Complainant

Respondent

Parties

Eirene Qualter

Department of Social Protection

Representatives

Alan Ledwith, BL, instructed by DM O'Connor & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00018355-001

06/04/2018

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

CA-00018355-002

06/04/2018

The Complainant was an employee of the public service from 1992 to 2015. The Complainant availed of ill-health retirement from the Department of Art, Heritage and an Gaeltacht, on 30 January 2015.

The Complainant’s health improved substantially, to the effect that, from January 2016, she has been free from medication and has had no relapse of her conditions.

On the basis of her improved health, the Complainant set about getting herself back to work by applying for various roles within the Civil Service.

One of the competitions the Complainant applied for was that of Temporary Clerical Officer (TCO). She was successful in this competition and began working at the Department of Social Protection on 21 August 2017.

On 28 September 2017, a meeting was arranged for the Complainant with the Personnel Officer of the Department of Social Protection. At this meeting, the Complainant was informed that she was not entitled to have applied for the TCO competition due to her retirement status. On 3 October 2017, the Complainant received a letter notifying her that her contract of employment as a TCO would terminate on 13 October 2017.

On 6 April 2018, the Complainant submitted two complaints to the Workplace Relations Commission, one under section 77 of the Employment Equality Act, 1998, citing discriminatory dismissal and one under the Industrial Relations Act, 1969, citing unfair dismissal. The said complaints are the subject of this adjudication.

Background:

According to her submission, the Complainant was previously employed as a Civil Servant from 1992 to 2015. It was further submitted that, on 30 January 2015, the Complainant availed of ill-health retirement, from the Department of Arts, Heritage and an Gaeltacht, on medical grounds, including but not limited to postnatal depression, alcoholism and substance abuse.

The Complainant submitted that her health substantially improved in about January 2016, at which time, she applied for and was successful in a competition for a Temporary Clerical Officer position, within the Public Service. It was submitted that, arising from this application, the Complainant commenced working in the Department of Social Protection on 21 August 2017.

Substantive complaints:

CA-00018355-001 – Unfair Dismissal (Industrial Relations Act, 1969)

The Complainant elected to take her claim against the Respondent pursuant to Section 77 of the Employment Equality Act, 1998. Consequently, the Complainant did not pursue her claim for unfair dismissal as originally submitted to the WRC under the above reference.

CA-00018355-002 – Discrimination on Disability Grounds (Employment Equality Act, 1998)

According to the submissions made on her behalf, the Complainant understood, as all material times, that she was fully eligible to apply for the Clerical Officer position. In addition, it was submitted that the Complainant also understood that pension abatement would feature on reappointment to any permanent position.

It was further submitted that, whilst the Complainant also understood that certain retirees are barred for applying for a position, similar to that which she was then applying for, all the documentation relied upon by her seemed to offer accommodation for those who had previously retired on ill health grounds. The Complainant submitted, in evidence, the documentation being relied upon, in this regard, including the “Information Booklet for Candidates” in relation to the recruitment campaign for Temporary Clerical Positions (2017).

In this regard, the Complainant drew specific attention to Section 4 of the Information Booklet, which is entitled “Restriction on Eligibility”. According to the Complainant, this section expressly fails to indicate any exclusion, on the grounds of ill-health retirement, which would have prevented her applying for the position.

According to the Complainant’s submission, she was, at all material times, open and transparent about her previous retirement on health grounds from the Public Service.

It was submitted that the Complainant took up employment as a Temporary Clerical Officer on 21 August 2017 with the Department of Social Protection. It was further submitted that the Complainant was diligent and effective in the performance of her duties, to the extent that she won praise and credit from her superiors for her performance in the role.

According to the Complainant’s submission, to her surprise, she was informed by her Supervisor, on 28 September 2017, that a Personnel Officer was travelling from Dublin that day and wanted to speak with her. It was further submitted that during this meeting, the Complainant was informed that she was not entitled to have applied for the Temporary Clerical Officer competition at first instance, by reason of her purported retirement status.

The Complainant submitted that, during the application process, she had taken every reasonable step to inform all relevant parties of her status, in particular, that she retired on ill-health grounds. The Complainant further submitted that, at no material time prior to commencing employment, was she ever informed that she was precluded from taking up that employment.

According to the Complainant’s evidence, on 3 October 2017, she received a letter notifying her that a contract of employment was to be terminated on 13 October 2017. The Complainant submitted that she was not furnished with any reasons for the termination, save that it was “in accordance with the terms and conditions” of her employment.

According to submissions made on behalf of the Complainant, the termination of a contract of employment arose in the context of her applying for other roles within the state sector. It was submitted that a medical assessment was carried out on 3 July 2017, by the Chief Medical Officer (CMO) which arose out of her application for a Permanent Clerical Officer position. It was submitted that the Complainant was informed, on 9 November 2017, that a decision had been made to withdraw her candidacy for the role, citing a significant concern regarding her “ability to deliver a regular and effective service.”

