ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033541(Conjoined with ADJ 34094, Duplicate Claim)
Parties:
| Complainant | Respondent |
Parties | Cindy Pitter | Cork Education Training Centre |
Representatives | Appeared In Person | James Cleary, IBEC Executive |
Complaint:
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-00044394-001 | 29/05/2021 |
Date of Adjudication Hearing: 17/10/2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following 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.
Background:
On 29 May 2021, the Complainant made a complaint of discrimination on grounds of disability against the Respondent. The Complainant introduced herself as being represented by a Disability Support Group and for the special facilities section, she recorded “mask exempt “.
This case is conjoined with ADJ 34094, which in fact a duplicate claim, which seems to me to have commenced on July 1, 2021. I accept the Complainants assurances that she has submitted a sole complaint to the WRC, that of 29 May 2021. I did inquire at hearing whether she wished to withdraw either of the cases on the basis that they were mirror claims? The Complainant assured me that both complaints were live against the Respondent. I accepted that position. The Complainant clarified that she had no recollection of lodging a complaint at WRC on July 1, 2022. Sometime post hearing, the Complainant sought and was provided with a copy of both complaints in the conjoined cases from WRC. No further correspondence followed on that topic. I will return to the content of the claim at a later juncture as the Respondent has raised a Preliminary Issue regarding the jurisdictional pathway of the claim before WRC.
It is important for me to reflect an accurate chronology in the claim.
The conjoined cases were initially scheduled for two separate hearings. Following a query from the Respondent, the WRC conjoined the cases, and set a hearing date in Cork for 17 October 2022.
On October 10, 2022, the Complainant wrote to the WRC and informed the Administrative Section that she had read the respondent submission and would not be attending the 17 October hearing. She outlined that she had been forced to wear a mask during her two-year horticultural course. Attendance was contingent on mask wearing. The Complainant sought substantial redress of compensation as a result.
The Complainant subsequently changed her position and attended the hearing in person on October 17, 2020. I was pleased to meet both parties. The Complainant told the hearing that her Solicitor was not making an appearance as she could not get the time off to attend. I referred to the correspondence from 5 September 2022, where the Complainant referred to her Solicitor as being in Dublin. Neither party had applied for a postponement.
I asked the Complainant if she was happy to proceed in person? The Complainant confirmed “I am happy to be here “ I explained the procedures of the case being held in public, where the parties would be named, and the decision published. I explained “special circumstances “if either party wished to make a submission. None followed.
I then sought to obtain some clarity on the jurisdictional pathway in the case.
The Complaint was recorded on the WRC complaint form as a complaint under the Employment Equality Acts 1998. It was acknowledged, processed, and came to hearing in that vein. It is important for me to reflect that the Complainant did not avail of the opportunity to compile and submit a written outline submission within the 15 days allowed prehearing. This may have clarified matters prehearing. She did, however, confirm that she had read the Respondents prepared submission.
Some confusion arose for me as the prehearing submissions reflected that the Complainant had forwarded an ES1 form to the Respondent on 28 April 2021. This is the jurisdictional pathway permitted under the Equal Status Act, 2000, which is a separate piece of legislation on the provision of goods and services, with a separate appellate function to the Circuit Court rather than the appellate function in the instant case to the Labour Court.
Considering this lack of clarity of intent by the complainant, I gave the parties a number of breaks to allow for both parties to explore any opportunity to resolve matters. This was unsuccessful.
I decided to press on and address the necessary clarification of jurisdictional pathway by means of a preliminary issue alongside the substantive case. The Complainant gave evidence by affirmation. The Respondent witness, by oath.
