ADJ-00014284

Complainant

Respondent

Parties

Giulia  Gasparri

Ingersoll-rand International Limited/Thermo King

Complainant

Respondent

Anonymised Parties

Giulia  Gasparri

Ingersoll-rand International Limited/Thermo King

Representatives

Alan Ledwith BL, instructed by  Kennedy Fitzgerald Solicitors

John BrennanIbec West

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-00018644-001

22/04/2018

The Complainant commenced employment with the Respondent, a multi-national manufacturing company, on 22 August 2011, in the role of a Customer Service Representative.

In October/November 2016, the Complainant lodged complaints, totalling 22 separate aspects, against 10 named employees of the Respondent.  These complaints, which included issues relating to workload and workload distribution, allegations of interference with work, disrespectful behaviour, racist and pregnancy related comments, covered a period back to 2014.

On 22 November 2016, the Complainant was examined by the Respondent’s Occupational Health Consultant (OHC). The following day, the Complainant went on sick leave.

On 28 November 2016, the OHC sent a report to the Complainant’s HR Leader which stated, inter alia, that:

·         The Complainant was seeing a counsellor and dealing with mental health issues, primarily stress.

·         The Complainant identified her work as being the primary cause of her stress and outlined a number of issues, including her workload, as a cause of her stress.

·         Personal issues and previous medical history were considered as non-contributory at that time.

·         As the Complainant had reached the point at work where she could not concentrate and was making mistakes all of which were leading to extreme anxiety and stress, the OHC considered that, in these circumstances, the Complainant was not capable of working.

·         The Complainant’s condition was not a primary medical problem, amenable to normal medical intervention and is beyond the scope of the Occupational Health department to prove or disprove the validity of the employee’s claims.

·         As in most cases of perceived workplace stress, the problem must be addressed at work and work through with the individual to provide support and address the issues responsible.

In April 2017, the Respondent’s investigation into the Complainant’s complaints against her 10 colleagues was concluded. With the exception of one complaint which was partially upheld, the remainder were not upheld.

On 10 April 2017, the Complainant’s GP wrote a letter, which was addressed to the Respondent, in which it was stated, inter alia, as follows:

·         The Complainant was hoping to arrange a meeting regarding her situation and getting back to work.

·         Given the issues that the Complainant has already discussed with the Respondent, she was concerned about going back to her previous role and was going to request that she be redeployed into an alternative area.

·         A further review with the Respondent Occupational Health doctor should be arranged.

·         The unresolved situation was causing a lot of anxiety and mood issues for the Complainant and finding a resolution would be beneficial to her psychological health.

There is significant dispute between the parties as to whether the above letter of 10 April 2017 was provided to and/or received by the Respondent. The latter contends that this correspondence was never received, while the Complainant contends that it was provided by hand during the meeting on 12 April 2017 which was called to provide her with a copy of the investigation report into her complaints against her colleagues.

On 11 April 2017, the Respondents Interim HR Manager, Mr A, wrote to the Complainant, advising that the report of the investigation into her complaints had now concluded and inviting her to attend a meeting to discuss next steps. This meeting took place on 12 April 2017. On 13 April 2017, the Complainant submitted a cert stating she was unfit to attend work, for the month of April, due to work-related stress.

On 27 April 2017, the Complainant wrote to Mr A advising that she would need a minimum of 6/8 weeks to go through the results of the investigation and to make a decision on the possibility of lodging an appeal. In this correspondence, the Complainant also requested that the Company continue her illness benefit for the time necessary to resolve the matter. The Complainant also queried whether or not the Respondent would keep paying her for as long as she was on sick leave.

Mr A replied to the Complainant’s correspondence of 27 April 2017, on 3 May 2017, in which he stated, inter alia, as follows:

·         The requirement of 6 to 8 weeks to review the investigation report was unreasonable and that the two weeks she already had should have been sufficient to review the document. However, they were willing to extend the deadline for confirmation in relation to an appeal, to 10 May 2017.

·         The Respondent would not extend the payment of sick leave beyond the six-month period which is normally paid and which the Complainant had received in full up to 28 April 2017. However, the Complainant had the option to claim income continuation from Irish Life and that the onus was on her to follow up on this matter.

