Complainant

Respondent

Anonymised Parties

A Product Builder

A Medical Devices Company

Representatives

Paul Ryan Clare Citizens Information Service

Arthur Cox Athur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00016509-001

22/12/2017

The Complainant was an agency worker who was placed with the Respondent, a Medical Devices company, on 20 September 2017, as a product builder. The Complainant was an employee of the Recruitment Agency who placed him with the Respondent. The Complainant’s employment with the Respondent was terminated on 12 December 2017, which was within the six-month probationary period applicable to his employment.

The Complainant’s complaint relates to his claim of a discriminatory dismissal on the grounds of disability.

The Complainant contended that his disability (stomach ulcers which increase his frequency to go to the bathroom) was brought up on two occasions by his Team Leader. The Complainant submitted that, on the first occasion, he was in the middle of completing work procedures in order to enable him to continue working. The Complainant submitted that the Team Leader first indicated that he (the Complainant) was completing the procedures to slowly and that he should not read them properly, but should merely skim read them or not read them at all.

The Complainant further stated that the Team Leader instructed him to sign an online completion form stating that he had read the procedures. The Complainant further contended that the Team Leader wanted this to ensure that he (the Complainant) could return to proper work as quickly as possible and that this is a tradition which applies to every new employee starting in their role with the Respondent, i.e. complete the procedures as quickly as possible, even if it means not really completing them at all.

The Complainant submitted that there were hidden threats contained in some of these conversations with the Team Lead. According to the Complainant’s evidence, the Team Lead stated that senior managers were asking him (the Team Lead) who the guy with the Lions jersey was and why does he keep leaving his post from the floor so often. The Complainant confirmed that he was wearing a Lions jersey at the time.

According to the Complainant’s evidence, he had explained in his medical report before starting work that stomach ulcers were identified through an O.E.G, which was performed before he commenced his assignment with the Respondent.

The Complainant stated that after the above “talking to” from his Team Lead, he was temporarily worried about having to go to the bathroom again. However, he claimed that his first trainer reassured him that the Team Lead was only “having a laugh” so to speak. The Complainant stated in evidence that he did not find this funny at all but found it rather intimidating and threatening.

The Complainant stated that the second occasion on which his disability was mentioned was when the Team Lead mentioned it again as ammunition for his dismissal. In his evidence, the Complainant stated that when he explained to the Team Lead that he had a bowel condition, the latter did not respond to this in any way. The Complainant stated that, instead, the Team Lead frequently broke eye contact and was looking at/fidgeting with his shoes. The Complainant further stated that the Team Lead did not seem to have the respect to look him in the eye when outlining his reasons for the dismissal.

According to the Complainant’s evidence, the Team Lead outlined other mistakes to him. The Complainant admitted, in evidence, that he made some mistakes, including the issue in relation to the specks of blood, which he claimed came from a paper cut on one of the boxes he was working on. However, the Complainant stated that this was immediately detected and put to one side by a co-worker, before it became an actual problem. In further evidence, the Complainant made reference to the fact that this mistake was made during his second week on the job, which was during his formal training and in the middle of, what ended up being, a 60-hour week of work.

In his evidence, the Complainant also referred to another incident which was found and resolved by another colleague before it became a problem. According to the Complainant, this mistake also took place during his formal training and at a time when his Trainer did not, as a result of being genuinely too busy with his own work, have the time to show him the particular process until after the incident took place.

The Complainant then referred to what he described as the “most destructive mistake”, which he contends was the actual reason for his dismissal. The Complainant stated that this mistake involved a newer product. According to the Complainant’s evidence some of the material in relation to this process was defective and actually belonged to the Respondent’s sister plant which was located elsewhere in the country. As a result, the Complainant stated that, when he attempted to enter this material onto the Respondent’s in-house computer system, errors started appearing, which he had never seen before.

According to the Complainant, his Trainer, on this occasion, noticed these products as being those coming from the sister plant, as he had previously worked at that location. The Complainant stated that he was signing these on with the Trainer’s name as he was, again, too busy doing his own job. However, the Complainant submitted that the Trainer was present throughout the entire procedure. The Complainant stated that he and the Trainer quickly rectified the situation and safely returned the product to the respective bags before completing their shift, five minutes late. In further evidence, the Complainant submitted that this was only revealed to him the next evening by his Supervisor, who informed him that the issue the previous day had caused a backlog in the IT sections of the sister plant where they were attempting to re-enter the material onto the system in the Complainant’s plant.

