Complainant

Respondent

Parties

Patrick  Mcelhinney

Ei Electronics

Representatives

Conor Duff BL, instructed by  Connolly O'Neill Solicitors

Robin Hyde,  Alastair Purdy and Co

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049186-001

14/03/2022

The Complainant commenced his employment with the Respondent on 1st October 2021 as a Production Operator. His employment terminated on 12th November 2021.

On 14th March 2022, the Complainant referred his complaint to the Director General of the WRC alleging that he was discriminated against by the Respondent on the ground of his disability.

The Respondent denies the claim.

The Respondent submitted that the Complainant’s WRC complaint form did not contain a claim regarding reasonable accommodation. However, Mr Duff’s submission made reference to same.

Both representatives were cognisant of the fact that the WRC form is not a statutory form and Mr Duff was invited to consider the matter and put forward his submission should he wished to amend the form and introduce this new claim at this juncture.

Mr Duff was afforded some time to consider the matter. He informed the hearing that the Complainant would not pursue the claim with respect to reasonable accommodation and would maintain the discriminatory dismissal claim only.

Mr Duff BL in a written submission set out the following.

The Complainant suffers from Crohn's disease and was dismissed from his employment with the Respondent company as a direct result of having such a disability. The Respondent was aware at the time of the dismissal that the Complainant suffered from Crohn's disease and evidence will be adduced at the hearing that will confirm that the Complainant was dismissed from his employment wholly or mainly, as a direct result of having this disability. The Complainant issued the within claim pursuant to a complaint form submitted to the Workplace Relations Commission on the 14 March 2022. The Complainant is seeking redress pursuant to the Employment Equality Acts.

DESCRIPTION OF THE PARTIES

The Complainant is a Production Operator. The Complainant at all material times was an employee of the Respondent company within the periods of 1 October 2021 to 12 November 2021. The Complainant was paid €465.21 gross and €220.36 net weekly by the Respondent. He worked 42 hours per week.

The Respondent company is engaged in the business of manufacturing. The Respondent at all material times was the former employer of the Complainant between the periods of 1 October 2021 to 12 November 2021, the date of the Complainant having been dismissed from his employment.

FACTUAL BACKGROUND

The Complainant commenced his employment with the Respondent employer on or about 1 October 2021 and was subsequently dismissed on 12 November 2021. The contract of employment provided that it was a temporary three month rolling contract position which commenced on 1 October 2021. The contract provided that the Complainant's employment would be automatically renewed depending on the business conditions and employee performance. A copy of the Complainant's contract of employment was exhibited at the hearing.

The contract of employment provides the following clauses:

a)       'if there are any issues with your performance your Supervisor/ H.R. will have spoken with you before renewal of the next 3 month rolling contract and this may result in your contract not being renewed',

b)      '[t]he Contract may be terminated by the Company or you at any time on giving 1 week's written notice',

c)       'There is an on-site Medical Centre with a resident Nurse on duty for [sic.] 9am to 11 am each day and a Company Doctor attends Monday/Wednesday/Friday. Free Medical consultation is available to you during these hours. In addition, the Company provides a full medical screening every 3 years for employees over the age of 30 years.'

d)      'A Disciplinary Procedure- details of which will be outlined to you on your first day at work- is invoked for- (i) incompetence or poor work performance in terms of output and quality, (ii) Poor attendance/ timekeeping’

The Complainant was required to complete a '[p]re-employment Health Declaration during Covid-19 period'. As part of this assessment, the Complainant was required to attend the Respondent's medical centre for an assessment of the Complainant's: respiratory, musculoskeletal, audiometry, vision, skin, and urine health. The Complainant was required to attend one Dr Flynn as part of this assessment. A copy of the pre-employment health declaration was exhibited at the hearing.

The Complainant contends that he was dismissed as a result of a discriminatory act on the part of his employer, the Respondent.

The Complainant suffers from Crohn's disease and was suffering from a flare-up of his disease days prior to including the day of his dismissal. On the date of his dismissal, the Complainant attended the Respondent's medical centre. The notes of this medical assessment state:

'12/11/21 flare up of Chrons symptoms. Recent birth of baby 4/12 ago... has had 4 episodes of bloody diarrhoea from last night having cramping pains. Wishes to go home for the rest of the day. Note for Supervisor written '.

A copy of these notes was exhibited at the hearing.

On the date of the Complainant's dismissal, but prior to having been dismissed, the Complainant requested from his line manager to go home early as a result of the flare-up. This request was denied by the Complainant's line manager. The line manager responded to the Complainant by stating that they would need to “part ways". This statement was made immediately after the Complainant requested to go home early.

When the Complainant questioned his line manager in respect of parting ways, the line manager responded by stating that the Complainant "could not be relied upon to work Monday to Friday". The Complainant was deeply shocked and stated at this time that he felt that he was being treated unfairly.

Following this interaction, the Complainant was instructed by his line manager to collect his belongings from his locker in work and he was then subsequently escorted from his workplace by his line manager. When the Complainant indicated that he would like to speak to Human Resources, he was told by his line manager that H.R. were not there on the day in question and that the Complainant would need to leave the building.

Upon returning home, the Complainant received a phone call from the H.R. Department and was informed that a weekly performance meeting had taken place and that a decision was made that the Complainant would not be kept on as he was not a “good fit" for the company.

As part of a data subject access request submitted by the Complainant, a document entitled 'Termination Notice ' was obtained. The document reads:

Reason for Removal: Patrick has requested on a number of occasions to go home due to various reasons [redacted] he has a pattern of asking to go home.

Additional information: From Patricks first week has been requesting to go home for a variety of reasons, I cannot permit these requests.