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Summary of Complainant’s Case:
On 29 May 2021, the Complainant, introduced as a student submitted a complaint of discrimination against the respondent. She detailed that she had been discriminated against by her employer, prospective employer, employment agency, vocational training, or other bodies. She detailed that the grounds for the complaint were discrimination on disability grounds, a failure to grant reasonable accommodation, discriminatory dismissal, and dismissal for opposing discrimination. The most recent date of discrimination was 27 May 2021, two days previous. The Complainant introduced the name of her chosen representative but indicated that she wished for correspondence in the case to issue to herself and not her representative. She asked for special facilities as “mask exempt “. The Complaint specifics centred on one statement: I have been forbidden from taking part in training because I can’t wear a mask because of my disability. The Complainant submitted that she was seeking the redress option of “Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. This complaint was acknowledged as a complaint seeking adjudication under section 77 of the Employment Equality Act 1998 on 25 June 2021. Evidence of the Complainant by affirmation: Response to Preliminary Issues: The Complainant confirmed that she had been a student and not an employee of the Respondent body. She outlined that she did not recall the circumstances surrounding the complaint formation in May 2021. She submitted this had been undertaken by her Solicitor. She did recall lodging an ES1 form by registered mail and her pursuance of a response. She did follow it up but had no recollection of who she spoke with. It was her case that she had not received a reply to this ES1. She confirmed that she had made this complaint under employment equality legislation on 29 May 2021 as she had not been allowed back into the course. When asked to clarify her intention in making the complaint she said that she thought a complaint under employment equality was wrong but was advised by her Solicitor that “it was the only course of action “ During cross examination, the Complainant confirmed that the Solicitor named on the complaint form was her Solicitor and that she had been in receipt of legal advice at the time the claim was made. The Complainant was requested to explain the clear pathway travelled by her ES1 form dated 28 April 2021 and how it had diverged to the complaint under Employment Equality before me? She was unclear when the ES1 was served. The Complainant told the hearing that it had crossed her mind, but she did not have an explanation. The Complainant contended that the case should “now “be associated with the Equal Status Act 2000. I asked the complainant what steps she had taken following her declared unease regarding the complaint formation under the Employment Equality Act and today’s hearing? I asked her particularly of the impact that the Respondent response to the ES1 dated 2 June 2021 had for her? The Complainant had the letter in her hand but did not make a response. She replied that she did not know how it happened. Complainant response to request for dismissal of the claim as misconceived: I read the entire provisions of Section 77(A)(1) out twice for the consideration of both parties. I also detailed the different pathways associated with each of the Equal Status Act 2000 and Employment Equality Act, 1998.In particular, the distinction in the appellate bodies. The Complainant responded that she had followed the advice of her solicitor and denied that the claim was frivolous. She contended that she lacked legal experience but accepted that the complaint had been filed in the wrong category. she had held that view from the outset but did not believe that she had any other option. The Complainant submitted that she had not been in receipt of an education grant, nor had she paid to undertake the course. She asked to be heard as “justice is supposed to stand “ She then stated that there were 9 other cases on face coverings in the system but no other case against the respondent. The Complainant gave evidence of the throughput of the course and course content. The Complainant drew the attention of the hearing to the email thread with the respondent 18 April 2021 to April 20 April, which incorporated the key email of 19 April 2021 “Yes, I understand the circumstances. I know everyone is concerned for their safety, I am concerned for my wellbeing too, which is why I have reservations about the face masks and any long-term possible consequences of wearing them. Unfortunately, then, I won’t be able to attend the class anymore but thanks for the last two years tuition and all the best to everyone “ The Complainant countered this position by seeking if she could cover the classes by zoom on 20 April 2021 The Respondent emailed back on April 20, 2021, and confirmed that the complainant had insufficient study covered to pass two modules and “you are welcome to sign up for the modules again, at a later stage, hopefully post covid time, to finish off the modules “ The Complainant confirmed that she has not returned to conclude these classes. The Complainant also enclosed an email dated 3 June 2021 which referred to a registered post response to the notification under the Equal Status Acts. On the conclusion of the hearing, the Complainant was requested to submit details of any certification received from the Respondent. She did attempt to send a certification, but it was not decipherable. |
