Complainant

Respondent

Anonymised Parties

A Security System Installer

A Security Company

Representatives

Not represented

Fiona Egan, Peninsula

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-00039432-001

30/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039432-002

Withdrawn

30/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039432-003

30/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00039432-005

30/08/2020

The respondent installs electronic security systems and the complainant commenced employment as an installation engineer on January 31st 2019.  He reported to the operations manager and his job involved the installation of cabling.  He said that he also did other work such as installing and mounting card readers and cameras, fitting locks and motion sensors and some panel work.  The respondent’s case is that the vast portion of his work involved cabling.  The complainant’s hourly rate of pay was €10.50 and he worked 39 hours a week.

Before the onset of the Covid 19 pandemic in March 2020, the company employed 11 people; however, by the date of this hearing in April 2021, there were just four employees remaining.  It is the respondent’s case that the complainant’s employment was terminated on September 2nd 2020 due to redundancy.  The complainant appealed against the decision to dismiss him, but on November 2nd 2020, that decision was upheld.  The complainant disputed the exact date of the termination of his employment and he said he thought that he was employed until after the appeal meeting.  I am satisfied however, that his employment ended on September 2nd 2020, when he was formally notified of his redundancy.  He said that in December 2020, he received two weeks’ pay in lieu of notice.

These complaints and this dispute were submitted to the WRC on August 30th 2020, just two days before the respondent confirmed to the complainant that he would be made redundant.  On the e-complaint form, he claims that he was discriminated against on the grounds of a disability and that he did not receive a statement of his terms and conditions of employment.  Under the Industrial Relations Act, he submitted a grievance concerning an allegation of bullying and harassment.

Chronology of Events from January 2020

On Monday and Tuesday January 20th and 21st, 2020, the complainant was unable to come to work because his mother was in hospital and his father needed someone with him at home.  On Thursday, January 30th, the complainant sent a text message to say that he couldn’t come to work because his back was “in bits this morning.”  On Tuesday, February 4th, he was late and he was absent on Thursday 6th and Friday 7th of February.  On Monday, February 10th, he wasn’t able to come to work because his mother had a fall.  On February 17th, he sent his manager a text message saying “I won’t be in this morning.  Very sorry.”  On receipt of this text message, the complainant’s manager replied, “Unfortunately this is not going to work (Complainants name).  I think it’s time for you to find a different job.”  The complainant was absent for one week.  The medical certificate that he submitted in evidence has no information regarding the reason for his absence. 

On February 26th and March 12th 2020, the complainant attended informal meetings to investigate complaints about his cabling work.  He was absent on sick leave from March 18th until April 3rd 2020.  He sent his manager an email in the afternoon of March 18th in which he said that he was suffering from work-related stress and that he wouldn’t be able to come to work.  Due to the impact on the business because of Covid 19, he was placed on temporary lay-off on April 7th 2020.

The complainant was not called back to work and on July 16th 2020, he attended a meeting with the managing director, “MD,” who informed him that his job was at risk of redundancy.  He attended further meetings on July 21st, August 4th and September 1st.  On September 2nd, he was given two weeks’ notice in writing that his job would be made redundant.  The jobs of the two other employees engaged in cabling work were also made redundant. 

The complainant appealed against the decision to terminate his employment and an appeal meeting took place on October 6th.  His appeal was heard by a consultant from Graphite HRM who concluded that a genuine redundancy existed due to the cessation of cabling works.  This was confirmed to the complainant on November 2nd 2020. 

Discrimination on the Disability Ground

It is the complainant’s case that certain incidents that occurred between February 2020 up to the date of the confirmation of his dismissal on November 2nd 2020 amount to discrimination on the ground that he suffered from work-related stress. 

