Complainant

Respondent

Parties

Desmond  Murphy

 Road Safety Operations Ireland, T/A, Go Safe. (Amended on consent at hearing)

Representatives

  Appeared In Person

Muireann McEnery , Employee Relations Executive

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 79 of the Employment Equality Act, 1998(amended at hearing)

CA-00035360-001

20/03/2020

This matter was heard by way of 2 Remote Hearings pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 20 March 2020, the Complainant, a former Monitoring Operator, and lay litigant submitted a claim of discrimination before the WRC.

He submitted that his disability had been ignored by his employer when he sought to blend work with a course aim at strengthening his wellbeing.

The Respondent, represented by IBEC rejected this contention and furnished a comprehensive written submission in support of that position.

At the conclusion of hearing, I sought a copy of the company equality policy which was promptly received and shared with the complainant for comment. The Complainant made responding remarks, which I shall return to.

I would like to commend both parties for a positive engagement on 7 February 2022, which allowed me to conclude the hearing respectfully for both parties.

The complainant worked as a Monitoring Operator from 20 May 2018 to 2 March 2020. this date was disputed by the Respondent. He detailed that he worked a 78-hour fortnight in return for €1094.52.

The complainant chose to present his own case. In summarising the narrative on the complaint form of 20 March 2020, he submitted that a recent weight gain had caused mental health issues for him. He was given an opportunity to join a weight loss programme, centred on early morning attendance in January 2020. This required a shift alteration and the complainant outlined that he was requested not to start the course until approval issued for this. The Complainant stated that he was aware this decision-making process could take time and commenced the course hopeful of a prompt and supportive decision. The course cost €1300 and was expected to last for 6 months.

The Complainant attended a series of meetings and was refused the shift change. He felt diminished and intimidated because of his mental health. He requested to visit the c company Doctor but was told that the company could not afford this.

The Complainant submitted that he gave notice to leave his employment under “total duress” regarding how he was treated in his mental health and in his weight. He took issue with a charge of “misgrossement “in respect of his late arrival to work He intended on organising a fundraiser for a family member through his association with the course and expressed a disappointment in his former employer.

At hearing, the complainant, outlined that he believed that he had been discriminated on grounds of disability, mental health, and obesity in relation to his application for time off to attend a self-improvement course.

The Complainant argued that the Respondent had not considered his mental health and did not recognise his disability. He felt compelled to resign his position as a result.

He sought an outcome of apology from his former employer for overlooking his disability.

Evidence of the Complainant by Affirmation

The Complainant outlined this his mental health had been affected by a high body weight which had since reduced significantly. He told the hearing that he had been subjected to snide remarks from co-workers about being non-union. He said that he was called names as a result. He said he became depressed and cried.

He said that he had applied for a course online called “Winter Warriors “It was scheduled to run 6 am to 7.30 am Monday to Friday. He was accepted on the course.

He acknowledged that his uncle was a resident in a Nursing Home for whom he wished to raise funds. He submitted that he had feared for his job and gave that as a reason as to why he had not disclosed the real reason for wanting to undertake the course.

He pointed to the email s exchanged at that time and reflected that he had loved his job but was forced to resign.

The Complainant freely admitted not informing the Respondent of his mental health condition or his obesity. He added that the Company “wouldn’t give or take “

He requested to change 13 shifts to 8am start and he viewed the Respondent response of refusal as unreasonable.

The Complainant had started the course by the time senior management had intervened.

He said that the course had been designed for a range of conditions, some of whom had refused to admit to themselves that they needed help.

He remembered that he had not been paid for the 4 morning shifts that he had missed. He said that he rang the controller on the morning in question and was told there was “no problem with his late start “

He was surprised to receive a letter aligning his behaviour to misconduct and was highly critical of the approach adopted by the Human Resource Manager. He told the Respondent he was not going to return and was paid notice.

The complainant struggled to identify a comparator and suggested hypothetically as “other staff “

He acknowledged there were union issues for him.

He also acknowledged that in undertaking the course at the centre of the case, it had changed his life for the better, but he believed that he had been discriminated in the process, which affected his wellbeing.

