EDA1926

FULL RECOMMENDATION

ADE/19/5

DETERMINATIONNO.EDA1926

ADJ-00009322 ADJ-00009305 CA-00012238-001

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

WATERFORD SENIOR CARE LIMITED HOME INSTEAD SENIOR CARE
(REPRESENTED BY ADARE HUMAN RESOURCE MANAGEMENT)

- AND -

LIAM TABB
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr Hall

SUBJECT:
1. Appeal Of Adjudication Officer Decision No(S) ADJ-00009322 ADJ-00009305.

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 6th June 2019.

The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court as an appeal by Liam Tabb (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Employment Equality Act, 1998 against his former employer Waterford Senior Care Limited (the Respondent) that he had been discriminated against on grounds of disability contrary to the Act at Section 8.

The Adjudication Officer decided that the Respondent had not discriminated against the Appellant.

Summary position of the Appellant.

The Appellant submitted the Respondent had, for reasons associated with an alleged disciplinary matter, placed the Appellant on paid suspension on 27^thDecember 2016. At a disciplinary meeting held on 5^thJanuary 2017 the Appellant supplied the Respondent with a medical certificate which certified the Appellant unfit for work with effect from 3^rdJanuary 2017. The Respondent ceased payment to the Appellant with effect from 3^rdJanuary 2017 and the outcome of the disciplinary process occurred on 11^thJanuary 2017.

The Appellant submitted that his removal from paid suspension on 3^rdJanuary was a discriminatory Act taken in response to his disability which the medical certificate supplied to the Respondent described as rosacea, anxiety and hypertension. The Appellant submitted that the discrimination continued until 11^thJanuary 2017 when the disciplinary procedure concluded.

Summary position of the Respondent

The Respondent submitted that the Appellant did not suffer from a disability within the meaning of the Act and contended that no discrimination had taken place.

The Respondent submitted that the Appellant had been placed on paid suspension with effect from 27^thDecember 2016. On 5^thJanuary 2017 the Appellant had supplied the Respondent with a medical certificate certifying that he was unfit for work. The Respondent submitted that no sick pay scheme is or was in place in the employment and consequently no payment is or was made to persons who are medically certified as unfit for work. The Appellant, by reason of medical certification, was on sick leave from his employment with effect from 3^rdJanuary 2017 and, in common with practice as regards all persons on sick leave, no payment was made by the Respondent to Appellant while he was on sick leave. The Respondent submitted that the Appellant ceased paid suspension when he entered a period of sick leave by virtue of the application of the Respondent’s standard and universally applicable arrangements for persons on such leave.

Discussion and conclusions

The parties disagreed before the Court as to whether the Appellant suffered from a disability at the material time. The Court therefore decided to determine that matter as a preliminary matter on the grounds that any determination of that matter has the potential to dispose of the entire matter.

The Appellant has submitted that his disability consisted of rosacea, hypertension and anxiety. The Court has given very careful consideration to the submissions of the parties on this matter.

The Act at Section 2 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;

The Appellant has not provided the Court with any medical or other evidence or information which would assist the Court in determining whether the three conditions he experienced at the material time individually or collectively amounted to a condition conforming to any particular element of the definition set out in the Act at Section 2.

There is a burden upon the Appellant to specify how any such condition conforms to the definition of disability within the meaning of the Act. It is not for the Court to speculate or draw upon its own interpretation of such terms. The Appellant, in not supplying any medical evidence which would allow the Court to consider the medically certified condition of the Appellant at the material time against the criteria set out in Section 2 of the Act, has left the Court with no basis for determining that any of the conditions specified by his medical practitioner amounted to a condition meeting the terms of the Act at Section 2.

The Court concludes that it is not in a position to determine that the Appellant suffered from a disability within the meaning of the Act at the material time and consequently must find that the within appeal cannot succeed.

Determination

For the reasons set out above the Court determines that the Appellant was not discriminated against on the ground of disability and the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court

Kevin Foley
TH______________________
16th July 2019Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.