In Book 1, which was submitted to the WRC on April 13th 2021, the complainant said, “…I was out of work with work-related stress on a number of occasions.”  He said that he brought this to the attention of his line manager and the MD “verbally on a number of occasions and formally in writing.”  The formal written notice was in an email which he sent to his line manager on March 18th 2020.  This was in response to an email from the manager that he sent to a number of employees, with a photo attached of a badly-done job on a door.  The complainant’s email is “SS Exhibit 1” in Book 2 and reads as follows:

“Hi Derek, sorry for not responding earlier, there has been something wrong with my emails and I didn’t receive the email about the door.  I worked on this.

Just to let you know, I’ve been suffering from work-related stress and I won’t be able to come into work.  I will get a doctor’s cert and send in as soon as possible.”

A copy of the medical cert is included as “Exhibit 1” in Book 1.  The cert is dated March 19th 2020 and is valid until April 3rd and in it, the complainant’s doctor stated that he was suffering from “a newly diagnosed medical condition.”         

The complainant acknowledges that his medical certificates do not expressly state that he was suffering from work-related stress.  He referred to the case at the Equality Tribunal of a Cleaning Operative v a Contract Cleaning company, DEC-E2010-089.  Here, the Equality Officer noted that the respondent did not ask the complainant about her health, nor did they request further certification.  

In Book 2, without prejudice to his belief that his work-related stress is a disability, the complainant submitted that a disability was imputed to him and that he was dismissed on the basis of an imputed disability.  In support of this argument, he referred to the following precedents:

A Care Attendant v the HSE, DEC-E2006-014.  Here, the equality officer concluded that a disability was imputed to the claimant, who was overweight.

An Employee v a Retailer, DEC-E2011-229:  The complainant had been absent due to a stress-related illness.  He was examined by the company’s doctor, but heard nothing and he eventually resigned.  The equality officer found that the employer imputed a disability to the complainant as it considered that he was not fit to return to work due to stress.

It is the complainant’s case that, once the company discovered that he needed to take prolonged periods of leave due to work-related stress, it imputed a disability to him and discriminated against him. 

The complainant claims that he provided evidence that he suffered from work-related stress and that his employer made no effort to make any further enquires.  He cited the case of a Waiter v a Hotel, ADJ-00014091 in support of his position in this regard. 

Examples of Discrimination

In the documents he submitted to the WRC, the complainant lists several examples of incidents that he alleges occurred between February and September 2020 and which he claims support his argument that he suffered from discrimination.  He submitted very detailed notes of each incident in Book 1 with a useful summary in Book 2.

Evidence of the Complainant Regarding his Disability

In his evidence, the complainant said that he was selected for redundancy because the company did not want to accommodate his disability.  He said that he was absent from the 17th until the 21st of February 2020 because of work-related stress and that he told his manager, verbally and in writing, that he suffered from work-related stress.  I referred earlier to the medical certificate which the complainant submitted in Book 2, which states,

“This is to certify in my opinion that the above named patient is / was suffering from ____________                                 and is unable to attend work from 17/02/2020 to 21/02/2020.”

In his evidence, the complainant also referred to the second medical certificate which he submitted in respect of his absence from March 19th until April 3rd which states that he was suffering from “a newly diagnosed medical condition.” 

Cross-examination of the Complainant by Ms Egan

When he was asked by Ms Egan what disability he suffered from, the complainant said that he suffers from high levels of anxiety.  He said that he told his manager about this in February 2020, when he returned from a few days on sick leave.  Ms Egan referred to the medical cert which is blank and the complainant said, “it wasn’t filled in by the GP.”

The complainant agreed with Ms Egan that he had taken time off in January because his father had been unwell.  He said however, that the reason he went out sick on February 17th 2020 was because of workplace stress.

Ms Egan referred to a text message from the complainant on Tuesday, January 21st, in which he told his manager that he wouldn’t be in that evening because mother was in hospital and his father needed to have someone in the house with him.  The complainant said that this absence is unrelated to his claim of discrimination.