During cross examination, the complainant accepted that he had not led with a diagnosed condition and that he had no specific diagnosis from his GP. He explained that he had a history of weight problem and mental health but denied hiding it from his employee. He said that he had been afraid to disclose details of his mental health “I did not want to tell them” As he submitted that if they found out, he might have been fired. He qualified this by stating that he did not know of anyone who was fired as “he was not interested in others “

He re-affirmed that he had not provided the real reason for seeking to the undertake the course to his former employer. He did not have a history of absence or sick leave. He managed to attend work and his condition did not affect his work performance. He gave some detail of his volume of  intake of a sugar-based drink at work.

He acknowledged that the GP letter was dated 13 February 2020.

He was disappointed that his request to attend the Company Doctor was vetoed on cost.

He said that he had not wished to take annual leave to cover the course. The Respondent had not suggested that he could avail of annual leave.

He responded to the Respondent representative questions in a very robust manner when he affirmed that the Course had saved his life.

He dismissed a video in the workplace on Dignity at Work as “something stupid “

The Complainant offered clarifications that he had attended the Doctor as a pre-employment mechanism. He said that a facility to swap shifts had not been offered. He had not activated company grievance procedure in respect of the request to attend occupational health. He did not have a diagnosed depression. He did not have a sick leave record, nor was he limited in his work performance. He had a long cycle to work and changed into his uniform there.

He outlined that he was not chasing money in the case, he did not face any impediments in finding new work in December 2021, despite the scant and impersonalised reference, provided by the respondent. He wanted a headed letter which confirmed an apology from the respondent.

In conclusion, the Complainant reflected that the Doctors letter of February 13, 2020, should have been enough for the Respondent. He argued hat it should have prompted a “heaven and earth “approach to supporting him on the course. He contended that a diagnosis was not essential in the case.

He submitted that other alternatives “to no “should have been put forward for his consideration.

The Complainant submitted that he was concerned that something like this might happen to anyone else. He had since found new work doing full time deliveries, but he contended that he had had a crisis break point in the work setting and he did have personal problems at that time.

On 10 February, the complainant submitted comments on his review of the Equality Policy provided by the Respondent post hearing.

He said that he was not familiar with the Policy, as it was not made available to him. It had not been actioned when he had negative experiences at work i.e., bullying and name calling. He concluded by requesting that the Respondent look behind someone’s visible presentation and be mindful of “different types of mental health”

Ms Mc Enery, on behalf of the Respondent denied the allegations of discrimination and contended that the c complainant had not established a prima facie case of direct discrimination. The Respondent denied less favourable treatment than any other individual either with or without a different disability. The Respondent had not denied the complainant reasonable accommodation.

The Respondent Representative outlined that the Respondent operates the national speed monitoring system on Irish roads.

The Respondent outlined that on 26 January 2020, the Complainant had emailed an administrator seeking a shift change from 6 am to 3pm and 6 am to 5pm shifts changed to 9 am to 6pm and 9am to 8pm to accommodate his attendance at training for “a white-collar MMA mixed martial arts “charity event for 20 weeks. The application was lodged 1 day prior to commencement. The email was forwarded to the logistics Manager on 28 January.

The application was stand alone and did not mention mental or physical health benefits or reasonable accommodation.

The Respondent responded on 31 January 2020 and communicated that they were unable to commit to requested changes over a long period.

The Complainant sought to review this with the Operations Manager “surely Go Safe can accommodate me by approving the early roster shift starting time to allow me to compete my training so that I can compete and raise some much-needed money for Alzheimer’s Society.

The Operations Manager undertook to review the request, but qualified that there was a slim likelihood of approval. The Complainant was requested not to make arrangements until he reverted

. The Complainant then sought the shift changes to June 2020 on foot of a note from his doctor.

 On 14 February 2020, The Respondents subsequently offered the complainant a shift swop option, but not the shift change, the complainant became “aggressive and argumentative” and did not listen to the reasons provided.  