Summary of Respondent’s Case:
The Respondent operates an Education and Training Centre. All claims of discrimination have been denied. Mr Cleary for the Respondent submitted two written Preliminary Arguments in advance of the hearing. This argument can be summarised as: Employment Status: The Respondent is on notice of a claim under the Employment Equality Act, 1998. In May 2021, the Complainant had originally notified the Respondent of her intention to proceed with a claim under the Equal Status Act. The Respondent outlined that the relationship between the respondent and complainant in this case centred on her attendance at a Horticulture Course as an Adult Learner. She has never been employed or dismissed by the Respondent. No contract existed between the parties. It was the Respondent case that the Complainant could not satisfy the provisions of Section 1 of the Act on the definition of an employee for the purposes of the Act. Disability: Mr Cleary disputed that the complainant possessed a disability. He exhibited the application form submitted by the Complainant prior to her commencement on the Horticultural course. She had not disclosed a disability or requirement for learning supports. She had confirmed that she was in receipt of a medical card and disability allowance. She confirmed having a “social anxiety “ Procedural Issues on the Trajectory of the claim The Respondent outlined a high level of dissatisfaction with the trajectory of this case, which had been notified first as a complaint under the Equal Status Acts and responded to in that vein. The initial complaint form did not carry the correct legal title of “Cork Education and Training Board “ Both Parties engaged in Mediation, which had been unsuccessful. The Respondent understood that this matter was being processed in accordance with the notification requirements of the Equal Status Act 2000 but did not receive such a notification. The Respondent had sought to resolve this matter but was overtaken by a referral onwards for Adjudication under the Employment Equality Acts. There is a sensitivity for me at this point as I am not privy to the Mediation engaged in by either party. Background to the case (Substantive Case) The Complainant commenced Level 4 Horticultural Course in September 2019. This was to be of two years duration. The Complainant had entered the second year of the programme, which coincided with the national covid 19 pandemics, when the circumstances of this case unfolded. The Respondent was permitted to re-open on a limited basis from June 18, 20290. Prior to this they had endeavoured to work remotely with online classes, where possible. On September 8, 2020, the Respondent issued a Covid Induction Video to all learners in a classroom setting. Learners were requested to wear face masks to reduce the risk of transmission of the virus. From October 2020, onwards, the complainant enquired about a mask exemption on medical grounds. The Respondent requested that she submit a medical certificate to enable application of the exemption. The Complainant was unwilling to provide “her private medical data “and wore a mask in the Learner setting. The Complainant relaunch her request for a mask exemption in April 2021. She did not provide any evidence of disability. The Complainant communicated that she had concerns regarding the impact of long-term mask wearing and did not wish to wear a mask and withdrew from the course. The Respondent disputed any discrimination against the complainant. They also denied that Section 12 of the Act on Vocational training had been breached. The Respondent acted in compliance with public health guidelines, where promotion of a safe space was a priority. It was the Respondent case that the claim should be dismissed. On the day of hearing, Mr Cleary for the Respondent read the prepared submission into the record. On the topic on what was the correct legislation associated with the claim, I took some time to explain the Burden of Proof necessary in the case and I explained the findings of Mc Govern J .in County Louth Vocational Educational Committee -v- The Equality Tribunal and Pearse Brannigan 2009 IHC370 where the Court found it was permissible to amend a claim where the general nature of the complaint remains the same. The Complainant submitted that she had no legal knowledge and was unaware that she was expected to bring detail to the hearing. She requested to be heard under the Equal Status Act 2000 on grounds of disability. I asked the Respondent if they were able to give consent to amend the Legislation to that preferred by the Complainant as Equal Status Act, 2000? The Respondent outlined that they were not agreeing to amend the claim. They submitted that the complainant had legal representation at the initiation of the claim. Mr Cleary submitted that ignorance of the law was no defence. He said that the Respondent had taken the time to make comprehensive submissions 10 days before the hearing and the complainant or her representative had not sought to amend this at any point before the day of hearing. Mr Cleary sought that the claim be dismissed as misconceived. Response to request to be heard under Equal Status Act The Respondent repeated the request to dismiss the case as the complaint lodged under the Employment Equality Act had been directed by the Complainants own Solicitor. She did not have the locus standi to proceed. The Respondent cited case law in support of the argument that the case should be dismissed as the complainant had