Would you Re-Employ: No EI is not the place for Patrick. In my opinion the strict hours environment does not suit'

Signed: [redacted] Date: [redacted]

A copy of the document was exhibited at the hearing.

The Complainant submits that the above document is heavily redacted. Surprisingly, the '[r]eason for removal' a portion of this statement appears to be redacted after 'requested on a number of occasions to go home due to various reasons [redacted]'. The Complainant is not aware as to why this portion has been redacted and/ or tipp-exed out (despite 'working performance' being typed below it. Similarly, surprisingly, the date of this termination notice has been redacted without reason.

Additionally, as part of the data received by the Complainant was an e-mail between servants and/ or agents of the Respondent regarding the Complainant's dismissal. The e-mails read:

From: [redacted] Sent:  Friday 12 November 2021 16:02 To: [redacted] Subject: Patrick McElhenny [sic.]

Hi Folks

I just had Patrick on the phone- he is stating that he was told by his supervisor that he was being let go for medical reasons. He is going for league [sic.] advice. He stressed [redacted] that you knew since last week that he had crohn's.

On Monday con we meet to see what exactly was discussed this morning'

From: [redacted] Sent:  Friday 12 November 2021 16:02 To: [redacted] Subject: Patrick McElhenny [sic.]

Hi [redacted],

I never stated that he was let go for medical reasons, he was putting that onto me when I told him that it would be his inability to attend work, I was not disputing that he wasn't sick. He told me last week he had crohn's, I told him I was not aware of that when I hired him.

No problem meeting on Monday,

Regards, [redacted]

A copy of the correspondence was exhibited at the hearing.

The Complainant submits that he was discriminated against as a result of him having a disability and therefore brings a complaint to the WRC pursuant to the provisions of the Employment Equality Acts. The Complainant submits that he was treated differently to his counterparts who do not have a disability.

The disability for which the Complainant seeks to rely upon for the purposes of his claim under the Employment Equality Act (as amended) is Crohn's disease.

If appropriate, the comparator for the purposes of the Complainant's claim is another employee of the Respondent who carried out the same duties with no illness who would not have had their employment terminated by the company. In the circumstances, the Complainant submits that he is entitled, by law, to use a hypothetical comparator for his claim.

Insofar as it is relevant to a claim brought under the provisions of the Employment Equality Act, the Complainant has mitigated his losses by virtue of him having regaining employment shortly after his dismissal.

EVIDENCE

Section 85A of the Employment Equality Act shifts the burden of proof to the Respondent where facts are established by the Complainant 'from which it may be presumed that there has been discrimination in relation to him or her'.

The Labour Court in Cork City Council v McCarthy EDA0821 held that the Claimant must be able to establish the primary facts on which he relies but also that they are of sufficient significance to raise an inference of discrimination. It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

LEGAL ARGUMENTS

The Complainant brings his complaint to the WRC pursuant to the Employment Equality Act (as amended) seeking redress for discrimination. Pursuant to s.6(1) of the Acts, the Complainant submits that he has been the subject of direct discrimination arising from his less favourable treatment experienced on one of the protected grounds within the Acts. As per the decision of the Labour Court in St James’s Hospital v Eng EDA023, there is no obligation on the Complainant to establish an intention, subjective or otherwise on the part of the Respondent to discriminate.

Disability

The Court of Justice have defined a disability as referring to: "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" (C-13/05 [1006] ECR r-0667).

The definition of "disability" under the Act is very broad in nature and covers a large range of illnesses than one would traditionally associate with the word "disability".

The Complainant submits that Crohn's disease constitutes a ‘disability' for the purposes of the Acts.

Discrimination

Article 2 of the Framework Directive sets out the concept of discrimination both direct and indirect. Direct discrimination is prohibited where “one person is treated less favourably that another is, has been or would be treated in a comparable situation". This requires consideration of a comparator, actual or hypothetical. Indirect discrimination is defined in Art. 2 of the Directive as occurring where a neutral provision, criterion or practice puts persons at a particular disadvantage compared with other persons.

Under the provisions of the Equality Act it provides a definition of discrimination under s.8 which relates to an employee's conditions of employment. These provisions are what have been described as “result directed rather than intention directed".  Specifically, s.8 of the Act provides

" ln relation to- (1) (a) Access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker".

Section 6(l) of the 1998 Act defines discrimination in the following terms:

“…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"

Failure on the part of the Respondent to provide 'reasonable accommodation' to the Complainant.

The Complainant submits that the Respondent was obliged to provide reasonable accommodation to the Complainant by virtue of him having a disability. Instead, the Respondent dismissed the Complainant.

Redress

Under the provisions of the Employment Equality Acts, section 82 sets out the redress which can be awarded by an adjudication officer of the WRC in relation to a discrimination claim.

The WRC has jurisdiction to make separate awards for discriminatory dismissal and discrimination, even when this arises out of the same set of facts. In Kavanagh v Aviance DEC-2007-039, the Complainant got the maximum of two years' salary for both heads of complaint and in O’Brien v Persian Properties Limited [2012] 23(4) E.L.R. 211 separate awards were made for the dismissal and for the discrimination and victimisation claims with the total compensation exceeding two years' remuneration.

CONCLUSION

It is therefore submitted that the Complainant has been discriminated against by his former employer as a result of him having a disability; namely, Crohn's disease.

The discrimination materialised by way of the Respondent having dismissed the Complainant as a direct result of him having a disability.