Ms Egan referred to the email sent by the complainant on March 18th 2020 in which he told his manager that he was suffering from work-related stress.  The complainant said that his manager and the MD “knew in January.”  When this was challenged by Ms Egan, he said that, following his absence between February 17th and 21st, he spoke to his manager.  He said that he told him that he had been out sick because of his parents, but he said that he also told him that he was absent due to work-related stress.   He said then that the conversation about work-related stress didn’t come up until February.  He said, “I told Derek when I came back to work.”

My Questions to the Complainant

In response to questions from me regarding his disability, the complainant said that he didn’t tell anyone that he was suffering from anxiety.  When I asked him what it was about his job that was stressful, he said that he brought up the issue of bullying with his manager and the MD.  He said he told them that another employee was bullying him. 

Another stressor was the fact that he was sent to do panel work on his own.  He said that he found the working environment hostile.   On February 17th 2020, his manager said it was time for him to find a new job.  He said that people were being dismissed and his was worried about job security.

The complainant said that when he returned to work on February 22nd after being out sick, he had a one to one meeting with his manager.  He said that he apologised for not being in work and he told him that he was suffering from stress. 

Discrimination on the Disability Ground

It is the respondent’s case that, on the basic facts of the case, the complainant has not established that he was discriminated against.  Ms Egan referred to the well-established practice of the former Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been or would have been treated on the basis of the discriminatory ground cited, which is the disability ground.  Ms Egan cited a number of legal precedents to support the respondent’s case that, with regard to the treatment of this former employee, discrimination did not occur.

Melbury Developments Limited v Arturs Valpeters, EDA 0917

Addressing the nature of the burden of proof, the Labour Court stated that,

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Ms Egan said that, while the complainant alleges that he was discriminated against on the grounds of his disability, the respondent is unaware of the disability and the complainant has failed to set out what the disability is to which he refers.

Ms Egan said that the respondent has been forced to speculate that the complainant’s case is that he suffered from workplace stress.  She referred to the case of a Retail Company v a Worker, ADE18/9 where the Labour Court considered the definition of disability at section 2 of the 1998 Act and the Court considered whether the complainant suffered from a disability.  The Court noted that,

“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 facts 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.”

Continuing its examination in this case, the Court went on to comment that,

“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.”

Dismissing the complainant’s appeal, the Court concluded as follows:

“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.”

Ms Egan said that the respondent in this case never received any documentation in relation to a disability suffered by the complainant and it follows therefore, that there can be no exploration regarding a possible requirement for reasonable accommodation.

Evidence of the Managing Director

The MD said that he and his colleague who is the operations manager started up the company and that up until the start of the Covid pandemic, they had 11 employees, but they now have four.  He said that they no longer carry out cabling work, and that most of their work is made up of small jobs and critical service calls.

The MD said that they used to contract out the cabling work, but that they decided that it would be more cost-effective to employ people directly to do this work and this is the work that the complainant was recruited to do in December 2019.  The complainant is the brother in law of one of their technicians, and that’s how he came to work for the company.  The MD said that two people are required on cabling jobs, and if the complainant wasn’t at work, there was very little for the other cabling installer to do. 

Cross-examining of the Managing Director by the Complainant

The complainant asked the MD if he was aware of any issues related to stress at work.  The MD replied that he only knew he was out sick and that the complainant told him that his mother was sick.  When the operations manager received the email on March 18th 2020 in which the complainant said that he was suffering from work-related stress, the MD said he had “no idea” what it was about.

Evidence of the Operations Manager

The operations manager was the complainant’s line manager.  In response to questions from Ms Egan, he said that the complainant had been absent a lot between December 2019 and January 2020.  He understood that his mother had had a stroke and that his father wasn’t able to look after her.  The line manager said that the complainant “did say he was stressed.”  He said that there was no mention of work-related stress until the email of March 18th 2020.

In his evidence, the line manager said he was baffled when he heard the complainant saying in his evidence that he was bullied.  He said that he never raised a concern about bullying. 

