FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : A RETAIL COMPANY (REPRESENTED BY MS. MAIREAD MCKENNA B.L.) - AND - A WORKER (REPRESENTED BY MR. LARS ASMUSSEN B.L.) DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00004618 CA-00006333-001 The Complainant is a Personnel Manager in one of the Respondent’s stores and is a longstanding employee. This case is an appeal of an Adjudication Officer’s decision in a case taken by the Complainant alleging discrimination on grounds of disability, contrary to the terms of the Employment Equality Acts 1998-2015 At the time of the circumstances of this case, the Complainant was working in the Respondent’s store in ‘X’ location. In 2014 the Respondent undertook a re-organisation, as a result of which it identified a need for less roles for Personnel Managers. A number of options were offered to existing Personnel Managers including, for a limited period, the option of voluntary severance. The Complainant was not interested in voluntary severance on the terms offered. A dispute then arose between the parties regarding the terms of the Complainant’s contract, in particular as to whether the Complainant could be required to support the store ‘Y’, in addition to the store ‘X’. The Complainant initiated the company’s Grievance Procedure but, after some initial activity, this was not progressed as the Complainant went on extended sick leave from March 2015. The certificates submitted to the Respondent referred to ‘stress/stress at work’. There followed some considerable correspondence regarding the dispute between the parties. On 17 November 2016, the Complainant lodged a claim with the Workplace Relations Commission, ‘WRC’, under the Employment Equality Acts stating that her employer had discriminated against her under various grounds, contrary to the Acts. The case was heard by an Adjudication Officer, The AO found that the claim was not well founded. The Complainant appealed to the Court. A claim of victimisation, referred to in documentation before the Court, was withdrawn by the Complainant’s representative at the outset of the hearing. Preliminary Issue The Complainant’s case is based on an allegation that she was discriminated against by her employer on the grounds of disability. S. 7 of the Acts provides that an employer may not treat an employee with a disability less favourably than an employee who does not have a disability. It is axiomatic that for a claim of discrimination on grounds of disability under the Acts to succeed, the first requirement is for a Complainant to establish that they have a disability. This was disputed in the instant case. The parties were invited to make submissions to the Court on this issue. Complainant’s Submission The Complainant suffered from work related stress, arising from her treatment by her employer. Under s.2 of the Acts, one of the definitions of disability is, as follows; (e) a condition, illness or disease which affects a person’ s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour. The Complainant can give evidence to show the impact of the stress on her. The definition of disability has been interpreted broadly. InAn Employee v. Bus Eireann (2003) ELR 351it was held that a heart condition was a disability under the Acts. InMr. O v A Named Company DEC-E2003-052it was held that work related stress may amount to a disability. In A Government Department v A Worker EDA094 it was held that a condition that manifests in a minimal level of symptoms may be classified as a disability. In the European cases ofChacon Navas v Eurest (C-13/05)and then inJette Ring v Dansk (C-335/11) it was established that a disability was any condition that hinders full and effective participation in the workforce. The Complainant submitted medical certificates referring to her stress over two periods, from February to September 2015 and from April to August 2016. In addition, the Court is furnished with a medical report from the Complainant’s doctor, which refers to the injuries to the Complainant due to this work-related stress as including, sleep disturbance, anxious all the time, tearful and emotionally fragile. It identifies also that the Complainant developed hypertension in early 2016 and that the events had led to moderate impact on her mental health. The report also referred to the probability of psychological ‘sequellae’ related to this episode in the Complainant’s life. Respondent’s Arguments The Complainant is not a person with a disability, so she is not protected in that regard by the Acts. Stress is not a disability under the Acts. The assertions made about the impact of stress on the Complainant are way too general and do not advance the claim regarding the issue of disability and they are not supported by medical evidence. The Complainant’s case is based on her alleged contractual entitlement to work only in Store ‘X’. At no point in discussions with her management did the Complainant claim that her inability to work in Store ‘Y’ was due to any alleged disability. This case is an attempt to ‘shoe horn’ a dispute between the parties into a claim under the Acts. InAn Employer And A Worker EDA 1927the Labour Court noted that the Complainant in that case had only identified a disability to his employer after his dismissal and that no medical evidence of disability had been provided prior to dismissal and, therefore, the dismissal was not discriminatory. In the case ofA Worker And a Government Department EDA094the Court drew distinction between the ordinary human reaction to stressful situations and psychiatric illness and described suggestions that would blur the distinctions