Act

Complaint Reference No.

Date of Receipt

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

CA-00023450-001

22/11/2018

This complaint was submitted to the Workplace Relations Commission on 22nd November 2018. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the period to be taken into account when investigating a complaint to the WRC is six months ending on the date of the referral of the complaint. Accordingly, the period to be taken into account when investigating this complaint is the period from 23rd May 2018 to 22nd November 2018.

Due to the sensitivities of this case, I have made a decision to anonymise the parties.

The Complainant submits that:

The Complainant started work in the [Respondent] Hospital as a Grade III full-time typist in the Health Check department on May 8th, 2017. She signed a six month contract which would bring her up to November 7th, 2017. She was informed that her role and contract would be on-going as the department was awaiting the arrival of new voice recognition equipment. In October/November 2017, she was informed through a conversation with her manager, that she would be kept on for another six months, which would bring her up to May 2018. She did not receive a renewed contract at this time.

In January 2018, the Complainant was diagnosed with bilateral hip dysplasia after starting to experience extreme hip pain, and after seeing a consultant, was told she would need separate corrective surgeries on both hips. When she discovered this information, the Complainant informed her manager and told her that her first surgery would take place in June 2018. The Complainant was then informed that she would not be kept on after her second contract expired in May 2018. As per her doctor's advice, the Complainant reduced down to working a three day week (from a five day week) as her role as a typist involved sitting for prolonged periods of time which exacerbates hip dysplasia symptoms.

In April 2018, the Complainant sought legal advice over the telephone at the urge of numerous friends who thought she was being unfairly dismissed. After explaining her situation, she was told over the telephone that 1. this was grounds for unfair dismissal; and 2. legally, she could not be dismissed due to the fact that she was not given a renewed contract in November 2017. When the Complainant learned this, she sent the following email to HR and her manager, CK:

‘I am writing to request a contract that I never received from the 07.11.17. My understanding is that legally, this should have been given to me within two weeks of that date. I am also requesting that an urgent meeting take place between myself, a member of HR and my Line Manager to discuss the termination of my employment. To date, I have not received a notice in writing outlining the reasons of my termination.’

The Complainant received a reply from KMcB in HR which stated that:

'JR will be in contact from the HR team in relation to your request for a meeting. I have cc’d JR on this reply.

The Complainant later received the following email from JR:

'Thank you for raising your concern in relation to contract status and I apologise for the delay of my response. Are you available to meet next Monday morning at 10am here in the HR office at [location]? This meeting would be attended by CK as Departmental Manager and myself?'

The Complainant replied to JR letting her know she would be available to attend the meeting on the 30th of April 2018. During the first few minutes of this meeting, she was informed by both JR and her manager that her role solely depended on the impending arrival of the voice recognition equipment. The Complainant pointed out that while she understood this, the issue she had was that she had not received a renewed contract in November 2017, and therefore, to her understanding, she could not be legally dismissed.

On May 1st, 2018, the Complainant received a letter from MMcD in HR stating that her 'contract has been extended by a further six months until the 7th November 2018, subject to the operational requirements of the Hospital..... The introduction of the Voice Recognition system will take place in Health Check over the coming weeks and will take some time to become established. During this period, the business will assess the resource/role requirements and identify whether there is an on-going requirement beyond this 6 month period. On that basis we will engage with you directly in October 2018, prior to the contract expiry date.'

Although the Complainant received this letter, she also requested a new contract to sign but did not receive a reply in response to same.

As of May 8th, 2018, the Complainant became eligible to receive sick pay as she was now an employee for twelve months. Her last day in work before the surgery was June 8th, 2018; her surgery was carried out on June 12th, 2018. The Complainant was in regular contact with her manager while she was off work recovering. The Complainant had previously informed her manager that the surgery requires a 4 - 6 month recovery period.

On October 12th, 2018, the Complainant emailed her manager to inform her that she was hoping to return to work in early November, using one crutch, and working a three day week - as before, and as advised by her physiotherapist. The Complainant received the following reply:

'Thank you for your email and I’m pleased to learn that your recuperation is progressing well. From a perspective of your proposed date to return to work, I am conscious of the fact that your current Fixed Term Contract is due to expire on 7th November, 2018 and also that we committed to engaging with you in October once we had greater clarity in relation to the implementation of the voice recognition system. While this project is progressing well, we have determined that our current resources will be required for an additional period of time. On that basis, I have asked my colleagues in HR to contact you directly to seek to extend your contract through to 7th December 2018.'

