Complainant

Responden

Anonymised Parties

Job Applicant

Hospital

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-00024293-001

19/12/2018

This is an access to employment issue. The Complainant was a job applicant for a promotional position in the Respondent’s hospital. She has claimed that she was discriminated against on grounds of her disability. She is seeking compensation.

The complainant alleges that she was discriminated against by the respondent, on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2015 (the Acts), in relation to access to employment in terms of section 8(1)(a) of the Acts. The complainant claims that she was discriminated against by the respondent when it decided not to progress her application for the position of Clinical Nurse Specialist – Respiratory (CNS) following receipt of pre-employment reference checks which indicated a ‘high level of sick absence. The complainant has been employed as a Staff Nurse in the Respiratory Ward at X Hospital since June 2004. In October 2017, the complainant was diagnosed by her General Practitioner (GP) as suffering from work-related stress and was placed on sick leave for a short period of time. She returned to work but in January 2018 she was again diagnosed by her GP as suffering from work-related stress / anxiety and high blood pressure and she remains on sick leave today. The complainant has had several appointments with X Hospital’s Occupational Health Doctor whose diagnosis concurs with that of her GP.   In March 2018, the Complainant applied for the post of Clinical Nurse Specialist Respiratory at the Respondent’s Hospital. She was interviewed on 9th April 2018 and later that day she received a telephone call from the Human Resources Department (HR) who informed her that she had been successful at interview and that the next stage of the recruitment process would be the pre-employment background checks, to include garda vetting, references and medical examination Following on from this conversation, Garda vetting was completed and employment references from two members of staff at X Hospital were submitted to the respondent. On 24th April, the complainant received a telephone call from HR requesting another reference from a different Manager at X hospital as one of the referees had not filled in certain sections of the form.   The respondent acknowledged receipt of this reference on 27th April 2018. Two of the references revealed that the complainant had availed of 125.5 sick leave days in the last two years. At the respondent’s request, the complainant attended the Occupational Health (OH) doctor on 27th April 2018.   The complainant revealed to the OH doctor that she had been diagnosed with work related stress and had been on sick leave from her post at X Hospital since the beginning of the year. She briefly outlined the circumstances that led to her having been placed on sick leave. The OH doctor’s medical notes record that the complainant was under the care of her GP who certified her unfit as work-related stress was causing high blood pressure. Later that day, the OH doctor passed the complainant medically fit to work at the respondent hospital. The respondent’s notes record that HR contacted the OH Department on 30th April 2018, regarding the complainant: she wanted to ensure that the complainant was ‘definitely fit to work as full time permanent CNS. The OH nurse said she would follow up with the OH doctor. On 9th May, 2018 the OH nurse contacted HR advising that the OH doctor confirmed the complainant was “fit to work” and was not at liberty to disclose any more. The respondent’s notes further record that they contacted HR in X Hospital on 24th May seeking information regarding the complainant’s sick leave history. X Hospital advised that they were not at liberty to disclose the number of occasions of certified sick leave the complainant had taken in the past 2 years. The CNM3 at X Hospital, was then contacted by the respondent and requested to provide the same information. She advised that the complainant had been certified sick on a total of 11 occasions between 17/4/16 and 17/4/18. On 30th May 2018, the complainant received a telephone call from the respondent’s HR Department advising that it required details of her sick leave record over the past two years. The complainant gave her consent for the respondent to obtain same from X Hospital. During the course of the conversation the respondent advised her that attendance had been raised as a concern in the references they had received and asked her if she could offer some clarity on the issue. The complainant advised that she was currently absent from work since 12th January 2018 due to “work related issues, high blood pressure and medical problems”.   The respondent asked the complainant to confirm that she was still on sick leave, which she did. The complainant received a telephone call from the respondent’s HR Department on 21st June 2018 informing her that after numerous attempts to obtain the necessary sick leave records, X Hospital had not yet provided same. She was also informed that if they did not receive the information by the evening of 22nd June, they would not be able to hold the position for her any longer, but this deadline was later extended to 26th June. The respondent advised the complainant by email dated 26th June that they had received her sick leave records which they would review and revert with their decision in a couple of days. On 29th June the complainant was informed by the respondent that it had decided not to progress her application for the position of Clinical Nurse Specialist – Respiratory (CNS). The complainant’s appeal of this decision was not successful. In several emails and correspondence, the complainant and her representatives sought clarity from the respondent as to why her application was not being progressed. In a letter dated 12th September 2018, the Head of HR Business Services confirmed that following receipt of references from the complainant’s current employer the hospital would not be proceeding with her application as the reference received did not meet the necessary standards in relation to her attendance record.