no reasonable chance of success. Farley v Ireland [1997] IESC 60 Fay v Tegral Pipes limited and Ors [2005] 2 IR 261 – stressing that” the real purpose of the courts inherent jurisdiction to dismiss frivolous or vexatious claims was firstly, to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed”. The terms “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or in this instance, application) can be described as futile, misconceived, or bound to fail.” In Galway and Roscommon ETB UDD1624 the Court noted the following: “The Court is satisfied that the legal principle of ‘ignorantia juris non excusat’ (“ignorance of the law excuses not”) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit Patrick Kelly Nowak v Data Commissioner Evidence of Suzanne Mullins under Oath Ms Mullins outlined the components of the course leading to a full award. Ms Mullins stated that the complainant had been offered a return to the course as it ran on a cyclical nature and that invitation to return was an open invitation. The invitation still stood. The Respondent made a supplementary submission as requested on the application of the case law to afford the complainant an opportunity to consider the application of the law made by Mr Cleary at hearing. The Complainant received this document but did not make a formal response. Findings and Conclusions I have been requested to make a decision in a complaint, which from the very beginning has been introduced to me as a complaint under the Employment Equality Act 1998. I have been requested to make a decision on whether: 1 The Complainant was discriminated against on grounds of disability. 2 The Complainant was discriminated against for opposing discrimination 3 The Complainant was denied reasonable accommodation 4 The Complainant was discriminatorily dismissed because of her disability The disability has been described as a social anxiety supported by a clinical note dated August 2022. In arriving at my decision, I have taken a keen interest in both party’s recollections of the trajectory of the case from 29 May 2021, date of complaint to the day of hearing on 17 October 2022. Both parties arrived to hearing slightly uncertain on the depth of the case they carried and responded to. The Complainant was adamant that she made one complaint to the WRC, that of 29 May 2021. The Respondent came to hearing suggesting they had come to answer one case. I made it clear to the parties that I had been given two cases and was required by law to make two decisions. The matter became further fluid when the issue of the Equal Status Act, 2000 was raised in the context of Preliminary Arguments. The Respondent declined the invitation to amend the claim from Employment Act 1998 to Equal Status Act, 2000. The Complainant had fully acknowledged that she was not a worker and was now seeking the protection of the Equal Status Act 2000. The Respondent submitted at hearing and through invited submissions on the relevance of case law cited that the Complainant was legally represented from the outset, and it was not prepared to accept that the complainant was either ignorant of the law or had made an error. The Respondent was not prepared to amend the claim to reflect the Equal Status Act, 2000. Therefore, it falls to me, as the assigned Adjudicator to decide whether the Complainant has advanced a sufficient argument to support an amendment of the claim as requested. It is not unheard of that an Adjudicator would consider or act on such a request. A WRC complaint form is not a statutory document. However, it is the statement of claim. In the instant case, the Respondent was placed on notice of a matter via an ES1 form by registered post under the Equal Status Act, 2000 in April 2021. This was acknowledged by the Respondent who requested an extension of time to respond. This response issued by letter dated June 2, 2021. By then the Complainant had advanced this complaint under Employment Equality Law to the WRC dated 29 May 2021. It is very important for me to reflect that the complainant stated in evidence that she had misgivings about the 29 May 2021 complaint, but she accepted her Solicitors advice that this was her sole viable course of action. I have engaged in an in-depth review of the case file, and I have not found any documentation/correspondence attributable to a Solicitor such as named by the Complainant. I did not have the benefit of an authorisation for representation as frequently seen in advisory groups and most importantly, the complainant requested that all correspondence in the case issue through her and not her representative. I must conclude that the Complainant approaches this case as a lay litigant. It is also important for me to reflect that the Equality Acts, both Employment Equality Act 1998 and Equal Status Act 2000 are remedial statutes, where the complainant is permitted to advance in search of a remedy for proven discrimination. The seminal case in this very consideration is County Louth VEC v Equality Tribunal and Pearse Brannigan [2009] IEHC 370 Where Mc Govern J held that it was permissible to amend a complaint at hearing provided “the general nature of the complaint remains the same “ This sort of issue also arose in ADJ-00021173. It involved a Labourer and a Construction Company. A claim issued under the National Minimum Wage Act. The Adjudication Officer in this case held that Statutory Instrument 445 of 2017 being the Sectoral Employment Order (Construction Sector) 2017 applied. The complaint was made under Section 24 of the Minimum Wage Act.