The Complainant replied to this email on the same day (October 12th) to let her Manager know she was hoping to go away for a few days in mid-December as she was aware that she had annual leave to take before the end of 2018. On October 18th, 2018, the Complainant received the following reply:

'Thank you for your email regarding annual leave, you have accrued annual leave while on sick leave, however the leave date you have requested is after the end date of your contract.   In the event that this leave is not taken before expiry date of your contract payment will be included in your final salary – this would be in the December payroll.'

On November 7th, 2018, the Complainant received a copy of her contract extension from her manager, via email. The contract, signed by KMcB in HR, read:

'I write to confirm that with effect from 7th November 2018 your contract has been extended by a further month until 7th December 2018, subject to the operational requirements of the Hospital..... The introduction of the Voice Recognition system will take place in Healthcheck over the coming weeks and will take some time to become established. During this period, the business will assess the resource/role requirements and identify whether there is an on-going requirement beyond this 1 month period. On that basis we will engage with you directly in November 2018, prior to this contract expiry date.'

After seeking further legal advice, the Complainant was advised to send the following email dated November 8th, 2018, to HR and her Manager:

'I received a copy of my contract extension by email yesterday, however, I do not accept the terms of the termination and will be appealing the decision via the necessary forums.’

For the Complainant’s first week back at work, she worked a half day Monday, Wednesday and Friday. Since then, she had been working full days Monday and Friday, and a half day Wednesday. She have been trained to use the new voice recognition system. The lady who took on her role while she was off work recovering continued to share the role with the Complainant after the Complainant’s return to work.

There is a second full-time permanent typist who will be staying on in her role, she is also trained to register patients and fulfils that role on days she may be needed (sometimes, at very short notice). There is still very much a need for two typists - whether that is one full-time role and one part-time/full-time role. Since the Complainant learned that she was being dismissed, she has not been informed of any other roles that may be available in the hospital

The Complainant asserts that she was let go whilst an able bodied colleague was kept on in her position.

The Respondent submits that:

The Complainant was employed to address a short-term business need of the Respondent. Her employment came to an end on foot of the expiry of her fixed term contract of employment and she was not replaced.

The Complainant commenced employment with the Respondent on 81h May 2017 as a Grade 3 Typist / Administrative Assistant, on a six-month fixed term contract which was due to expire on 7th November 2017.

The Complainant’s employment was initially extended until 8th May 2018. It was further extended from 8th May 2018 to 7th November 2018 based on the operational requirements of the Respondent and pending the implementation of a new voice recognition system which would mitigate the requirement for typist positions. Due to a delay in the implementation of this system, the Complainant's contract of employment was extended once more on a fixed term basis, from 7th November 2018 to 7th December 2018. The Complainant's employment came to an end on the expiry of this fixed term contract.

The Respondent is perplexed that the Complainant appears to challenge the termination of her employment on the disability ground. The Complainant, by her own chronology, was not diagnosed with her medical condition until January 2018. The decision to fill the post on a fixed term basis, and indeed the first extension of her contract, had already come to pass prior to her diagnosis. The Respondent could not therefore have had knowledge of any disability when making a decision as to the fixed term nature of the Complainant's employment on either of these occasions and thus could not have discriminated against the Complainant on the disability ground.

The Respondent notes that the Complainant was also provided with reasonable accommodation from February 2018 onwards in the form of reduced working hours. Clearly the Respondent is aware of its obligations under the Act, and acts in compliance with same.

In relation to the extension of the Complainant's employment, from November 2017 to May 2018, the Complainant also complains that she did not receive an updated contract of employment, within two weeks of the expiry of her initial fixed term contract. However, the two-week period in which she alleges that she ought to have received this updated contract also occurred prior to the Complainant's diagnosis and similarly could not have constituted discrimination on the Respondent's part.

While it is regrettable that the Complainant did not receive a contract extension letter on the expiry of her first fixed term contract, this was of course not for discriminatory reasons but rather was an administrative oversight. The Complainant did receive an extension letter in respect of each of the subsequent fixed term contracts, both of which occurred after her diagnosis.

The Complainant's second fixed term contract of employment was due to expire on 7th May 2018. However, her contract of employment was again extended due to the fact that the Respondent was still in the process of implementing the voice recognition software. The Complainant received an extension letter dated 1st May 2018, which outlined that her employment would be extended until 7th November 2018. The reason given for the contract extension was operational needs, and again, it was made clear that the ongoing resource requirements within the department would be assessed at that time in light of the implementation of the voice recognition system. The Complainant did not raise any objection to the extension of her employment on a fixed term basis at that point in time.

