Complainant

Respondent

Anonymised Parties

A Business Support Administrator

A Telecoms and IT Support Company.

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-00032753-001

05/12/2019

The issue in contention concerns an allegation that the Complainant was discriminated against by the Respondent Employer on the grounds of Disability in the Provision of Training and Harassment.

The Complainant amplified her written Statement of Complaint by an Oral submission. The Employment commenced on the 17th October 2019 and ended on the 1st November 2019.

The Respondent maliciously got hold of her Mental Health records. The Complainant felt Discriminated against, as a result, by the Respondent staff. She was denied proper training and the staff were rude to her. She was not included in lunch groups and was generally excluded from all social interactions. She was harassed by staff. It came to such a stage that she felt that she had no option but to leave.

The Respondent Legal Advisor pointed out that the first requirement in a Disability Discrimination case is the need to establish that the Complainant had a disability. The Complainant made no mention of any disability either before, during or after her brief employment. She was treated exactly the same as all other new employees and no factual substance exists at all to support her claim.

The Respondent employer emphatically denied that they had ever, under any guise at all, accessed the Complainant’s medical records. It was not their policy to have Pre-Employment Medicals and in addition were well aware of the need to maintain absolute confidentiality where Personal /Employee data was concerned.

Witness evidence was provided by staff members who had interacted with the Complainant. These included HR and Training executives and her immediate work colleague/Team leader. The work colleague/Team leader, Ms Xh had sat close by in an open plan office environment. She had always been helpful and friendly towards a new colleague.

The Complainant left on the 1st November 2019 and when contacted later by Ms. Xh for an update she had stated that “The job was just not going to work out”. Further standard correspondence followed from the HR Department. It was not replied to save in an e mail of the 19th November where the Complainant confirmed that she was no longer working for the Respondent and requesting payment of the days worked. At the date of the Hearing the Respondent pointed out that they had been unable to pay the Complainant as she had not provided the necessary Bank or Tax details. The Complainant maintained that this was due to a lack of trust in the confidentiality of the Respondent.

Legal precedents in the area of the Burden of Proof and the need to have a prima facie case were cited by the Respondent.

The Respondent in final summary completely denied all the allegations which they felt lacked any evidential basis.

3:1       The Legal Position – the Burden of Proof in a Disability Discrimination case.

In general summary it is necessary in a Disability Discrimination case to firstly establish the existence of a Disability and then to establish facts or inferences that sustain the pursuit of a case. This is commonly called establishing a prima facie case. The usual reference here is to the Valpeters v Melbury Developments [2001] ELR 64 case and or the Mitchell and Southern Health Board v Mitchell, [2001] ELR 201. I quote from the Valpeters case below.

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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.”

Taking these Legal points into regard all cases have to be seen in their own context and I will now consider the evidence presented.

3:2     The evidence presented.

Taking the first point of a required Disability the Respondent pointed out that the Complainant had only been in their employment for a very brief period. She had made no mention of any Medical or Psychiatric history or difficulties. In their interactions with her everything had seemed perfectly normal. Credible witness evidence supported this. Even after leaving on the 1st November no issue of a Disability Nature had been raised or mentioned by the Complainant.

The Complainant had been inducted into the Company and had to have been aware of the Grievance and Employee Welfare provisions that could have been used to raise a Disability issue. She had not done so.

Retrospectively implying a Disability, that had no medical evidence in support either at the time of the employment or even at the date of the oral Hearing is not the basis on which to advance a case under the Employment Equality Act,1998.

The allegations of the malicious and discriminatory use of the Complainant’s Medical and or Psychiatric Medical records was an assumption that I could find no evidence to support.

The Complainants’ Oral evidence, while given in good faith was very imprecise and lacked any details other than vague assumptions and speculations.

Detailed cross examination or questioning of the Complainant was not undertaken either by the Respondent Legal Advisor or by the Adjudication Officer. It was felt on the day that it would not be generally helpful or in the best interests of the welfare of the Witness.

3:3         Conclusions

As set out in the case law and Legal precedents quoted a case cannot be based on Assumptions and an absence of any required proofs.

Accordingly, I deem that this case fails at the basic prima facie stage.

As a result, I have to find that Discrimination on the Disability or Harassment grounds as alleged did not occur.