·         The Respondent did not accept that the Complainant’s stress-related absence was in any way work related, as the detailed complaints submitted by the Complainant had been thoroughly and completely investigated.

With regard to the Complainant’s request for a transfer to another site, Mr A informed the Complainant that her request in this regard had been declined.  On that basis, Mr A informed the Complainant that she had two options to consider regarding her employment with the Respondent, which he set out as follows:

1.       A return to work, which would be under defined standards relating to work output/performance and agreed work behaviours expected, or

2.       Pursuing alternative work opportunities outside of the Respondent, an option which would only be considered if requested by the Complainant.

Finally, the letter advised the Complainant that, as she had failed to attend for her last three appointments with the Occupational Health Unit, attendance for appointment was mandatory and if she continued to fail to attend these appointments the Respondent would have no other option but to consider her employment as being abandoned.

Having received no correspondence in the interim, Mr A emailed the Complainant on 17 May 2017 advising that as they had not received an appeal notification by the 10 May deadline, they considered the matter closed and looked forward to her full recovery and return to work in due course.

On 22 May 2017, the Complainant replied to Mr A, informing him that she was not in a condition to look at business emails without getting sick.  The Complainant further stated that she did not intend to abandon her job, that this was mere speculation on his behalf and demanded that he stop making such remarks as they were threatening her recovery.

The Complainant also stated that the Occupational Health Doctor and Nurse had repeatedly advised her that she was not obliged to meet with them and only needed to meet with them if she felt well enough to attend.  In addition, the Complainant demanded that she be shown any relevant legal document that stated she was obliged to attend these appointments.

With regard to her review of the investigation report, the Complainant demanded that she be allowed 6/8 weeks to review the report and that this period should start when her doctor advises that this activity would not pose a risk for her health.

Later, on the same day, 22 May 2017, Mr A replied to the Complainant, setting out, inter alia, that:

·         The tone of her email was less than acceptable.

·         The Staff Sick Pay policy, which forms part of the terms of the Complainant’s contract of employment requires that during absences relating to illness, there is a requirement to attend the company Occupational Health Physician.

·         The Respondent rejected that the Complainant is on work related stress leave as no basis was found for same during the investigation of the complaints in this regard.

Having earlier submitted a Claim Notification Form to Irish Life, in relation to her Income Protection claim, the Complainant conducted a telephone interview with Irish Life on 31 May 2017. In furtherance of the Complainant’s claim in this regard, Irish Life arranged for her to attend an independent medical examination with a Consultant Psychiatrist (Dr K), on 29 June 2017.

In his report to Irish Life, following this examination, Dr K stated, inter alia, that there was “no abnormality of her behaviour …..or….no evidence of depressed mood“. With regard to the Complainant’s fitness to work Dr K stated as follows: “currently there is not a symptom constellation diagnostic of a significant psychiatric illness ……there was no objective evidence of depression or anxiety ……. the main reason [the Complainant] is unable to return to work is because of industrial relations issues. It is not psychiatric systems that are preventing her from returning to work…. In my opinion [the Complainant] is currently fit to carry out her normal occupation“. 

On 20 July 2017, Irish Life wrote to the Complainant and informed her that, based on the medical records they had received, she was not totally disabled from following her normal occupation, as required by the policy and that she was, therefore, fit to return to work. This correspondence also advised the Complainant of her right to appeal that decision provided her appeal was received within the three-month period ending 20 October 2017.  Irish Life also advised the Respondent, at this time, as to the outcome of the Complainant’s Income Protection claim.

In early August 2017, the Complainant returned to her family in Italy. The Respondent was not advised of this at the time of the Complainant’s departure.

On 9 August 2017, the Respondent wrote to the Complainant setting out that they had been advised by the Occupational Health Unit that she had failed to attend an appointment earlier that week. This correspondence reminded the Complainant that failure to attend for medical appointments while on medical leave could be grounds for termination, on the basis that the Company would be left with no other option but to believe that the Complainant had abandoned her employment. The Complainant was further advised that a registered letter had been sent to her, requesting her attendance at a further appointment the following week. The Complainant was requested to make every effort to attend this appointment.

On 15 August 2017, the Complainant emailed Mr A advising him that she was staying with family on the advice of her doctor. The Complainant also noted that a registered letter, which she had not seen, was requesting her attendance at a further appointment. The Complainant stated that she remained absent from work due to work-related stress, that she remained symptomatic and continued to suffer from severe anxiety, for which she was receiving ongoing treatment.

