Complainant

Respondent

Anonymised Parties

A complainant

A respondent

Representatives

MP Guinness BL

Kevin Langford Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00022377-001

03/10/2018

The Complainant submitted her complaint under Section 21 of the Equal Status Act, 2000. The Respondent is an insurance company providing a salary continuation payment to the Complainant.

This complaint was received by the Workplace Relations Commission on 3rd October 2018.

Post hearing, the Complainant submitted her own submission. Said submission reads as follows (in her own words):

This case was heard on 28th August 2019. In responding to the Complainant’s allegations, the Respondent insurer opened a written legal submission. The Complainant apologises for the delay in providing her written response to the Respondent’s written submission, which delay was due to the Respondent’s denial of access to the Complainant to the said written submission.   The Complainant responds to the legal arguments set out in the submission of the Respondent as follows.

1) “not denied access to a service”

The Respondent have entirely misconstrued the purpose, meaning and spirit of the Equal Status Acts. The Acts prohibit discrimination and harassment. They outlaw “differences in treatment”. The Respondent’s attempt to narrow the conduct prohibited by the Acts to “denial of access” is to attack and undermine the very principles of Irish Equality Law and to set civilisation back half a century.

The Respondent appear to seek to advance the case that taking my money for a Permanent Health Insurance policy is a service. But paying out under that policy when I am totally unable to perform my normal occupation by reason of illness …. Is not a service.

Paying out is a key part of the service. The manner in which the Respondent has treated me, and the conditions imposed in order for me to receive my benefit under the policy, constitute discrimination and harassment.

S5(2)(d) permits discrimination in relation to insurance policies for the purpose of assessment of risk.

This section of the Acts does not apply. None of this relates to the assessment of risk – i.e. the bit where the insurer calculates the premium or assesses whether or not they wish to offer a policy agreement. I have a policy, I pay a premium.

The Respondent omitted the second part of S5(2)(d):

And

(ii) is reasonable having regard to the data or other relevant factors”.

The Respondent makes no attempt to provide facts that might substantiate reliance on this section.

The Respondent has cobbled together this careless written submission, which was prepared and is dated 18th January 2019 and produced at the hearing on 28th August 2019 in a manner that treats the Complainant, this WRC process and indeed the import of the Equal Status Acts with contempt.

There was no discrimination

The Respondent treated me differently because I have ME Disease.

When my diagnosis was major depressive disorder, my treatment by the Respondent followed a course generally consistent with how a large insurer might handle such a claim. From 2014 to October 2016 the Respondent’s “review” consisted of an annual appointment with an expert in Major Depressive Disorder, Consultant Psychiatrist at a Hospital. I saw this Consultant in September 2014, October 2015 and October 2016. The Consultant had copies of my psychiatrist’s medical reports and they spoke on the phone directly on several occasions, a fact confirmed to me by my psychiatrist. Apart from organising these medical appointments, there was little communication from the Respondent during this time.

October 2016 Everything changed

When I described my ME symptoms to the Consultant Psychiatrist in October 2016, everything changed. By October 2016 I knew there was something wrong with me other than Major Depressive Disorder.

By letter dated 22nd November 2016 the Respondent wrote saying that the Consultant Psychiatrist “noted your concerns about fatigue”.

The Respondent sent his report of 19th October 2016 to me on 8th December 2016. In his report he writes:

“… depression has remitted … She does have residual fatigue symptoms which she reports but I would have thought a programme of graded exercise is what is required to achieve remission of these”.

And

“I think she is genuine in her representation of the fatigue, but I think at this stage the pattern is certainly not classical in that she finds her sleep refreshing and that she has some fatigue in the afternoon. I think this is more about stamina than a fatigue syndrome per se. At this point, I would expect that she would be fit to return to work”.

I saw Dr R in January 2017 and travelled to Belfast to see Dr W on 15th February 2017. They confirmed a diagnosis of ME Disease. From this time on the Respondent harassed me, placing insurmountable obstacles in my path and caused me severe, chronic and ongoing distress.

