Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

John Brennan Ibec 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-00017103-001

26/01/2018

The Complainant commenced employment with the Respondent, a medical devices company, on 2 August 2016. The Complainant was employed as a Chemist 1 on a fixed term contract with an expiry date of 5 May 2017. On 13 February 2017, the Complainant’s contract was extended to 31 December 2017.

Following the termination of her contract of employment on 31 December 2017, the Complainant submitted a claim of discrimination on the grounds of disability, under the Employment Equality Act, 1998, to the Workplace Relations Commission on 26 January 2018.

In her original complaint form, the Complainant stated that her claim directly related to the Respondent’s failure to renew her contract.

Background to the complaint:

The Complainant submitted that she commenced employment with the Respondent on 2 August 2016 on a Fixed Term contract which was due to expire on 5 May 2017. The Complainant also confirmed that, by way of letter dated 13 February 2017, she was informed that her contract was being extended to 31 December 2017.

According to the Complainant’s submission, she emailed her supervisor on 8 August 2017 with regard to a contract extension into 2018. According to the Complainant’s evidence, her supervisor gave her a verbal indication that her contract would be extended into 2018. The Complainant further stated that her expectation in this regard, was further confirmed when an annual leave request, relating to leave in January 2018, was approved on 9 August 2017. According to the Complainant, on that basis, she was under the impression that her contract would be extended into 2018.

The Complainant submitted that, on 26 July 2018, she went to the Environmental Health and Safety Officer at work as she was feeling unwell. The Complainant submitted that she was directed to the Occupational Health Nurse, who she met to discuss her health. According to the Complainant’s evidence, after this, she was approached on the laboratory floor by her supervisor, who asked about her (the Complainant’s) health.

According to the Complainant’s submission, she became unwell in September 2017 and on 5 October 2017 she was admitted to hospital, where she received a diagnosis of a chronic illness.   The Complainant stated that the condition was an extremely debilitating chronic illness. It was further submitted that she was placed on medication and declared unfit for work until 27 November 2017.

According to the Complainant’s evidence, when she returned to work she received a back-dated letter, advising that her contract of employment would cease with effect from 31 December 2017. The Complainant detailed the chain of correspondence and a number of meetings she had with various representatives of the Respondent between 28 November and 11 December 2017. According to the Complainant, following a phone call to the WRC, she sent an ES 1 form to the Respondent on 14 December 2017. The Respondent stated that she received no reply to this document and her employment was terminated on 31 December 2017.

Summary of the Complainant’s complaint:

The following is a summary of the points/issues raised by the Complainant in support of her complaint.

·         “Similar employees in the same role who are without disability did not receive the same treatment as myself”

·         “In my mid-year performance and development review, I received comments stating that I had “maintained a good performance level””

·         “Upon my return to work I received a back-dated letter detailing “Notice of Expiry of Contract””

·         “All other Fixed Term contract employees in the laboratory, (approximately seven other employees) received contract renewals, including employees who had started working after me and had less experience within the team”

·         “Requested a written statement as to the reason for non-renewal of contract on 28 November 2017 as per the Protection of Employees (FTC) Act 2011. Email from [Lab Manager, Mr C] acknowledging receipt of query but never received a written statement detailing this information”

·         “Verbal implication of a contract extension into 2018”

·         “Request for annual leave for early 2018, request approved until 19 January 2018, approved on 9 August 2017”

·         During time in [the Respondent] - five permanent positions arose for my job title. {the Complainant quoted Section 10 (1) of the Protection of Employees (FTC) Act before continuing to state that} this did not take place in any of the cases of the appointment of the permanent positions and I believe I was unfairly discriminated against in these cases and treated in a less favourable manner to a comparable employee”

·         “I attended a meeting with HR representative [Ms B] and my Manager [Mr C]. I brought along a colleague as my witness. In this meeting I was informed of the business rationale as to why the position I occupied was not being continued. I was informed that I was backfill for a project which was closing, however, I never worked directly on this project and the person I was a backfill for had a different job title. I was informed that this person was moving back to my role. This was not the case and the person never worked on the team I was working on.”