Ms Egan asked the line manager about the stress that could be involved for someone working on their own.  The manager said that on occasions, a technician would be sent to do a job on their own.  He described this as “a calculated decision” on his part, where the job involved low voltage panels and where there was no danger.  He said that when he sent the complainant to do jobs on his own, he would talk him through the process over the phone.  He said that the complainant was required to remove and replace one component and that, as he did it, he talked it through with him on the phone.  The manager said that he thinks that this is a positive experience for technicians, and that it helps them to learn the job.  He said that while cable-pulling requires two people, a service call is “a one man job.”

Ms Egan asked the manager when the complainant told him that he suffered from work-related stress.  The manager said that he was sent a photo of “a bad job” and he sent it to the employees that might have worked on it.  He said that they all replied except the complainant.  A couple of days later, on March 18th, the complainant sent him an email and said that he had problems accessing his emails.  He said that he had done the job.  He also said he was out sick with work-related stress.

Cross-examining of the Operations Manager by the Complainant

The complainant asked his former line manager why, on February 17th 2020, he suggested that he needed to find another job.  The manager said that this was the eighth time in a row that the complainant wasn’t at work.  When he didn’t come in, they had to send his colleague home, because he couldn’t do the cabling on his own.  The manager said that he understood that the complainant’s mother wasn’t well, but there were too many excuses and the client on whose site that he was working was about the cancel the contract.

When the complainant put it to his former manager that he tried to dismiss him with no process, the manager responded that he suggested that he might be better off getting another job.

The complainant asked, “why did you berate me on April 6th about not being in work?”  The complainant said that all the other employees were laid off.  The manager said that no one was laid off on that day and that he was asking the complainant a simple question, which the complainant “kept on avoiding.” 

The complainant asked his former manager why he didn’t make further enquiries on March 18th, when he told him he was suffering from work-related stress.  The manager said that the complainant didn’t come back to work.  The complainant asked him why he didn’t send him to be assessed by an occupational health consultant and the manager responded that the complainant declared himself fit on April 6th 2020.

The Legal Framework

The issue for consideration is discrimination on the disability ground, which is listed at section 6(2)(g) of the Employment Equality Act 1998 – 2015 (“the Act”) as one of the nine discriminatory grounds.  In Section 2 of the Act, 

“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 Burden of Proof

It is the complainant’s case that he was discriminated against because he suffered from work-related stress, which he claims is a disability.  The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he has been treated less favourably compared to a person who is not disabled.

The Primary Facts

The evidence presented by the complainant at the hearing of this complaint shows that, on March 18th 2020, he sent his manager an email in which he apologised for not replying to the manager’s email a couple of days earlier and in which he confirmed that he worked on a door that a client had complained about.  In the email, he said,

“Just to let you know, I’ve been suffering from work-related stress and won’t be able to come into work.”

The phrase, “just to let you know,” indicates to me that this was the first time that the complainant told his manager that he was suffering from work-related stress.  If he had previously told him, it’s more likely that he would have said, “as you know, I’ve been suffering from work-related stress...”  In his evidence, the complainant’s manager said that around the end of January, the complainant told him that he was stressed because of the responsibility of his parents who were both unwell.  I accept the evidence of the complainant’s manager that the email on March 18th 2020 was the first time that the complainant mentioned that he suffered from work-related stress.  He mentioned it again in an email to the MD on July 29th when he asked for an update regarding his request to attend a meeting remotely.

The complainant relies on this correspondence to show that he suffered from work-related stress.  From the perspective of his reliance on facts that show that he suffered from a disability, it is troubling that the complainant’s doctor did not specify why he was out of work from March 19th 2020 and why instead, he said that he was suffering from “a newly diagnosed medical condition.”  I found the complainant to be an intelligent and capable person and I think he understands what is required to show that he suffered from a disability.  I find it difficult to understand why, in preparation for the hearing of this complaint, he didn’t ask his doctor for a medical report setting out in simple terms, the nature of his disability, or, why he didn’t ask his doctor to attend the remote hearing for a few minutes to give evidence.  The complainant worked very hard on his submissions, producing three books of documents, one of which he submitted after the hearing.  Even then, he provided no medical evidence to support his contention that he has a disability.