THE LAW

Prima Facie Case of Discrimination on the grounds of Disability

Section 2 of the Act sets out the definition of “disability”:-

(a)    Not relevant

(b)    Not relevant

(c)     The malfunction, malformation or disfigurement of a part of a person’s body

(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,

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”

Section 6(1) of the Acts provides:

                “….Discrimination shall be taken to occur where…a person is treated less

favourably than another person is, has been or would be treated in a

comparable situation on any of the grounds specified in subsection 2

(in this Act referred to as the “discriminatory grounds”)

Section 62(g) provides that:

                “that one is a person with a disability and the other either is not or is a

person with a different disability (in this Act referred to as “the disability

ground”)”.

Section 85A(1) of the Acts places an onus on the complainant to establish a prima facie case of treatment contrary to the Acts on the grounds of disability as follows: Where in any proceedings facts are established by or on behalf of a complainant 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”.

THE LAW APPLIED TO THE FACTS

The complainant asserts that she can establish facts from which it may be presumed that there has been discrimination on the disability ground in relation to her and that the Respondent will not be able to prove the contrary.

Has the Complainant a Disability?

The complainant asserts that she suffered from a disability in terms of the Section 2 (c) and (e) of the Act. She was diagnosed with work related stress which manifested itself in terms of high blood pressure and anxiety, in addition to other medical conditions.

The complainant claims that a diagnosis of work-related stress comes within the definition of section 2(e) of the Act as it resulted in the complainant suffering from anxiety and other medical conditions associated with work-related stress. The complainant relies on the following authorities as evidence that work-related stress and anxiety may come within the definition of disability in the Act: Patrick Jordan v Irish Prison Service DEC-E2016-164, An Employee AND a Retailer DEC-E2011-229 and Dunnes Stores –AND- Mary Doyle Guidera EDA 1838. The Adjudication Officer in the case of Ms Katarzyna Gromadinska v Frankfield Supermarket Ltd DEC-E2017-014 found that Hypertension which came within definition of section 2(c) of the Act.  

Did the Respondent have knowledge of the Complainant’s Disability? The respondent must be able to demonstrate that it had no actual, constructive or implied knowledge of the complainant’s disability in order to defend a discrimination claim. The complainant contends that the respondent is unable to do so as they had knowledge of her disability from late April 2018. They knew the nature of her disability, the details of which had been provided by Beaumont Hospital, and the duration of her illnesses over the past two years. The record reveals that during this period the complainant had 31.20 days pregnancy related sick leave and 85.1 days in respect of work-related stress sick leave.

Prima Facie Case of Discrimination on the Ground of Disability

The complainant contends that she has raised facts from which it may be presumed that she was treated less favourably than another person who did not have a disability. The complainant submits that even though the OH doctor certified her as ‘fit for the position’ and despite having secured assurances from the OH doctor to this effect, the respondent decided not to proceed with the job offer. The complainant contends that these facts raise an inference of discrimination in that the respondent either imputed a disability to her or in the alternative attributed a disability to her which she had in the past but no longer had: they considered her ‘not fit for the position’ due to a stress-related illness.  

The complainant relies on the Adjudication Officer Decision in the case of An Employee AND A Retailer DEC-E2011-229 to support her contention that the respondent identified her as having a disability when she did not.   In that case the complainant had been out on sick leave with a stress-related illness for a period of time.   He was deemed fit by his doctor to resume work but the respondent told him not return. After several months, the respondent arranged for the complainant to be medically examined. However, he was never informed of the outcome and eventually he resigned his position. The Equality Officer concluded that the Respondent imputed a disability to the complainant as the respondent considered he was not fit to return to work due to a stress-related illness.

The complainant contends that the respondent’s decision not to proceed with the job offer is discrimination on the grounds of disability. The recent UK case in which the Employment Tribunal found that the respondent had treated the complainant unfavourably when it deemed her unsuitable for employment as a result of sick absence related to her disability is relevant to the within proceedings (Mrs J West v Yorkshire Ambulance Service NHS Trust Case No. 1801740/2015) . In that case the complainant applied for a job at NHS England. In her previous employment she had three significant periods of absence related to a disability. She was interviewed for the post and was offered the job, subject to satisfactory checks and references. The respondent contacted the complainant’s former employer and following this discussion the respondent withdrew the job offer on the basis that the respondent did not feel the complainant could fulfil the demands of the role. The Tribunal established that one of the reasons for withdrawing the job offer was the complainant’s absence. It found that there were facts from which the Tribunal could infer that discrimination had occurred which meant that the burden of proof shifted to respondent to show that in fact the complainant’s absence played no part in the reason to withdraw the job offer. The respondent had not demonstrated that her absence played no part and as a result the complainant succeeded in her discrimination claim.