On 18 February 2020, the Respondents Human Resource Manager met with the complainant to discuss what occurred on 14 February. The Complainant spoke about the charity event, the negative impact of weight gain on his mental health. He was advised to raise a grievance.

The Complainant did not attend the morning shift next day and told the respondent that he had attended the course. A period of illness followed.

 A meeting was arranged for 25 February for the complainant and his representative, which was unsuccessful. The Complainant asked to be sent to the company doctor but did not explain his rationale for needing a referral. the Complainant indicated that he would hand in a termination notice.

He did not attend a separate scheduled disciplinary investigation meeting and sent his resignation to the General Manager which he subsequently re-affirmed

The complainant refused to attend the early rostered shift during his notice period. A further email of resignation followed on 26 February, during a period of sick leave.

The complainant deemed the investigation meeting pointless.

The Complainant did not return to the workplace. On March 10. 2020, the Complainant recorded that he had been happy with the respondent and would return “if the situation “changed.

The Respondent disputed the complainant’s reliance on a disability of either mental health or obesity as he had not raised this topic until he requests for a roster change to attend an MMA event was vetoed. the Complainant had not raised details of these conditions during his employment, and he had not recorded a limitation due to disability by means of medical certificates or absence in attendance. CJEU Kaltoft ruling C-354/13

The Doctors note did not reflect the presence of a disability and the Complainant had not submitted details of a Comparator for the purposes of the Act.

There was a very narrow time frame between his request for a shift change, followed by a period of absence to the complainant’s resignation within a continuum of 4 weeks.

The Respondent disputed denying the complainant reasonable accommodation under section 16 of the Act as the Complainant had not submitted medical evidence and submitted that his case should fall. A Health and Fitness club v A Worker endorsed in Nano Nagle v Marie Daly [2019] IESC  

At hearing, the Respondent submitted that the complainant had not tendered any evidence of a medical nature regarding a disability. The Complainant had approached the Course as a philanthropic venture unrelated to himself. The Doctors not said that the course would benefit him, but this was not the same as stating that he suffered a mental disability or was obese.

The Comparator failed to submit details of a comparator

The Complainant was not given time off to attend the course due to service exigencies explained to him. He took the time off himself.

He did not experience discrimination.

Evidence of Mr A, Affirmation. Area Manager

Mr A usually saw the complainant once or twice a week in the course of his work. He had no knowledge of a mental health condition or obesity. He was aware that he was cycling to work to lose weight.

He recalled hat Mr B had called him following a meeting with the complainant, who had been observed as being “very upset “He was advised to check in with him and see if he was ok to make his way home. He had not been cleared to undertake the training at that point.

During cross examination,

Mr A re-affirmed that he was not aware of the complainant’s disability. Mr A acknowledged that the complainant had returned to the depot for his personal belongings last year following his leaving and he had remarked that “you have the smile back on your face “

Evidence of Mr B, Operations Manager by affirmation

Mr B explained how the business operated in the context an agreed Key Performance Indicators (KPI) in the service Agreement. He said there was an exemption facility for court attendance and a shift swapping system was permitted.

The Respondent had tried to facilitate the complainant in attending the course over 10-day period of “over and back “He had tried to explain that there might be an opportunity if KPI were reached.

He had no knowledge of being asked about a Medical.  

He had no knowledge of a disability in the complainant’s presentation. He had not sought specific accommodation  

During cross examination, Mr B acknowledged that he had tried to move heaven and earth in the complainant’s case to which the complainant asked why that had not been explained sooner. Mr B replied that KPI is not always known in advance.

Mr B confirmed that the complainant had not been directed towards the grievance procedure. He had not managed his resignation. There were 80 -85 employees employed. He was aware that the complainant had access to the staff handbook.

Evidence of Ms C, Human Resource Manager

Ms C recalled that she had advised the complainant on 14 February that he could address matters through either the informal or formal avenue.

Ms C recalled that the Company had hosted a training video on dignity at Work in 2019.

She was not aware of a record of the complainant’s disability or a time off work record.