The Complainant also reiterated that she had not abandoned her employment and had no difficulty attending for medical appointments with the Company Doctor. However, the Complainant stated that having to attend appointments at the Respondent’s premises caused her severe anxiety. Consequently, the Complainant confirmed that she would attend at the Company Doctor’s private surgery. In addition, she confirmed that she was available to meet with the doctor on 24/25 August.

Later that same day, Mr A replied to the Complainant confirming that he would make the necessary arrangements for the appointment to be made at the doctor’s private surgery on the dates proposed by the Complainant. In addition, Mr A advised the Complainant that, as her claim with Irish life had failed, it was now up to the Company Doctor to review the situation and to decide if she was fit to return to work.

On 21 August 2017, Mr A emailed the Complainant advising her that the Company Doctor  could see her at 4:30 pm on 24 August or 12 noon on 25 August. The Complainant was requested to confirm which of the appointments was most suitable for her.

On 23 August 2017, at 9:50 pm, the Complainant sent an email to Mr A advising that she was not in a position to attend the dates proposed for the appointment with the Company Doctor. The Complainant advised that her situation had deteriorated and that she continued to stay with her family on doctor’s advice. The Complainant further advised that she was now under the care of a psychiatrist,  who had advised that it would take some time to fine tune her treatment and that she was not physically able to leave the house. The Complainant stated that she would contact the Respondent in the following two weeks to let them know how her treatment was progressing.

By way of email, Mr A responded to the Complainant on 24 August 2017, advising that while the appointments had been arranged on the dates suggested by her, they noted that she did not now feel able to attend those appointments and, on that basis, the Respondent was willing to defer any such meeting for a couple of weeks, as requested by the Complainant.

In addition, this correspondence pointed out that it was an essential part of the Complainant’s employment that, when absent from work, she meets with the Company Doctor to review her condition, as required by the Respondent.  It was further pointed out to the Complainant, as Irish life did not assess the condition as serious enough to warrant placement on their Income Continuance Programme, it therefore passed to the Respondent’s Occupational Health doctor to assess her likely return to work date. It was further stated that if a return to work date could not be established, it could have serious repercussions for her continued employment, which was a situation the Respondent would like to avoid. The correspondence concluded with Mr A advising the Complainant that he would be in contact again in a couple of weeks to make an appointment for her with the Company Doctor.

In a letter to the Complainant, dated 22 September 2017, Mr A  summarised the current situation and set out the history with regard to appointments made for her with the Occupational Health Physician on 8, 15, 24/25  August and 14 September, none of which she attended. This correspondence also advised the Complainant that it had come to the Respondent’s attention that she was currently out of the country and had been for some time.

On the basis that the Complainant had been certified as fit to return to work by the Irish Life Consultant Psychiatrist, the Respondent informed the Complainant that they needed her to attend at the Occupational Health Unit for assessment. The letter advised that an appointment in this regard had been made for 29 September 2017 and that, should the Complainant failed to attend this appointment, the Respondent would have no choice but to take it that she had abandoned her employment.

By email dated 28 September 2017, the Complainant corresponded with Mr A and confirmed that she was with her family in Italy on doctor’s advice. The Complainant further advised that she had not attended the medical appointments scheduled with the Respondent Occupational Health Doctor on the advice of her treating doctors in Italy who felt she was not well enough to travel to Ireland for medical examination. In addition, the Complainant informed the Respondent that it was her intention to appeal the Irish Life decision and that she had not done so prior to this as she was waiting for specialist reports from her Italian doctors in support of her appeal.

In conclusion, the Complainant stated that while her condition was improving she was not currently fit to return to Ireland and would not therefore be in a position to attend the appointment set for 29 September but hopefully well enough to travel for an examination by 13 October 2017, subject to the approval of the treating doctors.

On 10 October 2017, Mr A wrote to the Complainant and advised her that it was the company’s position she was refusing to cooperate with them in establishing her suitability to return to work. The correspondence further  contended that the Complainant had misled the Respondent as to her whereabouts. The correspondence advised the Complainant that it was not possible for the Respondent to keep her role open indefinitely. It further stated that the Respondent had been trying, since the Complainant was certified as fit to return to work, to have her attend their Occupational Health Unit in order to determine a return to work date as per the normal process in such situations.

