ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038076
To be read in conjunction with Adj 32692
Parties:
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| Complainant | Respondent |
Anonymised Parties | A Quality Analyst 11 | A Pharmaceutical Company |
Representatives | Self-Represented | Ms R Mallon BL instructed by Michael Doyle , Solicitor, of A&L Goodbody Solicitors |
Complaints
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00049445-001 | 31/03/2022 |
Date of Adjudication Hearings: 14/06/2022 and 15/06/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
1: Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.
1:2 Confidentiality
It was agreed by the Parties and the presiding Adjudication Officer that the case would be Anonymised.
This decision follows from the fact that materials and evidence presented in the case contained considerable confidential personal medical reports and direct witness evidence from Medical Practitioners.
Medical Practitioners will not be identified but will be referred to by Reference Letters.
1:3 Relationship to Adjudication case Adj-00032692 and the issue of Time Limits/Cognisable Period - Opening legal issue
Adj 32692 – CA-00043352, was submitted on the 1st April 2021.
Following the initial Hearing of the 30th March 2022 the Complainant lodged Adj 38076 (this case) CA-00049455 to address the time limits issue as regards the period from 15/3/2021 to 31st October 2021.
Respondent Argument
Adj 32692 was lodged on the 1st April 2021 with a “last date of Discrimination” stated to be the 15th March 2021 – giving a Cognisable period of six months back to the 2nd of October 2020. Events prior to the 2nd of October 2020 and post the 1st April 2021 were therefore, argued by the Respondent, excluded.
Complainant Argument
The Complainant argued that the actual period of Discrimination was effectively from the 1st of August 2020 to the 31st of October 2021.
As this issue was briefly touched upon in a preliminary hearing of the 30th of March 2022 the Complainant submitted Adj 38076 on the 31st March 2022 to give a “Last date of Discrimination” of the 31st October 2021.
Adjudication Decision
It was noted by the Adjudication Officer that the Complainant was alleging that the discriminatory events commenced in July 2020 – (within a 12-month window from the date of lodging Adj 32692 in March 2021) but extended to 31st October 2021 covered by Adj 38076.
The period from 31st March 2021 to the 31st October 2021 would likewise require allowing a six month extension backwards from 31st March 2022 to 31st March 2021.
Pragmatically, taking both cases together the reference period would be effectively from March 2020 to 31st October 2021. This was highly unusual being a period of some 19 months.
At the opening of the Hearing on the 14th June 2022 the Respondent objected strongly to this situation.
After discussion between the Parties and the Adjudication Officer at the Hearing and at the conclusion of Day One it was agreed that both Adj cases would be heard together in view of the absolute continuity of the witness evidence presented covering the entire period from July 2020 to October 2021.
Separate Adj decisions would be required in respect of both referred cases.
1:4 Methodology adopted by Adjudication Officer.
Multi day oral testimonies from numerous witnesses including Medical Experts and supported by very extensive written submissions were presented in this case.
Accordingly, the Adjudication Officer, in preparing his Decision, has found it necessary to summarise evidence and adopt an approach of identifying and directly focusing of the main issues in the case. Detailed reporting of medical evidence was deemed personally sensitive and remained largely confidential.
This case Adj 38076 has to be focused on the period from 31st March 2021 to the 31st of October 2021.
The majority of the evidence and Oral testimony is comprehensively covered in Adj 32692, and it is not proposed to repeat it in this Decision. Adj 32692 and this Adj 38076 have to be seen together.
2: Background:
The case in both Adjudication cases concerned a complaint under the Employment Equality Act,1998 that the Complainant was discriminated against on the Disability Ground on the specific sub grounds of Failure to Secure Reasonable Accommodation, Victimisation, Access to Training and Harassment. The alleged basis of the Discrimination was the failure of Respondent employer to allow, in a reasonable time frame, the Complainant return to work following a period of extended sick leave.
The employment commenced on the 13th June 2005 and continues.
The rate of pay was stated to be €4,549 per month for a standard week.