·         “Employees that fill similar backfill roles that had been needed in the same laboratory and level as I, were continued [sic] to be provided with employment”.

·         “At this point [the Respondent] were advertising for my role on irishjobs.ie - updated 5 December 2017.”

·         “In the meeting I was informed that as of 11 December 2017, there were four defined term positions available and I could apply for these jobs.”

·         “However, the same opportunity was not given to all other similar employees under equal status”.

·         “During my final week of work they were interviewing for these roles.”

·         “On 27 September 2017, I emailed my manager regarding CV of a former colleague and asked to consider him for any roles which may arise. I received a reply on 3 October 2017 stating that there would be opportunities within the laboratory for which he would be considered. Currently as of 26 January 2018, my former colleague is now occupying the role I used to hold in [the Respondent]”.

·         “[the Respondent], equal opportunities employer, stated business needs were not there for my position”.

·         “Unfairly discriminated against based on my chronic illness”.

In conclusion, the Complainant confirmed her contention that her contract was not renewed as a result of sickness absence due to chronic illness.

Preliminary points:

At the commencement of the Hearing, the Respondent raised a number of jurisdictional matters by way of preliminary points. These issues related to the Complainant’s references, in her complaint documentation, to complaints under the Protection of Employees (Fixed Term) Act 2003 and to the Equal Status Act.

Substantive complaint:

Notwithstanding the preliminary points raised with regard to the jurisdictional issues, the Respondent made the following submission in relation to the Complainant’s substantive complaint.

a)      Background to termination of the Complainant’s Fixed Term Contract:

According to the Respondent’s submission, the Complainant commenced employment on 2 August 2016, on a fixed term contract with an expiry date of 5 May 2017. In February 2017, this contract was extended to 31 December 2017.

The Respondent submitted that, according to their official records, during the 17 months of her employment (2 August 2016 – 31 December 2017) the Complainant had 86 working days absence, which amounted to approximately 4.3 months. The Respondent submitted that the Complainant was paid full sick pay for all of those absences. The Respondent further submitted that, as a counter to her suggestion that she was somehow discriminated because of her disability, the company had no problem extending her fixed term contract in February 2017 following a period of sickness absence from 14 December 2016 to 31 January 2017.

The Respondent submitted that, after a seven-week period of absence, which ended with the Complainant’s return to work on 27 November 2017, her supervisor (Ms A) met with her to enquire how she was and to inform her that the project she was hired for was now abandoned and, therefore, her contract would not be renewed after 31 December 2017. It was further submitted by the Respondent that the Supervisor tried to meet with the Complainant earlier the previous Wednesday when she was due to attend the Respondent’s Occupational Health Unit (OHU). However, this meeting did not take place as the Complainant failed to attend the OHU appointment on that particular date.

According to the Respondent’s evidence, the Complainant sent two emails, on 28 November 2017, to the Respondent’s Senior HR Business Partner (Ms B), requesting a meeting regarding the termination of the contract. The Respondent submitted that there was a very brief meeting held between the Complainant and Ms B on 20 November 2017, at which the Complainant provided Ms B with a letter entitled “Notice of intent to file complaints to Workplace Relations Commission regarding discriminatory act.”

The Respondent submitted that a meeting took place between the Complainant and Ms B on 30 November 2017, during which the Complainant raised a number of specific questions in relation to the proposed termination of her contract. The Respondent further submitted that a second meeting took place on 11 December 2017. This meeting was conducted by the Laboratory Manager (Mr C) and was attended by the Complainant, a colleague and Ms B. According to the Respondent, the questions/issues raised by the Complainant at the meeting on 30 November 2017 were all addressed.

It was further stated that the meeting was followed up by an email to the Complainant, from Ms B, on 14 December 2017, in which it was confirmed that while her contract would expire on 31 December 2017, that she would receive a once off payment in relation to the period from 1 to 19 January 2018, which had previously been approved, on 9 August 2017, as annual leave.