Due to the Complainant's medical condition, she was absent from work for a period of time commencing 8th June 2018. As the Complainant had reached one year’s service with the Respondent company on foot of the contract extension of the previous month she was entitled to sick pay in line with the company sick pay policy and received same.

The Complainant contacted her Manager on 12thOctober 2018, stating that she hoped to return to work in early November. At this juncture, the software had been implemented, as of August 2018. However, with a view to ensuring that there was an additional resource to ease teething issues with the new system, the Respondent was happy to consider extending the Complainant's employment once more.

Mindful of the fact that the Complainant's contract of employment was due to expire on 7th November 2018, her Manager responded to confirm that her employment would be extended once more, on a fixed term basis, for a period of one month.

“l am conscious of the fact that your current fixed term contract is due to expire on 7th November 2018, and also that we committed to engaging with you in October once we had greater clarity in relation to the implementation of the voice recognition system. While this project is progressing well, we have determined that our current resources will be required for an additional period of time. On that basis, I have asked my colleagues in HR to contact you directly to seek to extend your contract through to 7th December 2018."

The Complainant's return to work was then signed off as fit to work by Occupational Health, and it should be noted that the company again provided the Complainant with reasonable accommodation in the form of a three day working week, to support her during this time.

The Complainant received her final extension letter on 7th November 2018 and responded to state that she would be lodging a claim in relation to the termination of her employment.

The Complainant's employment with the Respondent company ended on the expiry of this final fixed term contract on 7th December 2018, in line with the terms of that contract. The Respondent refutes the Complainant's assertion that there remains a requirement for an additional Typist and can confirm that the Complainant has not been replaced since her departure. Had there been a business need for the Complainant's role, beyond the 7th December 2018, the Respondent would have extended the Complainant's employment accordingly, whether on a permanent or fixed term basis.

The Complainant was informed of upcoming vacancies within the Respondent company and given the opportunity to apply for same.

The Complainant alleges in her claim form that the Respondent company discriminated against her on 24th October 2018, on the disability ground.

The 24th October 2018 is the date of the Complainant's final contract extension letter, and thus it appears that the primary argument that the Complainant seeks to pursue is that, at this juncture, the employer discriminated against her on grounds of disability in extending her employment on a fixed term basis. The Respondent rejects this claim on the basis that it is abundantly clear from the Complainant's claim to the WRC that she was, at all times, aware that her employment with the Respondent was to fill a staffing need which would in future be addressed by a new software system, at which point staffing needs would be reviewed. The fact that her employment was not extended beyond 7th December 2018, at which point the system was in place, is therefore clearly not a new position taken by the Respondent as a result of her medical condition. The Complainant admits in her claim form to having been aware of this;

·         At the commencement of her employment

·         In November 2017, when her employment was extended

·         On 30th April 2018, at a meeting with her Manager and JR of the Respondent's HR Department: "l was informed by both JR and my manager that my role solely depended on the impending arrival of the voice recognition equipment. I pointed out that while I understood this, the issue I had was that I had not received a renewed contract in November 2017."

·         By letter dated 1st May 2018 extending her contract of employment.

·         By email dated 12th October 2018, from the Complainant's Manager.

·         By letter dated 7th November 2018, informing her of the extension of her contract of employment until 7th December 2018.

The Respondent has treated the Complainant in a consistent manner both before and after notification of the Complainant's medical condition. At all times, the reasons for the extension of the Complainant's employment on a fixed term basis was the requirement to review staffing needs on the implementation of the new Voice Recognition Software. Following the implementation of same, there was no longer a requirement for an additional Typist resource and thus the reasons for the non-renewal of the Complainant's contract beyond the 7th December 2018 are also consistent with terms of the fixed term contracts as issued both before and after the Respondent became aware of the Complainant's medical condition The Respondent attempted to retain the Complainant in their employment, but she did not apply for any of the vacancies communicated to her. This is not the action of an employer with discriminatory intent.

On the basis of the above, it is the Respondent's argument that the Complainant has not provided primary facts in relation to the grounds claimed on which to proceed with a viable complaint. The established practice is to expect that the Complainant will, in the first instance succeed in transferring the burden of proof to the Respondent by presenting primary facts on the grounds claimed. The Complainant has, in this instance, failed to demonstrate that the Respondent changed its position in relation to the nature of her employment, on becoming aware of her disability, nor has she it acted in a discriminatory manner at any point during her employment. The Respondent has provided significant credible contradictory evidence, which would clearly lead a reasonable person to conclude that no discrimination took place. The Complainant has therefore failed to establish a prima facie case to be heard.