In support of his case that it is not essential to produce medical evidence, the complainant referred to the decision of the equality officer in a Cleaning Operative v a Contract Cleaning company, DEC-E2010-089.  It is my view that the findings of the equality officer here do not support the complainant’s position, as she stated:

“I am satisfied from the medical evidence provided at the hearing that the complainant had stress related high blood pressure and had other health problems including pains in her right shoulder and for which she underwent a number of medical tests and a course of physiotherapy and she was also prescribed medication. I note that the complainant's supervisor stated in evidence that she was aware that the complainant had health problems and that once she received a medical certificate requesting a transfer to a day shift for health reasons she was obliged to accommodate her. She said that she was also aware that the complainant underwent an operation during 2007 and understood that her health problems related to that operation.”

The complainant submits that his manager should have made enquiries following his revelation on March 18th 2020 that he was suffering from work-related stress and he cites the decision of the adjudication officer in a Waiter v a Hotel, ADJ-00014091 in support of his position.  In that case, the waiter informed his employer that he was HIV positive and that, because he got tired easily, he needed a less demanding shift arrangement.  The manager refused to change the shift and the adjudicator said that she should have made a greater effort to enquire into the nature of the waiter’s illness and the specific shift changes that could have helped him.  In the case under consideration here, the complainant didn’t identify what it was that was causing stress and he didn’t ask for any changes or accommodation that might have helped him to attend work regularly.

In the context of the Corona virus pandemic emerging in the middle of March 2020, it is understandable that the respondent didn’t contact the complainant to ask him more about his statement that he was suffering from work-related stress.  It seems to me that the MD and the line manager were fully informed regarding the complainant’s responsibilities towards his parents and they would have been open to discussing a work-related problem if the opportunity had presented itself.  The complainant didn’t return to work after March 16th and it is obvious that the focus of the management was on managing their business in the uncertain early days of the pandemic.

The complainant compares his case to that of a care attendant in the decision of the equality officer in A Care Attendant v the HSE, DEC-E2006-014.  Here, the equality officer concluded that a disability was imputed to the claimant, who was overweight.  In the decision in an Employee v a Retailer, DEC-E2011-229, the complainant suffered from a stress-related illness and had been hospitalised.  The equality officer found that he did not suffer from a disability, but that his employer made no effort to allow him to come back to work, and so imputed that he suffered from an illness.  In this regard, the complainant alleges that he was discriminated against when his employer imputed that he had an illness.

I find that there is no basis in this argument.  It is clear to me that the respondent’s managers thought that the complainant was frequently absent because he had to take care of his parents and, on one occasion, he complained about a sore back.  There is no evidence that they believed that he had an illness of any other kind.  The failure of the line manager to respond to the complainant’s text message that he was suffering from work-related stress was simply because there was so much going on at that time and because he moved from being absent to being laid off.  If the Covid 19 pandemic  had not interrupted the company’s business, and if the complainant had returned to work, he would have had an opportunity to sit down with his manager to discuss any issues that he felt were causing him stress at work, in the same way as he had explained to his manager that his parents needed a lot of support.

Findings

In the legal precedents he submitted in support of his case that he suffered from a disability, the complainant produced no authority for his contention that work-related stress is a disability.  Aside from work-related stress, it is apparent that, in some instances, the legal authorities have concluded that stress is a disability, within the meaning of section 6(2)(g) of the Employment Equality Act.  The decision of the equality officer in An Employee v a Government Department, DEC-E2012-063 is a good example.  On the other hand, in the case referred to by Ms Egan, A Retail Company v A Worker, ADE18/9, the Labour Court determined that stress is not a disability.  These decisions turned on the medical evidence adduced by the complainants in each case. 