With regard to the within proceedings, the respondent’s “Recruitment Check Off Form” reveals that all of the checks had been completed in respect of the complainant and all that was awaited was approval from HR Executive/ Senior HR Executive to make a formal offer of employment to the complainant. The only reason why that did not occur was the complainant’s sick leave absence record which showed her to have been absent on work-related stress / anxiety sick leave over a prolonged period of time.   It is, therefore, clear that there was a connection between the complainant’s disability and the respondent’s decision not to make a formal offer of employment to the complainant. The Labour Court stated in A Government Department and An Employee that “The proscribed ground – in this case the complainant’s disability – need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a ‘significant influence’”.

The complainant asserts that she has raised facts from which it may be presumed that she was discriminated against on the grounds of disability when the respondent decided not to proceed with the job offer for the post of Clinical Nurse Specialist – Respiratory. The burden of proof now shifts to the respondent to show that the complainant’s absence in relation to work-related stress played no part in their decision not to proceed with the recruitment process. The complainant believes that the respondent will be unable to do so.

The complainant requests the Adjudication Officer to find that the respondent discriminated against her on the grounds of disability when it failed to proceed with the job offer of Clinical Nurse Specialist – Respiratory. If it is found that the complainant has suffered discrimination, the Adjudication Officer is requested to award the complainant the maximum amount permitted under the legislation in compensation for the effects of the acts of discrimination.

T   The Claimant applied for the role of Clinical Nurse Specialist, Respiratory (CNS) with the   Respondent in February 2018 and the Respondent, by email of Monday 26th February, confirmed receipt of the application, advised the Claimant that she had been shortlisted, and advised her of arrangements for interview, scheduled for 7th March 2017.

By email to the Respondent dated 6th March, the Claimant was not in a position to attend the

interview for the role, due to personal circumstances and flu. However, she did indicate that she would be interested in any vacancies in the Respiratory area in the future at the Respondent hospital. On the basis of that communication, the Respondent rescheduled the interview to Friday 9th March    

2018, however the Claimant indicated that she was not in a position to attend the newly-arranged   interview. The Respondent, by return email also dated 8th March, advised the Claimant that the interview would again be rescheduled, date to be confirmed. Ultimately, on 9 April 2018 the interview was conducted by a panel. The Claimant achieved a score of 33 out of 50, having presented ‘Strong Evidence’ of the relevant competencies. Following her interview the Claimant was advised by email of 9th April, that the Respondent was progressing to the next stage of the recruitment process and confirmed that further contact would be made once the next stage had been completed. Documentation required for the next stage of the process was included in the email to the Claimant, including Medical Questionnaire, Garda Vetting information and reference requirements. The Respondent then put in place various background checks, to include Garda vetting, Registration

