Complainant

Respondent

Anonymised Parties

A Business Development Executive

A Technology Company

Representatives

Barry Crushell Crushell & Co Solicitors

 N/A

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-00043603-001

15/04/2021

The Complainant commenced employment as a Business Development Executive with the Respondent on 04 May 2019. She stated that she had no choice but to terminate her employment with the Respondent on 12 March 2021 arising from the Respondent’s failure to provide reasonable accommodations for her in respect of her disabilities.

The Complainant commenced employment as a Business Development Executive with the Respondent on 04 May 2019. She was tasked with generating new leads for the business, which included sourcing new leads through phone calls, emails and other social media platforms. She enjoyed a salary of €49,000 plus bonus and commission.

The Complainant stated that the volume of work expected of her multiplied by a significant extent during the course of her employment, causing her a considerable degree of stress and anxiety which

manifested itself through multiple physical and psychological ailments. Specifically, she stated that the targets were too high and impossible to achieve. She also alleged that she was prospecting for one software and gradually they added four more with no appropriate training. She further claimed that she had to generate new leads using LinkedIn which took a lot of time and realised that some of her colleagues were given more inbound leads and commissions. She also alleged that in Zoom team meetings her colleagues laughed when she spoke and explained why she couldn’t reach her targets.

In particular, during the course of 2019, the Complainant suffered a high level of stress, frustration and anxiety which eventually resulted in her being diagnosed in February 2020 with a liver abscess. After she left the hospital, she had a drain for 38 days as well as severe back pain. She spoke to her manager about her health issues and showed him the drain in their weekly meeting. She requested part time hours to recover as it was very difficult for her to manage her health issues and take care of her young child. Her manager informed her that the company did not give part time hours and that she could take holidays instead. She requested part time hours again in July 2020 and asked her manager if he could check with HR to see if she could get such hours for a period until her situation improved but she was once again refused.

The Complainant’s stated that her physical and psychological condition began to deteriorate with her experiencing headaches, chronic back pain, shoulder and neck pain, diarrhoea, insomnia and constant negative thoughts. The Respondent was repeatedly put on notice of the health conditions of the Complainant.

The Complainant was eventually compelled to resign her role in order to protect her

physical and mental wellbeing, having suffered panic attacks, hallucinations and suicidal thoughts. Even upon resignation, the Complainant, citing her health difficulties, both physical and psychological, requested garden leave in order to recuperate but was refused. The Complainant contends that, throughout the course of her employment, while being aware of her physical and mental ailments, the Respondent failed to show any compassion or empathy whatsoever.

The Respondent did not attend the hearing and did not provide any written submission in advance.

THE LAW

In section 2 of the Employment Equality Acts:

“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.

Reasonable Accommodation

Section 16(3) of the Employment Equality Acts states that:

(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training, unless the measures would impose a disproportionate burden on the employer

The Burden of Proof

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.”

Findings

The effect of s.85A above 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, she has been discriminated against because of her disability. 

The Complainant, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“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.”

Prior to making a decision on whether or not the Complainant was discriminated against however, I must firstly examine whether or not she had a disability as set out in section 2 of the Act. I note firstly that she had a liver abscess, which I am satisfied the Respondent was aware of having reviewed the documentation presented to me. In deciding whether or not this liver abscess  constituted a disability however, as set out in section 2 of the Act above, I note that the meaning of a “disability” was most recently considered by the Labour Court in the decision in Houses of the Oireachtas v Thomas Hickey (EDA 1918) wherein the judgements of the CJEU in Chacon Navas v Eurest (C-13/05) and Jette Ring v Dansk (C-335/11) were referred to.

Specifically, the Labour Court in its decision stated that it was

“bound by the judgment of the Court of Justice in Case C-335/11. It is clear from the extract quoted above from that judgment that a relatively short illness, such as that experienced by the Complainant in this case, does not amount to a disability that hinders “the full and effective participation of the person concerned in professional life on an equal basis with other workers”.

In light of the foregoing and following a review of the medical documentation provided, I am satisfied that that the Complainant’s liver abscess had cleared up over the course of 2020 and was therefore not a chronic illness within the definition of “disability” for the purposes of the Act.

As well as stating that she had a liver abscess, the Complainant also stated that she suffered from stress and psychological injuries, which were caused by the work that she was doing and the demands from management. In deciding whether or not these fall within the definition of a “disability” for the purposes of the Act, I note in the case of A Worker and a Government Department EDA094 the Labour Court stated 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”. The case also highlighted the necessity for an employee to submit medical evidence in support of a claimed disability.

Furthermore, I noted that in A Worker v An Employer EDA 1927 the Labour Court highlighted that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and that the Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”

While a medical report from a psychotherapist dated 22 June 2021 was provided to me in support of the assertion that she was suffering from stress and psychological injuries, I noted that this report post-dated both her departure from the Respondent in March 2021 as well as the referral of the complaint to the WRC in April 2021. Accordingly, I am satisfied that the Respondent was not provided with any medical evidence during the time of her employment to support the Complainant’s assertion that she had a disability.

As outlined above, in a complaint of discrimination under the Employment Equality Acts, the Complainant bears the initial burden of proving the primary facts upon which she relies in asserting that discrimination occurred. In the instant case that burden requires the Complainant to prove in the first instance that she suffered from a disability within the meaning of the Acts. As I have found that neither the Complainant’s liver abscess or her stress and psychological injuries constituted a disability under the Act, I find that she has not established a prima facie case of discrimination.

I find that the Complainant was not discriminated against for the reasons set out above.