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3: Summary of Complainant’s Case: Events from 31/03/2021 to 31/10/2021
Taking what was presented in Adj 32692 the Complainant was referred for a follow up Occupational Health review by the Respondent Medical Advisor, Dr B, on the 18th March 2021. The Occupational Health Doctor requested the Complainant to complete a series of Medical Questionnaires prior to the Review. The Complainant found these Questionnaires most ambiguous, the scoring system was illogical and many bore the Brand Name of the Respondent Company. They were completely inappropriate. By insisting on these flawed Questionnaires, the Occupational Health Doctor was continuing in the pattern of Discrimination set out in Adj 32692 and preventing “Reasonable Accommodation” for the Complainant who clearly had a Disability. In addition, the process was unreasonably delayed -the Medical Review not taking place until the 21st of September 2021. There was a “malign” alliance between the Respondent HR Department and the Dr B ,the OH Consultant. In addition, over the Summer of 2021 the Respondent HR Department used an unknown Courier Company to deliver letters to the Complainant’s Private Address. Apart from being a breach of GDPR regulations concerning her private data (her home address) the use of unknown Couriers entering her property was a gross form of Harassment. |
2: Summary of Respondent’s Case:
Reference must again be made to Adj 32692. The Respondent made a written submission on Adj 32692. However, in the Oral testimony from the HR Manager, Ms K and Doctor B, the Occupational Health Doctor, most of the events of the Summer of 2021 were well covered. The first Occupational Health review took place on the 16th October 2020 but was not received by the Complainant until the 16th of February 2021. The delay was largely due to Dr B falling seriously ill with Covid. Dr B recommended a further review after a period of three months. Following correspondence between the parties this was scheduled for the 18th of March 2021. The issue of the disputed Questionnaires then arose as well as Dr B having a medical relapse in the April/ July period. Dr B returned to work in August 2021 and the Medical review was arranged for the 21st of September 2021. Ms K for the Respondent pointed out that she had offered alternative Medical OH Doctors but the Complainant preferred to stay with Dr B. He found the Complainant fit to return to work, albeit in a phased capacity, which she did on the 1st November 2021. Dr B, in his oral testimony, under Oath, gave evidence that any delays that arose were initially due to the Questionnaire issue and latterly to his having a Covid related relapse in early Summer of 2021. The Questionnaires were internationally recognised and medically validated clinical tools that have been in use in his area of expertise for many years. To suggest that they were in some way Discriminatory was not supported by any factual basis. As regards some having been published initially by other divisions of the parent Multinational could not be seen as improper. They were clinical tools, used by Doctors worldwide, to assist him in making a diagnosis not the ultimate arbiters. Extensive correspondence took place between the Complainant and the HR department during this period. The handling of hard copy mail (the Complainant’s preference) was problematic due to Covid shutdowns in the HR Offices during this period. Access to the Office was often delayed for a number of days. The use of a Courier to deliver mail to the Complainant was a normal business practice and could not in any way be seen as Harassment under the Employment Equality Act,1998. As already canvassed in evidence and Oral Testimony for Adj 32692 the Respondent Legal spokesperson, Ms R Mallon BL, maintained forcibly that nothing of the events from March to October 2021 could in any way be seen as meeting even the most basic tests for a prima facie complaint under the Employment Equality Act ,1998. |
3: Findings and Conclusions:
3:1 Legal position – Employment Equality Act 1998 This was extensively set out in Adj 32692 to which this case is inextricably linked. The key issues are the need to establish a qualifying disability and the need to establish a reasonable evidence-based prima facie case to support a complaint under the Employment Equality Act,1998. Case law cited in this context included the long standing headline case of Mitchell v Southern Health Board [1999] ELR 120 However, as stated, all cases rest on their own evidence and this is what we must look at now. 3:2 Consideration of Evidence During the period in question the two main issues raised by the Parties was the alleged delay in the Second Occupational Health Review and the use of the Courier Company. Both issues were considered by firstly, the Oral testimony of the Complainant , followed by Dr B replying on the Questionnaires and Ms K of HR for the use of the Courier Company. It was clear that the Questionnaires were a clinical medical tool for Dr B. To be fair, they were in many instances quite ambiguous and open to vague answers. The Complainant comes from a rigorous scientific background and ambiguity in Documentation would be anathema to her. However, the key issue was that they were clinical tools for a Doctor as an aid to his judgement and could not be seen as, in some way, a Discriminatory instrument. The use of the Courier Company was a standard business practice particularly where the Complainant placed a large reliance on “Hard” i.e. written An Post delivered Mail. The Complainant felt that her Private Data regarding her home address was compromised and was a form of Harassment. Realistically it was hard from an Adjudication point of view to see use of a Courier as opposed to a standard Post Person as meeting the prima facie requirements for a Discrimination complaint. 3:3 Adjudication Summary The Questionnaire issue and the Courier issue, while genuinely upsetting to the Complainant, cannot realistically be seen as meeting the prima facie basis for an equality complaint. The requirements of the Employment Equality Act,1998 to sustain an Employment Equality Discrimination case have not been met. |
4: Decision:
CA: 00049445-001
Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Act,1998, requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA: 00049445-001
Discrimination as set out in the Act was not proven.
The case does not succeed.
Dated: 14th February 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Discrimination, Time limits, Use of Courier companies. |