Complainant

Respondent

Anonymised Parties

Claimant

 Service Provider

Representatives

Paul Hardy SIPTU

Manager

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-00026503-001

25/02/2019

The complainant alleges that she was discriminated against on the ground of disability and treated less favourably than employees who hadn’t that disability. Arising from her alleged disability of work-related stress, she was excluded from working on Saturdays. In turn this less favourable treatment deprived her of the opportunity of earning additional time off from work. Her employer denies that any discrimination has taken place, that it has not treated the complainant less favourably than other employees by virtue of an alleged disability. The complainant claims that she has not been allowed to work Saturday since January 2018.

The complainant cites from DEC-E2003-052 Mr O v A Named Company as authority for the fact that work-related stress is a condition covered by the definition of a disability at Section 2 of the 1998 Act. As the complainant was treated less favourably on the ground of her self-referral to Occupational Health and her diagnosis of work-related stress, in that she was deprived of the opportunity to earn additional days of leave. She argues that a prima facie case exists to show she has been discriminated against. Section 16(1) (b) of the Equality Acts provides an employer with a complete defence, if the worker is not fully competent and available to undertake and is fully capable of undertaking, the duties attached to the position. As the complainant was deemed capable to work Monday to Friday, it must follow that she was capable to work Saturday. No such defence has been provided by the employer. On these facts the complainant was discriminated against having regard to her disability by being treated less favourably to those who did not have her condition and who were scheduled to work on Saturday. Even if the complainant did not have a disability, statements by management about the potential damaging effects of Saturday work upon her constitute an imputation of disability.

The complainant submitted a medical record from her GP to state that on 2 separate occasions in 2018, once in February and once in March 2018 she was absent due to work related stress and he states:

“Following those periods, she was well enough to return to her work as normal, and I can confirm that at no point did I suggest she should work restricted hours”.

The complainant was treated the same as any other employee who self-refers to Occupational Health where it is required that Occupational Health certify such an employee to be fit to work on Saturday. Concern regarding an employee’s welfare regarding working an additional day over and above a normal 39-hour week in the context of a referral to Occupational Health cannot at face value demonstrate an imputation of a disability.

Saturday is classed an additional working day for staff who work a 39-hour week Monday to Friday. Staff are asked during the week if they are available for work on Saturday. Staff never work 2 Saturdays in a row. It is standard practice in the work area that when any staff member is referred to or refers themselves to Occupational Health; they are not requested to work on Saturday until Occupational Health provide a report that they are fit to work the extra hours.

The complainant referred herself to Occupational Health due to work related stress on the 28th March 2018. Due to Maintenance issues Saturday work was limited until March 2018.

Due to health issues the complainant only carried out a specific duty in contrast to a range of duties that normally would be required to be completed. As result there would be inadequate work for the complainant on a Saturday.

In early 2019 management advised the complainant that an Occupational Health report was required for her to be scheduled for Saturday work.

The complainant advised a manual handling trainer that she also had an issue with her knee for which she was receiving treatment.

In addition to these physical health issues that restricted the complainant to a specific duty in contrast to the wide range of work generally suitable for a fully fit operative, the complainant referred herself to Occupational Health on the 28th March 2018 due to work related stress. Based on this referral management requested the complainant to provide a health report from Occupational Health that she was fit to work on Saturdays (which was policy for any employee who referred for work related stress), but this was never supplied. The complainant stated she would not provide the report as it was a sensitive matter.

Following on from the complainant’s self-referral to Occupational Health for work related stress, the complainant submitted a medical certificate from her GP on the 11th April 2018 stating that she was suffering from work related stress. As for all employees, who suffer from work related stress, the complainant was requested to attend Occupational Health for review. After the complainant returned to work she was asked to attend Occupational Health. The complainant refused and following mediation she subsequently agreed to attend Occupational Health for examination and to provide a report about her suitability to return to normal duties to include Saturday work. On the 5th of September 2019 the complainant attended Occupational Health and on receipt of this report, which stated that the complainant was fit to resume full duties, the complainant was reinstated to the Saturday roster beginning Saturday the 21st September 2019.