as an ‘absurdity’. That case emphasised the necessity for the Complainant to submit medical evidence in support of a claimed disability. There is no evidence at all in this case of alleged depression even in the medical report submitted and there is no evidence of any medication being prescribed for any of the alleged manifestations of stress. Request for Adjournment The Complainant’s representative requested the Court to adjourn proceedings to allow for further attempts to have a medical expert give evidence on behalf of the Complainant. This application was opposed by the Respondent’s representative, who noted that the dispute between the parties began more than five years ago and, given that disability was being claimed, it was evident from the moment that a claim based on alleged disability was lodged that the Court would require something more than mere assertion on which to assess whether the Complainant had a disability. The Complainant had more than ample opportunity to arrange to have a medical expert present. The Court adjourned to consider the application. The Court accepted the validity of the arguments made by the Respondent’s representative and refused the application. Witness evidence The Complainant gave evidence on the question of whether she had a disability at the relevant time. The witness stated that her medical certificates submitted to her employer referred to work related stress. This resulted in depression and anxiety and she had been prescribed medication for the latter. Her blood pressure had also become high as a consequence of this stress and she had high cholesterol. She described herself as being ‘all over the place’. The witness noted that she had attended an alternative medicine practitioner who had provided counselling and medication. She confirmed the observation in the medical report given to the Court that the dispute with her employer had affected her mental health. In commencing cross examination, the Respondent’s representative asked the Court to note that she would treat the witness as unreliable. She asked the witness to tell the Court what was her disability? The witness stated ‘depression and stress’, at which point she was asked why there was no reference to depression in the medical report before the Court? The witness said that she had requested her doctor not to refer to ‘depression’. When asked why none of the medical evidence given to the Court referred to medication, the witness said that was a question for her doctor. The witness stated that she submitted weekly medical certificates but that she actually saw her doctor on a monthly basis when she was out of work. When asked why the medical report referred to a total of 13 visits, which was far less than once a month in the periods in question, the witness could not offer an explanation. Under questioning from the Court, the witness confirmed that she had sought the medical report before the Court. When asked why she had restricted the information, she said that she did not want any reference to ‘depression’ included and that she had that right. When asked if she had ever told her employer that she suffered from depression, the witness replied that they had never asked. The witness confirmed that she was still receiving care but she was stronger now and was back at work and that she had never wanted to take anti depression medication. The applicable law Employment Equality Acts Interpretations “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; Deliberation and Determination In cases of discrimination under the Employment Equality Acts the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. In the instant case that burden requires the Complainant to prove that she suffered from a disability within the meaning of the Acts. As the Court of Justice noted inChacon Navas v Eurest Coletividades SA (2006) ECR 1-6467there is a distinction between sickness and disability. This Court noted, as was pointed out by the Respondent’s representative, inA Worker v A Government Department (EDA 094)that suggestions which blur the distinction between ordinary human reaction to stressful situations and recognised psychiatric illness are an ‘absurdity’. It is not sufficient, therefore, for the Complainant to rely on ‘stress’, however caused, as grounds for a claim to have a disability. It is necessary for her to show that she had a disability as defined above in the Acts. In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left to rely entirely on the written evidence provided. The medical certificates provided to the employer are scant on detail, referring only to ‘stress/work related stress’, which is of no assistance to the Court. The only evidence of any substance put to the Court in support of a claimed disability is a medical report from the Complainant’s GP. However, this report makes no reference to depression and contains no details of any prescribed medication. The report refers to symptoms arising from stress such as sleep difficulties and emotional fragility but in the absence of medical testimony, it is not possible for the Court to get more useful detail. The report refers to the Complainant being ‘anxious’ but little detail of the sort that the Court would require is provided. In short, this report is of limited value. The Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The burden of establishing this falls on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question. As the Complainant has not met the burden of proof, it follows that the claim must fail. The Decision of the AO is upheld.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