The Complainant submitted that it was the Supervisor, who was involved in the above incident, that first told him of his dismissal and that he was being suspended on full pay until the end of the year. The Complainant submitted that the Quality Section wanted “a head” for this incident, which he contends was the only mistake that actually cost real time and therefore real money. The Complainant further contends that, since he was the one who was most recently interacting with the products (despite not being fully trained to do so, a point which was confirmed to him by his Trainer), he was the one having to take a hit for the mistake.

In conclusion, the Complainant stated that it only subsequently became apparent to him that his dismissal was conducted without proper procedures being followed. He also contended that no accommodation was made to help him with his condition so that he could perform his work.

Background - General:

The Respondent is a medical device manufacturer, who is always subject to the regulation of the Ford and Drugs Administration in the United States (FDA) and the Health Products Regulation Authority in Ireland (HPRA).

It was submitted on behalf of the Respondent that, as it products are used for internal human medicine, they are subject to legal and regulatory controls as well as Good Manufacturing Process (GMP). GMP requirements are set out in legislation and guidelines issued by competent regulatory authorities. These requirements and guidelines provide minimum obligations concerning quality assurance that the medical device manufacturer must meet so that the products are consistently developed, produced and controlled in accordance with the quality standards appropriate to their intended use.

It was further submitted that these obligations include guidance on regulations for developing, manufacturing, testing and quality assurance, qualifications and competence of personnel, premises and equipment, documentation, production operations, quality control, handling of private complaints and recalls, self-inspection and labelling.

It was also submitted that GMP principles include good documentation/data integrity practices and appropriate training; controlled environmental conditions; evaluation of changes to manufacturing processes and, most importantly, in this case, clear definition and control of manufacturing practices; and cleanliness and hygiene of manufacturing areas.

According to the Respondent’s submission, to obtain an authorisation to manufacture medical products, a potential authorisation/licence holder must demonstrate compliance with GMP to the regulatory authorities’ satisfaction. Compliance with these principles is monitored by the authorities through regular site inspection. The relevant notified body is responsible for ensuring that manufacturers of medical products in Ireland meet EU-GMP requirements (ISO13485) and the US FDA, in exercise of its extra-terrestrial jurisdiction, carries out a similar role in Ireland with regard to current GMP.

The Respondent submitted that, following the Complainant’s placement on the Respondent’s site, the Complainant received extensive training on GMP and proper processes and procedures. A copy of the Complainant’s training record, while placed with the Respondent, was submitted in evidence at the Hearing. It was further submitted that the Respondent’s expectations in relation to behaviour, training, quality and performance were also made explicitly clear to the Complainant.

Background - relating to the Complainant:

The Respondent’s representative submitted that, on 4 October 2017 and 11 October 2017, it was brought to the attention of one of their Production Supervisors that the Complainant had contaminated product with his own blood. It was stated that on one of those occasion, the blood was on the outer patient label of the device and was detected and removed by a co-worker. It was stated that, on the other occasion, the Complainant had contaminated boxes with his blood. It was submitted that these incidents were reported to the Production Supervisor by the Complainant’s trainer, who had communicated the seriousness of these incidents to the Complainant.

It was further submitted by the Respondent that, in mid-November 2017, the Complainant failed to follow the correct procedures when performing a washing operation. It was contended that, instead of keeping products in batches, as per the training that the Complainant had received, he abandoned the processes that he had been shown in co-mingled the products. It was submitted that this resulted in a product batch incorrectly containing a mix of different products. The Respondent submitted that this was extremely serious as it resulted in products having incorrect identification codes. According to the Respondent’s evidence, it is of paramount importance that the products used are correct so that the output is not defective. It was further submitted that the Complainant’s error was detected and rectified by co-workers.

The Respondent submitted that, in December 2017, the Complainant, in breach of GMP, incorrectly uploaded data in relation to taper plugs onto the Respondent’s computer system, resulting in an extreme backlog and loss of productivity in one of the Respondent’s sister plants.

The Respondent’s representative made specific reference to the fact that all of the above incidents are described by the Complainant himself in his complaint form. However, it was submitted, on behalf of the Respondent, that the Complainant had failed to mention the following in his complaint form:

a)       It was specifically highlighted to him by the Production Supervisor, on 9 October 2017, that if the Complainant failed to comprehensively understand any elements of training, he must highlight this immediately and, equally, that any mistakes must be reported straightaway.

b)      The Complainant passed blood contaminated products onto the next phase of production on numerous occasions, which a co-worker noticed in the “ready for use” area. The seriousness of these issues was reiterated to the Complainant on each occasion.

c)       As a result of the repeated major mistakes in the packing area, the Complainant was moved into the cleanroom area of the Respondent’s premises in order to give him a second chance.

d)      The Complainant was trained in relation to the procedure for placing paperwork in a specific area so that it would remain with the product to which it was assigned. The Complainant initially completed this task correctly, but then reverted to an incorrect method resulting in the paperwork being in an incorrect order.