During cross examination, Ms C reflected that the complainant had stated that he was concerned about his mental health, but he had left the employment at that point.

The Respondent practice is to refer long term absence to Occupational Health. she confirmed that the complainant had requested access to occupational health, but he had handed in his resignation and that pathway had taken priority.

Ms C undertook to furnish the Equality Policy.

In conclusion, the Respondent Representative contended that the complainant had not satisfied the burden of proof provided in section 85 A of the Act. He had not identified a comparator.

The Complainant did not possess a disability and his description of mental health and obesity did not satisfy the provisions for disability in the Act .m

He was absent from work, he did not seek accommodation for a disability, nor was he hindered in his work for the Respondent.

He was provided with training in Dignity at Work to assist in identifying a correct pathway if he feared for his job.

The complainant did not heed the reasonable explanation provided that KPI had to be honoured in the contract and he chose to resign.

The Respondent hosted an EAP Programme and an Equality Policy.

The Respondent submitted an undated Equality Policy post hearing and this was shared with the Complainant for comment. I have also reviewed this document.

I have been asked to decide on whether in the context of an application for an MMA course in January to February 2020 the Complainant was discriminated on the grounds of disability to the point where he was compelled to leave his job in March 2020?

In coming to my decision on this amended claim, I have listened carefully and considered fully the evidence of the parties to the claim. I have also read the supplementary written submissions.

I found this a challenging process to manage as the Complainant tended to lose focus in what he was trying to say. This was replaced on many occasions by a tendency to direct strongly worded and robust criticism at the respondent in the case. This resulted in my having to return to complainant to ask him to clarify his earlier comments.

I observed a tangible improvement as we passed to the second day of hearing. While I appreciate that this has been an upsetting time in the Complainants working life, it was incumbent on him to participate in a full and focussed manner at hearing to ensure that his oral submissions were understood in both context and background. I am satisfied that I have achieved this.

My jurisdiction in this case commences in exploring the burden of proof in the case, which falls on the complainant to prove the primary facts on which he relied to raise a presumption of discrimination. If these facts are proved, it falls to me as Adjudicator to evaluate these facts and consider if they are of sufficient significance to raise a presumption of discrimination. If proven, the burden then bases to the respondent to rebut that presumption.

Teresa Mitchell v Southern Health Board [2001] ELR, 201

Discrimination for the purposes of the Employment Equality Act, 1998-2015 is defined as:

6.[(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

The Complainant has submitted a complaint of discrimination in accordance with section 6(2)(g), on disability grounds.

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The Complainant has not identified a comparator in the case.

As a first step, I must be satisfied that the Complainant is covered by the ground on which he relied. I must decide if he had a disability as provided for in the provisions of 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.

‘discrimination’ includes the issue of an instruction to discriminate and, in Part V and VI, includes prohibited conduct within the meaning of the Equal Status Act 2000, and cognate words shall be construed accordingly; 

“The discriminatory grounds” has the meaning given by section 6(2).

Discriminatory Dismissal (constructive) is provided for also in Section 2 of the Act at:

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly.

The Complainant has contended that he was very troubled by both mental health and obesity in the course of his life and his work in the early months of 2020. His evidence yielded a strong acceptance that he had not placed his former employer on notice of these developments, and it was accepted that he kept things to himself as he introduced the course on January 26 as a training mechanism for 20 weeks. This was endorsed in the January 30 and February 3 communique.

I found that the complainant had not anticipated a refusal to release him from early morning pre -rostered shifts. He had difficulty accepting that the Company had tried to facilitate his attendance but could not. I believe he got somewhat lost in that process.

On 13 February 2020, the Complainant tendered a medical note from his GP supporting an application for his release for the course which had manifested in improved physical and mental health.

This was the first occasion that I observed a reliance on the complainants mental health and this is an area that I now have to probe as the Complainant has submitted that his mental health and physical condition of obesity had amounted to a disability from where he was discriminated to the point where he was prevented from being released for the early morning course attendance to the point where he was  unable to remain in his position .

