Complainant

Respondent

Parties

Clinton Tully

Banner Fire Prevention Services Bridget Mcaleer

Representatives

Clare Citizens Information Service

Mid-West HR Solutions Network

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-00017848-001

09/03/2018

The complainant claims that he was discriminated against in terms of his conditions of employment and dismissal because of his disability which is a repetitive strain injury of his elbows.

The complainant commenced employment on 13th April 2015 as a service engineer. He always got on well with the owner Ms A.   Around December 2016 while lifting something from a shelf above his head, he felt pain in his elbows. He rested and when Ms A returned he advised her what happened.

Around March 2017 he had continuing pain with the elbows and went to his GP which the respondent paid for and the GP recommended that he receive injections for what the doctor referred to him as a repetitive strain injury (RSI) of his elbows. He remained out of work as the pain did not improve after the injections and continued to submit certs. One sick cert submitted during this period specified that he was unfit for work owing to back pain, but the other certs did not detail the nature of his illness/injury.

The complainant felt that Ms A’s behaviour changed after this and he received a letter dated 13th April from her in which she advised that he would not be paid for his sick leave and requesting a fitness to return to work cert. He was advised on 28th April 2017 to return company property including the keys of the van, mobile phone and other keys.   It was his belief that his employer was terminating his employment.

He was referred for a medical assessment by the respondent and the report dated May 24th, 2017 details that the complainant recounted that he had an issue with bilateral elbow pain and refers, in a heading identified as clinical examination - “bilateral elbows normal” and that his lumbar spine was “restricted in all planes”. It concludes that complainant is “unfit for normal duties”

The complainant detailed that his disability was in relation to an RSI of his elbows only and not the back issue referred to in the report. He advised that he did not receive manual handling training when he commenced employment and only received minimal training when he eventually did receive it and that he believe this caused the RSI of his elbows.  

A meeting took place between the complainant and the respondent to discuss the medical report on around 7th June 2017 and at this meeting the complainant was advised that since he was unfit for work, Ms A could no longer keep him employed.   He was asked to sign a termination agreement in order to receive his annual leave entitlements and in order to get a reference. He would not sign this agreement.

On 3rd July 2017, he received a letter from the respondent detailing she had carried out a thorough review of all operations and no other roles existed and that she was putting him on notice that she may need to consider terminating his employment by reason of his ongoing incapacity. It was the complainant’s belief that Ms A had made this decision because he refused to sign the termination agreement.

He was advised around September 2017, by an acquaintance of his (Mr B) that Ms A had looked to engage Mr B as a private investigator to investigate the complainant.

Between October 2017 and February 2018, he received numerous calls from the respondent’s phone but when he would answer the phone the caller would hang up. He contacted the gardaí about this who investigated the matter but did not pursue it as they told him they were satisfied with Ms A’s explanation.

On 29th December 2017 he received a letter from Ms A who forwarded on his P60 and a cheque for “2 weeks’ pay in lieu of notice”.   He contacted citizen advice after this regarding what he regarded as dismissal relating to his disability.

Evidence of Mr B

Mr B advised that he sometimes does private investigation work and that he was asked to make a call to Ms A as she needed help. He contacted her, and they met in a pub and when they met he realised that he knew her from a previous interaction. Ms A detailed to him that she wanted to “get the dirt” on the complainant as she did not believe details of his absence. Despite knowing the complainant, Mr B advised that this not raise a conflict for him to carry out private investigation work against the complainant. However, he did not take on the job as he also did work for the complainant’s solicitor which would cause a conflict for him. Ms A had given him the complainant’s medical report but never looked for this to be returned and so he returned this report to the solicitor for the complainant. He also advised the complainant of his conversation with Ms A following advice from the complainant’s solicitor.

The respondent advised that she owns a small company with only 2 employees. She always got on well with the complainant.

Ms A denied that he made her aware of the incident in December 2017. She first became aware of this in April but albeit she received sick certs from him, they did not disclose the nature of his illness except for one cert from his gp that referred to back pain.

She denied that she discriminated against him on the basis of his disability of an RSI of the elbows.   It was detailed that as it was a very small organisation she was unable to provide reasonable accommodation for him with regard to his ongoing absence. She detailed that she was advised by a solicitor that she could not let him leave his employment without him completing an employee agreement and confirmed that he would not receive any additional payment if he signed this agreement other than what his legal entitlements were. She was not aware that he had issues with his elbows and believed that there were issues with his back based on the complainant’s sick certs and the medical report. She denied that she harassed the complainant with telephone calls and said that this had been a misunderstanding and that the gardai had investigated this and were satisfied with her explanation.

Ms A denied that she looked to take on a private investigator but said that when she told a friend details of her issues with the complainant, the friend suggested she talk to Mr B. She met Mr B but did not engage him as she would not have been able to afford his fee.   She confirmed that she gave Mr B a copy of the medial report belonging to the complainant as she did not think there was anything wrong with that. Mr B contacted her later to see if she needed help but she did not want his services. Ms A said that Mr B was quite abusive when she told him this.

The issue for decision by me is whether or not the Complainant was treated in a discriminatory manner in circumstances amounting to discrimination on grounds of disability in terms of Section 6 of the Employment Equality Acts 1998-2015 (the Act).

Following the hearing the respondent’s representative contacted the WRC asking that the adjudicator make contact with the respondent’s representative with regards to providing additional information to the adjudicator. The respondent’s representative was advised to forward any information to the WRC which would be passed to the adjudicator and that it was the normal procedure that any such correspondence would be copied to the complainant . No further correspondence was received.

Section 6 of the Act details: “Discrimination for the purposes of this Act

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring circumstances discrimination shall be taken to occur where—

(a) 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”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),…

(g) 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 8 of the Act provides as follows:

“Discrimination by the employer etc.

8.(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

Section 85A (1) of the Act 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.”   This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated 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". It added that "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”.

The complainant claims that his disability is that of an RSI of the elbows. He repeated this on several occasions at the hearing that this was the disability which he was claiming for and confirmed that he was not claiming that he was discriminated against because of any other disability and was not claiming that he was discriminated against because of a back injury. None of his sick certs from his own GP, refer to an RSI of the elbows. The report from the respondent’s doctor mentions the complainant’s reference to the RSI of the elbows but that clinical examination is normal. The report makes reference to the the complainant’s “long term back condition” and that the complainant does not appear to be able to carry out his role long term “because of the nature of the back condition”. The complainant was insistent during the hearing that it was not a back injury which he was claiming that he was discriminated against. There is no evidence to suggest that the complainant made the respondent aware of the disability that he claims that he has, namely that of an RSI of the elbows.

As set out in Two Complainants v A Restaurant [2013] 24 E.L.R. 333, the complainant “did not inform the respondent in sufficient detail of her medical condition”, and in the case of HK Danmark –v- Dansk Almennyttigt Boligselskab it washeld“that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.   I find that there has been no evidence submitted nor was there during his employment that the complainant has/had the disability of the type which he now claims that he was discriminated against with regards to his conditions of employment or dismissal, namely an RSI of his elbows.

He has not satisfied me that he comes within the definition of disability as set out in Section 2(1)(a) to (d) in relation to an RSI of the elbows. I find that the Complainant did not establish a prima facie case of discrimination on the ground of the disability that he claims for and his claim fails.

The Complainant has failed to establish a prima facie case of discrimination and therefore his claim fails.

Equality, disability, repetitive strain injury of the elbows