According to the Respondent’s submission, the Complainant submitted a Form ES.1 on 14 December 2017.   According to the Respondent, receipt of this form was acknowledged by Mr C on the same day.

According to the Respondent’s evidence, the Complainant’s last working day was 12 December 2017, as she was on sick leave on 13/14 December and on annual leave from 15 to 31 December 2017, when her contract expired.

The Respondent further stated that they received an email, on 26 January 2018, from the Complainant seeking a “referral bonus” in relation to a new hire who had commenced with the Respondent in January 2018. Accordingly, the Respondent, despite a requirement that the referrer of a new hire must be in current employment at the time of the referral, the Complainant, who was no longer in employment, was advised by email, on 7 February 2018, that the Respondent would pay the bonus of €2,500 on this occasion.

According to the Respondent’s evidence, they received notification, on 12 February 2018, of the Complainant’s complaint to the Workplace Relations Commission.

b)      Respondent’s reply to the specific issues raised by the Complainant in her complaint:

The Respondent made a detailed submission in reply to each of the issues raised by the Complainant in her complaint, as follows:

“Similar employees in the same role who are without disability did not receive the same treatment as myself”

The Respondent submitted that, as a highly regulated, volume driven organisation, they need to be able to flex the workforce, often within tight timescales. It was further submitted that, as a means of dealing with movements in volume and to cover employees who were on leave of absence or were temporarily working on other projects, the employment of employees on Fixed Term Contracts is a perfectly standard and legitimate practice.

According to the Respondent’s evidence, the Complainant was the only employee employed as a backfill for a particular project (Project R) to cover for an employee who was seconded to that project and, therefore, was the only employee affected when Project R came to an end.

It was submitted by the Respondent that the termination of Project R was communicated on 14 November 2017. It was further stated that Mr C became aware of this on 21 November 2017. As the Complainant was no longer required to backfill for the person assigned to the Project, notice of termination of contract was given to the Complainant, in person, on 27 November 2017, when she returned to work. According to the Respondent, this notice was only confirming the termination date already built into a contract extension.

According to the Respondent’s submission, Fixed Term contracts are terminated where volume decreases/stabilises, where a project comes to an end, where an employee returns from leave, or where an employee does not perform at the standard expected and for a myriad of other business reasons.

The Respondent also submitted that Fixed Term contracts are extended where volumes continue to increase and/or project deadlines are extended and there is no permanent role/need available for the employee. According to the Respondent, it is their policy to convert temporary employees to permanent positions when a suitable, permanent headcount position arises. It was further submitted that such employees are converted to permanent employment based on relevant experience and performance. The Respondent confirmed that at the date of the Hearing, they employed 74 employees on Fixed Term contracts.

“In my mid-year performance and development review, I received comments stating that I had “maintained a good performance level””

The Respondent submitted that performance was not a factor in determining whether the Complainant’s fixed term contract was renewed or not.

“Upon my return to work I received a backdated letter detailing “Notice of Expiry of Contract””

The Respondent submitted that the termination of contract documentation, detailing the expiry of contract, is automatically generated on the Respondent’s system and hence the difference between the date the letter was generated and the date that the Complainant was informed that her contract would be terminated on 31 December 2017, as per the contract in date.

The Complainant was informed on 27 November 2017, giving more than one months’ notice. It was further submitted that her last absence was from 3 October 2017 to 24 November 2017 (inclusive).   It was further submitted that the Complainant returned to work on 27 November 2017, the earliest date that she could be informed in person.

According to the Respondent’s submission, an automated email was sent to the supervisor (Ms A) who was the Complainant’s direct manager, on 16 October 2017 and a subsequent automated follow-up made on 15 November 2017. According to the Respondent, this is the usual notification process with Fixed Term Contracts. It was further submitted that this notification was sent from the HR Service Centre, indicating that the Complainant’s contract of employment expired on 31 December 2017.