In the case of A Government Department v a Worker, EDA 094, the Government Department appealed against the decision of an equality officer to award the Worker a sum of €8,000 in compensation for discrimination.  The appeal was not successful; however, considering the evidence of the Worker’s general practitioner and her consultant psychiatrist and, summarising its task, the Court held that,

“…the only issue which the Court must decide is whether the condition from which the complainant suffered is a disability within the statutory meaning of that term.  That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability as contained at s.2 of the Act and the application of that definition to the facts as admitted or found by the Court.”

Later, in its determination on the same case, the Court addressed the challenge of determining whether certain psychiatric illnesses come within the definition of a disability:

“The Court must take the definition of disability as it finds it.  Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327).  Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.  That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005.  It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

It is clear therefore, that I must examine the complainant’s case that work-related stress is a disability “as liberally as possible consistent with fairness.”  To achieve this, I must accept the complainant’s contention in the first instance, and then I must look for medical evidence to back up his claim.  This was the precise finding of the Equality Officer in the case of A Worker v A Food Manufacturer DEC-E2010-187:

“However, no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant's GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates.”

The equality officer concluded that, in the absence of medical evidence, the complainant could not satisfy the probative burden threshold set out at section 85 of the Employment Equality Act and in its absence, a “prima facie” case of discrimination cannot be established.

In the decision in Mr A v A Charitable Institution DEC-E2011-049, the complainant submitted medical certificates stating that he was suffering from work-related stress.  This was not sufficient to prove that he had a disability, as the equality officer concluded:

“I am also not satisfied that the submission of a medical certificate indicating that an individual is suffering from ‘work-related stress’ in and of itself, comes within the meaning of section 2 of the Employment Equality Acts.”

Conclusion

The complainant in this case provided no medical evidence that he suffered from a disability.  Without this evidence, he cannot substantiate his claim.  In his submission in Book 2, as an alternative to a finding that he suffered from work-related stress, the complainant asks that I find that he was discriminated against because a disability was imputed to him. I reject this argument also, because no evidence was adduced by him and no evidence emerged at the hearing that indicated to me that his managers thought that he was ill.

I am not satisfied that the primary facts put forward by the complainant are adequate to raise an inference of discrimination and, for this reason, the burden of proving that discrimination did not occur does not shift to the respondent.

The complainant said that he never received a written statement of his terms and conditions of employment.  In response to the company’s case that he was provided with written statements in January 2019 and January 2020, he said that the company has provided no evidence that he was provided with the documents.   

The respondent’s submission notes that, when the complainant commenced working for them on January 31st 2019, he was issued with a fixed-term contract which was signed and dated by the respondent.  In January 2020, he was issued with a second contract which was given to the complainant by his line manager when he was working on a site in Dublin city centre.  Copies of these documents were submitted in the respondent’s book of documents at the hearing.  The statements of terms and conditions of employment were signed by the MD but not by the complainant and he did not return a signed copy to the company.  A copy of the employee handbook and other HR-related documents were sent to the complainant by email on February 28th 2020, in a format referred to as “the Bright HR app.”

Ms Egan referred to the decision of the Labour Court in the case of Petraitis v Philmic Limited, trading as Premier Linen Services [2016] 253 MCA as authority for the proposition that a claimant may be awarded no compensation, even where there is a finding of a breach of the Terms of Employment (Information) Act 1994.  She also cited the decision of the Labour Court in Irish Water v Hall, TED 161 as a precedent which she said is applicable to the complainant’s case.

At the hearing of this complaint, evidence was submitted on behalf of the respondent that, on January 31st 2019, the complainant was issued with a fixed-term contract of employment commencing on January 31st 2019 and ending on January 30th 2020.  The MD accepts that the complainant did not sign and return the contract after it was issued.  A copy of an indefinite contract of employment was also submitted, which the MD said was issued to the complainant in January 2020.  This contract was also signed by the MD, but was not signed or returned by the complainant.  The complainant’s line manager said that he recalls handing this contract to the complainant at a client’s premises.