The correspondence advised that  a final  appointment was being set up with the Company Doctor for 16 October 2017, at his private surgery. The Complainant was also advised that it was the Respondent’s position that her continuing refusal to cooperate with the company to get a medical opinion would be considered as gross misconduct. Consequently, the Complainant was advised that failure to attend this final appointment would be regarded as an abandonment of employment and the Respondent would take immediate steps to terminate same.

On 13 October 2017, the Complainant emailed Mr A, advising that she was still under the care of her Italian medical team and, on their advice, she was not well enough to travel to Ireland for the appointment which had been set up for 16 October 2017. The Complainant stated that she was willing to have a skype/facetime consultation with the Company Doctor or, alternatively, attend for examination with a company doctor at the Respondent’s Italian office.

On 19 October 2017, the Complainant submitted an appeal to Irish life of their earlier decision in relation to her application for income continuance.

On 24 October 2017, Mr A sent an email to the Complainant, which had as an attachment, a letter dated 23 October 2017. The letter advised that her employment had been terminated, on the basis that her continued failure to attend for appointments with the OCH had been treated as an abandonment of her employment and as a serious misconduct. The Respondent stated that they felt they had no option but to terminate the Complainant’s employment with effect from close of business on 23 October 2017.

By way of letter dated 27 October 2017, the Complainant appealed the decision to terminate her employment.  The Complainant’s appeal was conducted by a Programme Leader in the Respondent’s engineering division.

On 14 November 2017, Irish Life wrote to the Complainant advising that, as part of her appeal of the earlier decision, an appointment had been set up with an independent Consultant Psychiatrist (Dr M) for 19 December 2017.  Following on from this appointment, Dr M provided Irish Life with a report in which he advised,  with regard to the Complainant’s fitness for work, as follows:  “it is my opinion that her symptoms and distress are related to difficulties with her employer and have continued and escalated since then. … While her disputes with employers need to be resolved, it is my opinion that from a psychiatric perspective she is fit to carry out normal occupation”.

By way of letter dated 18 January 2018,  Irish Life informed the Complainant that their original decision to cease her claim for Income Continuous was correct and that her appeal of  that decision was unsuccessful.

On 23 March 2018 the outcome of the Complainant’s appeal  of the Respondent’s decision to terminate employment issued.  The Appeals Officer, appointed to hear the appeal, concluded that: “notwithstanding the determination should have occurred after the appeal to Irish Life was brought to conclusion, I believe the decision to terminate your contract of employment was justified in accordance with company policy.”

On 22 April 2018, the Complainant submitted her complaint, under the Employment Equality Act, 1998, to the Workplace Relations Commission. The complaint alleged the Respondent had discriminated against the Complainant, on the grounds of disability,  by (a) failing to give reasonable accommodation for her disability, (b)  with regard to conditions of employment and (c) by dismissing her for discriminatory reasons.

It was submitted on behalf of the Complainant, that the matters, set out above in the background to the complaint, constituted discrimination on the grounds of disability.

According to her submission, the Complainant contends that stress and anxiety, which is attributed to work-related stress, can constitute a disability as defined in Section 2 (1a) of the Employment Equality Act. In particular, it was submitted that the Respondent discriminated against the Complainant (a) in relation to conditions of employment, (b) by failing to afford reasonable accommodation of her disability and (c) by ultimately dismissing her on the grounds of her disability.

It was submitted on behalf of the Complainant that the Respondent had her examined by the company doctor in November 2016. It was further submitted that the Complainant complained of stress and anxiety, which she attributed to her employment with the Respondent. According to the Complainant submission, the company doctor found other personal factors to be non-contributory, found the Complainant to be unfit to work and advised that: “as with most cases of perceived workplace stress, the problem must be addressed at work  and worked through with the individual to provide support and address the issues concerned”.

According to the Complainant’s submission, the Respondent conducted an investigation into the matters complained of by the Complainant, most of which were not upheld. It was further submitted that, in light of the outcome of the investigation and in spite of the clear recommendation of the company doctor, the Respondent “utterly rejected” that the Complainant’s stress and anxiety, the fact of which was accepted by the Respondent, were not attributable to the workplace.