The Complainant submitted that her application for employment brought her former illness to the attention of the Respondent and, on that basis, her employment was terminated. According to the Complainant, it is important to note that she had been free from medication since January 2016 and free from any relapse or ill-health in the meantime.

The Complainant submits that her Temporary Clerical Officer contract was terminated on the grounds of ill-health, despite her excellent work record. According to submissions made on behalf of the Complainant, this fact gives rise to a prima facie a case of discrimination.

It was submitted on behalf of the Complainant that she was dismissed from employment by reason of grounds of disability, namely discriminated against on the basis of having previously suffered from a mental illness. It was further submitted that this was known to the employer and singularly give rise to the decision to dismiss the Complainant from her employment.

In support of her contention in this regard, the Complainant submitted, in evidence, a series of correspondence in relation to this matter. In particular, the Complainant drew attention to an email dated 28 September 2017, which she claims indicates “ill health grounds” as being the determining factor in her dismissal from her employment.

It was further submitted on behalf of the Complainant that she was discriminated against pursuant to Section 6 of the Employment Equality Act 1998, pursuant to Section 1 (a) (2), where she was treated less favourably than another person is/has been or will be treated in a comparable situation which pursuant to that section existed but no longer exists in respect of Section 6 (2) (g) whereby one is a person with the disability and the other, either is not or is a person with a different disability.

It was further submitted that the complainant is relying on Section 2 of the Act and, in particular, Section 2 (1) (e), where a condition, illness or disease which affects a person’s thought processes, perception of reality, which results in disturbed behaviour, is considered to be within the definition of disability under the Employment Equality Acts.

According to the Complainant’s submission, the Respondent has an obligation, pursuant to section 16 of the Act to treat those with disabilities in a way as expressly set out and, in particular, pursuant to Section 16 (3) (b), which requires the employer to take appropriate measures, where needed, to enable a person who has a disability, to:

a)       Have access to employment.

b)      Participate or advance in employment or,

c)       Undergo training unless the measures would impose disproportionate burden on the employer.

According to the Complainant’s submission, the Respondent, in this case, as the employer, has failed to meet the above obligations at all and has simply, as a matter of course, on the basis of the complainant’s historical illnesses/disability, decided to terminate her employment without any or any adequate regard to what amounted to discrimination under the Acts.

CA-00018355-001 – Unfair Dismissal (Industrial Relations Act, 1969)

The Respondent submitted that, in their view, the Complainant’s claim of unfair dismissal, as set out under this complaint reference, is a parallel complaint to that been taken under the Employment Equality Acts.

On that basis, the Respondent submitted that Complainant should have to opt for redress under one or other piece of legislation.

In addition to the above, the Respondent also submitted that, as the Complainant had only been in their employment between 21 August 2017 and 13 October 2017, she has less than the required 12 months service as required under Section 2 (1) (a) of the Unfair Dismissal Acts One, 1977 – 2015.

CA-00018355-002 – Discrimination on Disability Grounds (Employment Equality Act, 1998)

According to the Respondent’s submission, the Complainant applied to the Public Appointments Service (PAS) for a post as a temporary Clerical Officer in March 2017.

The Respondent submitted that it must be inferred that the Complainant did not disclose to the PAS that she was in receipt of an ill-health retirement pension on the Health and Character Declaration (HCD), which forms part of the recruitment process for the position of Temporary Clerical Officer. The Respondent submitted that being in receipt of an ill-health retirement pension would constitute a “material fact” which would be required to be disclosed by an applicant at Section 1 of the HCD. According to the Respondent’s submission, it was only following her assignment that it came to their attention that the Complainant had previously retired on ill health grounds from the Department of Arts, Heritage and an Gaeltacht on 30 January 2015.

The Respondent submitted that the basis on which the Complainant retired from the Civil Service is governed by the terms of “Circular 22/07: Ill-Health Retirement from the Civil Service”.   It was further submitted that, under this scheme, the Complainant would have received a lump sum payment and what have been in receipt of a weekly pension.

According to the Respondent’s submission, the only avenue open to an ill-health retired Civil Servant to return to work in the Civil Service is, if he/she is recalled to duty in accordance with Section 11.4, “Recall to Duty”, as set out in the Superannuation Handbook for established Civil Servants, which states as follows:

“Any officer who retires on grounds of permanent incapacity before minimum pension age may, if subsequently considered by the Chief Medical Officer to be fit for duty while still under that age, be called upon to fill any civil service post for which previous service renders him/her eligible.   In such circumstances the pension ceases to be paid and the lump sum originally awarded to the officer must be repaid, with compound interest, so that all his/her service may subsequently be reckoned for benefit purposes. Repayment may be affected by deduction from the officer’s ultimate retirement lump sum. If, when called upon, such a retired officer declined to return to duty, and fails to satisfy an independent medical authority (known as the Medical Referee) that he/she remains permanently unfit for duty, his/her pension entitlements may be terminated, and only resumed if and when he/she attends minimum pension age, in which case the pension will be based on actual service only.”