The Respondent further explained in their submission that, in October it was expected that the Complainant would be remaining in the company, as it had been budgeted for her to remain. However, the Respondent further submitted that it was only when   they heard that Project R was closing down that it was decided that the company needed to end the Complainant’s contract, as the person she was replacing would be returning to the lab.

“All other Fixed Term contract employees in the laboratory, (approximately seven other employees) received contract renewals now, including employees who had started working after me and had less experience within the team”

The Respondent submitted that the extension of Fixed Term Contracts is not based on length of time in position. Moreover it was submitted that it is based on whether there is a business requirement and performance/experience in the role itself.

According to the Respondent’s submission, the Complainant was the second individual in the Laboratory not to have a contract renewed during 2017. It was further submitted that a total of 19 Fixed Term Contracts were terminated at the end of contract in 2017.

It was further submitted that a number of contract extensions were issued to other employees on Fixed Term Contracts. It was stated that, in each instance the individuals were required to support analytical testing based on volume, as the value had been forecast to remain at its current level and the contracts were extended to those already in those roles.

“Requested a written statement as to the reason for nonrenewal of contract on 28 November 2017 as per the Protection of Employees (FTC) Act 2011. Email from [Mr C] acknowledging receipt of query but never received a written statement detailing this information”

In responding to this specific issue, the Respondent made reference to the early preliminary point with regard to the applicability of the 2003 Act. However, without prejudice to their position in this regard, the Respondent submitted that where an issue arises, their preferred method of addressing it is through face-to-face interaction with the individuals involved. The Respondent further submitted that, in her submission of 11 December 2017,   the Complainant confirmed that she had been informed of the business rationale as to why the position she occupied had not been continued.

According to the Respondent’s submission, the business rationale was also put in writing in an email dated 14 December 2017 from Ms B.

“Verbal implication of a contract extension into 2018”

The Respondent submitted that they operate in a highly dynamic environment. It was submitted that   when the Complainant made her request in August 2017, for vacation from 21 December 2017 to 19 January 2018, Project R was forecast to continue into 2018.

According to the Respondent’s submission, as per the 2018 budget cycle, the Lab Manager, Mr C, had budgeted for a full-time resource to continue supporting the Project and had also budgeted that the Complainant would remain as a backfill through 2018. It was further submitted that, based on projected 2018 budget, a contract extension was submitted for the Complainant on 31 October 2017, however, this was not subsequently approved as the Project was terminated on 14 November 2017.   According to the Respondent, this illustrates the fast changing dynamic environment in which they work.

“Request for annual leave for early 2018, request approved until 19 January 2018, approved on 9 August 2017”

According to the Respondent’s submission, the leave approval was done in good faith based on the headcount requirements detailed in the 2018 budget. It was further submitted that Mr C only became aware, on 21 November 2017, that the Project was cancelled. Because the Complainant was on sick leave, notification was given, on her return to work on 27 November 2017, confirming that her contract will end on 31 December 12, 2017, as planned already per her contract end date.

The Respondent submitted that it was recognised that approval of leave past the contract end date could be interpreted as a contract extension, however, this is not the case. It was submitted that, in recognition of this ambiguity, the Respondent made an ex-gratia payment to the Complainant, equivalent to her annual leave up to and including 19 January 2018. The Respondent submitted that this was well in excess of what the Complainant was actually entitled to, as she had not actually earned or it worked it up, her last day at work being 13 December 2017.

“During time in [the Respondent] - five permanent positions arose for my job title. {the Complainant quoted Section 10 (1) of the Protection of Employees (FTC) Act before continuing to state that} this did not take place in any of the cases of the appointment of the permanent positions and I believe I was unfairly discriminated against in these cases and treated in a less favourable manner to a comparable employee”

Once again, the Respondent made reference to their objection in relation to the 2003 Act, as set out in their preliminary point. However, notwithstanding this, the Respondent submitted that the Complainant was not disadvantaged vis-a-vis the permanent employees in this situation, as the roles were not openly advertised, so neither permanent nor employees on Fixed Term contracts could apply. In addition, the Respondent pointed out that the Complainant did not name the comparable employee she is referring to as is required by the provisions of the Equality Acts.