Effect of harassment and discrimination

Instead of focussing on my recovery, I have been required to engage in a protracted never-ending battle in order to satisfy the Respondent’s unreasonable and oppressive requirements and prove the nature and extent of my debilitation. All this, despite providing medical reports from top medical experts in the field confirming my level of debilitation, and a wealth of published medical science documenting the complex, all-consuming and debilitating nature of ME Disease.

The Respondent have engaged in a campaign over the course of the past 3 years calculated to defeat my entitlement under my permanent health insurance policy arising from my inability to work in my normal occupation due to my illness ME Disease. They have sought to label this campaign a “review”.

Failure to assess my condition by a suitably qualified medical professional

The Respondent has made no attempt to have my condition or the level of my cognitive and physical impairment assessed by a suitably qualified medical professional. The Respondent chose Dr M as the professional qualified to assess my condition. I objected, as they failed to establish that Dr M was in any way qualified to make such an assessment. The Respondent insisted Dr M was so qualified. The Respondent stopped my payments. I attended Dr M.

Travelling is a big deal for me. Attending doctors is a very big deal for me. Leaving my house is a very big deal for me. I regularly have to cancel appointments with my own doctors.   In order to attend my own doctors, I have to rest the day before, put a military plan in operation for my travel, and return immediately to bed after the appointment. There will be payback of a flare in symptoms following the exertion involved.

At the beginning of the examination which lasted less than an hour Dr M told me he would carry out tests at the end of the interview. No such tests were carried out. I expected a follow up appointment.   There was none. Dr M displayed incredible ignorance both in relation to the assessment and treatment of my condition and the bank of published medical literature on ME Disease. Dr M displayed such ignorance during the course of his medical evaluation and in his medical report.

Assessment and recommendation of the Respondent’s Occupational Specialist

Dr M obtained no information on the nature of my normal occupation.   Dr M carried out no objective cognitive or physical stamina tests. Dr M recommended no course of medical treatment. Dr M records “this lady declares difficulty with many routine day to day activities, particularly if involved in activities for moderate to prolonged periods”.

Dr M writes:

“I feel for patients with ME, getting back to some work is likely to be beneficial and wise. I suspect a return to full duties is not possible. However, with time, a phased return to work is likely to be successful.   I feel this also applies to the Complainant. I would encourage her to get back to some work at this time”.

This is anything but a professional medical opinion based upon objectively verifiable facts. Patients with ME are anything but a homogenous bunch. The 25% of ME patients who are most severely affected, lie in a darkened room, in total silence. They are unable to speak. Many are tube fed.

My response of 15th September 2017 sets out at length numerous counts of omission misinformation, inaccuracy and medical ignorance on the part of Dr M in his dealings with me. It took me from 1st July 2017 to 15th September 2017 to complete this response, a task that had a devastating effect on my health during the summer of 2017. The Respondent wrote to me in August imposing an arbitrary time limit of 3 weeks within which to provide my response.

At no stage has the Respondent sent me to an ME medical professional.   I have been at all times ready, willing and able to attend a medical professional with the appropriate knowledge and experience to assess my illness. I have communicated my willingness to the Respondent on many occasions.

I have repeatedly requested an opportunity to meet with the Respondent’s Chief Medical Officer. This opportunity has been denied to me. Of course, the Respondent’s Independent Medical Officer, Dr M and the Chief Medical Officer are both employees of XXXXX.

Never ending Review

19 Oct 2016

Attended Dr C for 3rd time in Hospital and described extreme symptoms of fatigue, pain and physical and cognitive impairment.

22 Nov 2016

Dr C states that in his opinion you would be fit to return to work ..

Jan – May 2017

Complainant objects to attending Dr M

May 2017

Respondent stops payment of benefit.

30 May 2017

Complainant attends Dr M – Dr M’s report withheld, Complainant must fight to see it.

29 June 2017

“We will discuss his report with our CMO next week, along with the reports from your own doctors.   Following that we will write to you with the outcome of this review”.

29 Sept 2017

“once we have finalised the review of your claim we will be in touch ….”

18 Oct 2017

“once we have finalised the review of your claim we will be in touch …”

10 Nov 2017

Complainant supplies Respondent with medical report and copy prescriptions from Dr R

27 Nov 2017

“As the next stage of our review …”

4 July 2018

“It would be helpful if you would provide us with an update …”

17 Nov 2018

Complainant provides comprehensive update

27 Nov 2018

“We will review this shortly”.