Based on the above, the Respondent submitted that, as the Complainant had not been recalled and as she continued to receive an ill-health pension, she could not be re-employed in the Civil Service and the Department, therefore, terminated her contract of employment.

CA-00018355-001 – Unfair Dismissal (Industrial Relations Act, 1969)

At the commencement of the hearing,   the Complainant’s representative confirmed that she had elected to take her claim under section 77 of the Employment Equality Act, 1998. Consequently, the claim of unfair dismissal, under the Industrial Relations Act, 1969, was withdrawn.

On that basis, no finding issues under this complaint reference.

CA-00018355-002 – Discrimination on Disability Grounds (Employment Equality Act, 1998)

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/she 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 her complaint, the Complainant, in the within case, is inferring that the Respondent discriminated against her by reason of her disability, by terminating her contract of employment for the said discriminatory reason.

Having carefully considered all of the evidence adduced, I’m satisfied that the Complainant was successful in her application for a Temporary Clerical Officer position and was appointed to a role in the Department of Social Protection on 21 August 2017. From the documentary evidence submitted it is clear that the Complainant’s application form for the position identified that she had previously worked in the Civil Service. However, it appears that this fact was not picked up until after the Complainant’s was offered a position and had commenced employment.

The documentary evidence further indicates that the matter only came to the attention of the employing Department, in around 25 September 2017, when the HR Management System (HRMS) identified the Complainant as having retired on Ill-Health grounds in January 2015. This triggered a sequence of email correspondence both internally within the Department of Social Protection and with other relevant Departments.

It is very clear from a review of this correspondence that the focus of all parties involved in this matter centred on the Complainant’s status as a retired member of the Civil Service and whether or not this has any implications for her current status as a temporary Clerical Officer. In the discussions and deliberations engaged in by the various parties involved in this matter, the primary focus was on the procedures governing such issues. The procedures considered in this regard included “Circular 22/07: Il-Health Retirement from their Civil Service” and “The Superannuation Handbook”.

The outcome of these deliberations and considerations appears to have culminated on 27/28 February 2017 when the decision was made to terminate the Complainant’s contract. The Complainant was advised of this decision in a meeting with the Departmental Personnel Officer on 28 September 2017. She was then formally advised, by way of letter dated 3 October 2017, that her contract was being formally terminated with effect from 13 October 2017.

Submissions made on behalf of the Complainant suggest that reference, in an email dated 28 September 2017, to the fact that she had retired on “ill-health grounds”, was proof that the Respondent discriminated against the Complainant on the grounds of disability. It was further submitted on behalf of the Complainant that this established a prima facie case of discrimination.

Having carefully considered, not just this particular email, but all of the correspondence in relation to the termination of the Complainant’s employment, I am satisfied that any reference to “ill-health” took place purely in the context of representing the nature of the Complainant’s retirement. She had retired on ill-health grounds, as opposed to any other form of retirement or departure from the Civil Service and references in this regard in the relevant correspondence can clearly be seen as a factual representation of the situation.

In addition, I am satisfied, from my review of the documentation submitted, that the particular aspects of the Complainant’s ill-health and/or disability, either at that time or at the time of her retirement in 2015, did not form part of the considerations/deliberations which led to the termination of her employment. On the contrary, I am satisfied that the main focus of those considerations/deliberations related to the procedural conundrum raised by the discovery that an employee who had just been given a temporary contract was, in fact, a retired member of the Civil Service.

Taking all of the above into consideration, I am satisfied that the Respondent’s decision to terminate the Complainant’s temporary contract of employment was not related to her disability and, therefore, I find that the Complainant has failed to establish a prima facie case of discrimination. Consequently, her claim in this regard is not upheld.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my findings in relation to the complaints submitted:

CA-00018355-001 – Unfair Dismissal (Industrial Relations Act, 1969)

As this complaint was withdrawn   by the Complainant, at the Oral Hearing, in favour of pursuing her claim under the Employment Equality Acts, no decision issues   under this reference.

CA-00018355-002 – Discrimination on Disability Grounds (Employment Equality Act, 1998)

I find that the Complainant’s claim of discriminatory dismissal on the grounds of disability is not well founded and, therefore, is rejected.

Industrial Relations Act

Employment Equality Act

Reasonable Accommodation