked if there was a conversation about Keppra or Keppro at this meeting. The witness said that no such conversation had taken place. He said that the first time he learned of the Complainant’s medication was after the Complainant had left the Respondent’s employment. He said that Mr Swan had not mentioned anything about the Complainant’s medication to him. He was asked when he first learnt of the Complainant’s epilepsy, he answered that he knew nothing of this while he was employed and only discovered that he may have such a condition as part of the claim, but that he was still not sure that the Complainant had such a condition.
Evidence of Mr Nigel Swan, Partner
Mr Nigel Swan gave evidence on behalf of the Respondent. He told the Court that he knew that the Complainant had some kind of seizure in April 2015, he understood it to be stress related and when he spoke to the Complainant at his appraisal meeting on 20th May 2015, he asked the Complainant if there were any issues arising from the incident in April 2015 and the Complainant answered no, there was no further issues and he did not want to talk about it. The witness said that he asked for a sick certificate for his absence but none was forthcoming. He said that in the end he got fed up asking.
The witness was asked if there was any discussion with the Complainant about his medication, Keppra, he said no there was not. He said that he was never informed that the Complainant had epilepsy, no evidence was ever given to him concerning his medical condition. He said that he was not aware that the Complainant was advised not to drive.
In cross examination, the witness was asked about a text sent to him from the Complainant on 27th April 2015, where the Complainant stated the following: -
- “Hi Nigel, I’m still getting used to the medication that I am now on. the Consultant said that there will be an adjustment period but that it should get easier. I should be ok for the rest of the week.”
In relation to that text, Mr Swan was asked when he first heard of the Complainant’s seizure, he said that he learnt that on 19th April 2015 via a text from the Complainant when the Complainant texted him to say that he had had some sort of seizure on Friday night. He was asked how he learnt about the Complainant’s incident in the office he said that his son told him that the Complainant was unwell in the office on 17th April 2015, as his son had given him a lift home. With reference to the above quoted text, the witness was asked did he not ask the Complainant about his medication, he replied that he had not but had raised the matter of his condition at the monthly meeting, he said that he thought it was stress related or a panic attack, as the Complainant had mentioned this to Mr O’Sullivan in the return to work meeting. Mr Swan said that it was standard practice to seek a medical certificate on return to work following an absence and it was the exception that one was not provided.
He was asked about the monthly review which took place in May 2015. He said that he made enquiries of the Complainant who assured him that he was fine, he was back to work and he did not want to discuss it.
In answer to questions from the Court the witness said that he carried out monthly appraisals with the Complainant. These took place on 20thMay, 18th June and 16th July 2015. He disputed the Complainant’s contention that no appraisal meetings were held. The witness said that at these meetings, he went through the Complainant’s work, his job assignments, and his performance. He said that he personally handed three letters concerning his unsatisfactory work performance to the Complainant - on 19th June, 17th July and 31st July 2015. He said that on the first two of these occasions Mr O’Sullivan was present when he handed them to the Complainant (this was confirmed by Mr O’Sullivan at the hearing).
The witness was asked why the Complainant was issued firstly with a letter dated 31stJuly 2015 and then a second letter dated 18th August 2015, telling him that his contract of employment would terminate on 31st August 2015. Mr Swan said that the first letter was intended to give him an opportunity to appeal the decision if he wished. He was also asked why the dismissal letter dated 18th August 2015 makes no reference to his unsatisfactory performance. The witness said that it states that he was unsuccessful in passing his probationary period and he was well aware of that.
The witness said that he was not aware that the Complainant was not permitted to drive. He said that as far as he was aware he was driving and giving a lift to one of his work colleagues.
Court’s Procedures
The hearing of the appeal was originally scheduled to take place on 17thMay 2017. That hearing was adjourned to provide the Complainant’s representative with an opportunity to consider and respond to an additional submission by the Respondent which was presented too late for him to consider fully. At that initial hearing, with the approval of the Respondent’s representative, the Court pointed out to the Complainant’s representative the requirements on him in advancing his claim, to establish facts from which discrimination may be inferred.
A hearing was held on 6th September, 2017.
In this case, the Respondent was adamant that it had never been made aware of the nature of the Complainant’s illness and had never, despite seeking such, had sight of any evidence or certification that he suffers from epilepsy. At the hearing of the appeal, the Complainant was requested to provide confirmation that he was a person with a disability at the time material to his claim. He indicated that he did not have any documentation in his presence; however, he stated that with leave of the Court, it would be possible to have such information delivered to the Court on the day. The Complainant was given the opportunity to present documentary or testamentary evidence to the Court confirming a diagnosis of epilepsy to substantiate his assertion that the Respondent was on notice of his disability. A document headed St Vincent’s University Hospital was delivered to the Court at a later point in the proceedings. This document was dated 24thApril 2015 and signed by Dr Emer Kelly, Consultant AMU. The document states that the Complainant was admitted to the Acute Medial Unit, he had had a CT brain scan and an EEG, he needed an MRI to rule out any intracranial abnormality and he was started on anti-epileptic medication. This was the only evidence produced. The Court notes that this document was never furnished to the Respondent.No medical experts were available to give evidence.