14 Feb 2019

Complainant provides medical report of Dr D.

28 Aug 2019

WRC: Respondent provide letter from XXX Insurance Company seeking update from Dr D.   Respondent confirm that review remains open pending receipt of new report of Dr D. Respondent confirm that upon receipt of such updated report they reserve the right to require further information and to have the Complainant assessed by “any medical professional of their choosing”.

Harassment and discrimination

The Respondent’s actions have had a devastating effect on my health.   A black cloud has hung over me for 3 years. The Respondent’s conduct constitutes discrimination and harassment on the disability ground. I was treated the way I was treated simply because I have ME Disease. The Respondent has treated me differently quite simply because they are unwilling to acknowledge that I am unfit to carry out my Normal Occupation, by reason of ME Disease.

In his report of 27th April 2017 Dr W W writes:

“Nonetheless spontaneous recovery does occur with the right therapeutic approach. This emphasises the need to minimise stress, both physical and psychological.   She therefore needs to organise a stress reducing lifestyle in which she keeps to a modest daily agenda, with frequent rest periods, pacing herself carefully, preferably in conjunction with the regular practice of a meditation technique”.

It has been my experience that the therapeutic approach recommended by Dr W has had noticeable benefits. It is my submission that the conduct of the Respondent has severely impeded my recovery since 2016.

It is not apparent to the Respondent that an act of alleged discrimination occurred during the period of six months prior to the lodging of the Complainant’s claim, which was received by the WRC on 3rd October 2018. The Respondent therefore relies on section 21(4) of the Acts.

The following submissions are made without prejudice to the time limit point referred to above.

Based on her claim form the Complainant’s claim is twofold:

a) A claim of discrimination on the grounds of disability pursuant to section 3 of the Acts

and

b) A claim of harassment contrary to section 4(1) of the Acts.   (It is assumed that the Complainant intended to refer to section 11 of the Acts).

Both claims will now be addressed.

Claim of Discrimination

Section 3 provides that discrimination shall be taken to occur

“(a) Where a person is treated less favourable than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …”

The relevant ground in this case is disability. Section 3 (2) (g) defines the disability ground in the following terms:

“that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground)”.

The relevant operative provision is section 5 of the Acts. Section 5 (1) provides that:

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.

Section 5 cannot conceivably apply to this case. The Complainant’s application for Disability Benefit was accepted by the Respondent and she has been in receipt of Disability Benefit continuously since April 2014 save for a period of one month in 2017 when her Disability Benefit was temporarily suspended due to her refusal to attend a medical assessment (although this was subsequently reinstated and backdated).   She was clearly not denied access to a service within the meaning of Section 5 of the Acts.

The Respondent’s management of the Complainant’s Disability Benefit Claim and the decisions it makes from time to time to require the Complainant to undergo medical examination by medical professionals does not constitute discrimination on the ground of disability under the Acts and cannot conceivably do so.

The Complainant is clearly aggrieved in relation to the management and ongoing review of her Disability Benefit claim and the decisions taken by the Respondent to require her to attend for medical examinations.   Furthermore, she is aggrieved with the contents, conclusions and diagnoses of medical professionals who have examined her on behalf of the Respondent and in some cases has made allegations regarding medical professionals with whom she is clearly unhappy. Whereas the Respondent contends that the Complainant has no basis for being so aggrieved, a claim under the Equal Status Acts is the wrong forum to ventilate her grievances.

If necessary, the Respondent will also rely on section 5(2)(d) which provides that section 5 does not apply in respect of “differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk …. Where the treatment –

a) is effected by reference to

         I.            other relevant underwriting or commercial factors

       II.            is reasonable having regard to the data or other relevant factors”.

Section 38A(i) provides as follows:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary”.

Essentially, the legal burden of proof is on the Complainant in the first instance to establish a prima facie case of discrimination on the ground of disability. It is only if she establishes this prima facie claim that the legal burden of proof shifts to the Respondent.