According to the submissions made on behalf of the Complainant, this constituted an abject failure by the respondent to take any steps whatsoever to provide reasonable accommodation, thereby facilitating her return to work. It was further submitted that an employer must be proactive in considering the forms of suitable reasonable accommodation which could apply to an employee and is required to carry out a full assessment of the needs of the person with the disability, to consult the person with the disability throughout the process and what is required by way of medical or occupational assessment and that they take account of the findings of that assessment.

It was submitted on behalf of the Complainant, that the Respondent rejected the advice of its own company doctor and instead relied upon the outcome of an investigation, which found the complaints were unfounded, to determine that the Complainant’s disability was not work-related, therefore confusing two entirely separate issues. It was submitted on behalf of the Complainant that, as the Company doctor made clear, the problem, with most cases of perceived workplace stress, must be addressed at work and worked through with the individual. According to the  submission made on behalf of the Complainant, the company doctor was essentially advising the Respondent to provide the complainant with reasonable accommodation, which according to the Complainant, the Respondent ultimately failed to do.

According to the submissions made on behalf of the Complainant, having failed to provide the Complainant with reasonable accommodation, the Respondent then dismissed the Complainant on the grounds of her disability. According to the Complainant, the Respondent alleged that she failed to attend several Occupational  Health appointments which had been arranged for her. In addition, it was submitted that the Respondent repeatedly reiterated, when scheduling these appointments, that a medical examination conducted on behalf of Irish Life, concluded that the Complainant was fit to return to work. The Complainant submitted that this ignored the fact that she suffered a deterioration in her symptoms after the Irish Life medical assessment, as certified by her Italian doctors, whose medical certificates were rejected by the Respondent.

It was further submitted on behalf of the Complainant, that the Respondent accused her of leaving the country to avoid being medically assessed and that her appeal of the Irish Life decision was an effort to delay a decision being made on her ability to return to work. According to submissions made on behalf of the Complainant these utterly unfounded accusations caused considerable additional stress, anxiety and upset to the Complainant when she was already in a psychologically fragile state.

According to the Complainant’s submission, she returned to Italy on the advice of her GP as her condition began to deteriorate in circumstances where she had no family in Ireland. In addition, the Complainant submitted that, having been certified unfit to work or travel by the treating doctors  in Italy, she offered reasonable alternatives to a medical examination in Ireland. However, according to the Complainant these were unfairly rejected by the Respondent. According to the Complainant, the appeal’s findings made clear that the Respondent had accepted medical certificates from other EU countries in the past and it was therefore entirely unfair to the Complainant to reject her Italian medical certificates and refuse to have her medically assessed by the Group company doctor or such other Italian doctor as the Respondent might have chosen.

In conclusion, in submitting her complaint, the Complainant contended that her dismissal constitutes a discriminatory dismissal in circumstances where the Respondent ostensibly dismissed the Complainant for gross misconduct in failing to attend medical appointments but perversely ignored completely the fact that she could not attend them by reason of her disability and refused to consider her alternative proposals to an Irish medical exam, which would have provided for reasonable accommodation of her disability.

General response:

According to the Respondent’s submission, the Complainant, historically, had an extremely poor attendance record at work due to admitted unrelated medical absences.

It was submitted on behalf of the Respondent that the Complainant returned from maternity leave in August 2015 and had absences in November 2015 and January 2016.  According to the Respondent, the Complainant was advised on 15 January 2016 that her absenteeism level was unacceptable and had to improve. The Respondent submitted that it considered the discussion with the Complainant on 15 January 2016 to be informal counselling.

According to the Respondent’s submission, the Complainant had a further period of absence between 25 January and 12 February 2016. It was further stated that the Complainant was disciplined on 24 February 2016, on which occasion she was issued with a First Stage verbal warning, which was to run for six months. It was submitted that the Complainant appealed this sanction which was heard by the Respondent’s HR Leader, who upheld the verbal warning on the basis that the conversation between the Complainant and her manager on 15 January 2016 was in fact a counselling.