The Respondent cites the following precedents in support of its case: Dublin Corporation v Gibney EE5/1986, Melbury Developments Limited v Valpeters, EDA0917, Allied Foods v Wojcicka, EDA1636 and JVC Recycling v Ivanovs, EDA1222.

The issue for decision in this case is whether the Complainant was discriminated against by the Respondent on the ground of disability. In reaching my decision, I have taken into account the submissions, written and oral, made by parties.

In evaluating the evidence before me, I must first consider whether the Complainant has established a case pursuant to Section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“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.”

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before the burden of proof shifts to the Respondent.   In deciding on this complaint, therefore, I must first consider whether the existence of such facts has been established by the Complainant. It is only where such facts have been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

The Labour Court, in Southern Health Board v Mitchell [2001] ELR 201 determined that:

“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.”

The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. 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 …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Disability – Direct Discrimination

Section 6(1) of the Employment Equality Acts provides that 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) ...”.

Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The effect of this is to place the burden of proof in the first instance on the Complainant, to establish facts, which, on an initial examination led to a presumption that discrimination has occurred.   The onus therefore, in a case such as this, is on the Complainant to show that she has been treated less favourably than a comparator has.

The Complainant submits that she was diagnosed with bilateral hip dysplasia in January 2018 and that she was told that she would need separate corrective surgeries on both hips. This fact was not contested by the Respondent, nor was the fact that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts.

The Complainant has presented a case that she was treated less favourably on a number of occasions because of her disability. Accordingly, the issue for decision in this case is whether the Complainant was discriminated against by the Respondent in relation to the renewal of her fixed term contract.

According to the Complainant, the first instance of discrimination occurred in October/November 2017 when she did not receive a renewed contract. Since this alleged discrimination occurred prior to her diagnosis of a disability, it is not relevant to this case and, therefore, I cannot take it into account when making my decision.

The next instance of discrimination put forward by the Complainant was 18th October 2018 when she received an email from the Respondent in response to her request to take annual leave in mid-December.   In their email, the Respondent explained that, since the Complainant’s contract was due to expire prior to mid-December, payment for annual leave would be included in her final salary.   The Complainant contends that she did not know that her contract would expire.

The Complainant also cites an email from the Respondent dated 7th November 2018 which confirmed the Complainant’s final contract extension for a further month ending 7th December 2018.   The Complainant emailed the Respondent on 8th November 2019, to inform them that she did not accept the terms of the termination.

According to the Respondent, it was standard practice within their organisation to clarify issues around annual leave. The Respondent submitted a copy of the Complainant’s original contract and a letter from them to the Complainant dated 1st May 2018 which clearly references the fact that that the Complainant was on a fixed term contract.

In order to determine whether the Complainant has established facts, which, on an initial examination led to a presumption that discrimination has occurred, it must be shown that the treatment she received was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

I note that the Complainant has identified a comparator in relation to the non-renewal of her final fixed term contract. Since that event occurred after the Complainant had submitted her complaint to the WRC, I find that I cannot take it into account when making my decision.

I find, however, that the Complainant has not identified a comparator or referenced a hypothetical comparator who she claims was treated more favourably than she was in October or November 2018. Without such a comparator, the Complainant’s complaint cannot succeed.

The final instance of discrimination referenced by the Complainant concerns her allegation that, following her dismissal, she was not informed of any other employment opportunities which may be available with the Respondent. As this alleged discrimination occurred after the Complainant had lodged her complaint with the WRC, I find that I do not have jurisdiction to hear this particular part of her complaint.

Having carefully considered the written and oral evidence in relation to this aspect of the complaint, I am satisfied that I have not been presented with any evidence to support a claim of direct discrimination on the grounds of the Complainant’s disability. Therefore, I am satisfied that there is no evidence of the Complainant being treated less favourably by the Respondent on the grounds of her disability. Accordingly, I find that the Complainant has failed to establish a case of direct discriminatory treatment on the grounds of disability.

Having considered the submissions of both parties and the evidence presented at the hearing of this complaint, I find that the Complainant has not established facts which, on an initial examination, lead to a presumption that discrimination has occurred and this complaint therefore is not well-founded.

Failure to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred