Complainant

Respondent

Anonymised Parties

An Agency Worker

A Contract Manufacturing Company

Representatives

JasonO'SullivanJ.O.S Solicitors

John Brennan, IBEC Galway

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-00019725-001

12/06/2018

The Respondent is a contract manufacturing company, who manufacture product on behalf of Original Equipment Manufacturers (OEMs).  The Respondent had an arrangement with a licensed agency company (hereafter referred to as the Recruitment Agency) for the provision of agency workers.

The Complainant was placed with the Respondent by the Recruitment Agency on 12 May 2017.

With the exception of a two-month period in September/October 2017, when she was on certified sick leave, the Complainant worked in the Hiring Company until her contract was terminated on 6 April 2018.

On 12 June 2018, the Complainant submitted a complaint of discriminatory dismissal, on the grounds of disability, under the Employment Equality Act 1998, to the Workplace Relations Commission.

Also, on the same date, the Complainant lodged a similar complaint against the Recruitment Agency, under case reference ADJ 15142.

Preliminary Point:

The representatives of the Complainant commenced their submission by setting out a preliminary objection. According to the submission, the Respondent refused to comply with their obligations under Data Protection Regulation. It was submitted that the Respondent was called upon to provide, in the normal way, all personal data held by them in respect of the Complainant. According to submissions on behalf of the Complainant, this request was declined and refused on spurious grounds in a misconceived application of Section 60 of the Data Protection Act, 2018.

It was further submitted that the Complainant was significantly hampered in maintaining her claim to the WRC by reason of the refusal of the Respondent in this regard. However, it was submitted that, notwithstanding this, the Complainant wanted to bring it to the Adjudication Officer’s attention that, while she wishes to proceed with her claim, documentation had not been furnished to her in advance of the hearing. It was submitted, on behalf of the Complainant, that in such circumstances, trial by ambush, which has never been an intended feature of WRC hearings, arises in this case.

Substantive Submissions:

According to submission made on her behalf, the Complainant was employed pursuant to an undated Contract of Employment, issued by and signed on behalf of the Recruitment Agency through which she had been recruited by the Respondent. It was submitted that this contract directed that the Complainant’s employment, with the Respondent, commenced on 12 May 2017.

According to the Complainant’s submission, the Contract of Employment included provisions in respect of absence from work and lateness, which placed obligations on employees including, but not limited to: “if you are absent for a period greater than two consecutive days you must provide a doctor’s Certificate and a weekly Medical Certificate thereafter for the duration of the absence”.

It was submitted on behalf of the Complainant that her employment was going well and she was very happy in the workforce. However, on or about 29 August 2017, the Complainant became ill having awoken with a swollen eye, blisters and spots all over the left-hand side of her face. It was submitted that the Complainant immediately went to her doctor who advised that she had shingles. Given that this condition is highly contagious and causes a serious health risk and safety threat to those in proximity of the contagion, it was submitted that the Complainant’s attendance at work was completely out of the question.

According to the Complainant’s submission, pursuant to contractual obligations, she obtained a sick certificate and furnished same to both the Respondent and the Recruitment Agency. It was further submitted that, given the nature of the illness, the Complainant attended an eye specialist as she was worried that the condition might affect her eyesight and/or cause blindness. It was further submitted that the infection did in fact spread to one eye, which meant that it needed to be treated.

According to her submission, on or about 22 September 2017, during the period of illness, as referred to above, the Complainant was alarmed to receive her P45, from the Recruitment Agency, stating that the date of cessation of employment was 29 August 2017. It was submitted on her behalf that the Complainant was in shock, in the first instance to have received such correspondence, but in addition, in light of a serious medical condition, the wrongful termination of her employment because of illness gave rise to discrimination by reason of a disability pursuant to the Employment Equality Act, 1998 to 2015.

The Complainant further contends that she was discriminated against in pursuant to Section 6 and Section 1 (a) (2) of the 1998 Act, where she was treated less favourably than another person is, has been or will be treated in a comparable situation on discriminatory grounds.

It was further submitted on behalf of the Complainant, that the Respondent has an obligation pursuant to Section 16 of the Act, to treat those with disabilities, under the Act, in a way as expressly set out and, in particular, pursuant to Section 16 (3)(b), which requires that the employer take appropriate measures, were needed, to enable a person who has a disability to have access to employment. It was submitted on behalf of the Complainant, that the actions of the Respondent in the circumstances that pertained, amounted to a discriminatory dismissal.

According to the Complainant’s submission, on 3 October 2017, she received an email and a call from a representative of the Recruitment Agency seeking an update on her recovery and enquiring as to when she would be fit to return to work. It was submitted that this was in the context of the said individual’s termination of the Complainant’s employment, some two months previously. It was submitted that it is the Complainant’s contention that her re-employment was a calculated decision on the part of the Respondent, designed to avoid any potential obligations of a statutory nature under the Employment Equality Acts, by reason of discriminatory dismissal.

It was further submitted that, desperate for work and with no other means of income, the Complainant returned to work on 25 October 2017. According to the Complainant, she worked diligently and loyally for the Respondent, without issue or coming to any negative attention. It was submitted that, on 29 March 2018, the Complainant was requested to go to the Recruitment Agency’s office in the Respondent’s premises.   According to the Complainant’s evidence, a representative from the Recruitment Agency informed her that her employment with the Respondent was terminating on Friday, 6 April 2018. It was further stated that this was confirmed by letter, dated 4 April 2018 from the Recruitment Agency.

It was submitted on behalf of the Complainant that the facts speak for themselves and it is quite clear that the behaviour of the Respondent amounts, at first instance, to unlawful discrimination by reason of disability from a medical condition.

According to the Complainant’s submission, she was duped into returning to her position in October 2017, in a carefully orchestrated attempt by the Respondent and/or their Agents to avoid their obligations under the Acts.  It was further submitted, by the Complainant, that the Respondent purposely waited for six months to have expired from the date of the initial termination of employment, in an attempt to avoid their obligations for claims of discrimination. It was further stated that the actions of the Respondent aggravated the situation significantly and compounded the earlier discriminatory conduct against the Complainant.

Finally, it was submitted that the Complainant relies on, if necessary, though not so thought, in extending the time for reasonable cause in respect of the discriminatory dismissal element of the case, pursuant to Section 77 (5) (b) of the Act. It is the Complainant’s case, notwithstanding the foregoing, that, in circumstances where the last act of dismissal gave rise to ongoing discrimination, there is no requirement to have any extension of time in any event.

 Background:

A joint submission was made by an industry representative, on behalf of the Hiring Company, (the Respondent in this case) and the Recruitment Agency (the Respondent in the related case ADJ-15142).

The Respondent is a contract manufacturing company, who manufacture product on behalf of Original Equipment Manufacturers (OEMs).

According to the submission made on their behalf, the Respondent denies, in full, the Complainant’s claim for alleged discrimination and discriminatory dismissal on the disability ground. It is further submitted by the Respondent that the Complainant claims in this regard are misconceived.

Business Model/Arrangement between the Respondent and the hiring Company:

It was submitted on behalf of the Respondent, that in responding to the Complainant’s claim, it is important to understand the nature of the arrangements that exist between them and the Recruitment Agency and the commercial reasons underpinning  those arrangements.

In the light of their service offering, the Respondent works to tight margins, ensuring a lean and efficient service is provided to customers. Their business model is based on a certain percentage of permanent full-time staff in Operations (60%), supplemented by a percentage of Agency Staff/Flexible Workforce (40%). It was further submitted that the flexible workforce model allows the Respondent to meet customer demands during high peak times. It was stated that the model also allows them to avoid cost when demand for product is low. The flexible workforce model supports the customers fluctuating demand by maintaining a cost structure associated with outsourced or contract manufacturing. It was further submitted that it would not be possible for the Respondent to meet the cost demands of its customers having its own 100% permanent workforce.

It was further submitted that headcount requirements are reviewed weekly in line with customer build schedules. It was stated that every additional headcount is accounted for and associated with a build schedule.  It was stated that assignments are always subject to availability of work and availability of the individuals on assignment to do the work. The week to week nature of the assignment is to support the fluctuating customer demands and build volumes up and down.  It was stated that the Respondent’s line of sight, in terms of build schedules, is the current week, at any one time and the first day or two of the following week.  It was further stated that decreases in headcount requirements are communicated by customers in the week preceding the decrease and that increases in headcount are generally communicated two weeks in advance.

Consequently, it was submitted that it is for this reason the Respondent offers week to week assignments to their agency workers and cannot guarantee assignments for a longer period of time. Therefore, it was submitted that if an agency employee communicates their unavailability for work, for whatever reason, for a period longer than two/four weeks, they are unable to fulfil the week to week nature of the assignment and, therefore, they received notice that the assignment ends and are issued with a P45.

Finally, it was submitted that the Respondent and the Recruitment Agency hold weekly meetings regarding the agency employees. It was stated that these meetings take place on-site at the Respondent’s premises or via conference call. It is submitted that all matters pertaining to agency staff including requirements, assignments and forecasts are discussed at these meetings.

Background to the Claim:

Submissions were made on behalf of the Respondent under the following headings:

a)       Candidate Stage:

According to submissions made on behalf of the Respondent, the Complainant first engaged with the Recruitment Agency on 8 February 2017, when she completed testing for employment with another client of the Agency. It was further submitted that, around this time, there was a slowdown in recruitment which meant that the Complainant’s application for that particular client was put on hold.

According to the submissions made, a consultant employed by the Recruitment Agency (Mr A) met with the Complainant on 20 April 2017, in order to discuss other employment opportunities. During this discussion a general operative role with the Respondent was discussed and the Complainant was screened for that position. Having successfully passed the test and interview for this position, the Complainant completed a Pre-Employment Medical Questionnaire, in which she disclosed that she had a medical condition for which she was on medication. The Medical Questionnaire was sent to the Respondent for review and was approved on 24 April 2017.  Following successful completion of reference checks, the Complainant was deemed to be successful in the recruitment process and was placed on the panel for vacancies with the Respondent.

According to the evidence presented, the Complainant was contacted on 9 May 2017 and offered a position with the Respondent starting 12 May 2017. It was further stated that the Complainant attended for induction on 11 May 2017.

b)      Employment prior to Illness:

It was further submitted that the Recruitment Agency’s next contact with the Complainant was on 18 August 2017 when she requested a Statement of Service to prove she was in employment, as she was completing a house rental application. It was submitted that this statement was duly provided.

According to the evidence presented, the Complainant contacted Mr A in the Recruitment Agency on 31 August 2017 to inform him that she would be absent for at least four weeks from 29 August, as she had shingles. According to the evidence presented, the Complainant committed to have somebody bring in her medical certificates, however, this never happened. The evidence presented suggests that Mr A requested the Complainant to keep him and the Respondent updated on her situation. It was further stated that when Mr A contacted the Complainant’s Team Lead with the Respondent, to make him aware of the situation, it transpired that he (the Team Lead) had already been speaking with the Complainant, who had advised him of the situation.

c)       Illness:

According to the evidence submitted, Mr A contacted the Complainant’s Team Lead at the Respondent, on 5 September 2017, to check if she had been in contact and was advised that she had not made any contact.

It was submitted in evidence that, on 7 September 2017, Mr A telephoned the Complainant to inform her that he would be issuing her with her P45, so that she could draw social welfare. It was further submitted that Mr A informed the Complainant that they would be bringing her back to work as soon she was fit to return. It was stated that, in response to this, the Complainant advised Mr A that she would be meeting with her doctor again in two weeks and would have a further update for him at that time. It was stated that Mr A requested the Complainant to keep him updated on progress. It was further stated that the Complainant’s payslip and P45 were sent electronically to her on 22 September 2017.

According to the evidence submitted, Mr A contacted the Complainant on 3 October 2017 to see how she was recovering. Having failed to contact her by phone, Mr A corresponded with the Complainant by email. It was submitted that the Complainant, who had been at her doctor, when Mr A phoned, informed Mr A that she had a further appointment with her doctor on 12 October 2017. It was further stated that the Complainant contacted Mr A, by email, on 12 October 2017 to advise that she would be fit to return to work on 24 October 2017.

d)      Employment post Illness:

It was stated that, on 5 November 2017, the Complainant contacted Mr A to request a new Statement of Service as the one she had received in August stated that she was on a week to week contract. It was submitted that the Complainant acknowledged that she was working on a week to week basis but required a letter which did not reference this fact. According to the evidence submitted, the Complainant was duly supplied with an updated statement, which confirmed that she was in continuous employment since 12 May 2017.

e)      Assignment Completion:

According to the evidence submitted, the Complainant was due to finish on 12 March 2018, due to the fact that her 10 month employment mark had been reached. It was further submitted that agency employees are usually not retained beyond 10 months, but certainly not beyond 12 months. It was stated that the Complainant’s contract was extended to 31 March 2018, due to a forecasted high build schedule.  It was further stated that, on 22 March 2018, the Complainant’s contract was extended a second time to 6 April 2018 to allow her the opportunity to apply for a permanent position with the Respondent.

According to the evidence submitted, Mr A met with the Complainant on 29 March 2018 to give her one week’s notice of the termination of a contract. It was further submitted that when Mr A informed the Complainant that her contract was being extended to allow her to apply for the recruitment campaign for internal positions with the Respondent,  she advised that she would not be applying for a permanent position with the Respondent because she was unhappy with her treatment by the Recruitment Agency.

The evidence submitted indicates that the Complainant worked out her notice and finished work with the Respondent on 6 April 2015.

f)        Conclusion:

It was submitted that the Complainant was not dismissed because she suffered from a disability but rather because her contract came to was natural expiry, a fact which was conveyed to her and several others like her at the time.

It was further submitted that the suggestion, as set out in the Complainant’s complaint form, that the Respondent had “subsequently coerced her into returning to work”  in October 2017, after an “initial termination” because she was issued with a P45, is misconceived and wrong. It was submitted that the Recruitment Agency wanted her back at work and communicated this fact to her. It was further submitted that the Complainant herself was keen to get back to work after her period of absence.

According to the submissions made, the issuing of the Complainant with a P45, in and of itself caused her no detriment either way. It was submitted that the issue of a P45, on its own, is not tantamount to a dismissal or indicative of same at all. It was further pointed out that the issuing of a P45 does not even break service.

In support of the submission made in this regard, reference was made to the Minimum Notice and Terms of Employment Act, 1973, and, in particular, the case of  O’Callaghan v Cogan’s Garage Ltd [UD41/2015], where the EAT clarified that “a P45 is a document pertaining to the Revenue Commissioners and taxation. The issuing of a P45 to an employee is not determinative of whether there has been a dismissal; a P45 Is frequently issued to an employee being put on layoff for social welfare purposes. The issuing of a P45 to the claimant each year did not break in continuity of service, which was a separate legal issue to the positions of the claimant and the respondent with the Revenue Commissioners”.

It was further submitted that the Complainant herself argues in her claim form, that any alleged discriminatory event in October 2017 is out of time and has passed the statutory time limit, as the claim was made to the WRC on 12 June 2018, over six months later.

 According to the submissions made, the Complainant must prove that the discriminatory dismissal and the alleged “termination” event in September 2017 were linked together in a “continuum” of discriminatory treatment. It was submitted on behalf of the Respondent that this cannot be so, as the dismissal in April 2018 was when her contract came to its natural end. It was further stated that at that point, the Complainant was encouraged to apply for a permanent role with the Respondent, which she declined. It was submitted that there is no connection with her receiving a P45, on 22 September 2017, which she never complained about at the time, and the termination of her contract in 2018.

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.   With particular reference to the Dublin Corporation case, referred to above, it was submitted that “prima facie” evidence was defined as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has occurred”. It was pointed out that the Respondent, in the within case, has provided significant credible contradictory evidence, which will clearly lead a reasonable person to conclude that no discrimination took place.

Notwithstanding the particular circumstances of each case cited, the Respondent submits that it 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 she 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.

Conclusion:

According to their submission, the primary allegations against the Respondent relate to the alleged discrimination on disability grounds. It was submitted that the Respondent rejects these claims on the ground that the Complainant has failed to demonstrate that she was treated less favourably than a person of a different disability or none and has failed to identify any suitable comparators and therefore suffered no discrimination as alleged.

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.

The Respondent contends that 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 Objection by Complainant:

In their written submission on behalf of the Complainant, her legal representatives raised a Preliminary Objection, arising out of the alleged failure of the Respondent to provide data in line with the requirements placed on them under Data  Protection Regulation.

At the commencement of the Hearing, the Complainant’s representative confirmed that they were not proceeding with their Preliminary Objections in relation to the data request and were proceeding to deal with the substantive claim only.

Consequently, no further consideration was given in relation to these objections.

Substantive complaint:

Section 2 (1) of the Employment Equality Act (1998) defines an agency worker as:

"agency worker" means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;

The Acts also apply to the "providers of agency work", which is defined inSection 2 (5), as follows:

"A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act, 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this act is in this act referred to, in relation to the agency workers, as the "provider of agency work".

The Act further states, at Section 8 (1), that "a provider of agency work shall not discriminate against an agency worker".

It is accepted that the Respondent obtained the services of the Complainant on foot of an agreement with the Recruitment Agency and that, accordingly, the Respondent is a provider of agency work for the purposes of the Act.

Based on this, I am satisfied that the Respondent is covered by the 1998 Act with regard to the Complainant's employment and, therefore, I have the jurisdiction to consider the Complainant’s claim of discriminatory dismissal against the Respondent.

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 a diagnosis of shingles.

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. 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.

It is unclear as to whether shingles, the condition the Complainant was suffering from, could be classified as a disability under the Acts. Clearly the condition is treatable and, in the Complainant’s case, the evidence shows that she made a full recovery, to the extent that she was fit to return to work after a two-month absence. It is also noted that the Complainant did not require any special accommodation within her workplace in order to facilitate her return to work. In addition, it is noted that, in the five months of employment between her return to work from sick leave in October 2017 and the termination of her contract in April 2018, there is no evidence of a recurrence of the condition and/or there being any residual impact on her ability to carry out her normal duties.

Consequently, I am of the view that a significant question mark exists as to whether or not the Complainant’s condition could be classified as a “disability” as provided for in the Acts.

Notwithstanding the above view, I proceeded to consider, what I believe is a more significant factor  in assessing the Complainant’s claim of discriminatory dismissal.  The factor in question relates to whether or not the Complainant was in fact dismissed in the first instance.

Having carefully considered all the evidence adduced, I am satisfied that the Complainant’s employment with the Respondent was initially covered by a Contract of Employment, issued by the Recruitment Agency, who were the Complainant’s direct employers.  The Contract, as submitted in evidence, is undated but issued to the Complainant on or before she commenced work with the Respondent on 12 May 2017. 

This contract clearly sets out that the Complainant’s assignment with the Respondent was on a “week to week” basis.  Further evidence of this arrangement can be found in the Statement of Service issued, on 18 August 2017, by the Recruitment Agency, which confirms the Complainant’s employment is on a “week to week basis’ while placed with the Respondent.

It is accepted by all parties that three months after commencing employment, the Complainant contracted shingles and, as a result, was absent on sick leave from 29 August 2017 to 24 October 2017, on which date she returned to her previous position with the Respondent. The Complainant’s Contract of Employment clearly set out that no payment is made for periods of absence due to sick leave .  The evidence also demonstrates that (a) when the Complainant initially went on sick leave, she was advised by her contact person in the Recruitment Agency that she could return to work once certified as medically fit to do so, (b) ongoing contact was maintained with the Complainant during her absence with regard to her progress, a process which the Complainant fully cooperated with, and (c) when the Complainant was certified as medically fit to resume, she did so on 24 October 2017.

The facts, as set out above, significantly undermined the Complainant’s contention that she was “dismissed”. Rather, the facts show that the Complainant was absent for a period of two months on certified sick leave.

It appears from the evidence adduced that the Complainant is basing her contention that she was “dismissed” on the fact that she was issued with a P45 by the Recruitment Agency, who contend that the issuing of P45s is standard practice where employees are absent from periods in excess of six days and may wish to claim sick benefit from the Department of Social Welfare.

Having carefully considered the evidence presented in relation to the business model that existed between the Respondent and the Recruitment Agency, pertaining to the placement/recruitment of agency workers, I am satisfied that the issuing of a P45 to the Complainant by the Recruitment Agency is more consistent with that arrangement than it is indicative of any alleged attempt to avoid statutory obligations under the Employment Equality Acts.

Taking all the above into consideration, I find that the evidence does not support the Complainant’s contention that the issuing of her P45 meant she was dismissed from her employment.  Both the Respondent and the Recruitment Agency considered the Complainant as having been absent from work due to sick leave. The evidence presented by both parties in this regard clearly demonstrates that they were happy to have the Complaint back at work. In that context, it is reasonable to assume that neither the Respondent nor the Recruitment Agency had any issues in relation to the Complainant’s ability to carry out her work due to disability.

In this regard, I am also influence by the letter issued by the Recruitment Agency, on 9 November 2017, in support of the Complainant’s rental application.  This letter, which was issued at the Complainant’s request, following her return to work from sick leave, confirms her employment arrangement had been in place since 12 May 2017.

Consequently, having carefully considered all of the evidence adduced, I find that the Complainant was not dismissed from her employment in August 2017. In addition, I find that the Complainant has failed to establish a prima facie case that the issuing of a P45, while she was on sick leave in August 2017, represented or was linked to an act of discrimination on the disability ground pursuant to the provisions of the Employment Equality Acts.

Therefore, I find that the Complainant’s claim of discriminatory dismissal is not well founded.

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 discriminatory dismissal on the grounds of disability is not well founded and is, therefore, rejected.

Employment Equality Acts

Discriminatory Dismissal