The Complainant has failed to make a prima facie case of discrimination.   In Dr Teresa Mitchell v The Southern Health Board [2001] ELR 2001 the Equality Tribunal considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out. It stated that the claimant must:

“establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.   This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.   It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The Labour Court held that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If so, the respondent must prove that she was not discriminated against. If the complainant does not discharge the evidential burden, the claim cannot succeed.   The Respondent submits that the Complainant cannot discharge the burden of proof necessary to succeed in her claim as against the Respondent. No facts have been adduced from which it can be assumed that the Respondent discriminated or made any attempt to discriminate against the Complainant.

It is clear from the background facts of this claim that there has been no discrimination against the Complainant on the ground of disability or on any other ground or in any other way. These acts cannot conceivably constitute acts of discrimination on the ground of disability or otherwise. The Complainant has clearly failed to discharge the burden of proof.

Without prejudice to the foregoing, the Respondent relies on section 22(1) of the Acts which provides as follows:

“The Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith, is frivolous, vexatious or misconceived or relates to a trivial matter”.

The complaint which underlies this claim before the Adjudication Officer is frivolous and/or vexatious and/or misconceived. Essentially, the issue relates to a grievance pertaining to the management and review of a claim for income protection. It is not a matter of discrimination.

Claim of Harassment

Section 11 of the Acts defines harassment in the following terms:

(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim –

a) Avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person ….

Section 11 (5)(a)(i) states that “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds”.

The Complainant has not been harassed (or intimidated) in way by the Respondent. Furthermore, her claim that she has been harassed within the meaning of section 11 (presumably on the ground of her disability) is misconceived.

Without prejudice to the foregoing, the Respondent relies on section 22(1) of the Acts which provides as follows:

“The Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith, is frivolous, vexatious or misconceived or relates to a trivial matter”.

The complaint which underlies this claim before the Adjudication Officer is frivolous and/or vexatious and/or misconceived. Essentially, the issue relates to a grievance pertaining to the management and review of a claim for income protection. It is not a matter of discrimination.

The Respondent reserves the right to made further written and/or oral submissions in relation to this claim.

SUBMISSION TWO RESPONDENT (received by Workplace Relations Commission on 20th January 2020)

Preliminary Point

The Complainant has asserted that her delay in sending written submissions to the Workplace Relations Commission was due to the Respondent’s denial of access to the Complainant of its written submissions. This assertion is completely without foundation, as is evident from the timeline outlined in the following two paragraphs.

The Respondent’s written submissions were provided to the Complainant and her Counsel at the hearing on 28th August 2019. At the end of the hearing on 28th August 2019 the Complainant’s Counsel requested an opportunity to lodge written submissions with the WRC.   The Adjudication Officer granted this request and directed that she do so within three weeks of the hearing ie by 18th September 2019. The Adjudication Officer also directed that the Respondent would be at liberty to send in a responding submission within two weeks of 18th September 2019, ie by 2nd October 2019. On 6th December 2019, more than 11 weeks after the latest date on which a responding submission was due to be provided to the WRC, the Complainant submitted a submission to the Workplace Relations Commission.

On 23rd October 2019 the Respondent’s Solicitors wrote to the Adjudication Officer requesting that he issue his Decision in circumstances where no written submissions had been received from the Complainant or her Counsel.   (As stated above, they were due to be submitted by 18th September 2019). On 19th November 2019 (ie over two months after the date on which the Complainant was due to lodge her written submissions with the WRC), the Complainant wrote to the Respondent’s Solicitors stating that her Counsel had mislaid the Respondent’s written submissions and requesting a copy of same.   On 20th November 2019 the Respondent’s Solicitors responded to the Complainant attaching a copy of its letter to the Adjudication Officer of 23rd October 2019, the contents of which are self-explanatory.  

Response to Complainant’s Submissions

The Complainant’s written submissions are substantially the same as the extensive oral submissions presented by the Complainant and her Counsel at the hearing on 28th August 2019. The Respondent stands over and repeats the oral and written submissions presented by the Respondent’s Solicitors at the hearing.   Fundamentally, the Complainant’s claim is entirely misconceived in circumstances where she continues to receive the benefit payable under her income protection policy. There has been no discrimination whatsoever against the Complainant on the ground or disability or otherwise nor has she been harassed by the Respondent contrary to the Acts or at all.