Having considered the evidence of both sides, it is my view that the complainant was issued with both of these documents.  I have reached this conclusion for the following reasons:

1.              The respondent company is organised from a human resources perspective, having the retained advice of a HR consultancy company.  A revised employee handbook was issued to employees in February 2020.  The notes of the performance-review meetings in February and March followed a certain format and were confirmed in writing.  Emails were submitted in evidence of communications between a HR consultant and the MD.  It is unlikely that, with this level of support, the respondent would not have issued the complainant with a contract of employment.

2.              Copies of the contracts were submitted in evidence.

3.              From the date he commenced working with the respondent, until his employment was terminated, the complainant never looked for a contract of employment.

4.              In his cross-examining of the MD, the complainant asked, “why did I not get a new contract when I was moved to nights?”  This indicates to me that the complainant was already in possession of the initial contract that provided that his hours of work were from 8.00am to 4.30pm from Monday to Thursday, with a 3.30pm finish on Fridays.

I accept that there is a conflict in the evidence regarding whether the complainant received a statement of his terms and conditions of employment.  Based on the reasons set out above, I accept as more credible, the evidence of the respondent, that the complainant received such a statement on January 31st 2019 and again, when his permanent status was confirmed in January 2020.

As I have concluded that the complainant was issued with statements setting out his terms and conditions of employment, I decide that this complaint is not well-founded.

Under the Industrial Relations Act, the parties are referred to as “the employee” (or “the worker”) and “the employer” and I have therefore changed the designation of the parties under this heading.

The employee has a grievance concerning the failure of his employer to provide him with a policy outlining how bullying and harassment is to be managed.  In his evidence, he agreed with Ms Egan that he was issued with a revised copy of the company’s employee handbook on February 28th 2020 which contains a copy of the grievance procedure and the bullying and harassment procedures.  He said that he couldn’t download the document before then because he hadn’t got a mobile phone.

The employee said that when he raised concerns with the MD about an allegation that his line manager harassed him in text messages on April 6th 2020, when he asked him if he was fit to return to work, nothing was done about it.  When he was laid off, he informed the MD that he had been removed from the WhatsApp groups.  He said that the MD told him to take this up with his line manager.  He said that he found this humiliating.  He said that he was never given an explanation about why his access to the WhatsApp groups was removed and this issue was never resolved.

The employee said that the MD was aware of the behaviour of his line manager towards him, but he never attempted to deal with it.  He claims also that the MD discriminated against him in an email in which he suggested to the HR consultant that the employee was causing him stress and anxiety.  He also claims that discrimination has occurred since he submitted this grievance on August 30th 2020, as he has been dismissed.

In Book 2, the employee said that all the allegations that he made regarding discrimination “amount to a dispute” between him and his former employer.  He claims that it is well established that a claim of unfair dismissal may be taken under section 13 of the Industrial Relations Act.  He said the particular issue he would like investigated under this Act is his allegation that the company failed to implement its own Bullying and Harassment Policy and its Harassment Procedures.  He said that the following issues, which he also listed as complaints of discrimination, amount to incidents of bullying:

1.              In an email on February 17th 2020, his manager suggested to him that it was time to look for a different job.

2.              The employee’s job was ceased revenue.ie on April 1st 2020 when he was on sick leave.

3.              On April 8th 2020, he was removed from two work WhatsApp groups.

4.              His medical certificate of March 19th expired on April 3rd and he remained out of work on Monday April 6th.  This day was categorised as “unauthorised absence.”

5.              He described text messages from his manager regarding whether he was fit to return to work as “aggressive and intimidating.”

6.              When other employees were brought back to work from lay-off, he was not brought back and he remained laid off.