In his closing remarks, Mr Duff BL said that the Complainant’s line manager and the medical centre were informed of the Complainant’s disability. Mr Duff asserted that the disclosure to the medical centre was a disclosure to the Respondent. The Complainant was entitled to expect that it was disclosed to his employer. Any lack of communication between the HR and medical centre is not his issue. He said that the Respondent could not afford to have someone with a disability and the perfect fit was a person with no sick days. The Complainant was not the right fit because of his disability.  Ms Duff suggested that the supervisor was sending a signal – that’s what happens when you are absent a lot.

Summary of evidence and cross-examination of the Complainant

The Complainant, in his sworn evidence, said that he was diagnosed with Crohn’s disease 16 years ago. He described the symptoms and the effects of the condition, and the way he tries to alleviate it. The Complainant said that he sees a doctor every 5 years in Galway Clinic and that he attends his GP 2-3 times a year.

The Complainant said that he had worked mainly in hospitality sector, in a bar. He has returned to college to study business as he sees himself working in finance.

The Complainant said that prior to working in the Respondent company, the condition never impacted his career, and most employers were understanding.

The Complainant said that he found the job online, he put in his CV, he did not disclose his disability on the application form.

The Complainant said that his line supervisor always said that he was doing well, she gave him tips how to make process more efficient, she said that he was good at production, his work was never rejected, and she complemented him. The Complainant said that the girl who trained him was also complementary about his work.

The Complainant referred to his contract which states that he would be spoken to if there were any issues with his performance. He said that he was never spoken to.

The Complainant said that as per his contract there were free medical consultations provided. The medical centre is on site, staffed by employee of the Respondent. The Complainant said that he attended the centre twice.

The Complaint referred also to the disciplinary procedure clause in his contract and said that disciplinary procedure was never invoked.

The Complainant referred to the Pre-employment Health Declaration, Pre-employment Medical Declaration, Pre-employment Medical Questionnaire. The Complainant noted that in the Questionnaire he included Crohn’s disease. The Complainant went through the information contained in these documents. He said that he signed the document entitled Pre-Employment Questionnaire Declaration that stated:

Questions are asked in this Questionnaire about your past and present health and medical treatment, which may have implications for health and safety in relation to your employment. The information relating to you will be used for the purpose of determining, insofar as possible, whether you are fit for the post for which you have applied.

This information will be kept confidential by OH and will not be disclosed to any third party (other than as expressly provided for in this declaration) without your prior written consent.

Information about you will be stored and is subject to the provisions of the Data Protection Acts 2018 (GDPR) under special category. Your consent is required before processing your information to determine your fitness for the post.

Note: In the event of there being a work issue which may be related to your  health (or a health issue which may be related to your work) we may confirm to HR, if asked to do so, whether the relevant medical information has been disclosed by you on the Questionnaire. Also, by signing below you are giving OH Nurse / Doctor consent to speck to HR/ Supervisor/H&S about the issue.

Declaration.

I hereby consent to;-

(1)    the use of personal information relating to me for the purpose of this pre employment medical

and

(2)    the disclosure of such information to HR/Supervisor/H&S to determine fitness for employment and I declare that the following statements made and information provided by me are true, complete and accurate to the best of my knowledge,

The Complainant said that he first mentioned his condition to the manager the week before dismissal. He had a number of absences prior to that.

The Complainant said that, regarding the first absence, he needed to go home and his line manager persisted in asking why. The Complainant told her that it was a personal reason and she told him to go and speak to the HR. Ms Coughlan in HR let him go home. Regarding the second absence the Complainant said that he had to have his tooth extracted, as soon as he had an emergency appointment made, he asked for time off and was told it was OK. He also said that on another occasion he needed to go home to collect his medication. The Complainant said that on all these occasions he sought and got permission.

The Complainant said that on one day during the week before the termination of his employment, he went to work and was in discomfort by lunch time. He told Ms Hehir that he was unwell and needed to go home. She said bluntly ‘no’ and walked away. The Complainant said that he was shocked. He said that he went back to Ms Hehir and told her that he suffered from Crohn’s disease and outlined his symptoms. She was still quite agitated. He was let go home but was told that if he was not in on the next day, disciplinary process would follow.

The Complainant said that on the day of dismissal he had severe cramps and diarrhoea. He decided to go to work as he feared that it would be held against him if he didn’t turn up. The Complainant said that before work started in the morning, he spoke with Ms Hehir, described the symptoms and asked her for an appointment with the doctor or the nurse. Ms Hehir asked him why, he told her that he suffers from Crohn’s like last week. The Complainant said that Ms Hehir was agitated and told him to go back to his station. He did but he was in discomfort. An appointment was scheduled for him with the Medical Centre, and he got “unfit for work” note.The Complainant said that he went straight to Ms Hehir and gave her the note. She asked again what was wrong with him and he explained. She said that they would have to part ways. Ms Hehir went back to her office. The Complainant followed her and asked was he let go because of his health reason. Ms Hehir said that he could not be relied on Monday-Friday, it was “too much of inconvenience”.  The Complainant said that he was shocked, he said that he felt that he wasn’t treated fairly. Ms Hehir asked the Complainant to wait in the waiting area for Ms Coughlan. The Complainant said that 10-15 minutes later she told him that she spoke with her manager and told the Complainant that he was let go. The Complainant said that she followed him to his locker and told him to take his belongings, and she escorted him out. The Complainant asked to meet with HR as he felt he was treated unfairly. Ms Hehir said that Ms Coughlan was present during the conversation with her manager. The Complainant said that Ms Hehir stood on the corridor with her hands stretched not letting him go to the HR. The Complainant said that he called to the HR office on the way out but there was no one there. He went to reception and asked for HR. He said that he told the receptionist what happened and she was shocked.