Status check etc. As part of this process, (which the Claimant was aware of) Reference Forms were furnished to a number of referees named by the Claimant. The medical questionnaire was completed by the Claimant and furnished to the Occupational Health Physician at the Respondent Hospital by the Claimant when she attended for assessment as part of the background check process. An Occupational Health Report issued on 27th April and it indicates that the Claimant was fit to work.. Each reference was positive regarding the Claimant’s work and experience. However, the Reference Form, at Question 4, requires the referees to ‘Please comment on the applicant’s sick leave record’.   Two of the Referees, whose responses were received on 18th and 27th April respectively, indicated, in response to that question that the Claimant had been absent from work in the period 17th April 2016 to 17th April 2018 for a total of 125.5 days. On the basis of the information received in the references, the Respondent made ongoing attempts to establish whether the Claimant was fit to work as a full-time Clinical Nurse Specialist on a full-time basis. Contact was made by telephone on 30th April with the Occupational Health Assessor whom the Claimant had attended as part of the pre-screening process. The Respondent was advised that the Claimant was ‘fit for work’ also that the Occupational Health Department ‘could not disclose any further information’. On 24 May 2018, the Respondent, seeking to establish further information regarding the Claimant’s attendance record, contacted X Hospital who advised that it was not at liberty to disclose this information and that direct contact should be made with the referees. One of the referees, confirmed that the Claimant had sick leave of 125.5 days over approximately 11 episodes in the period from April 2016 to April 2018. The Claimant was kept appraised of the checks that were taking place, and that her attendance has been raised as an issue in the refences. In the course of a call from the Respondent to the Claimant on 30th May, the Claimant confirmed that she had been absent from work since 12 January 2018 due to ‘’ work related issues, high blood pressure and medical problems’’.   Following the call, the Claimant furnished her written consent for contact to be made with X Hospital regarding her sick leave details. By email also dated 30th May, the Respondent then sought details of the Claimant’s sick leave record. Despite a number of communications, both by telephone and email from the Respondent to X HR Services, no further details had been received by the Respondent in relation to the Claimant’s sick leave. The Respondent advised the Claimant by telephone on 21st June that it was still awaiting her absence/sick/attendance details from X Hospital. The Claimant was also appraised of the urgency arising i.e. that the Respondent could not wait any longer to fill the position for which the Claimant had applied to be filled. This call was confirmed by the Claimant by way of email dated 21st June. By email of 22nd June, the Claimant was advised of the attempts being made by the Respondent to obtain the details required, and the Claimant herself was requested to obtain the details and afforded additional time to do so up to 26 June 2018. The sick leave record as requested was furnished by email dated 25th June to the Respondent and the record shows various illnesses between the period July 2016 and 30th March 2018, including ‘medical investigations, chest infections, pregnancy related illnesses, stress, ‘unwell’, anxiety, stress and ‘work related stress’. On review of the sick leave record, the Respondent determined that the record did not meet satisfactory requirements in accordance with the hospital’s Recruitment/HR Pre-Screen process and accordingly advised the Claimant in a telephone call on 29th June that the hospital would not be proceeding with her application. The Claimant was advised of her right to appeal that decision within 2 weeks. Details of the appeals procedure were furnished as requested by the Respondent by email also dated 2nd July 2018 and the Claimant submitted a written appeal to the Respondent on 12 July 2018, citing the following grounds:

All sick leave over the previous 2 year period were medically certified;

For the two week period commencing 12th October 2017, her absence was certified by her GP as due to stress/headache as a result of distressing events that had occurred at the time.

For these same reasons, the Claimant was certified sick from work at X Hospital from 12th January 2018.

Apart from these two instances, the Claimant had never been on sick leave due to work related stress.

A number of grievances had been raised by the Claimant, claiming discrimination on the ground of race, based on denial to her of promotional opportunities. These issues were subsequently escalated to the WRC in December 2016.

Following filing these complaints, the Claimant alleges she was subject to further acts of discrimination, to include alleged interference/alterations of her competition records and her MSc sponsorship forms, which ultimately amounted to alleged victimisation.

In a letter dated 19th July responding to the Claimant’s appeal, the Head of HR Business Services, confirmed the Respondent’s decision not to progress the Claimant’s application for the role of Clinical Nurse Specialist. That correspondence reiterated that the Claimant had not been offered the role but was being progressed through the pre-screening stage of the recruitment process.

3.          Prima Facie Case of Discrimination and the Burden of Proof

4.1      It has been the well-established practice of the Equality Tribunal and the Labour Court to require a

Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.  

4.2      Section 85A of the Act provides that: “where in any proceedings facts are established by or on

behalf of a complainant 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”.

4.3       The Labour Court in a relatively recent case Queally Pig Slaughtering v Robert Tkac [2016] (EDA

1618) has set out it’s jurisprudence relating to discharging the burden of proof. Quoting therein from the decision in Southern Health Board v Mitchell [2001] (ELR 201) to determine if the probative burden shifts to the respondent the court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded  

by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus  

shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

4.4 In relation tothese ‘primary facts’ the court in Melbury Developments Limited v Arturs Valpeters

   (EDA 0917) stated as follows: “All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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”.

4.5   In Margetts v Graham Anthony & Respondent Limited, EDA038, the evidential burden which must be discharged by the Claimant before a prima facie case of discrimination can be said to have been established was also outlined by the Labour Court, as follows: “The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

4.6   The Respondent submits that it is only when the Claimant has discharged this burden to the

satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the   inference of discrimination raised. In the instant case, The Claimant claims that she suffered from a disability which comes under the definitions if ‘disability’ under the Act and identifies the definition at Section 2 (c ) the malfunction, malformation or disfigurement of a part of a person’s body and Section 2 (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, as the definitions under which her claim for disability lie. which pertain to her.

4.7     Further details of the claim do not appear to address the Claimant’s stated entitlement to rely on              

2 (c) of the definitions as set out, however as regards the definition set out at 2 (e ), the Claimant contends that a diagnosis of work-related stress comes within that definition ‘as it resulted in the complainant suffering from anxiety and other medical conditions associated with work-related stress’, as set out in the claim form.