Application to be heard under the Equal Status Act, 2000. I have given considerable thought to this request and find that I am unable to accede to the Complainants request for the following reasons. It is a vital consideration in this case that the first step taken in the facts of this case was a complaint under the Equal Status Acts 2000. This took the form of an ES1 form submitted within the statutory notification requirements of section 21 of that Act. This referred to “I was informed by my tutor Mr X that I can’t attend the horticultural class (both indoors and outdoors) unless I am wearing a face mask all day during class time over my nose and mouth “ She went on to say that her attendance on the course had been restricted. Section 7 of the form is worthy of quoting in full. Please note that I intend to seek redress under the Equal Status Acts 2000-2015 if I am not satisfied with the reply I receive, or if you fail to reply within a month after it was sent to you. This was dated 28 April 2021. The Respondent in that complaint, Cork Education and Training Board, made a detailed response dated 2 June 2021. I directed a number of clarifications towards the complainant at hearing, as to what impact this response had had for her in terms of claim. She was unable to answer me in any reassuring way. For me, both the ES1 and the Respondent response dated June 2, 2021, were 100% focussed on the provisions of the Equal Status Act, 2000. A possible next step for the complainant was to action a complaint in accordance with that enabling Legislation. The Complainant then stood off that pathway when she submitted the instant complaint on 29 May 2021. She has placed a very defined vagueness and uncertainty in how this occurred. I was not convinced by this. I am not encouraged that she did not act on her declared misgivings at that time. I am also mindful on the remedy sought by the complainant prehearing was pitched at a level far in excess of what is permitted as a remedy under the Equal Status Act. I began to wonder if the divergent approach was a deliberate action in that regard? I was strengthened in my view on this when considering some of the exclusion clauses cited under Section 5 and 7 of the Equal Status Act 2000. I also took note that the complainant referred to her case amidst a report of 9 other such cases before the WRC, suggestive of a coordinated approach. I revert again to the complainant’s own evidence that her Solicitor was unable to get time off to attend the hearing. Yet, neither she nor her Solicitor actioned the application process for postponement highlighted on the notification of hearing. At hearing, the Complainant was unable to justify the divergent approach. she did not say it was a mistake. She says she just couldn’t remember. The Respondent has placed their arguments against an amendment on the omnipresence of legal advice in the complainant’s case. It is important for me to reflect for a moment on the speed in which this matter came before the WRC from the originating problem of being requested to wear a mask in April 2021. The Complainant submitted that she had an earlier reservation surrounding mask wearing during 2020, but the issue was resolved by compliance at the time. The Respondent equipped me with an elaborate manual directed at staff welfare. I asked but was not provided with a corresponding manual for student welfare / disputes resolution mechanism. This complaint was raised at WRC without an attempt to resolve the matter locally. That is not a fatal flaw, but a flaw, nonetheless. The Complainant has not relied on human error, inadvertence or oversight in terms of how the claim left the tracks of the Equal Status Act beginnings to enter the trajectory of the Employment Equality Act in May 2021. The Mediation, of which I am not privy occurred in Summer 2022 and clearly references this ADJ 33541 on the notification of resumption to adjudication. It is of cardinal importance that neither party had presented me with the typical documentation associated with a Mediation engaged in under Equal Status Act. I must definitely conclude, in the absence of any evidence to the contrary, that the Mediation occurred under the umbrella of the Employment Equality Act 1998. In applying Brannigan facts of this case, I must conclude that to change the legislative framework to the Goods and Services Legislative framework would change the general nature of the complaint, which I am satisfied would prejudice the Respondent, who prepared a comprehensive response under the presiding legislative framework of the Employment Equality Act 1998. I have considered the case law referred to by the Respondent. However, I would prefer the Respondent application of Brannigan to the facts. A first step in a claim for discrimination is for the complainant to raise a prima facie case of discrimination for the burden of proof to shift to the Respondent. I find that I am not in a position to amend the legislative framework to amend the claim to one under the Equal Status Act. I find that the Complainant was remiss in her throughput of this claim. I find that it would be an excess change in the general nature of the complaint in addition to being prejudicial to the Respondent to amend the claim at this very late stage. May 2021- October 2022.
Next, I need to consider whether the claim is viable under the Employment Equality Act, 1998.
