ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029550
Parties:
| Complainant | Respondent |
Anonymised Parties | Cleaning Technician | Facilities Contractor |
Representatives | AM Giblin BL instructed by Colin Clarke O'Carroll & Co Solicitors | IBEC |
Complaint(s):
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-00040063-001 | 24/09/2020 |
Date of Adjudication Hearing: 08/06/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This Decision is anonymised at the request of the Complainant given the very personal nature of the issue which gives rise to the complaint and taking into account the Decision below where the complaint is decided only as a preliminary matter.
The considerable delay is issuing a determination by way of a ruling or Decision in this matter is entirely due to the delay by the Complainant representatives in addressing the Preliminary Matter which arose at the scheduled hearing.
At the hearing there was a strenuous objection to proceeding on behalf of the Respondent due to the late submission on behalf of the Complainant. As it happens, there was also a problem on the Respondent side as they could not provide the key witness for their defence and could not indicate when that person would be available. The hearing was not adjourned for reasons of the Respondent objections. The issue raised by the undersigned with the Complainant Representatives, and which was the basis on which the hearing was adjourned was to allow the Complainant side to make a submission on why having a literacy issue constitutes a disability for the purposes of the Act. The Complainant aside was allowed a break to discuss the question posed by the undersigned and did explain the social background of the Complainant. However, as they could not at that point provide any evidence of a medical nature to support a complaint of alleged discrimination on grounds of disability, time was allowed for full consideration of this issue which apparently was not something they had considered prior to the hearing. The parties were informed that following receipt of a further submission from the Complainant side, either a decision would be issued on the Preliminary Matter, or the hearing would be reconvened allowing a full opportunity for a submission by the Respondent side.
As can be seen the scheduled hearing and the agreed arrangements occurred on June 8th, 2022.
In the absence of any further submission on behalf of the Complainant within the agree timeline, a reminder was issued in August to the Complainant and a further (missed) deadline for a submission was agreed. A further reminder issued in October. Finally, a letter was received from the Complainants solicitor dated October 21st, 2022, advising that ‘the plaintiff doesintend to file any further submissions in respect of this matter’. Based on the discussion of the preliminary matter at the hearing, taking into account the later correspondence on behalf of the Complainant, this is a decision on the preliminary matter on the basis that the Decision on the preliminary matter is such that there can be no substance to the complaint which would require evidence and a submission by the Respondent under the Employment Equality Act 1998 as amended.
Background:
The Complainant was employed as a cleaning technician by the Respondent from March 9th, 2020. The basis of the complainant is that her employment was terminated on March 26th, 2020, when she was told in a telephone call that she could not come to work as she could not read or write. The basis of the complaint is discrimination on grounds of disability as defined under the Employment Equality Act 1998, as amended.
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Summary of Complainant’s Case:
In the written submission on her behalf, details of the background and basis of the complaint were set out. In early 2020, the Complainant, and her niece, contacted the Respondent through a named manager and she was contacted a few weeks later to be offered a position. During this second call, the Complainant explained that she could not read or write. That manager expressed no difficulty and the Complainant commenced employment. There was nothing eventful about her period work of approximately two weeks. On March 26th, the Complainant received a call from another manager with the Respondent requesting that she attend work at a nearby hospital. It is her case, that the manager in question told her she had no business coming to work as she could not read or write. Given that there were no complaints about the standard of her work in the previous weeks, it was submitted that the Complainant understood that her employment was terminated solely on the basis of her disability. The submission provided extracts from Section 2 (1) the Employment Equality Act associated with a variety of medical conditions which have been found to be encompassed by the term disability. The submission went on to cite Section 6 and 8(1) of the Act as relevant to the complaint. Section 16-referring to the provision of a reasonable accommodation was also cited on the grounds that it would have been within the capacity of the Respondent to take appropriate measures to accommodate the Complainant. Section 85A was referenced on the basis that the Complainant had established a prima facie case of discrimination on grounds of disability based on the facts and it was for the Respondent to prove to the contrary. Precedent cited: Humphreys vs Westwood Fitness-Labour Court Determination
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Summary of Respondent’s Case:
At the hearing the Respondent representative agreed that there a was preliminary matter to be decided relating to the ground of disability claimed to apply to the circumstances of the case. For the reasons set out earlier, there was no submission on the substance of the case presented to the hearing by the Respondent side. |
Findings and Conclusions:
At the hearing, the Complainant Representative was invited to clarify whether the inability of the Complainant to read or write, represented a learning difficulty or a disability and if the latter, was there any medical evidence to support the contention that the Complainant was a person with a disability for the purposes of the Employment Equality Act. Following a discussion with her client, Counsel gave some background to the Complainants life experiences as a result of which she had never progressed to the point where she could read or write. She said that It could not be said that there was a diagnosis of any condition. The subsection of Section 2(1) of the Act said to apply in this case is subsection (d): ‘a condition or malfunction which results from a person learning differently from a person withoutthe condition or malfunction’ Subsection (e) was also referenced. Decision on the Preliminary Matter-the existence of a disability as a ground in this case At the hearing I hope I was clear to the Complainant in expressing my understanding of the inhibiting effects on any individual of an inability to read and write and a genuine understanding of her life experience as described by her Counsel. However, what was described by Counsel as the background to the Complainants inability to read and write, did not contain any trace of a disability as a medical condition. And none was evidenced even after a considerable amount of time was allowed to the representatives to provide additional submissions. Neither did they provide any previous decisions which would allow for consideration of the complaint on the ground cited-i.e., on the ground of disability. It is insufficient for, or on behalf of, a claimant to mount a genuine case of discrimination based solely or mainly on citing the sections of the Act and referring to a precedent here or there- without providing some evidence, self-evident or otherwise to support a claim related to a particular ground. In this case there is no evidence to support the ground cited. As the Complainant is unable to present any evidence on which a complaint of discrimination based on disability could be considered as a prima facie case, there is no basis for the complaint of alleged discrimination on grounds of disability brought by the Complainant against the Respondent and no further hearing of the complaint is required. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 (the Act) requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00040063-001 I do not find the complaint of alleged Discrimination brought by the Complainant against the Respondent to be well founded under Section 79 of the Act and therefore noredress is ordered under Section 82 of the Act. |
Dated: 8th November, 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Discrimination -disability ground |