The Complainant said that it was not mentioned that he was dismissed for performance reasons. Ms Hehir told him that they had a performance review in the morning but said nothing else.

The Complainant said that he noticed that others had absences but couldn’t remember their names, he said he didn’t think they had a disability.

The Complainant said that it was never disputed during his employment that he had Crohn’s disease.

In cross-examination, it was put to the Complainant that the Declaration states that medical information is confidential information and it would only be disclosed if there was an issue. It was further put to the Complainant that he was deemed as “good fit” by Dr Flynn, he was cleared to work.

It was put to the Complainant that on the occasion of his first absence on 11 October 2021, he did not make any reference to health reasons. The Complainant said that on the second occasion on 15 October 2021 he needed his medication. He told Ms Hehir that it would take over an hour, so he requested an extended lunch break. The Complainant said that he needed medication for his condition (not prescription medication). On the third occasion, the Complainant said, it was and emergency dental appointment, nothing to do with Crohn’s disease. On 3 November 2021, it was his fourth request to go home.

It was put to the Complainant that he said in his evidence that he had told Ms Hehir that needed an appointment because of Crohn’s disease but her email to the Medical Centre said that it was cough. The Complainant said that in the form he said he had cough, but it was not the reason to go to the Medical Centre.

It was further put to the Complainant that the medical note did not mention Crohn’s disease. Ms Hehir got the cert and said that he was being terminated because of his continuous requests to go home.

The Complainant denied that he was escorted because of his aggressive behaviour.

The Complainant was asked if the only discrimination he allegedly suffered from his point of view was his dismissal. He agreed.

It was put to the Complainant that an attendance issue arose on 5 occasions in 6 weeks. The Complainant disagreed that it was a pattern. 

The Respondent referred the Complainant to the Termination Notice and pointed out that Crohn’s is not mentioned there but a pattern of asking to go home.

The Complainant was asked if he could prove that Ms Hehir knew about Crohn’s, he said he could not. The Complainant agreed that he was declared fit to work.

It was put to the Complainant that up to the hearing there was no medical evidence furnished to show that he suffered from a disability.

Regarding a comparator, it was put to the Complainant that a hypothetical comparator can be used only if appropriate. The Respondent presented to the Complainant a document entitled “Leavers by date range” showing examples of termination. The Complainant accepted that the list shows examples of terminations.

In re-examination, it was asserted that the Complainant disclosed his condition, and he did not think that it was his responsibility to say anything else.

Regarding the Note in the document titled Pre-Employment Questionnaire Declaration, it was asserted that the Complainant understood that by signing the document he agreed that “they” (the doctor) would disclose any health information if there was an issue, otherwise it would not be shared.  

Mr Hyde, on behalf of the Respondent submits as follows.

PRELIMINARY POINT

The Respondent submits that at the time of termination, it had no knowledge or notice from a medical practitioner that the Complainant suffered from a disability (Crohn’s disease).

The Complainant has not provided any medical evidence verifying his illness. Therefore, the Complainant will be put on full proof of his disability in accordance with the Employment Equality Acts, 1998 (as amended).

BACKGROUND

The Complainant commenced employment with the Respondent on the 1 October 2021. The Complainant was employed on a 3-month rolling contract as a Temporary Production Operator. In accordance with his contract of employment, the Complainant was entitled to €465.21 a week.

The Complainant, prior to commencing employment, attended a pre-employment medical with the Respondent’s on-site medical centre. The medical centre declared him fit to work and did not disclose any information to the HR department or to the Complainant’s line manager that the Complainant suffered from a medical condition. Nor did they state there was any impairment that prevented the Complainant from working his contractual duties.

A copy of the contract of employment and pre-employment medical report was exhibited at the hearing.

The Complainant was then terminated by the Respondent on the 12 November 2021 for reasons relating to his attitude, general conduct and performance. A copy of the termination notice was exhibited at the hearing.

Prior to this, the Complainant was subject to sequence of attendance issues, whereby he requested to leave his shift prior to its conclusion. On each occasion, the Complainant provided a different reason for wanting to finish early. The Respondent submits the reasons as including the following:

·         On the 11 October 2021, the Complainant approached Ms Coughlan (Human Resources) at 10am staying that his partner had “thrown him out” and that his mother had started drinking again and as a result he needed to leave early.

·         On the 15 October 2021, the Complainant did not provide any reason and simply stated that needed some time off around lunch time. The Complainant was out for 24 minutes.

·         On the third occasion, the Complainant again gave no particular reason for wanting to leave early and despite such left work at 4.11pm, nineteen minutes prior to its conclusion.

·         On the 3 November, the Complainant approached Ms Hehir (Supervisor) at around 11am saying he was not feeling well, and that he was sick. His request to go home was denied by Ms Hehir. At this point the Complainant became very aggressive in his body language and the manner which he spoke to her. During this interaction, the Complainant made reference to Crohn’s however did not provide any evidence to support this. Ms Hehir returned 45 minutes later to speak with the Complainant to see how he was feeling at which point he explained that he was feeling fine and that he took a “tablet” which resolved his issue. No further reference was made to this condition.

On the morning of the 12 November 2021, the Complainant requested Ms Hehir to arrange a doctor’s appointment with the Respondent’s onsite medical centre in relation to a cough he had. Upon his return from the medical centre, the Complainant produced a medical certificate to Ms Hehir stating that he could go home. The certificate did not provide any reason therein. At this point, Ms Hehir explained to the Complainant that his continuous requests to go home were not sustainable in light of the strict hours required for the role. On the basis of such, together with his poor attitude (including his continual request to take time off, his use of inappropriate language and the threatening manner towards Ms. Hehir when denied the time off), Ms Hehir informed the Complainant that his role was to be terminated.