The Respondent also submitted that, as permanent roles become available, the management team discuss which, if any, of the current defined term employees should be offered the position based on performance. As these are current employees their abilities and skill sets are known and hence there is no requirement to advertise the posts.

“I attended a meeting with HR representative (Ms B) and my Manager (Mr C). I brought along a colleague as my witness. In this meeting I was informed of the business rationale as to why the position I occupied was not being continued. I was informed that I was backfill for a project which was closing, however, I never worked directly on this project and the person I was a backfill for had a different job title. I was informed that this person was moving back to my role. This was not the case and the person never worked on the team I was working on.”

The Respondent confirmed, in their submission, that the Complainant never worked on Project R, as that was not her role. According to the Respondent, the individual on the Project was selected for her expertise with test method development and validation. It was further submitted that the requirement was to backfill her role with someone that could take up testing duties in the main Laboratory, which is what the Complainant was doing.

It was further submitted by the Respondent that, when Project R ended, the Laboratory department was over headcount and the Complainant’s contract was not extended beyond the contract end date of 31 December 2017. The Respondent explained that employees working on the Project were charged out to the project, whereas “functional support” staff are costed in the lab and impact headcount numbers and the cost of the goods.

The Respondent stated that it was not their recollection that the Complainant was told that her colleague was moving back into her (the Complainant’s) role. However, the Respondent confirmed that the employee in question certainly moved back into the Laboratory headcount. It was further stated that while the person in question did not go directly back into the testing group, which is where the Complainant was working, she went into a functional support role charged the Department. It was further submitted that to allow this there was a reshuffle of staff so that each area is resourced to the correct level. In their oral submission at the hearing, the Respondent placed a significant emphasis on the issue of “headcount” as being the key factor in the management/allocation of staff.

“Employees that fill similar backfill roles that had been needed in the same laboratory level as I, were continued [sic] to be provided with employment”.

The Respondent submitted that there were a number of other individuals that were on Defined Term contracts, whose contracts were extended. It was stated that these individuals were either backfill for people on maternity leave or volume. It was further submitted that, in each of these cases, the requirement to extend the contract was assessed against the business needs. As an example of this, the Respondent stated that, where staff were brought in to support volume and where the volume demand remained, their contracts were extended. According to the Respondent, as the staff were already in the role their contracts were extended automatically.

“At this point [the Respondent] were advertising for my role on Irish jobs.ie, updated 5 December 2017.”

The Respondent submitted that the Complainant’s role ended due to termination of Project R. According to the Respondent’s evidence, the roles advertised on 5 December 2017 were for Laboratory Technician and were required to backfill for maternity leave. In this regard, the Respondent submitted that the Complainant was a Chemist and not a Laboratory Technician.

The Respondent stated that the Complainant’s role was backfilling for the person who was supporting Project R and that this was not being replaced. Consequently, the Respondent submitted that the Complainant’s contention that her role was being advertised is not correct.

The Respondent further confirmed that they had no Chemist 1 positions available on 5 December 2017 and, if there was an error made for a short time on 5 December, where Chemist position was uploaded to irishjobs.ie, this was quickly rectified as the Respondent did not have any such positions available.

“In the meeting I was informed that as of 11 December 2017, there were four defined term positions available and I could apply for these jobs.”

According to their submission, the Respondent manages headcount very tightly. It was stated that, in the Quality organisation, approval from a Senior VP for Quality in the US is required to recruit both temporary and permanent staff. It was further stated that the business case must be submitted for approval whether it be for replacement or additional employees. The Respondent’s submission stated that these submissions and approvals can be tracked.

The Respondent submitted that, during December 2017, they were recruiting for Analytical Laboratory Technicians, all of which were required to backfill for staff members going on maternity leave in Quarter 1 of 2018. It was further stated that these positions were to be filled on Fixed Term contracts for a minimum of nine months.