The Respondent further submitted that, during the appeal process, the Complainant agreed that her absenteeism rates were high. In addition, it was submitted that the Complainant stated her absences were not a pattern “unrelated medically speaking” to each other. According to the Respondent, the Complainant advised that she would like to “come to work on a regular basis but could not for reasons outside of her control”. It was further submitted that the Complainant stated her partner had had surgery, that appointments for her daughter were over and that this should end her stress. The Respondent stated in submission that, while these events were indeed stressful, they were not work-related, despite the Complainant’s reference to work-related stress since 2014 during her appointment with the Irish Life consultant (Dr A).

The Respondent further submitted that the Complainant was not out sick during the six-month period the verbal warning remained on her file (i.e. 24 February to 24 August 2016.)  According to the Respondent, the Complainant used her annual leave when time off was required. The Respondent further submitted that after her verbal warning expired, the Complainant went on sick leave on 28 November 2016 and did not return to work after that date.

According to the Respondent’s submission, they have an excellent track record of working with employees who have medical issues, as evidenced by the presence of an Occupational Health Nurse on site and regular access to an Occupational Health Doctor.

The Respondent submitted that the Complainant believed that, once on certified sick leave, the employer could not question her absence. It was further submitted that the Complainant was dismissed for serious misconduct as she would not engage in the process. According to the Respondent, this is a conduct issue, not a disability issue. It was further stated by the Respondent that the Complainant was warned, on multiple occasions, as to the severity of non-attendance to the Occupational Health Unit as per the process. The Respondent stated that they wanted the Complainant to return to work and had a medical opinion from an Irish Life consultant deeming her fit to work.

With regard to the letter from the Complainant’s own doctor, dated 10 April 2017, the Respondent stated in evidence that this correspondence was never received or provided to them.

According to the Respondent’s evidence,  in October/November 2016, the Complainant lodged 22 complaints against 10 individual colleagues. The Respondent submitted that these complaints included workload, racist remarks as far back as 2014. According to the Respondent, all these complaints were investigated by the Interim HR Manager, Mr B.  The Respondent further stated that, with the exception of one complaint, relating to non-follow-up by a manager with another employee for disrespectful behaviour, which was partially upheld, all other complaints were not upheld.

According to the Respondent’s evidence, the overall finding of the investigation found that there was no basis to support the Complainant’s complaints which she had stated led to her suffering work-related stress. It was further submitted that, to determine otherwise would have meant that there was widespread effort  to deliberately target the Complainant, involving  members of her own team, the Customer Service Manager, two Team Leaders, a number of immediate colleagues, the Operations Director and members of the HR team.

The Respondent pointed out that the Complainant was certified fit for work by Irish Life on 20 July 2017 but was not dismissed until 23 October 2017.

According to the Respondent’s submission, the Complainant regularly attempted to frustrate the process. In support of this contention, the Respondent submitted that:

·         The Complainant failed to attend six appointments over a two-month period.

·         She complained of work email communication, when this had been used for some time to communicate with her.

·         The Complainant requested a 6/8 week period to review the investigation report, in order to decide if she would appeal the findings, which in itself was unreasonable, and then changed it to 6/8 weeks from when a doctor said she was fit to do so.

·         The Complainant suggested numerous dates on which to conduct the medical review. However, when the company agreed to these requests, the Complainant cancelled appointments at the last minute. According to the Respondent, this occurred on multiple occasions, examples of which they cited as the appointments for 24/25 August and 16 October.

·         The Complainant never told the Respondent that she was out of the country until she was queried about this.

The Respondent also  contended that there was a pattern of late/delayed responses from the Complainant and, in support of this, referenced the following;

·         The Complainant submitted her application to the WRC the day before the deadline.

·         The Complainant cancelled the appointment for 24 August at 21:50 on the day before. She cancelled an appointment for 13 October, a date she had  suggested, at 15:56 on the day, when she had been requested to confirm her attendance by 12:00.

·         The Complainant was asked on 22 September to attend an appointment on 29 September. However, she did not say that she could not attend as she was out of the country until 28 September.

·         The Complainant submitted her appeal to Irish Life on 19 October, the day before the deadline for submission.

In the submission, the Respondent noted that the Appeals Officer, advised, on writing the Complainant’s appeal, the Respondent should have waited until the Irish Life appeal was concluded. According to the Respondent’s submission, this would not have changed the outcome as the dismissal was due to serious misconduct by failure to comply with the process. The Respondent submitted that, notwithstanding the fact that Irish Life denied the appeal, the serious misconduct occurred regardless.