Following this interaction, the Complainant became quite aggressive and began shouting towards Ms Hehir stating that she was “sacking him for health reasons”. Ms Hehir explained to the Complainant that this was not the case and reiterated her reasoning. The Complainant continued to be aggressive in his mannerisms and was later asked to leave and he was notified that his termination was to take immediate effect and was to be paid in lieu of notice. Upon exiting the Respondent’s premises, the Complainant continued to berate Ms Hehir.

On the 14 March 2022, the Complainant lodged his complaint to the WRC.

LEGAL POSITION

INTRODUCTION

The Complainant contends that he was discriminated against by the Respondent by virtue of his disability. The Respondent rejects this proposition. As provided for the submission’s preliminary points, the Respondent had no knowledge of the Complainant’s disability. Equally, the Complainant has not provided any evidence to verify his disability. As such, it is submitted by the Respondent that the Complainant was dismissed for reasons solely relating to his poor attitude and his continuous requests to go home.

Notwithstanding and without prejudice to the foregoing, if the Adjudicator finds that the Complainant does suffer from a disability and that Respondent did have notice of said disability. The Respondent submits that there is sufficient evidence to show that the reason for termination was wholly unrelated to any disability. Furthermore, the Complainant has not adduced any evidence that the disability created an impairment in the first instance that affected him from performing his duties.

BURDEN OF PROOF

In regard to a claim under Employment Equality Acts (“EEA”), the Complainant must establish a prima facie case. This requires the Complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is the Respondent’s case that the Complainant has failed to establish the existence of a prima facie case in accordance with Section 85A (1) of the EEA.

The Respondent refers to Melbury v Valpeters EDA/0917, wherein it is stated that this section: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rules”. In other words, assertions cannot be mere speculation or unsupported evidence.

EXISTENCE OF DISABILITY

Firstly, that the Complainant must prove his alleged disability as per section 85 (A) of the EEA. It seems, based on the statement provided by the Complainant in his WRC complaint form, he is seeking to rely upon section 2 (1) (b), “the presence in the body of organisms causing or likely to cause, chronic disease or illness”.

The term “disability” has been given a wide interpretation to include certain conditions or impairments which could give rise to disability for the purposes of the EEA. Although, the Respondent accepts that Crohn’s disease constitutes a disability for the purposes of equality legislation, the Complainant has to inform the Respondent of  the existence of such an illness.

Furthermore, the Complainant submits that as a result of this disability, he was discriminated against by the Respondent. On the basis of such, the Respondent must ask on what basis does the Complainant assert that he is disabled, what is his disability and how does he assert that she suffers from a disability. The Complainant is put on full proof of this and must adduce medical evidence to prove same.

KNOWLEDGE

Notwithstanding the above, the Respondent submits that the Complainant fails to satisfy the burden of proof in circumstances where he has not adduced any evidence to show that the Respondent was aware of his disability. In the ordinary course, where an employer has no knowledge of a person’s disability, any decision taken against that person cannot be said to be discriminatory.

In support of this contention, the Respondent refers to the decision in A Company v A Worker EED051 where the Labour Court held that for an employer to be able to respond to a disability it is essential that they are made aware of the fact that there is a disability is in existence and that there is a problem with work as a consequence.

At no stage did the Complainant provide any medical evidence of such to notify the Respondent as to the existence of a disability. In A Worker v Food Manufacturer DEC-E2010-140, the Equality Officer, in rejecting a claim for disability stated there was “no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant GP, was adduced to prove that the complainant is disabled within the meaning of the Acts.”

In Connaught Gold Co-op Society v A Worker EDA0822, the employer sought to defend a disability discriminatory dismissal claim on the grounds that it had no knowledge that the complainant was suffering from depression, as it had received certificates stating that the employee was unfit for work due to “illness/medical illness”. The Labour Court held that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability in order to demonstrate that it was not aware of the employee’s disability. The Labour Court found in favour of the employer, noting they were unaware of the depression diagnosis and the medical certificates failed to bring to their attention any specific disability suffered.

A number of recent decisions have been made in the WRC recently that are keeping with this position: Neuray v LIRG5 Ltd ADJ-00029639, Brand Manager v Construction and Corporate Interior Design Company ADJ-00024039, Beatrice Fleming v Reddilift Limited ADJ-00026846, Sales Assistant v Retailer ADJ-00019501, A Chef v A Food and Drinks Business ADJ-00021483, An Employee v A Healthcare Company ADJ-00017070, Childcare Assistant v A Crèche & Childcare Provider ADJ-00010174,  An Employee v A Government Department ADJ-00015888.

The Respondent submits that there are no circumstances or facts giving rise actual or constructive knowledge. This is supported by the fact the Complainant provided a different reason on each occasion as to why he wanted to leave work. The Respondent further submits that the reference by the Complainant was not sufficient to place the Respondent formally on notice of the illness in accordance with the Adjudicator’s reasoning in Childcare Assistant v A Crèche & Childcare Provider ADJ-00010174.

COMPARATOR

The basis of making a claim under the EEA is that the Complainant must elect a comparator to which they compare their treatment. In order to establish that an act of discrimination has taken place, the Complainant is required to demonstrate that he was treated less favourably as compared to another person in a similar position.

The Respondent contends that the Complainant has made no such an election and has produced no evidence that any alleged maltreatment of him, or conditions of his employment. In this regard, it is submitted that the EEA provide that discrimination can only occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation”. The Respondent submits that the Complainant was not treated differently or less favourably than any other person would be in a comparable situation. The only comparator (if there is one) can be an able-bodied person who was treated differently. Who does the Complainant say that is, or was and how does he assert that he was treated differently?