According to the Respondent’s evidence, while these positions did not match the Complainant’s experience, she was informed at a meeting on 11 December 2017 that she could apply for the open positions as could anyone else, but that she did not do so.

“However, the same opportunity was not given to all other similar employees under equal status”.

In response to this, the Respondent submitted that all employees have the opportunity to apply for internally advertised roles should they so choose.

“During my final week of work they were interviewing for these roles.”

The Respondent confirmed that there were interviews for the role of Analytical Laboratory Technician. In addition, the Respondent submitted that no interviews were held for the position of Chemists, which is the role that the Complainant held.

“On 27 September 2017, I emailed my manager regarding CV of a former colleague and asked to consider him for any roles which may arise. I received a reply on 3 October 2017 stating that there will be opportunities within the lab for which he would be considered. Currently as of 26 January 2018, my former colleague is now occupying the role I used to hold in [the Respondent]”.

In response, the Respondent submitted that they can produce evidence that the Complainant’s former colleague was not a replacement for her. The Respondent further submitted that the former colleague was recruited against a requisition which was submitted on 5 October 2017 and approved on 6 November 2017. It was further submitted that this person was interviewed and recruited as result of a Chemist moving from the Analytical Laboratory to Quality Systems.

According to the Respondent’s evidence, in advance of the approval coming through, the individual was interviewed on 13 October 2017. It was further submitted that, on receipt of the headcount approval, Recruitment was requested to offer the individual the position. (The Respondent provided documentary evidence in support of their submission in relation to this appointment.)

In conclusion on this point, the Respondent stated that at the time the requisition was submitted for this position, no one in the Analytical Laboratory was aware that Project R was to be stopped.

“[the Respondent], equal opportunities employer, stated business needs were not therefore my position”.

The Respondent submitted that they do have an equal opportunities policy (copy of which was submitted post the Hearing) and they strive to look after all employees. However, the Respondent submitted that it was unfortunate in this case that the project for which the Complainant was covering, ceased in November. It was submitted that the Respondent manages headcount very tightly and is accountable globally for keeping to agreed headcount numbers. It was further submitted that where a project was stopped, the expectation would be for a decrease in headcount to account for this. It was further submitted that there is ongoing monitoring both locally and globally of headcount management.

“Unfairly discriminated against based on my chronic illness”.

The Respondent submitted that, while the Complainant was absent from work due to ill-health for 86 working days (approximately 4.3 months) this had no bearing on the decision to cease her contract.

c)       Relevant legislation and case law:

In response to the Complainant’s complaints, the Respondent made specific reference to Section 6 (1) and (2) (g) of the Employment Equality Act 1998 to 2014.

According to the Respondent’s submission, it has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or will be treated, on the basis of the discriminatory grounds cited.

In support of the contentions in this regard, the Respondent cited the following cases: Southern Health Board v   Mitchell [DEE011, 2001, ELR201], Margetts v Graham Anthony & Company Limited [EDA038], Melbury Developments Limited v Valpeters [EDA0917] and Dublin Corporation v Gibney [EE5/1986]

The Respondent submitted that the within complaint amounts to “mere speculation and assertions” and that this is not sufficient to infer discrimination. Notwithstanding the particular circumstances of each case cited, the Respondent submits that is only when the claimant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The Respondent, in this case, submits that the Complainant in her complaint has failed to discharge this burden of proof and consequently, the claim cannot succeed.

However, notwithstanding the above, the Respondent submits that if the WRC deems a prima facie case to have been established by the Complainant, then they respectfully submit that the complainant has failed to prove that she has been treated any less favourably than any person is, has or would be treated in a comparable situation on the specific grounds specified in Section 6 (2) (d) of the Acts. The Respondent contends that the Complainant has adduced no grounds to imply discrimination. The Respondent restated that the mere fact the complaint falls within one of the discriminatory grounds laid down in the legislation, is not sufficient in itself to establish a claim of discrimination.