On these facts the complainant was not discriminated against and was treated fairly and the same as any other employee in the work area. The primary facts do not support the claimant’s contention that she was discriminated on the ground of a disability contrary to the Equality Acts.

Section 2 of the Act defines disability as:

“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;

The definition is arguably broad in scope and application. The complainant contends that she was suffering from work related stress and relies on the case Mr. O v a Named Company DEC-E2003-052 as an Irish authority for the fact that work-related stress is a disability.

The Burden of Proof that the complainant must meet is stated at:

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant 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.

In Mr. O v a Named Company the complainant was attending a Psychiatrist and was also in St. John of Gods for care for over 3 months relating to his medical condition.

In this case the medical evidence submitted from the complainant’s GP dated the 6th March 2019 is as follows:

“I can confirm that (complainant) was off work due to work related stress on 2 separate occasions in 2018, once in February and once in March. Following those periods, she was well enough to return to her work as normal, and I can confirm that at no point did I suggest she should work restricted hours.”

I distinguish Mr O v A Named Company on the facts of this case in that in Mr O; there was compelling evidence of a psychiatric condition/disability, the complainant was being treated by a Psychiatrist and had been hospitalised for 3 months suffering from depression which is classed as a disability. In other words, evidence of a psychiatric condition/disability was made out to ground the claim in the first instance.

The medical evidence at the hearing is not sufficient to establish a prima facie case that the complainant has a disability.The medical evidence in total consists of 2 sentences. It confirms that the complainant was off work due to work related stress on 2 separate occasions in 2018. Other than stating that the complainant was well enough to return to work as normal, there was no other clinical evidence provided at the hearing by a doctor/qualified professional or medical/psychological report to show that the complainant has or had a disability.

No sufficient medical evidence has been presented at the hearing to show that the complainant had been diagnosed with an underlying psychiatric or other medical condition that on the evidence should be classed as a disability. The primary facts do not show that the Employer imputed any disability to the complainant; the facts are they requested the complainant to attend the Occupational Health section and she refused to attend until quite late in the day. Once she did and a report was issued confirming that she was fit to work Saturday she was so rostered.

The complainant carries the burden of proof to establish a prima facie case that she has or had a disability, or the employer imputed a disability to her and treated her less favourably to relevant comparators; to ground her claim under the Act- and she has failed to do so.

The complainant states that she has been treated less favourably by being excluded from the roster to work on Saturday. However, she must make a prima facie case, based on the primary facts that:

1. She has a disability or an imputed disability
2. Based on the disability she was treated less favourably
3. To comparators who had no disability or a different disability.

The complainant has not presented credible facts to show she has a disability or that one was imputed on her by her employer. The facts do not show she was treated differently to any other employee whether they had any disability or none. The complainant has failed to establish a prima facie case to ground her claim that in turn would establish the presumption of discrimination and shift the burden onto the employer to rebut the appearance of discrimination.

It is also relevant that all employees who refer themselves or are referred to the Occupational Health section are required to provide a report from the Occupational Health section that they are fit to return to full duties. Once the complainant attended the Occupational Health section and a report issued that she was fit to resume her full range of duties; she was scheduled to work on a Saturday.

The complainant has provided no facts that show she has been treated differently to anybody else with or without a disability once they are referred or self-refer to the Occupational Health section regarding being scheduled for Saturday work. A report must first issue from Occupational Health to resume Saturday work. As the complainant refused to attend Occupational Health, on balance, it was her own failure or refusal to attend Occupational Health, which was the cause of her not being scheduled for Saturday work as no Prima Facie case shows otherwise.

On the facts of this case the claimant has not made out a Prima Facie case to ground her claim and on that basis her case is not well founded and fails.

On the facts of this case the claimant has failed to make out a prima facie case of discrimination based on a disability or imputed disability; the burden of proof required to establish a presumption of discrimination on the ground of disability has not been met by the complainant. As a prima facie case has not been made by the complainant to establish the presumption of discrimination on the ground of disability, I determine that the complaint is not well founded and fails.

Discrimination–Work-related Stress–Disability