I note that the complainant did seek to engage in resolving the matter on February 18 and apologised for walking out on the Human Resource Manager. He was then overtaken by the twin track disciplinary investigation/ procedure in respect of the evolving “stand -off “where the Respondent was seeking to set ground rules on attendance at work and the complainant encouraged by his positive progress on the course, wished to consolidate his attendance, contrary to the respondent wishes. That conflict goes to the root of this case.

The Complainant resigned on February 25 in response to “the apparent failure to find a solution “and has carried his negative experiences forward to hearing from that time. He referred to having a prospect of new work planned.

I must ask the question, whether the Complainant has the locus standi to advance his case. Did he have a disability as defined by the Act?

He did not approach the case with testamentary evidence on disability from medical experts. He had a strong personal view that he had a disability which responded to the components of the MMA course to the point where the complainant stated that it had changed his life for the good. I accept that he enjoyed the course and felt empowered by it. However, the topic of time off to attend the course was a beacon of unresolved conflict back at the workplace. I am not certain that the fault for this can be solely attributed to one party, the respondent.

In an early Employment Equality case, involving resultant injuries arising from a road traffic accident, the Labour Court delved into the meaning of the term disability under the Act .and confirmed that a temporary malfunction could amount to a disability. The Court was opposed to broadening the definition outside of the statutory construct.  

Customer Perception ltd v Gemma Leydon [2004]15 ELR 101

Moreover, counsel submitted that the statue expressly provides that a temporary malfunction is sufficient to come within the term disability.

It is settled law that where a statue defines its own terms and makes what has been called its own dictionary, a court or tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.

Applying these well-known principles of statutory construction, it is clear that the term disability must only be given the meaning ascribed to it by s.2 of the Act. It would be impermissible for the Court to rely upon a definition derived from any other source, including the American authorities to which it was referred by the respondent. Further, in construing the plain language used in this definition, words must be given their ordinary and natural meaning.

Taking the ordinary and natural meaning of the term malfunction (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.

The Labour Court went on to consider the parameters of a “work related depression “in

Government Dept v A Worker EDA 4/2009

On this occasion, the Court heard expert psychiatric evidence on the complainant stated condition and applied the de minimus (floor) rule 

  A de minimis rule, however, did apply and “effects or symptoms, which are present to an insignificant extent, would have to be disregarded”. 

In finding that the Complainants condition amounted to a disability, the Court held:

The Court ruled that the definition in para. (e) could not 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.

 This decision was followed in Health Service Executive v Killoran EDA 30/2018 where the Labour Court ruled that stress caused by the illness of a relative or loved one was not “an abnormality or malfunction. It was, rather, “a normal human condition and could not be classified as a disability. 

The concept of “disability” is not defined in Directive 2000/78/EC.

 In Case C-13/05, Chacón Navas v Eurest Colectividades SA [2006] E.C.R. I-6467, relied on by the Respondent in this case, the Court of Justice held that “disability” differs from “sickness and that the concept of “disability for the purpose of Directive 2000/78/EC must be understood as referring to a limitation which results in particular from physical, mental, or psychological impairments and which hinders the participation of the person concerned in professional life.

The UN Convention on the Rights of Persons with Disabilities is become an important consideration in identifying the principles in this area of employment equality decision making. Nano Nagle School v Daly [2019] IESC 63

In Case C-325/11, HK Danmark v Dansk almennyttigt Boligselskab [2013] I.R.L.R. 571, the Court of Justice said that Directive 2000/78/EC must, as far as possible, be interpreted in a manner consistent with that convention

The concept of disability must now be understood as “as referring to a limitation which results in particular from physical, mental, or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. The state of health of a person with a disability who was fit to work, albeit, only part-time, was capable of being covered by the concept of disability but it also followed that the physical, mental, or psychological impairments must be “long-term”.

The Court went on to say that it did not appear that the Directive was intended to cover only disabilities that were congenital or resulted from accidents to the exclusion of those caused by illness. The origin of the disability was irrelevant.