Response to the claims of discrimination:

With regard to the Complainant’s claim that she was discriminated against by reason of disability, the Respondent submitted that the Complainant never claimed to have a disability. According to the Respondent, all previous absences were, by her own admission in March 2016, not related.  The Respondent submitted that the Complainant’s claim of stress as a disability only arose when she submitted her complaint to the WRC. The Respondent contends that the Complainant’s stress arose due to the ordinary vicissitudes of her life and were not work-related. According to the Respondent, this was confirmed in a thorough internal investigation which concluded in April 2017.

With regard to the Complainant’s claim that she was discriminated by the Respondent failing to give reasonable accommodation, the Respondent submitted that they never received the letter, dated 10 April 2017 from the Complainant’s GP. According to the Respondent’s submission, the letter was simply addressed to the “Company Name” and was first seen by the Respondent when the Complainant submitted it to the WRC.

According to the Respondent’s submission, neither the Complainant nor GP ever referenced this request again or followed it up. The Respondent further submitted that no request for reasonable accommodation was made to the Complainant’s Team Lead or Customer Service Leader.

With regard to the Complainant’s claim that the Respondent discriminated against her with regard to her conditions of employment, the Respondent submitted that all conditions of her employment were met, including full pay for all 22 instances of sick leave during her tenure of employment, including the final six months of sick leave. The Respondent further submitted that there is no evidence that any condition of employment was not met.

The Respondent submitted that they do not accept that the Complainant had a disability and that the company doctor was never afforded the opportunity to review the Complainant following her return to Italy. In addition, the Respondent submitted that two Irish Life consultants reviewed the Complainant, in June and December 2017 respectively, and deemed that she did not have a disability and was “fully fit to carry out her normal occupation”.

Finally, with regard to the Complainant’s claim that she was dismissed for discriminatory reasons, the Respondent submitted that as the Complainant’s dismissal was on the basis of serious misconduct, they refute any allegation of discrimination on the grounds of disability.

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 she was discriminated against by reason of her disability and by way of (a) failure by the Respondent to provide reasonable accommodation for her disability, (b) by discriminating against her in relation to conditions of employment and (c) by terminating her contract of employment for the said discriminatory reason.

Section 2 (1) of the Employment Equality Acts , 1998 – 2015 defines “disability” as follows:

“Disability means –

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

As can be seen from the above, the Acts set out the broad nature of conditions or impairments which could give rise to disability for the purposes of the Acts. 

In the within case, the Complainant contends that her disability related to stress and anxiety which was attributable to work related stress. Based on the evidence presented by the Complainant in the within case,  it is reasonable to conclude that the disability being referred to by the Complainant relates to the definition as set out at s.2(1)(e) of the Act.

The European Court of Justice (ECJ), when called upon, in HK Denmark v Dansk Almennyttigt Boligselskab (C-335/11), to provide guidance on how the concept of disability was to be differentiated from what is called sickness, held as follows:

“The concept of “disability” in the Council Directive 2000/78/EC27 November 2000 establishing a general framework for equal treatment in employment and occupation 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, and the limitation is a long-term one……. On the other hand an illness not entailing such limitation is not covered by the concept of “discrimination” within the meaning of Directive 2000/78”.

In the case of A Government Department v A Worker [EDA 094], the Labour Court, when considering what category of sickness or illness is included under the definition at s.2(1)(e) of the Act, noted that the definition of disability as set out in the Acts does not refer to the extent to which the manifestation or symptom must be present. However, the Court acknowledged that symptoms which are present to an “insignificant degree” could be disregarded in determining whether the condition amounts to a disability.

In the same case (EDA 094), the Court went on to state as follows:

“The court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and liberally as possible (see Bank of Ireland v Purcell [1998] IR327).  Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common sense rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the court that if the statues were to be construed so as to lower the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity”.

The evidence adduced, in the within the case, shows that the Complainant met with the Respondent’s OHC on 22 November 2016, in around the time she had submitted a series of complaints against 10 colleagues.  It is clear from his report to the Respondent, on 28 November 2016, that the OHC  did not consider the Complainant’s condition to be medical in nature. On the contrary, the OHC categorised the Complainant’s condition as a case of “perceived workplace stress”, which required to be addressed at work rather than through “normal medical intervention”.