e)      The Complainant changed a label verification sheet despite not being instructed to do so. The Complainant’s trainer and supervisor told him that he must not do this as he was not trained on the correct method for doing so. The Complainant acknowledged this, yet it was discovered the following day that he had repeated the same act despite being specifically told not to.

f)        On 6 December 2017, the Complainant was trained in relation to the correct procedures to follow when entering data on the Respondent’s computer system. It was made expressly clear to the Complainant that tub tags should be scanned. However, despite this training, the Complainant manually typed in numbers, resulting in a serious loss of productivity.

g)       The Complainant used his trainer’s login details in circumstances where he had his own login credentials and had no permission to use his trainer’s details. The Complainant could not offer an explanation as to why he logged in as his trainer.

h)      The Complainant was spoken to on several occasions, including 4, 11, 9 October and 13, 21 November 2017, in relation to making mistakes.

The Respondent submitted that it must be noted that the list, as set out above, indicates a series of very significant failings by the Complainant over the first three months of his assignment with the Respondent. It was further stated that, in circumstances where, as a medical device manufacturer, the Respondent’s quality assurance and compliance with GMP is critical. It was further submitted that the Complainant consistently showed a blatant disregard for the processes that he had been trained in, thereby potentially jeopardising the Respondent’s compliance with GMP.

According the Respondent, as a consequence of the Complainant’s demonstrated incompetence, he was notified on 13 December 2017 that his assignment would terminate on 31 December 2017. The Respondent submitted they were of the view that the Recruitment Agency also terminated the Complainant’s employment at this time. The Respondent further submitted that the Complainant’s total period of assignment with them and his employment with the Recruitment Agency had lasted less than three months.

Response to Complainant of Disability Discrimination:

The Respondent acknowledged that it was a “provider of agency work” as defined in Section 2 of the Employment Equality Acts 1998 – 2015 and the Complainant was an agency worker, as defined in the same section of the Acts. The Respondent submitted that it does not accept that the Complainant was employed by them at any stage. The Respondent further submitted that, therefore, it could not have terminated the Complainant’s employment.

The Respondent submitted that it does not accept that the Complainant was discriminated against pursuant to Section 8 of the Acts. The Respondent further denies that the Complainant was dismissed by reason of disability discrimination connected to stomach ulcers.

The Respondent stated that it requires the recruitment company to conduct a full medical assessment of all agency workers to be placed with them. The Respondent submitted evidence, by way of a medical report from an external Occupational Health consultant, which was provided to the recruitment company. This evidence shows that the Complainant had “no active, ongoing difficulties” and that he was “medically suitable for employment” in the position intended.

The Respondent further submitted that when the Complainant was assigned to them by the employment agency they were not notified of any medical condition or disability in relation to the complainant or any accommodation that might be required in this regard. The Respondent submitted that it could not have discriminated against the Complainant as they were unaware of his condition. In this regard, the Complainant stated that the first reference to any such condition was in a conversation on 14 December 2017, when the Complainant raised the matter in discussion with one of the Respondent’s Team Leaders. The Respondent noted that this took place the day after the Complainant was notified that his assignment would cease.

The Respondent contends that the Complainant was not discriminated against on the grounds of his alleged disability, being stomach ulcers. It was further contended that the Respondent had never been formally advised of the situation and was completely unaware of the possibility that such a condition existed until 14 December 2017.

In addition, the Respondent does not accept that the Complainant has established a prima facie case of treatment contrary to the Acts on the grounds of disability under Section 85 A(1) of the Acts. In this regard, the Respondent referenced the case of Southern Health Board v Mitchell [2001 DEE011], which sets out the Labour Court’s requirements that a complainant must discharge, before a prima facie case can be made out.

The Respondent submits that the Complainant has not established and cannot establish a prima facie case that he was treated less favourably than any other employee. It is further submitted that it is only when such a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the inference of discrimination raised.

The Respondent submitted that the Complainant himself, in his complaint form, attributes the termination of his employment to a “destructive mistake” completely unconnected to his alleged disability and which he says he “still hold[s] as the actual reason for [his] dismissal”.

In addition, the Respondent submits that, insofar as the Complainant makes allegations of discriminatory treatment which are not described in his complaint form, they (the Respondent) object to the broadening of the claim. It was further submitted that, without prejudice to the foregoing, the Complainant did not identify any comparator, not having a disability, whom he alleges is treated more favourably than he was.

The Respondent contends that, in the circumstances, the Complainant, by his own acknowledgement, attributes his dismissal to a very substantial competency issues which are non-discriminatory. On that basis, the Respondent submits that the Complainant has failed to discharge the initial burden of proof is required by Section 85 A of the Acts.