This is a difficult hurdle for the Complainant. The definition specifically demands that a person to whom a Complainant is comparing themselves (either able bodied or with a different disability) must be in a comparable situation. In London Borough of Lewisham v Malcom [2008] UKHL 43, [2008] IRLR 700, the House of Lords held that if an employer would have treated a non-disabled person in the same way as a disabled person had been, there could be no disability related discrimination.

In consideration of the foregoing, the Respondent is in a position to submit the following data:

·         Details of the number of staff terminated within the first 6 months for similar reasons who do not suffer from any disability;

·         The Respondent also submits that currently there are two people who work for the respondent that suffer from Crohn’s disease who have worked without issue and have been retained for periods greater than 6 months. Furthermore, the Respondent notes there are a number of employees who suffer from similar debilitating diseases that work with the Respondent and have not been terminated.

On the basis of the foregoing, it is evident the Complainant was treated equally to both able bodied and other persons who suffer from disabilities.

REPLIES TO THE COMPLAINANT’S SUBMISSION

The Respondent submits, that the medical centre is a standalone section of the organisation and that no information regarding the Complainant’s condition was ever shared with the HR department or his line manager. Furthermore, the Respondent submits there was no data sharing agreement was in place, permitting the transfer of such special category data in the first instance. Therefore, any decision taken to dismiss was in the absence of knowledge or notice of the Complainant’s condition. In addition to the above, the Respondent is a stranger to the Complainant’s assertion that there was a “flare-up…days prior”.

it is denied the Complainant requested to go home due to his condition. The Respondent is in possession of an internal email detailing that the Complainant requested to attend the medical centre due to a smoking related cough. Furthermore, it is submitted that the dismissal arose following his return from the medical centre upon furnishing the medical certificate wherein no medical illness was stipulated. It was only after the fact, the Complainant alleged the Respondent was dismissing him for “medical reasons”.

The Respondent disagrees with the Complainant’s interpretation of the conversation that took place between him and Ms Hehir. The Respondent submits that the following comment was made by Ms Hehir, “Patrick, I’m not sure this is going to work out with us, this is the 4th time since you started that you have either looked to go home or was let home, I cannot run a floor like this. This was explained on the day you started.”

The Respondent submits that the performance appraisal meeting is held between HR, line managers and the operations manager. With regards to the Complainant, this was held on the 12 November 2022 at 9.00am. It was at this meeting the decision was taken to terminate his employment. It is rejected that the document Termination Notice has been redacted. The Respondent submits that the sentence ends at “various reasons”.

The Complainant has relied upon a hypothetical comparator. The Respondent submits that where actual comparator exists, the ability to rely upon the hypothetical comparator does not arise and is in essence, of no practical relevance.

The obligation to provide reasonable accommodation does not arise in the absence of an impairment being identified by way of medical opinion. In support of the foregoing, the Respondent refers to the decision in Humpreys v Westwood Fitness Club, [2004] 15 ELR 296. Here the Labour Court held when determining the extent of the obligations under Section 16 of the EEA, regard should be had to the medical evidence before the employer when assessing the employee’s capacity and the level of impairment faced by the employee. In consideration of this point, the Respondent submits the medical evidence before the Respondent at no stage indicated whether the Complainant ability to discharge his contractual duties was impaired. The fact was, the Complainant was at all times fully fit to work and there was no issue of impairment in respect of his ability to conduct his work. Notwithstanding such, reasonable accommodation was not identified by the Complainant in his WRC Complaint Form.

In his closing remarks, Mr Hyde asserted that there was no proof or knowledge of a disability. On the day of the hearing the Respondent was for the first time put on notice. Therefore, any prior decisions were not discriminatory.

Mr Hyde asserted that the medical centre is an independent centre that shares information only if there is an issue.

Mr Hyde said that the Complainant was dismissed because his work requires his presence. The witnesses all said in their evidence that the decision to dismiss was due to the Complainant’s absences. The decision to dismiss was made at 9am, albeit it was not to take effect on that day. Ms Hehir had authority to effect the decision.

Summary of evidence and cross-examination of Ms Hehir, the Complainant’s supervisor

Ms Hehir said that she has been in the supervisor’s position for 7.5 years and that there are some 70 operators. She explained the arrangements of the production process i.e. 3-7 operators work as a team, in a chain like manner. If one operator takes a break, a link is missing which is very disruptive and creates a serious issue to the production process.

Ms Hehir said that when the Complainant started in October, she was not told of his condition. She said that in the first week of employment, the Complainant said he had to go due to “personal issues”. Ms Hehir advised him to go to the HR Manager. At the time the Complainant did not mention Crohn’s disease. The Complainant was allowed to go home.

On the second occasion, the Complainant said that he needed some time off during his lunch break. Ms Hehir told him that she would do her best to cover for him. Ms Hehir said at the hearing that Crohn’s disease was not mentioned. She said that at the time all was going well in terms of the Complainant’s attitude and training.

Ms Hehir said that on the day of dismissal, at approximately 11am, the Complainant was walking towards her, he said that he needed to go home as he was unwell. He had no medical cert. Ms Hehir said that she couldn’t accommodate the Complainant as she would have to stop production. Ms Hehir said that the Complainant was unhappy and upset, he started giving her information about what was happening to his body, he was quite aggressive. Ms Hehir said that she checked on the Complainant again and told him that if he was really bad, she would try to accommodate him. The Complainant said that he was fine. Ms Hehir denied that she threatened the Complainant with a disciplinary action.

