EDA1936

The Appellant originally submitted a complaint of discrimination to the Equality Tribunal on 30^thJanuary 2012. In a decision dated 2^ndDecember 2014 an Equality Officer of the Tribunal determined that the Appellant’s complaint was in some respects misconceived and in some respects statute barred by reference to the time limits for the making of a complaint as set out in the Act.

The Appellant appealed that decision of the Equality Officer and this Court, in a decision dated 30^thApril 2015, affirmed the decision of the Equality Officer in most respects but, in accordance with the Act at Section 84(4), remitted the Appellant’s complaints as regards (a) an alleged requirement placed upon him to retire at 60 and (b) his request to return to full time work, to the Equality Tribunal for an investigation of the issues.

An Adjudication Officer of the Workplace Relations Commission, on foot of that remittal, heard the parties and issued a decision on 12^thJune 2017. That decision is now under appeal to the Court and is the basis for the within hearing.

At the outset of the hearing the Court clarified to both parties that the matters before the Court in the within appeal relate solely to the Appellant’s complaint that he had been discriminated against contrary to the Act in respect of (a) an alleged requirement placed upon him to retire at 60 and (b) his request to return to full time work. The Appellant clarified to the Court that his complaint is founded on a contention that he had been discriminated against on the disability ground in both respects.

Background

The Appellant had been employed with the Respondent since January 1971. He worked full time until 19th February 2004 when he commenced a job-sharing arrangement and thereby worked part-time until he was placed on special paid leave from his employment on 15th September 2006.

The Complainant referred a complaint to the Equality Tribunal on 31st January 2012 alleging that he had been discriminated/victimised against.

The Law Applicable

Section 6 of the Act in relevant part provides as follows:

• Discrimination for the purposes of this Act.
  • 6.(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

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

    • (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”),

• 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,

    an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Alleged requirement placed upon the Appellant to retire at age 60.

The Court established at its hearing that the Respondent had at no time placed a requirement upon the Appellant to retire at age 60. The Appellant in fact retired at age 65.

The Court established that, in 2011, in the context of attempts to resolve a matter between the parties in another forum, the Respondent made a settlement offer to the Appellant which included a provision for him to retire at age 60. The Appellant did not accept that offer and no further events occurred which could be construed as being a requirement placed upon the Appellant to retire at 60.

It was common case at the hearing of the Court that no requirement to retire at 60 had been placed upon the Appellant. Consequently, the Court must conclude that his complaint of discrimination on grounds of his disability as related to an alleged requirement placed upon him to retire at age 60 is misconceived and the within appeal cannot succeed in that respect.

Request to return to full time employment.

The Appellant became a part time worker in February 2004. As a result of certain events the Appellant was placed on paid special leave in 2006.

In 2010, efforts were made to return the Appellant to full time employment. The Appellant’s own medical adviser however certified the Appellant as unfit for work in August 2010.The Appellant met with the Respondent’s medical adviser in September 2010 where he was certified fit to work. The Respondent subsequently sought to have the Appellant attend a third medical adviser but the Appellant did not attend that adviser. The Respondent, by letter dated 14^thOctober 2010, invited the Appellant to return to work on 18^thOctober 2010. By letter dated 14^thOctober the Appellant’s legal advisers responded to state that he was medically unfit to return to work. That letter was accompanied by a medical report.

It was common case at the hearing of the Court that the Appellant was never certified fit to return to work between 2010 and the date of the making of the within complaint by the Appellant on 30^thJanuary 2012.

The Court concludes that the operative reason for a failure to return the Appellant to full time employment within the cognisable period for the within complaint was the fact that his medical advisers at all times certified the Appellant as unfit for work. It is therefore not possible for the Appellant to sustain his complaint that his failure to return to work was a result of discriminatory treatment on the disability ground by the Respondent. This is particularly so having regard to uncontested fact that the Respondent did provide the Appellant with more than one date for resumption of work during the cognisable period for the within complaint.

Conclusion

The Court has consistently held that an essential proof in any claim under the Acts is that the Complainant was treated less favourably than another person of a different characteristic (in this case disability) is, was or would be treated.

Section 85A of the Act provides, in effect, that a Complainant must prove facts from which discrimination can be inferred before the onus of proving the absence of discrimination shifts to the Respondent. It is well settled that the practical application of this principle requires the Complainant to first prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. The Complainant must then satisfy the Court that the facts so proved are of sufficient significance to raise an inference of discrimination. If the Complainant fails to prove the primary facts relied upon or to satisfy the Court that they are sufficiently significant to establish a prima facie case of discrimination his or her case cannot succeed.

Having regard to the submissions of the parties and the uncontested facts of the events giving rise to the within appeal, the Court concludes that the Appellant has failed to establish a set of facts from which an inference of discrimination on the disability ground can be drawn.

Determination

The within appeal is disallowed and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
FMc______________________
19th November 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.