EDA1933

Introduction
This is an appeal by Tim Desmond (the Complainant) against the Adjudication Officer’s Decision ADJ-00016566 in his complaint of discrimination on the ground of disability by Rehabcare (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts). The Adjudication Officer found that the complaint was not well-founded.

Background

The Complainant commenced employment with the Respondent on the 19^thFebruary 2018 on a six- month fixed term contract as a Relief Care Worker. Prior to commencing this employment, the Complainant was diagnosed with OCD. It is the Complainant’s case that he was discriminated against on the grounds of his disability. The Complainant lodged his claim with the WRC on the 3^rdof September 2018. The cognisable period for the purpose of the Act is 4^thMarch 2018 to 3^rdSeptember 2018.

Complainant’s case

The Complainant was unrepresented so the Court explained to the Complainant that he would have to identify a comparator and then identify acts of discrimination linked to his disability within the cognisable period in the first instance. The Complainant identified a Relief Worker without a disability as being his comparator. In relation to acts of discrimination based on his disability within the cognisable period the Complainant identified the following incidents:-

1) He sought clarity on his role and the Respondent’s personal care guidelines as initially he was told not to shower any clients on his own and then he was instructed to shower a client on his own. The Respondent later apologised and stated that the advice given to him by his team leader was incorrect.

2) He was not given any work for the period 16^thJuly 2018 till the 18^thAugust 2018 when his employment ceased.

3) Brought in for a supervisory meeting with his line Manager even though he had done nothing wrong.

It was the Complainant’s submission that his disability meant he required clarification on issues and when he sought clarification, he was penalised by being brought in for a supervision meeting and given a warning. The Complainant submitted that the fact they had not asked him for proof of his OCD was also discriminatory.

Respondent’s case

The Complainant received the same induction procedures as other Relief care workers. The issue re showering clients was clarified. The Complainant has not identified an Act of discrimination linked to his disability. In relation to the second issue supervision is an integral part of work in care homes. Supervision is to assist staff and the Complainant was not treated differently to anyone else. The Complainant was not given and did not receive a warning. The final issue not being given any work from the 16^thJuly till the 18^thAugust, the Complainant was on a Relief contract which operates on an if and when basis. There were issues in relation to the Complainants availability during that period. He was also on sick leave and annual leave in July 2018. The Respondents in its appendices has included emails between the parties relating to the Complainant’s availability during the relevant period.

The law

Discrimination in accordance with the Acts is set out in s6 and states:

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular 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,

  (b) a person who is associated with another person —

  (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

  (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

  (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”),

  (b) that they are of different civil status (in this Act referred to as “the civil status ground”),

  (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

  (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

  (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

  (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

  (g) …….

  (2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

  (3) (a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

  (b) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

It is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies. InMelbury Developments v Arturs ValpetersEDA0917the Courtstated“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. 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”.

The Court, having carefully considered the three incidents identified by the Complainant and the Respondent’s response to same as set out above, finds that in the circumstances of this case the Complainant has not made out a ‘prima facie’case and therefore his claim cannot succeed.

Determination

For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of disability and therefore his claim must fail. The Complainant’s appeal cannot succeed and is therefore dismissed. The Decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
DC______________________
19 November 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.