Complainant

Respondent

Parties

Anbuselvan  Theagarajan

Health Services Executive

Representatives

Lars Asmussen BL instructed by Sean Ormonde & Co.

Niamh McGowan BL instructed by Byrne Wallace LLP

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-00035129-001

10/03/2020

The Complainant works as a senior occupational therapist (OT) in Our Lady of Lourdes Hospital, Drogheda.  The Complainant was absent from work for an extended period due to a road traffic accident which occurred in April 2018.  The Complainant has submitted a number of complainants under section 77 of the Employment Equality Act 1998 (as amended) (‘the Act’) in relation to the period following his return to work in 2019.

On or about 5 April 2018, the Complainant was involved in a serious road traffic accident ( 'the accident') as a result of which he was unable to work for a period of approximately one year. The Complainant suffered injuries to his neck and shoulder. The accident and his subsequent injuries resulted in the Complainant commencing, and later recommencing, periods of certified sick leave.

In October 2018, the Complainant returned to work but quickly found that he was unable  to do his work due to severe neck and shoulder pain as a result of the accident. Shortly thereafter, he recommenced medically certified sick leave. 

In February 2019, it appeared that the Complainant was to be certified as fit to work from March 2019. On that basis, on 22 February 2019, the Complainant’s manager and the Complainant completed a health and safety general risk assessment form in respect of the Complainant's return from long term sick leave. This document noted that any risk arising from the Complainant's return to work after his period of leave was low risk, could be controlled by him reviewing the Respondent's handling principles and was closed in status. The Complainant asked to be referred to Occupational Health but was informed by his manager that this was not necessary.

On his return from sick leave, the Complainant was unilaterally removed from his clinical duties without due process or a contractual right to do so. The Complainant remains on clinical suspension which is causing ongoing and irreparable damage to his good name and professional reputation.

The Complainant submits that the Respondent discriminated against him on the basis of his disability in the conditions of his employment, promotion and in harassing him.

Legal basis for claim

Section 6(1) of the Employment Equality Act 1998 (as amended) (‘the Act’) provides that: “… discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the  discriminatory grounds”. The Acts make unlawful discrimination on the grounds of disability in relation to discrimination, harassment and victimisation.

The definition of disability contained in section 2 of the Act is set out in a list of broad categories as follows:

"(a) the total or partial absence of a person 's bodily or mental functions, including the absence o f a part of a person 's body,

…

(c) the malfunction, malformation or disfigurement of a part of a person's body,

…

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 disability has been interpreted in an extremely broad and all encompassing manner by the courts. As was suggested in A Government Department v. A  Worker EDA094, the de minimis rule applies and the condition must manifest in a minimal level of symptoms to be classified as a disability.

The Complainant submits that he suffered from severe soft tissue damage to the neck and left shoulder that caused him to be certified over a prolonged periods of time as medically unfit to work. It is submitted that the Complainant's condition comes within section 2(1)(a) and (c) of the definition of a disability under the Act with particular reference to the fact that he was discriminated against not only due to his actual disability but also due to an imputed or previous disability.

Knowledge of the Disability

The issue of the level of knowledge required of an employer of an employee's disability in order for the employee to ground a claim for discrimination under the Act has been largely settled. In Connacht Gold Co-Operative Society v. A Worker EDA0822, 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. Interestingly, the Labour Court held that signs, symptoms or indications of the Claimant's disability in his job performance could contribute to the employer being fixed with constructive knowledge of a disability. This position regarding constructive knowledge was affirmed in Flynn v. Emerald Facilities Services DEC-E2009065.

The Complainant submits that, at all times, the Respondent was aware of the existence and severity of his disability.  Indeed, this was apparent through numerous letters, medical certificates, occupational health reports and conversations wherein it was explicitly stated that he was suffering with same.

Discrimination

Direct discrimination arises where the less favourable treatment is based on a criterion which is necessarily linked to a characteristic indissociable from the discriminatory ground (Case C - 79/99 Schorbus).  In order to establish direct discrimination, it is necessary to prove that, but for the fact that the Complainant falls within one of the discriminatory grounds, he would have been treated  differently. As such, it is necessary to identify an actual or hypothetical comparator, in a comparable situation who is, has, or would be treated differently.

The Complainant must discharge the burden of proof by showing that the difference in treatment is due to discrimination on one of the discriminatory grounds. Once the Claimant has made a prima facie case the burden of proof shifts to the Respondent. The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank [2004]  ELR 116: "This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant 's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent's capacity of proof”.