4.8   The Act under s.2 (1) defined disability as follows:

       “In this Act, unless the context otherwise requires— ... “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;”

4.Concerning the above definition of disability as outlined at s.2 (1) (e) on which the complainant

       seeks to base her case, the respondent points to the Labour Court decision in a Government Department v a Worker (EDA094) (pages 157-161). In that case, the Court stated that: “...the only issue which the Court must decide is 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 s.2 of the Act and the application of that definition to the facts as admitted or found by the Court.”

4.The Court elaborated further on the difference between general ‘illness’ and disability in stating:

“... the Respondent argued that a strictly literal interpretation of the statutory definition would produce the result that mere unhappiness or ordinary stress or disappointment which effects a person’s emotions would have to be classified as a disability. This, it was submitted, would be an absurd result. There is considerable cogency in that argument. ... no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5 (1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

4 On the basis of the foregoing, the Respondent contends that a distinction must be made between what

constitutes a disability from a general illness or condition. The Respondent argues that for an employee to demonstrate that s/he has a disability s/he must have substantive and relevant medical evidence. This is encapsulated perfectly in the Equality Officer’s decision in A Worker v A Food Manufacturer DEC-E2010-187 where it states: “However, no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant's GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates.”   The Equality Officer went on to point out that such medical evidence was needed to satisfy the probative burden threshold outlined in s.85A of the Act and in its absence the complainant cannot hope to establish a prima facie case for discrimination.

4.In the case of Mr. O v A Named Company DEC-E2003-052, (pages 163-179)   it was put forward as evidence that ‘work-related stress mayamount to a disability’. However, in this particular case, the complainant was diagnosed by two psychiatrists as suffering from a ‘severe anxiety type illness or an atypical depressive illness’. Further, the individual in question was treated for two months in St. John of Gods Hospital as an inpatient and continued treatment thereafter as a day patient. The Equality Officer in that case noted that the individual’s medical difficulties were the result of major incidents that occurred many years prior to his employment. The respondent’s view of this case is further substantiated by another Equality Officer who presided in Mr.

A v A Charitable Organisation DEC-E2011-049. She was also of the view that the DEC-E2003-052 case bore no relevance to her own case wherein the complainant had submitted medical certification for work-related stress. She stated: “I am also not satisfied that the submission of a medical certificate indicating that an individual is suffering     from, 'work related stress', in and of itself, comes within the meaning of section 2 of the Employment Equality Acts.”

4TTo summarise, it is the Respondents position that the true construction of disability within the meaning of s.2 (1) (e) of the Act requires as a starting point a known, medically diagnosed ‘mental’ illillness or co condition as opposed to ‘stress and anxiety’ which are evidently part of the human experience of everyday life – both good and bad. On that basis, it is the Respondent contention that the Claimant cannot make out a prima facie case from which it can be inferred that discrimination occurred.

4.Without prejudice to the above, should the Adjudicator find that the Claimant can establish a prima

     facie case, and should the burden shift to the Respondent, the Respondent categorically denies that

     discrimination occurred under the grounds cited or on any other ground. The Claimant was provided with the document entitled ‘Respondent’s Recruitment & Selection, prior to attending interview. Clause 6.9.3 clearly states that ‘Candidates called for interview must meet all essential criteria’.  

Also furnished to the Claimant prior to interview was the Job Description, which at Section 6, under

the heading Essential and under Health, that “…is in a state of health such as would indicate a reasonable prospect of ability to render regular and efficient service’’.

Owing to the nature of the role and to the excessive amount of absence evident from the reference

checks and confirmed by X hospital, the Respondent was of the view that the Claimant would be unable to provide regular and efficient service. It was on this basis and this basis only that the Respondent concluded that it had no option but to cease the progression of the Claimant’s application.

The burden of proof rests with the Claimant to show that discrimination occurred under the ground of disability in relation to access to employment. It is the Respondent’s position that the Claimant cannot provide facts upon which it could be inferred that discrimination occurred in the first instance, such as to establish a prima facie case of discrimination.

That position notwithstanding, the Respondent did not discriminate against the Claimant and the Adjudicator is respectfully requested to so find, based on this submission, the evidence adduced, and the documentation provided.

I note that the Complainant alleges that she was discriminated against by the Respondent, on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2015, in relation to access to employment in terms of section 8(1)(a) of the Acts.

I note that she alleges that she suffers from work related stress which she believes is a disability within the meaning of disability as defined in Sec 2 (c) The malfunction, malformation or disfigurement of a part of a person’s body, (f) 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”