Following the hearing on 6thSeptember 2017, Mr Counihan sought an opportunity for the Complainant to present evidence of his diagnosis from his GP, Dr. George Joyce. This was outlined in a letter from Mr Counihan to the Court dated 8 September 2017. In this letter Mr Counihan stated that the Complainant accepted that he did not provide the Respondent with a medical certificate in relation to his epilepsy, however, he said that the Complainant himself was satisfied that he had epilepsy, following advices from a Neurologist at St Vincent’s Hospital and due to his family history. Furthermore, Mr Counihan in his letter stated that the Complainant had advised the Respondent of his condition on his return to work.
A further hearing of the matter was set up for 9thJanuary 2018. The parties were informed that the purpose of this hearing wasto hear medical evidence if such is adduced and any evidence the Respondent wished to proffer on any aspect of the case.
At the resumed hearing on 9thJanuary 2018, the Complainant was represented by Ms Sharon Dillion Lyons, B.L., instructed by Cogan Daly Solicitors. At the outset of the hearing, Ms Dillion Lyons sought an adjournment to allow for the attendance of Dr Joyce, who could not make the hearing, this application was denied.
Ms Dillion Lyons produced for the Court a set of documents, outlining the Complainant’s medical history since the incident on 17th April 2015. Included in these documents was a Preliminary Discharge Summary, dated 21st April 2015 from St Vincent’s University Hospital. This document stated that the Complainant had been admitted with an episode of LOC, seizure activity, he had an EEG which showed no actual epileptiform abnormalities, he had a normal CT Brain scan and he was started on antiepileptic medication. It also included a report from a Consultant in Clinical Neurophysiology who commented on an EEG taken on 7th September 2015, which stated that no actual epileptiform abnormalities were identified, but did not rule out a liability to epileptic attacks.
Also, included in the documents was a letter dated 27th September 2016, addressed to Dr Joyce from Dr S. Alhatmi, Registrar to the Department of Neurolog,y and Dr C. McGuigan, Consultant Neurologist, both located at St. Vincent’s University Hospital. This letter stated that the Complainant was a man with a known case of epilepsy since 2014 [sic] – it was accepted by both parties that this date was a typographical error and should have read 2015. It states that while he was on Keppra he noticed changes to his personality, becoming more aggressive, sleep difficulties, and recurrent headaches, which sounds more like a migrainous headache. The Consultants stated in the letter that he had no more seizures since the first attack in 2014 [sic] but still has ongoing psychogenic problems. The consultants were referring him to a Consultant Psychiatrist.
Issues arising
In order to establish aprima faciecase of discrimination, the Complainant must firstly have satisfied the Court that he had a disability at a time material to his claim and secondly, he must prove that the Respondent was on notice that he had a disability.
The issues arising in this case are, as follows: -
- •Was the Complainant a person with a disability at the time material to his claim? If that question is answered in the affirmative: -
- •Was the Respondent on notice of the disability?
- •Was the Complainant dismissed on grounds of his disability?
Section 2 of the Act defines the term “Disability” as follows: -
- (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;
This is a broad definition which can encompass any injury or illness whether it is temporary or permanent, curable or incurable. However, it is to be assumed that the Oireachtas did not intend that every injury no matter how minor, nor every short-term illness that may inevitably occur in the course of normal living, can be classified as a disability. It is a question of degree, and in particular the extent to which the condition may hinder the full and effective participation of the person concerned in professional or working life on an equal basis with other workers.
Burden of proof
In every case under the Acts the Court must first consider the allocation of the burden of proof as between the parties. Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. On the established test, it is for the Complainant in the first instance to establish the primary facts upon which the complaint is based. If the primary facts are proved, it is then a matter for the Court to determine if they are of sufficient significance to raise an inference of discrimination on the grounds relied upon. If having thus established aprima faciecase of discrimination, the burden of proof rests with the Respondent to demonstrate that the dismissal was not on the grounds of disability.
Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
- The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board [2001] E.L.R. 201.That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged 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 which she bears, her case cannot succeed.
In that case the Court went on to hold: -
- The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008)).
There is, however, authority for the proposition that the mere coincidence of a protected characteristic on the part of the Complainant (in this case a disability) and the detriment relied upon (in this case dismissal) is insufficient, in and of itself, to shift the probative burden. The High Court so held (per O’Sullivan J) inMulcahy v Minister for Justice Equality and Law Reform and v Waterford Leader Partnership Limited[2002] ELR 12. A similar approach was adopted by the Court of Appeal for England and Wales inMadarassy v Nomura International plc[2007] IRLR 256.