In Dublin Corporation v. Gibney 's EE5/1986, a prima facie case was defined as: "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows: "It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

i         that she is covered by the relevant discriminatory ground(s)

ii       that she has been subjected to specific treatment and

iii      that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

The connection between the discriminatory ground and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination. This requirement is well captured in the following dicta from the decision in A Technology Company v. A Worker EDA0714: "A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a  disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of independent corroboration, must be approached with caution.”

It is well accepted that there is a broad range of circumstances in which direct discrimination can arise in the conditions of one's employment. Section 8(6) of the Act defines discrimination in relation to conditions of employment as including less favourable treatment in relation to: terms of employment; working conditions; transfers; and disciplinary procedures.

Of particular relevance in in making a prima facie case of discrimination so as meet the standard of proof and raise a presumption of discrimination is the comments made by the Respondent in relation to his disability.  The fact of the applicant having been on a period of protracted sick leave, inability to lift heavy patients and wish to position himself to specific sides of patients to assist him in his physical limitations was mocked and admonished by his supervisors during his period of supervision. Further and most shockingly, same was then explicitly listed as a performance issue in these supervisors meeting with his manager that precipitated the Complainant's clinical suspension. This was all done without any consideration as to whether such limitations were valid or could be accommodated.

It is submitted that there is clear evidence as to amount to a prima facie case of discrimination on the disability ground and that, in those circumstances, the burden of proof must now shift to the Respondent to prove the contrary.

The Respondent submits as follows:

It is not accepted the Complainant is a person with a disability within the meaning of the Act. Furthermore, the nature of the Complainant’s alleged disability is not known to the Respondent.

Section 6(1) of the Employment Equality Act 1998 (as amended) (‘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 sub-section 2 (in this Act referred to as the ‘discriminatory grounds’).’ 

Section 6(2)(g) provides that: -

‘As between any two persons the discriminatory grounds are 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’).’ 

Burden of proof

The Respondent  submits that in order to succeed in his equality claim, the Complainant initially bears the burden of establishing a prima facie case of discrimination, and only then does the burden shift to the Respondent to prove, on the balance of probabilities, that there was no discrimination in breach of the Act. 

The Complainant must establish, in the first instance, his alleged discriminatory ground and in particular, that he is a person with a disability within the meaning of the Act.

Section 85A(i) of the Act deals with the burden of proof and states that: 

"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 to the contrary."

In Southern Health Board v. Teresa Mitchell [2001] E.L.R. 201, the Labour Court set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established: 

"The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination."

In Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20, the primary facts which a complainant must prove on the balance of probabilities were identified by the Equality Officer as follows: 

"That s/he is covered by the relevant discriminatory ground(s);

That s/he has been subjected to specific treatments; and

That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated."

In Southern Health Board v. Mitchell, the Labour Court went on to say that: -

"It is only if those primary facts are regarded…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 Melbury Developments v. Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn (…)the  burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."

As per the Labour Court decision in HSE North Eastern Area v. Sheridan  EDA0820, whether a complainant has shifted the burden of proof necessitates the following three step evaluation:

(i)        "First, the complainant must prove the primary facts upon which he or she relies in alleging discrimination.

(ii)     Second, the Court must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

(iii)     Third, if the complainant fails at stage 1 or 2, he or she cannot succeed. However, if the complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination."

The Respondent submits that in the instant case, no inference of discrimination has been raised, nor indeed can be raised from the facts before the Adjudication Officer.  The Respondent submits that the Complainant has made no more than mere assertions, unsupported by any credible evidence, and as such his claims cannot be elevated to a factual basis from which an inference of discrimination can be drawn. In particular, the Respondent submits that the Complainant has failed to demonstrate the following primary facts, being the essential proofs of his equality claim, namely, that:

(i)       he has a disability as defined under the Act; and

(ii)     he was treated less favourably on the grounds of his alleged disability than another senior occupational therapist is, has been or would be treated in a comparable situation.

The Complainant’s complaint of discriminatory treatment on disability grounds

Section 2 the Act defines disability as: 

(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…"

As the Labour Court confirmed in Swan O'Sullivan v Counihan EDA10/2018:

"the existence of a disability can operate as a threshold or locus standi issue. That arises because, except in cases of associate or imputed disability, a cause of action for discrimination on grounds of disability can only accrue to a person whose circumstances come within the meaning ascribed to that term by section 2(1) of the Acts".   