Conclusion:

In concluding their response to the Complainant’s claim, the Respondent made the following points:

·         The Respondent did not terminate the Complainant’s employment.

·         The Complainant’s assignment to the Respondent was terminated for lawful reasons, namely competence, which is acknowledged by the Complainant in his complaint form.

·         The Complainant was not dismissed for discriminatory reasons.

·         The Complainant was not treated differently compared to any employee not having a disability whether by reason of having stomach ulcers or otherwise.

·         The Complainant has failed to establish a prima facie case for discrimination.

·         Insofar as the Complainant is challenging the fairness of his dismissal and/or the proportionality of the sanction of dismissal, it is inappropriate to bring such a claim under the Employment Equality Acts 1998 – 2015.

This concluded the Respondent’s submission in response to the Complainant’s claim.

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

In support of his complaint, the Complainant, in the within case, is inferring that he was discriminated against by reason of his disability and that he was dismissed for the said discriminatory reason. In this regard the Complainant contends that his disability related to him having stomach ulcers which increase the frequency with which he has to attend the bathroom.

Section 2 ( 1) of the Employment Equality Acts , 1998 – 2015 defines “disability” as follows:

“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;”

As can be seen from the above, the Acts set out the broad nature of conditions or impairments which could give rise to disability for the purposes of the Acts. It is unclear as to whether a condition, such as stomach ulcers, which are generally classified as an easily curable condition, could be classified as a disability under the Acts.

While the definition includes temporary disabilities, the Labour Court in the case of A Government Department v A Worker [EDA 094], noted that the definition of disability as set out in the Acts does not refer to the extent to which the manifestation or symptom must be present. However, the Court acknowledged that symptoms which are present to an “insignificant degree” could be disregarded in determining whether the condition amounts to a disability.

Notwithstanding the uncertainty that may exist in relation to whether or not the Complainant’s condition could be classified as a disability, I proceeded to consider other facts that might support the establishment of a prima facie case of discrimination.

The first aspect I considered, in this regard, was whether or not the Respondent was aware of the Complainant’s condition and if they had been requested to provide any reasonable accommodation to assist the Complainant in carrying out his role. In his complaint form, the Complainant contend that no accommodation was made to help him with his condition. However, the Respondent rejected this contention on the basis that they were never made aware the Complainant was suffering from the condition and/or that he required any specific accommodation in that regard.

In support of their position , the Respondent submitted, as evidence, a medical report which was carried out by an external Occupational Health provider, specifically with regard to establishing the Complainant’s medical suitability for carrying out the position he was being recruited for. This Report clearly shows that the Complainant was medically suitable for the intended role and no issues were raised therein in relation to stomach ulcers or any other condition. Based on this evidence, I am satisfied that had the Complainant, as he claimed in his evidence, explained his condition in the medical report before starting work, it would have been reflected in the Report that was provide to the Respondent on his commencement of work.

Having carefully considered all of the evidence induced in this regard I am satisfied that the Respondent was never advised by the Complainant of his condition and/or that he required specific accommodation in that regard.

The next aspect considered was whether or not the Complainant had provided comparators in furtherance of his claim of discrimination. In order to establish that an act of discrimination has taken place, the Complainant is required to demonstrate that he was treated less favourably as compared to another person in a similar position.

Section 61 of the Acts states that:

“ For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection ( 2) (in this Act referred to as “the discriminatory grounds”), one person is treated less veterinary than another is, has been or would be treated “.

With regard to discrimination on the grounds of disability, Section 6(2)(g) states that: “As between any two persons, the discriminatory grounds (and the description of those grounds for the purpose of this Act are - that one is a person with the disability and the other either is not or is a person with a different disability “.    

Having carefully considered all the evidence presented by the Complainant, I find none to suggest that he identified a comparator who was treated more favourably than he in the circumstances.

Finally, I considered the Complainant’s contention that the discriminatory act was that of dismissal. The evidence submitted by the Respondent clearly establishes that the termination of the Complainant’s employment resulted wholly from performance issues. The Respondent’s position in this regard it is also confirmed by the Complainant’s own evidence, where he identifies, in some detail, the various mistakes and errors that took place during his time working for the Respondent. In fact, in his own evidence, the Complainant attributes his dismissal to what he describes as the “most destructive mistake”.

Consequently, taking all of the above into consideration, I find that the Complainant’s dismissal occurred as a result of performance issues and that no link has been established , in this regard, to his health condition. Therefore, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of discriminatory dismissal, based on the grounds of disability, is not well founded and is, therefore, rejected.

Employment Equality Acts