7.              He was made redundant on September 2nd 2020.

8.              The MD was reluctant to accommodate his request for virtual meetings when he was suffering from stress and anxiety.

9.              An email was sent to him in error in which the MD suggested to a human resources consultant that the complainant was placing him under undue stress.

10.          He was not provided with a company uniform or a phone.

11.          He claims that he did not receive adequate training for his job, in circumstances in which he claims that the company was aware of “gaps in my capabilities.”

The employee claims that the behaviour was repeated, inappropriate and that they occurred in his workplace and that his dignity at work was undermined.  He submitted that the company failed to follow its own procedures when he raised a concern about bullying.

The complainant alleges that he was harassed when he was removed from work WhatsApp groups and when he was sent what he described as “aggressive and intimidating text messages” from his manager on April 6th about whether he was fit to return to work. 

It is the employer’s case that this dispute is a duplication of the complaint made under the Employment Equality Act and that it has been addressed in full in the employer’s response to that matter. 

Ms Egan noted that the aim of the Industrial Relations Act is to consider “any dispute between employers and workers which is connected to the employment or non-employment, or the terms and conditions of or affecting the employment of any person.”  She said that the employee is no longer in the employment of the respondent and she asked that I make no recommendation on his complaint under the Industrial Relations Act.

I agree with Ms Egan’s assessment that this dispute under the Industrial Relations Act is a duplication of the allegations submitted under the Employment Equality Act.  The employee made this point himself when he said in Book 2, “all matters addressed above amount to a dispute between me and (my former employer).”  It seems to me that the employee may not have been entirely confident of the strength of his case that he suffered from a disability, and the submission of this dispute is an attempt to have his complaint litigated under an alternative heading.  

It has been well-established that an employee seeking to have an industrial relations dispute investigated by an adjudicator or by the Labour Court, must exhaust their employer’s procedures, so that the employer has an opportunity to resolve matters.  I am satisfied that the employee had a copy of the employee handbook and that, at any time, up to his dismissal, he could have asked for an investigation concerning his allegations of bullying and harassment.  As he did not use his employer’s procedures and, as he did not invoke the grievance procedure to have his grievances investigated, in accordance with the established practice, it is not for me to commence an investigation at this stage.

That said, the employee used his employer’s internal appeals procedure to argue against his dismissal and I am not prevented from examining that particular grievance.  From the evidence submitted by the employer at the hearing of this dispute, it is apparent to me that the employee’s job and the jobs of the two other installation technicians were made redundant because there was no cabling work to be done.  Out of 11 employees in March 2020, four remained in April 2021 and any technical work could be done by the four remaining employees.  It is my view that this was a genuine redundancy, and that the dismissal of the employee was not unfair.

For completeness, I wish to address the employee’s allegation that he was bullied and harassed by his manager and by the MD.  Having heard their evidence, I am satisfied that they did not engage in bullying or harassment of him.  I found them to be well-disposed towards him, having recruited him through another employee who was his brother in law.  I accept that the employee’s absences in January and February 2020 must have been very frustrating for the line manager, although the text message in which he suggested that it might be time for him to find a different job, wasn’t the most sensible advice to commit to writing.  No action was taken on foot of this, and the employee was absent again four weeks later.  I am satisfied that the employee’s absences were not the reason that his job was made redundant in September 2020.

During their evidence at the hearing of the complaints under the Employment Equality Act, the managers addressed each of the 11 allegations described in this section as incidents of bullying.  I am satisfied that every incident has a reasonable explanation, and that, in the manner in which he described them, the employee has contrived to convert something he disagreed with into something which it was not.  His manipulation of the facts in this way, as shown by his own admission that he “cropped” the sequence of text messages that he reproduced in Book 1, is disrespectful to me as the adjudicator and leads me to seriously question his credibility.

I recommend that the employer takes no action regarding this dispute.

Discrimination, disability, work-related stress, grievance