The Respondent further submitted that the Complainant has provided no evidence, via comparators, that the treatment she received was less favourable. Consequently, the Respondent submits that the Complainant has provided no evidence of discrimination, as required for a viable complaint under the Acts.

The Respondent referred to the Complainant’s statement that she is seeking to rely on a “notional comparator”   and is projecting supposed awareness onto that comparator without any foundation or evidential proof. The Respondent reiterated the point that the evidential burden to establish discriminatory treatment first rests with the claimant. In this regard, the Respondent cited the Valpeters’ case in support of their contention that the Complainant be obliged to specify suitable comparators.

The Respondent submitted that the logic set out in the Valpeters’ case should be applied to the within case. According to the Respondent it appears reasonable to infer that the reason as to why evidence as to the treatment of other employees has not been furnished in this instance is due to that evidence not existing. Consequently, the Respondent submits that the Complainant, in this instance, has failed to demonstrate that she was treated less favourably than a person of a different disability or none and, as such, no discrimination has been demonstrated.

d)      Conclusion:

In conclusion, the Respondent submitted that the burden of proof rests with the claimant to show that she was discriminated against on the grounds of disability. It is the Respondent’s stated position that no evidence, in the form of primary facts, has been produced to support such a claim. Consequently, the Respondent submits that, as the Complainant has failed to establish a prima facie case of discrimination, her claim in this regard must fail.

According to the Respondent, the Complainant’s claim is clearly “misconceived” within the meaning of Section 77A (1) of the Employment Equality Acts (1998 to 2008) and should be dismissed in accordance with the provisions of that section.

Preliminary points:

In submitting her complaint, the Complainant made reference to the Protection of Employees (Fixed Term Work) Act 2003 and to the Equality legislation, in particular, that she had submitted an ES 1 Form, (which is provided for in the Equal Status Act),   in furtherance of her complaint, to the Respondent in December 2017, but received no response.

In response to the preliminary points raised by the Respondent, at the commencement of the Oral Hearing, the Complainant confirmed that she wished to pursue her complaint solely on the basis of the Employment Equality Act, 1998. Consequently, the following consideration of the Complainant’s complaint is conducted solely under the auspices of the 1998 Act.

Substantive complaint:

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 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 that her Fixed Term contract was not extended for the said discriminatory reason. In this regard the Complainant contends that her disability related to an extremely debilitating chronic illness called Adenomyosis/Endometrosis.

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. It is unclear as to whether the condition the Complainant was suffering from could be classified as a disability under the Acts .

While the definition includes temporary disabilities, the Labour Court in the case of A Government Department v A Worker [EDA 094], 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.

Notwithstanding the uncertainty that may exist in relation to whether or not the Complainant’s condition could be classified as a disability, I proceeded to consider other facts that might support the establishment of a prima facie case of discrimination.

The first aspect I considered, in this regard, was whether or not the Respondent was aware of the Complainant’s condition and if they had been requested to provide any reasonable accommodation to assist the Complainant in carrying out her role. Having carefully considered all the evidence presented, I can find none that suggests there was any meaningful exchange of information between the Complainant and the Respondent with regard to the former’s condition, any prognosis with regard to its impact on her ability to carry out her work and/or any request from the Complainant for reasonable accommodation that would be required in order for her to carry out her duties.

The Respondent provided evidence in relation to the Complainant’s sickness absence history, which resulted from, inter alia, asthma/respiratory issues, bronchitis and other injuries. In addition, this evidence suggests that the condition, giving rise to the Complainant’s visit to the Respondent’s Occupational Health Department in late July 2017, was, by her own admission, not impacting on her day-to-day work.

In this regard, I am also influenced by an email, which the Complainant sent to her supervisor (Ms A) on 26 July 2017. The main purpose of this communication appears to have been the Complainant’s desire to register her dissatisfaction with her supervisor for having raised the issue of her health with her on the Laboratory floor. However, in this correspondence, the Complainant also states, inter alia: “I had a health issue which wasn’t affecting my day-to-day work” and “regarding personal information from my physio or healthcare outside of work, I don’t think it is required to detail this information to line managers”.   Based on this evidence, I can only conclude that the Complainant had not and did not wish to advise her line management of her health situation.