It is further noted that the Complainant went on certified sick leave, due to work-related stress on 23 November 2016  and remained so throughout the period during which her complaints against colleagues were being investigated by the Respondent.  Given the nature of the 22 complaints submitted by the Complainant and the number of respondents against whom complaints were made, it is reasonable to conclude that these complaints encapsulated the full extent of the Complainant’s issues which were giving rise to her stress/anxiety at work and that clearly appears to be the basis on which the Respondent approached the matter.

When the investigation into the Complainant’s complaints concluded, in April 2017, it found 21 of the complaints to be unfounded, with just one  having partial foundation.  Based on this outcome, it is clear that the Respondent, who was still operating on the medical advice provided by the OHC in November 2016, came to the conclusion that there was no basis, from a workplace perspective, to the Complainant’s perceived stress/anxiety. 

The Respondent’s position in this regard is clearly set out in their letter to the Complainant on 3 May 2017 in which it is set out, inter alia, that the Respondent no longer accepted that the Complainant’s stress related absence was work related and, as a result, it was necessary to organise a return to work under the company’s normal procedures in this regard, which included appointment with the Respondent’s OHC.

The evidence adduced shows that following the letter of 3 May 2017, a lengthy exchange of emails took place between the Complainant and the Respondent, which could reasonably be categorised as the latter’s attempts to have the Complainant attend for medical assessment with the OHC being challenged or questioned. 

As a result, the Complainant did not present for medical assessment by the Respondent’s OHC during the months of May/June 2017.  However, the Complainant, who was still absent from work, pursued a claim with Irish Life for income protection.  As part of this application, the Complainant attended for medical examination, on 29 June 2017, with an independent Consultant Psychiatrist. 

In his subsequent report, which issued to Irish Life, but was copied to the Respondent, the Consultant Psychiatrist stated that it was not “psychiatric symptoms” but industrial relations issues” that was preventing the Complainant returning to work.

The above report is consistent with and confirms the view of the Respondent’s own OHC,  that the Complainant’s condition  was not medical in nature and was, in effect, an industrial/employee relations matter.  It is interesting to note that,  notwithstanding the dispute between the parties as to whether the letter from the Complainant’s own GP, dated 10 April 2017, was ever received, its content is generally  consistent with the views expressed by the Respondent’s OHC and the Irish Life Consultant Psychiatrist.

The evidence further shows that, in the period following the issuing of the Irish Life Consultant Psychiatrist’s report  29 June 2017, the Respondent made six appointments with their Occupational Health Unit for the Complainant.  However, none of these appointments were attended by the Complainant, who having returned to Italy in early August 2017,  a fact which was not divulged to the Respondent until 28 September 2017, continued to advise that she was under doctor’s advice and under the care of a psychiatrist.

However, in the circumstances, the Respondent had no grounds to question the medical evidence available to them, at that stage, that the Complainant’s condition was in the nature of an industrial relations issue rather than a medical condition.  The evidence in this regard, was further confirmed, when, in December 2017, Irish Life commissioned a second independent psychiatric assessment of the Complainant’s condition, as part of her appeal of their original decision to decline her application for Income Protection. 

On this occasion, the new Consultant Psychiatrist confirmed the earlier assessments that the Complainant’s condition related to issues pertaining to work and as opposed to being a medical condition. The Consultant Psychiatrist also confirmed that, in his view, “from a psychiatric perspective she is fit to carry out her normal occupation.” While I accept that this assessment took place post the termination of the Complainant’s employment, it is further confirmation of the expert medical opinion available to the Respondent throughout the relevant period which commenced with the submission of her complaints in October 2016 and ended the termination of her employment on 23 October 2017.

Consequently, taking all of the above into consideration and having carefully reviewed all of the evidence adduced in this regard, I find that the Complainant’s condition does not amount to a disability for the purposes of the Employment Equality Act. Based on this finding, I conclude that the Complainant has failed to establish a prima facie case of discrimination, such that the burden would have shifted to the Respondent to prove the contrary, as set out in Section 85 A (1) of the Employment Equality Acts, 1998 – 2007.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of discrimination on the grounds of disability is not well founded and is, therefore, rejected.

Employment Equality Act

Reasonable Accommodation