As was made clear in Senior Nurse v. A Health Service Provider (ADJ-00014052), in order to establish a prima facie case of discrimination, a complainant must produce medical evidence confirming the existence of the disability alleged, if not during their employment then at the very least at the time of the hearing of their complaint under the Act. In that case, the Adjudication Officer, in rejecting the claim, stated that:

"it may well be as asserted by the complainant that she did suffer from a cardiac condition, however, an assertion unsupported by credible evidence is insufficient to establish facts from which a disability can be inferred so as to shift the burden of proof to the Respondent."

It is accepted by the Respondent that the Complainant was involved in a road traffic accident in or around 18 April 2018 and that he suffered soft tissue injuries arising from that accident.  However at no time was the Respondent on notice of any accommodations required by the Complainant, or indeed any disability purportedly suffered by the Complainant.  The Complainant was certified as fit to return to work in June 2019, having sought clearance from his own GP to attend a two day phlebotomy course for which he was certified as fit to attend.  By agreement with the Respondent, the Complainant was facilitated to take extended annual leave for the period of July and August in order for him to undertake a course in alternative medicine in India in which he had expressed an interest.  The Complainant then returned to work on 2 September 2019.  Again, there was no conditionality attached to his return to work and he returned on a full-time basis from 2 September 2019.  While it is accepted that the Complainant suffered an injury in a road traffic accident in April 2018, the Respondent was not on notice of any disability arising in respect of same.  It is the Respondent’s understanding from medical documentation provided that the injury was a soft tissue injury and not one that met any of the definitions of disability as set out above.  

The Respondent submits that the Complainant, in having provided no medical evidence supporting any alleged disability pre-dating his claim, has failed to establish one of the essential proofs underpinning his claim for discriminatory treatment on grounds of disability, specifically, that he had a disability at the material time.  He also fails to identify the nature of his alleged disability.

The issue for preliminary 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 second hearing on 1 February 2023, the Complainant’s representative confirmed that this was a complaint of direct discrimination on the grounds of disability and not a complaint of imputed 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.

Disability – Direct Discrimination

With regard to satisfying the test under the first tier, the Complainant asserts that he suffers from a disability.  The Complainant’s assertion is disputed by the Respondent. 

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 an extremely 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 C337/11  where 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 conclusion of the first hearing on 2 February 2022, I asked the Complainant’s representative to furnish me with medical evidence confirming the Complainant’s disability and the limitations, if any, that his disability placed on his ability to carry out his job in full. In response, on 17 February 2022, the Complainant’s representative provided me with 46 pages of medical documentation on behalf of the Complainant. 

At the second hearing on 1 February 2023, I asked the Complainant’s representative to show me where, in the extensive documentation, an independent medical practitioner had verified that the Complainant was suffering from a disability.  The Complainant’s representative was unable to do so.

I also note the contents of a medical certificate dated 25 June 2019 concerning the Complainant’s return to work which has been furnished to me.  In the medical certificate the Complainant’s GP wrote as follows:

“The above named patient is fit to return to normal duties from: 29/6/19.

Your sincerely …”

That is the entirety of the medical certificate.  There is no mention of disability or of any accommodation required by the Complainant.  I am of the view that this medical certificate cannot be read as an indication that the Complainant was suffering from a disability or needed any accommodation.

In Swan O’Sullivan v Counihan (EDA10/2018), an employee claimed to have been discriminated against on the grounds of disability.  The employee had not informed his employer of his disability.  The Labour Court rejected his claim after establishing that the employee had failed to produce medical certificates when requested to do so by his employer.  The Court held “… before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person”.

Having carefully considered the written and oral submissions in relation to this aspect of the complaint, I am satisfied that I have not been presented with any evidence to support a claim that the Complainant was discriminated against by the Respondent on the grounds of disability.

Having carefully considered the submissions of both parties, I find that the Complainant has not established facts which, on an initial examination, lead to a presumption that discrimination on the disability ground has occurred. I find, therefore, that the Complainant was not discriminated against on the disability ground by the Respondent.

For the avoidance of doubt, the parties should note that this preliminary decision only relates to CA-00035129-001 which is a referral under section 77 of the of the Employment Equality Act, 1998 and not to any other complaints which the Complainant has referred against the Respondent.

No medical evidence of disability