Consequently, taking all of the above into consideration, I am satisfied that the Respondent was unaware of the existence of any serious condition, that might impact on the Complainant’s ability to carry out her work, at the point in time decisions were being made in relation to work requirements that subsequently impacted on her continued employment.

Therefore, I find the Complainant’s claim that the decision not to extend her contract, beyond the agreed expiry date, was directly linked to her disability and, therefore, constituted an act of discrimination, is not well founded.

The second aspect of the complaint to which I gave detailed consideration related to the rationale put forward by the Respondent for its decision not to extend the Complainant’s contract beyond the agreed expiry date, of 31 December 2017. In this regard, the Respondent provided detailed evidence setting out both the rationale for and the chronology of their decision not to extend the Complainant’s contract.

Having carefully reviewed the evidence, I am satisfied that the original offer of a Fixed Term contract to the Complainant arose as a result of the secondment of an employee from the Analytical Laboratory to a separate project (Project R). While I accept the Complainant’s contention that she did not appear to be a “direct” replacement for her seconded colleague, I am satisfied that, from a headcount perspective, the Complainant’s position in the Analytical Laboratory was directly related to the secondment of a member of that team to Project R. Therefore, I am satisfied that the continuation of and/or any extension to the Complainant’s Fixed Term contract was dependent on the secondee remaining on that Project.

The evidence presented by the Respondent demonstrates that the decision to close Project R was taken at a senior level and that the manager of the Analytical Laboratory only became aware of this decision on 21 November 2017. The evidence further suggests that at this point in time the Complainant was on sick leave. Consequently, I am satisfied that the Complainant was advised, that Fixed Term contract would not be extended beyond 31 December 2017, at the earliest possible time after management became aware that Project R was closing down and that the seconded employee would be returning to the Laboratory, which would result in the purpose for the Complainant’s employment no longer existing.

In addition to the above finding, I am also satisfied that the automatic process for the monitoring of Fixed Term contract was also kicking into place in around the same time. The evidence contained in documentation presented by the Respondent clearly shows that this process had commenced in mid-October 2017 and was taking place independently of any decisions on the future of Project R and/or the knock-on implications for headcount in the Analytical Laboratory.

In her submission in support of her complaint, the Complainant stated that she had received verbal confirmation from her supervisor (Ms A) in August 2017 that her contract would be extended into 2018. In addition, I am satisfied that the Complainant’s request for annual leave, to cover a period extending beyond the expiry of her Fixed Term contract (i.e. 31 December 2017), covering the period to 19 January 2018, was approved in August 2017.

Having carefully considered all of the evidence adduced in this regard, I am satisfied that in August 2017, when the alleged confirmation would have been given and the annual leave for 2018 was approved, the Complainant’s line management was clearly under the impression that Project R would be continuing into 2018 and, therefore, the requirement, from a headcount perspective, for the Complainant’s continued presence in the Laboratory would also continue. However, as has already been stated above, the situation changed significantly and rather rapidly in November when the decision was taken to close down Project R.

Consequently, taking all of the above into consideration I find the Respondent’s explanation for the termination of the Complainant’s Fixed Term contract in line with the expiry date of 31 December 2017, to be credible, logical and clearly supported by the evidence adduced. In addition, I am satisfied, from my review of the evidence, that there was nothing untoward or unreasonable in the manner in which the decision was communicated to the Complainant by the Respondent.

Therefore, in a context where the Respondent was unaware of the Complainant’s contended disability and where the rationale for terminating the Fixed Term contract, at the agreed expiry date of 31 December 2017, was rational and logical, I find that no nexus between the decision to terminate and any condition/disability the Complainant may have had at that point in time. Consequently, I find that the Complainant has failed to establish a prima facie case of discrimination.

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

Discriminatory Ground – Disability

Prima Facie case