The Court of Justice elaborated on this in Case C-354/13, Fag og Arbejde v Kommunernes Lands forening [2015] I.R.L.R. 146

 in ruling that the obesity of a worker could constitute a “disability.

When the matter returned to the referring court, the Danish Western High Court ruled on 6 November 2020 that the claimant's obesity did not constitute a disability as it had not constituted a limitation or inconvenience in the performance of his job. Nor was there any evidence that the employer had taken his obesity into consideration when terminating his employment:

I return to the facts of the instant case. Both parties accepted that the Complainant had not mentioned a disability in the course of his work. He did not exhibit signs of limitation in his work performance prior to his application to join the MMA course in January 2020. He did not have a high level of absence and he was not in receipt of any disability supports or allowances from a work perspective. Nothing had emerged at pre-employment screening in May 2018.

I accept that the Complainant worked full time in his position of monitoring operator. I can accept that the complainant has some internal disappointments and stress at work. I can accept that he did not have a strong sense of belonging at work as evidenced by his understanding of being distanced by union members and his statement that he had not reached out to other workers to swop shifts. However, I could not establish just how either of the stated conditions of mental health or obesity caused a limitation in his work performance.

However, the Complainant had relied on Section 2(e) to ground his case.

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,

I have not, on the evidence before me, identified that the Complainant can avail of Section 2 (e) in this case.

I have found that that the Complainant was not prepared to receive a veto on his request to attend the course in February 2020. He did not consider adopting a negotiating position and basically pressed on with course attendance which visibly clashed with his pre agreed rosters. He accepts that he did not share the real reason for his desire for self-improvement and dressed it up as a philanthropic mission, which was commended by Mr B, who was aware that the Complainant was cycling to work to lose weight.

An employer is entitled to be informed of an employee’s difficulties at work. I did not find this Respondent unsympathetic to the complainant’s desire to attend a self-improvement course. I accept that they tried to make it work but were overtaken by service exigencies amongst 85 employees. I do not accept the complainant evidence that disclosure of a mental health and obese condition would have placed his job at risk. By his own admission, he said, “I always went to work” and the conditions “did not affect my work”

I have given some consideration to the medical note of February 13, but it has no probative value. Instead, I interpreted this note as a positive canvas for release of the complainant for the course by reference to a generic mention of mental and physical health. I did not find the rigours of section 2 satisfied in that letter. This did not demonstrate the presence of a disability. The Complainant did not lead evidence on his mental health from DSM 5, manual of diagnostic mental disorders. Instead, he spoke freely of

It is of note, at this point to reflect the definition attributed to a disability in the Disability Act, 2005 as:

disability” in the Disability Act 2005 is “a substantial reduction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment”.

I appreciate that the complainant did seek access to Occupational Health, I did not find evidence of his refusal through cost. Instead, I accept Ms C evidence that notification of resignation commenced at that time and impetus was lost.

I have considered the facts very carefully here and I cannot establish that the Complainant had a disability as provided for in Section 2(e) of the Act. Instead, I found that the Complainant felt unsupported in his application for self-improvement course, which he freely acknowledged saved his life and genuinely believed he was diminished and disappointed by that.  I conclude that the complainant did link his family connection with Alzheimer’s as motivation for undertaking the course.

However, a disability is more than feeling diminished, disappointed, or down at work. For me, he has not proved that he possessed a disability which constituted a condition, an illness or a disease which limited his work performance .in this case. EDA 4/2009, on the distinction between the psychiatric illness through diagnosis and the vicissitudes of life, applied.

Therefore, the complainant is unable to satisfy the burden of proof provided for in Section 85A of the Act as reflected in the Mitchell principles.

Burden of proof.

85A.— (1) Where in any proceeding’s 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 Complainant has not made out a prime facie case of discrimination. The Respondent does not have a case to answer.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have concluded my investigation in accordance with section 77 of the Act in this amended complaint.

I have found that the complainant cannot avail of the definition of disability and as a consequence he has not reached the prime facie test for discrimination. the Respondent does not have a case to answer.

His claim cannot succeed. 

Discrimination on grounds of Disability