Preliminary arguments: Locus Standi It is accepted by all parties that the Complainant has never been a worker as defined in the Employment Equality Act, 1998. Neither is she seeking access to a complaint under Section 12 on Vocational Training. Vocational training. 12.—(1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)— (a) in the terms on which any such course or related facility is offered, (b) by refusing or omitting to afford access to any such course or facility, (c) in the manner in which any such course or facility is provided, or (d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered. (2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity. Given that the Complainant is a lay litigant, I have found it necessary to consider whether the provisions of Section 12 on Vocational Training aid her. The parameters of Vocational training and employee status were both comprehensively addressed on appeal by Feeney J at the High Court in the case of:
Oberoi v Commissioner of a Garda Siochana [2014] 41 CLMD, Feeney J This was a case which prompted a Garda Reserve in training to make complaints of discrimination on grounds of race and religion. He was unable to complete his training as his religion required him to wear a turban which conflicted with the garda reserve requirement to wear a garda hat. Justice Feeney addressed a cross appeal by the parties and held that Mr Oberoi was not recognisable as an employee in accordance with the Employment Equality Act, nor was he comprehended by the parameters of section 12 on Vocational training. A Garda Reserve has no obligation to perform work and can withdraw his or her services with impunity and merely has to notify the District Officer that he intends to be unavailable. There is no contract in writing between the reserve member and An Garda Síochána and there is no legally binding contract implied between the parties. Both the legislative scheme and the documentation relating to the operation of the scheme makes it clear that a Garda Reserve is a volunteer. It is also the case that there is no valuable consideration passing between the parties as there is no remuneration and merely an allowance for expenses. It is also the case that there is no legal obligation to place a reserve member on duty and a reserve member may only be placed on duty by, or on behalf of, the relevant District Officer. It follows from the above analysis that I am satisfied both from my interpretation of the statutory provisions and from my analysis of the provisions applying to a reserve member and the terms and conditions under which a reserve member operates that a reserve member is not an employee, either for the purposes of the Employment Equality Acts or otherwise. I will, therefore, refuse the appeal by the applicant. The provision under the Garda Síochána (Admissions and Appointments) Regulations 1988 that due recognition may be given to satisfactory service as a member of the Garda Reserve in deciding whether to admit an individual to training with a view to being appointed as a member of the Garda Síochána, was no more than an obligation to take such matters into consideration, together with other matters. While a member of the Garda Reserve gained experience which might assist that person in ultimately becoming a member of the Garda Síochána, this was a by-product of membership of the Garda Reserve rather than its purpose. As such, membership of the Garda Reserve could not be regarded as training or experience for, or in relation to, employment for the purposes of the 1998 Act. In the instant case, I have studied the application form for the Course Title Horticulture QQ14 and Retail. It outlined that the Complainant was in receipt of a welfare payment in the form of a disability allowance and recorded the complainant as unemployed from March 2019. I note that the Complainant did not pay a fee to undertake the course. Section 5: sensitive Data on ethnic, cultural and long-lasting conditions, was described as optional but in this case was not populated on 10 September 2019 when the complainant signed the form. I have applied Oberoi to the circumstances in this case and find that the complainant cannot be considered an employee in accordance with the broad definition of employee provided in section 2 of the Employment Equality Act or seek the protection of section 12 of the Act on Vocational Training. "employee", subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons; The Complainant doers do not possess the locus standi or the legal anchor as an employee to advance her claim under the Employment Equality Acts. It is of note that the Respondent has offered the complainant the opportunity to return and complete the modules disturbed by the national pandemic. Conclusion: I am not prepared to dismiss the claim as misconceived or frivolous as to do so would omit the central part of my findings that I have not been satisfied with the complainant’s approach to the response contained in the Respondent letter dated June 2, 2021. It was a well worded letter and was material to this case. It deserved further reflection, consideration and recall by the complainant in this case. I would have expected the complainant to have acted on her early misgivings and share these in prehearing submissions requested. This did not occur. It may have assisted both parties if it had. I find that the complainant has not secured the burden of proof required under section 85 A of the Act as she lacks both Locus standi and any protection of Section 12 of the Act. The claim of discrimination on grounds of disability is not well founded. Decision:
Dated: 22nd February 2023 Workplace Relations Commission Adjudication Officer: Patsy Doyle Key Words:
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