Moreover, as was pointed out by Rimer LJ inGallop v Newport City Council[2013] EWCA Civ 1583, before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person. The knowledge need not be of a diagnosed condition or disorder constituting a disability within the statutory meaning but to material facts which could reasonably indicate the existence of such a condition or disorder.
While a respondent’s knowledge of a disability goes to the question of causation, the existence of a disability can operate as a threshold orlocus standiissue. That arises because, except in cases of associative or imputed disability, a cause of action for discrimination on grounds of disability can only accrue to a person whose circumstances come within the meaning ascribed to that term by section 2(1) of the Acts.
Findings of the Court
In his written submission to the Court, and initially in his oral evidence, the Complainant claimed to have been diagnosed with epilepsy by a consultant neurologist at the hospital, but he could not be definitive about this. Later in his evidence he could not identify by whom and when he was so diagnosed, except that he had suffered a seizure on 17th April 2015 and was prescribed anti-epileptic medication. He stated that he accepted that he had not provided the Respondent with medical proof or any form of medical certification of his condition.
The Court notes that on his return to work following his absence in April 2015, he attended a meeting with management at which he asserted that he informed the Respondent that he had epilepsy. However, at that time and on a number of occasions following that meeting, the Respondent sought medical evidence from the Complainant. None was proffered. The Court is not satisfied that the St Vincent’s University Hospital document dated 24thApril 2015 and signed by Dr Emer Kelly provides confirmation that the Complainant suffered from epilepsy. The Complainant told the Court that in his view the normal practice in such situations is to prescribe anti-epileptic medication following a seizure prior to further tests being carried out. When questioned under cross-examination and in answers to questions from the Court in relation to when and by whom he was diagnosed with epilepsy, the Court found the Complainant’s evidence unsatisfactory and in many respects confusing. It may well be as asserted by the Complainant that he suffers from epilepsy, however, an assertion unsupported by credible evidence is insufficient to establish facts from which discrimination can be inferred so as to shift the burden of proof to the Respondent.
Was the Complainant a person with a disability?
In the instant case both the existence of the putative disability and the extent of the Respondent’s knowledge of that disability are primary facts upon which the Complainant relies in advancing his claim of discrimination. The Respondent denies any actual or constructive knowledge of the disability relied upon. In these circumstances, it is for the Complainant to adduce evidence showing that he was a person with a disability at the time material to his claim. He must also proffer some evidence to establish, in aprima facieway at least, that the Respondent knew or ought to have known that he was such a person.
On the Complainant’s own admission, he did not provide the Respondent with a medical certificate stating that he suffered from epilepsy. The Court is satisfied from the evidence given that in fact the Complainant provided no medical certification at any time from the date he felt unwell in the office on 17th April 2015 to the date of his dismissal. Nonetheless, he claims that the Respondent was on constructive notice of these facts by reason of the following: -
- •the text messages between him and Mr Swan on 19th and 27th April 2015;
•the alleged conversation between the Complainant and Mr O’Sullivan on his return to work on 30th April 2015 regarding the medication Keppra;
•the assertion that he advised the Respondent of his condition on his return to work and that due to the effects of the medication he could not drive.
Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that he claims not to have had. InSomers v W[1979] IR 94 Henchy J aptly described the concept as follows: -
- When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.
In considering this concept the Court must examine the reasonableness of both parties in this case, the Court is influenced by the following factors applying at the material time: -
- •the Complainant had not been diagnosed with epilepsy,
•he failed to provide certification to his employers of his absence;
•at the meeting held on 20th May 2015, when the Respondent made enquires of his health, he gave assurance that there were no further issues arising from the incident in April 2015 and was reluctant to discuss it further;
•at the meeting on 17th June 2015 when he was reminded once again that he had not provided the medical certification and further enquires were made by the Respondent into his health, he said that he felt ‘tip top’.
In circumstances where the Complainant, without reasonable excuse, failed to produce medical certification or to clarify that other than an absence for a once off seizure that he was in fact suffering froma condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,it would be inequitable to fix the Respondent with knowledge of such. Therefore, the Court must conclude that the doctrine of constructive notice of a disability should not apply.
Conclusion
On the evidence before it, the Court is not satisfied that the Complainant has established facts to indicate that the was suffering from a disability at any material time to this claim. Furthermore, on the evidence, the Court does not accept that the Respondent could have had direct or constructive knowledge to indicate that he was suffering from an illness that amounted to such a disability.
In these circumstances, by application of the established test, the Court finds that the onus of proving the absence of discrimination does not shift to the Respondent.
Determination
For the reasons set out herein the Court finds that the Complainant has failed to establish facts from which discrimination on the disability ground could be inferred. Accordingly, his claim cannot succeed.
The Complainant’s appeal is disallowed and the decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th January 2018______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.