Ms Hehir said that the Complainant asked for a doctor’s appointment. She did not ask for a reason. The medical cert said that he was unfit but made no reference to Crohn’s disease.

Ms Hehir said that she could not have an Operator who misses so much time, it was like a bullet for her, she made a decision that she couldn’t have one missing so much time.

Ms Hehir said that she conducts a six week review and discusses it with the HR. On the morning of 12 November 2021, before 10am, she approached the HR Manager and said that she thought they would have to cease the Complainant’s employment. Ms Hehir said that the Complainant was not dismissed for “health reasons”, but due to his consistent requests to leave / miss work, she could not set a precedent.

Ms Hehir said that the Complainant did not take it well, he became aggressive, came into Ms Hehir’s personal space and said that it was for medical reasons that he was dismissed. Ms Hehir said that she told him that this was not the case, it was because she could not rely on him being at workplace Monday – Friday. She said that she asked the Complainant to sit down and relax so she could go and talk to the HR Manager who was in a meeting at the time. Ms Hehir denied that she was blocking the Complainant, stretching hand, etc.

In cross-examination, Ms Hehir was asked what was the “ideal fit” for the Respondent. She said a reliable person, with good attendance, disability would not matter.

It was put to Ms Hehir that the description of the Complainant as a loner and troublesome was outrageous. Ms Hehir disagreed, she said that it was because the Complainant always took breaks sitting separately in the restaurant, etc. It was troublesome as he would leave the production line and it was not always solvable.

Ms Hehir confirmed that the Complainant did not disclose his condition in the interview. He was asked was there any reason he would not be available Monday – Friday, and he said “no”. It was put to Ms Hehir that the Respondent would not employ the Complainant if he said there was something, if he disclosed his disability. Ms Hehir denied. Ms Hehir said that one would have assumed that he would raise disability in the interview when she asked him if there was anything that would impact his reliability. It was put to Ms Hehir that she is connecting a disability with reliability, she denied. Ms Hehir said that she is not a medical practitioner. Had the Complainant disclosed Crohn’s and flare-ups, she would have asked for advice. She said she still would have hired him, he was good at the interview. Ms Hehir said that she would need to check whether the Respondent could make any accommodations.

It was put to Ms Hehir that both Ms Coughlan and Ms Hehir let the Complainant go home prior to 12 November 2021 when they had no knowledge of Crohn’s disease. On the fourth occasion, she knew of his condition. Ms Hehir said it was because of the patterns. She confirmed that the Complainant told her about Crohn’s disease on 3 November 2021.

Ms Hehir said that prior to 3 November 2021 there was no issue with the Complainant’s performance, but with his attendance. On 2 November 2021, the Complainant moved to another job and started to struggle. Ms Hehir disagreed with the contention that his performance became an issue because of his disability. She said that the Complainant was finding the second job difficult, he was struggling and wasn’t meeting targets.

Ms Hehir confirmed that the Complainant told her about Crohn’s disease on 3 November 2021. It was put to her that his disability was an issue, she replied that it was his requests that were problematic not his disability. She said that constant requests to go home is not something the Respondent can accommodate.

Ms Hehir said that on 12 November 2021 the Complainant did not say anything about Crohn’s, she did not ask for a reason. She said that she could not afford to lose a staff member, for her it was another request to go home.

Ms Hehir confirmed that she did not receive any training regarding disabilities or reasonable accommodation, albeit some training was provided on how to handle work absences.

Ms Hehir disagreed that had the Complainant not have a disability, he would not have asked for absences.

In re-examination, Ms Hehir said that disability did not impact on her decision. If someone discloses a disability, she would seek advice. The Complainant’s consistent requests caused disruptions to the production process.

Summary of evidence and cross-examination of Ms Coughlan, the HR Manager

Ms Coughlan, in her sworn evidence said that on the first occasion the Complainant’s absence related to a “personal reason”.  She said that she suggested that maybe the Complainant would like to have people around in the circumstances, but he wanted to go home. She told the Complainant that she supported him. She explained to the Complainant how important it was to come to work given the chain nature of the production line.

Ms Coughlan said that there are two employees who have Crohn’s disease working for the Respondent. She said that she can only do something about something she knows.

In cross-examination, Ms Coughlan confirmed that the staff of the medical centre are employed by the Respondent. Ms Coughlan disagreed with Mr Duff’s assertion that the reason for such a large medical centre is to weed out people with disabilities.

It was put to Ms Coughlan that the onus is on the medical centre to inform the Respondent of any issues disclosed on the pre-employment questionnaire. She replied that it would have to be a condition that affects work.

Ms Coughlan said that a decision was made to terminate the Complainant’s employment. His going to the medical centre made no difference. It happened quicker than expected, she was going to sit down with him and discuss the matter first.

Mr Duff referred to the Respondent’s procedure and asked why was the disciplinary process not invoked as it covered poor attendance. Ms Coughlan said that on that morning it was decided to terminate the Complainant’s contract.

The witness was asked if she was happy, from the HR perspective with the way things worked out on 12 November 2021. She said that it was the right decision. She would have preferred to sit down and talk to the Complainant, but this did not happen. Ms Coughlan confirmed that there were no notes of Ms Hehir’s conversation with the Complainant, there was not prior warning, and he was not represented.

Summary of evidence and cross-examination of Ms Muldowney, Occupational Health Nurse

Ms Muldowney, in her sworn evidence said that she asked the Complainant to expand on some point in the forms and he then went to see Dr Flynn to complete the medical. She said that they did not see any reason to tell anyone about his medial issue. There was no indication that it was necessary.