At page 6 of the Complainant’s submission she describes the review of her case by the Respondent as “never ending”. The nature of the income protection plan means that, for as long as she receives a benefit under the plan, it will be subject to ongoing review by the Respondent. This is clear from the policy conditions to which the Complainant is subject. All cases handled by the Respondent remain subject to active management and ongoing review. There is no defined review period, for any policy or policyholder. For as long as the Complainant continues to receive the benefit, the Respondent reserves the right to review her case. This applies to all policy holders. This is neither discrimination nor harassment, whether defined by the Acts or otherwise.

It is evident from the extensive correspondence between the Complainant and the Respondent in relation to her income protection claim (contained in the booklet attached to the Respondent’s submissions presented at the hearing) that the Respondent has had several challenges in relation to its review of the Complainant’s income protection claim. This includes but is not limited to the Complainant’s objection to attending certain medical professionals nominated by the Respondent.   Additionally, the review of the Complainant’s case has been impacted somewhat by the fact that it has been dealing with her ongoing claim under the Equal Status Acts since 8th August 2018 when she submitted a Form ES.1 as a precursor to lodging her claim with the WRC on 3rd October 2018.

On 14th February 2019 the Complainant wrote to the Respondent attaching a medical report dated 13th November 2018. On 22nd August 2019 the Respondent wrote to the Complainant seeking a brief update on whether the Complainant had started the treatment recommended by the Doctor.   The Complainant has not replied to this letter. If the Complainant provides a satisfactory response to this request it may be that the Respondent will not require any additional information from the Complainant for the time being. However, the Respondent will, of course, continue to periodically review the Complainant’s case, as it is entitled to do.

I have read through the post hearing submissions from both the Complainant and Respondent and now comment as follows:

Much of the content in the Complainant’s submission relates to the management and ongoing review of her Disability Benefit Claim and the decisions taken by the Respondent that require her attendance for medical examination and the outcomes/ reports coming from these examinations. The Complainant is aggrieved with the content, conclusions and diagnoses of medical professionals who have conducted these examinations on behalf of the Respondent and in some cases has made allegations regarding medical professionals with whom she is clearly unhappy with.

The Respondent representative contends that the Complainant has no basis for being so aggrieved and feels that the Equal Status Act is the wrong forum to ventilate her grievances. I would certainly agree in relation to comments made in relation to the work of medical professionals. If the Complainant has any complaints relating to the work of medical professionals there are other forums more appropriate than the Workplace Relations Commission to air these complaints.

Contained within the Policy Conditions document attached to the Complainant’s policy, clause 20 contains the following:

The liability of (Respondent named) will at all times be subject to production by the Insured of such reasonable information and evidence satisfactory to (Respondent named) as (Respondent named) at its absolute discretion may require. This will include, as often as (Respondent named) may require:

·       the attendance of the insured at any medical doctor, consultant, occupational therapist or other relevant professional person nominated by (Respondent named).

The Respondent contends that the Complainant has failed to make a prima facie case of discrimination and has cited the case of Dr Teresa Mitchell v. The Southern Health Board [2001] ELR 2001 in which the Equality Tribunal considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out. It stated that the claimant must:

“establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.   This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.   It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The Complainant in the instant case has not established any facts that would let me presume that equal treatment has not been applied in her case. In exercising the conditions contained within the policy document they are not discriminating against the Complainant.

The Complainant contends that she has been harassed by the Respondent. In reply the Respondent

Denies that any harassment has taken place and points to section 11 of the Acts:

(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim –

a) Avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person ….

The Complainant has paid a premium for a service – the Respondent has provided the service in accordance with the policy document. The Respondent has acted within the rules / conditions of the policy. There has been no discrimination or harassment. The Complainant has not been harassed or discriminated against by the Respondent.

The Complainant has paid a premium for a service – the Respondent has provided the service in accordance with the policy document. The Respondent has acted within the rules / conditions of the policy. There has been no discrimination or harassment. The Complainant has not been harassed or discriminated against by the Respondent.

Equal Status