Ms Muldowney said that she was surprised that the Complainant suffered from flare-up as he had no flare-ups for 10 years. It was noted that the Complainant was on antibiotics at the time and a number of issues came together. The witness said that the Complainant asked her for a note.

Ms Muldowney said that she is employed by the Respondent but the HR doesn’t have access to medical information, she is bound by the Nurses and Midwives Code of Practice.  The only time a medical issue could be disclosed is when it impacts work. In the Complainant’s case there was no indication that it would. If there was an indication that it could affect his work, she would have talked to the Complainant and advised him to speak to his supervisor.

In cross-examination, Ms Muldowney confirmed that she would not diagnose the Complainant. If she had an issue she would worry about, she would refer the Complainant to Dr Flynn.

It was put to the witness that in the pre-employment questionnaire the Complainant said that he suffers from Crohn’s disease. Ms Muldowney said that it was in remission, no treatment was required for 10 years.

In re-examination, Ms Muldowney confirmed that she saw no issue that would require to be shared with the HR.

The issue for decision is whether the Complainant was discriminated against on the disability ground within the meaning of the Employment Equality Act 1998, as amended (‘the Act’). 

At the adjudication hearing, the Complainant’s representative confirmed that this was a complaint of direct discrimination on the grounds of disability and not a complaint regarding failure to provide reasonable accommodation. The Complainant’s representative informed the hearing that the Complainant is not pursuing a claim regarding the alleged failure of the Respondent to provide the Complainant with reasonable accommodation. Consequently, the scope of my investigation in the instant complaint is confined strictly to the Complainant’s claim of discriminatory dismissal on the grounds of disability.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A(1) of the Act which states:

“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 Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. 

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

In order to determine whether the Complainant has established a prima facie case a three tier test is employed.

·         First, the Complainant must establish that he is covered by the relevant discriminatory ground.

·         Second, the Complainant must establish that the specific treatment alleged has on balance occurred.

·         Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

With regard to satisfying the test under the first tier, the Complainant asserts that he suffers from a disability. 

Section 6(1) of the Act provides that discrimination shall be taken to occur where “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) ...”.

Section 6(2)(g) of the Act defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Act. The definition of disability in Section 2(1) of the Act is as follows:

“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 definition of a disability has been interpreted in a broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt BoligselskabC-335/11 and C337/11where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails 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, and the limitation is a long-term one”.

It is well settled that for an employee to come within the protections of the of the Act, they will first have to show that they suffer from a disability.   This issue was addressed by the Labour Court in the case of A Retail Company & A Worker EDA2012. In that case the Labour Court pointed out that 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 Court pointed out that the burden of establishing this falls on the employee.

At the adjudication hearing, the Complainant presented a letter dated 17th November 2022 signed by Dr Michael Kelleher confirming that the Complainant “has Crohns disease since 2007”.  I am satisfied that the Complainant’s condition falls within the definition of a disability outlined above.

The Respondent asserted that the Complainant has not adduced any evidence to show that the Respondent was aware of his disability. In that regard, I note that on or around 23 September 2021, the Complainant was required to attend the Respondent’s Occupational Health Centre and complete a Pre-employment Medical Questionnaire. I note that in the document, the Complainant disclosed that he suffers from Crohn’s disease. The Complainant signed a Pre-employment Questionnaire Declaration whereby he consented to the following:

“Note: In the event of there being a work issue which may be related to your health (or a health issue which may be related to your work) we may confirm to HR, if asked to do so, whether the relevant medical information has been disclosed by you on the Questionnaire. Also, by signing below you are giving OH Nurse/Doctor consent to speak to HR/Supervisor/H&S about the issue.

Declaration.

I hereby consent to:-

“1. the use of personal information relating to me for the purpose of this pre employment medical

And

2. the disclosure of such information to HR/Supervisor/H%S to determine fitness for employment and I declare that the following statements made and information provided by me are true, complete and accurate to the best of my knowledge.”

In light of the above I find that it was reasonable for the Complainant to believe that he informed the Respondent of his condition at the pre-employment medical stage. Furthermore, I note that the Complainant informed his supervisor of the condition on 3 November 2021. Consequently, I find that the Respondent was aware of the Complainant’s condition at the time of dismissal.

There was no dispute that the Complainant was dismissed on 12 November 2021, following his visit to the Medical Centre. The Complainant argues that he was dismissed because of his disability. The Respondent denies that claim and argues that the Complainant’s dismissal was due to his attitude, general conduct and performance.

In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant who was treated differently. The Complainant did not provide a comparator and asserted that he was entitled, by law, to use a hypothetical comparator for his claim. In his direct evidence, the Complainant said that he noticed that others had absences but couldn’t remember their names, he said he didn’t think they had a disability.

The Respondent exhibited a Leavers’ Report listing employees whose employment was terminated within the first six months for similar reasons in the period from 29 January 2020 to 25 October 2022. The Respondent submitted that those employees did not suffer from any disability. I note that the record, which was not questioned by the Complainant shows that some 78 employees were dismissed for a variety of reasons such as “missing time”, “attendance”, “not the right time- childcare plus personal issues”, “not suitable”, and “asthma”.

While I have serious concerns about the manner in which the Complainant’s employment was terminated, I am constricted in my decision to the provisions of the Employment Equality Acts. The evidence before me shows that many other employees (some 78 according to the Respondent’s record), regardless of whether they suffered from a disability or not, were treated in the same manner. Thus, the Complainant was not treated any less favourably by virtue of his disability as claimed. I, therefore, cannot draw a conclusion that discrimination on grounds of disability occurred in this case.

I declare this complaint to be not well founded.

Discrimination – disability – no prima facie case