Complainant

Respondent

Parties

Anne  Kelly

Bord na Mona

Representatives

 Arthur Cox LL P

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-00050719-002

18/05/2022

The complainant commenced employment as an Operations and Planning Supervisor on August 10th, 2020.

On July 4th, 2022, she commenced employment under a(temporary)specified purpose contract to cover maternity leave. She is currently employed under that contract as an Environmental Compliance Officer.

The complainant complains that the respondent discriminated against her on the grounds of disability in failing to provide her with reasonable accommodation and in victimising her under section 77 of the Employment Equality Acts 1998 to 2015.

The background to the complaint lies in an advertisement for a position in the respondent company with a closing date that same day; May 10th, 2022. The complainant requested an extension of this deadline, and this was agreed, initially by two days to May 12th and then by a further four days to May 16th.

The complainant says she requested accommodation in respect of the interviews on the basis of a medical condition although she did not provide medical evidence of it (ADHD) until the day after the closing date for applications.

The following day she was referred to an occupational health provider for a consultation.

She referred the complaint to the WRC on May 18th, 2021

The complainant gave evidence on affirmation.

She said that she had told various people in August 2021 of her disability. She told a named manager of her disability, and he was dismissive of it using strong language in doing so.

However, in response to questions from the respondent she was unable to identify an incident that represented a specific breach of the Act and that the incident she relied on occurred after she had referred the matter to the WRC.

She accepted that ‘the vast majority’ of her complaints occurred after the date of the referral.

The respondent’s business principally comprises waste management services in Leinster and North Munster and is a subsidiary of Bord na Móna Plc.

The complainant says that the respondent discriminated against her on the grounds of disability in failing to provide her with reasonable accommodation and in victimising her under section 77 of the Employment Equality Acts 1998 to 2015 (the “EEA”).

On August 10th, 12th, 24th and 31st 2022, the complainant submitted emails to the WRC which provided further details on her complaint.

By way of general background, the respondent notes that resulting from certain employee relations matters that arose prior to the chronology of events outlined below, it made an offer of workplace mediation to the complainant, which she declined.

The complainant ’s claim was filed with the WRC on May 17th, 2022. As such, all matters after that date cannot be considered for the purposes of the claim.

The law on this point was confirmed in Labour Court cases such as National Gallery of Ireland v Frances Donnelly EDA1312 in which the respondent relied on A School v A Worker ED122/2012 in stating that the complainant can only rely on alleged acts which occurred before the presentation of her complaint to the Equality Tribunal and not after such referral. This was accepted by the Labour Court.

The respondent submits that the matters raised in the complainant’s emails post-dating May 17th, 2022, (the date of the referral to the WRC) must be disregarded.

The complainant disclosed the fact of her ADHD diagnosis to the respondent on May 13th, 2022.

As a result of an acquisition by the respondent, it undertook an overhaul of its commercial businesses on or around May2022.

As part of that process two of its depots were merged. The respondent restructured its upper and middle management and undertook an integration exercise with a new subsidiary, which had impacts across the business. As part of the restructuring, the role of Depot Manager, at her location was advertised on May 10th, 2022, with a closing date that same day.

On that day, the complainant requested an extension to submit her application for the position as she was “awaiting further advices”. The respondent agreed to an extension until May 12th and on May 12th, the complainant requested a further extension as she needed to “consider matters further”.

The respondent agreed to a final extension until May 16th, 2022.

On May 13th, 2022, the complainant requested accommodations to assist her in the interview process. She provided information on ADHD and an extensive but general list of the types of accommodations that the respondent should provide. This list was not based on the specific needs of the complainant but was generally available information.

Following disclosure of her medical condition, on May 17th, 2022, the respondent referred the complainant to Medmark for a specific occupational assessment on May 18th, 2022. Prior to that appointment, the complainant filed her complaint with the WRC on May 17th, 2022. Events occurring after that should not be considered.

On May 24th, 2022, Medmark issued an Occupational Health assessment, and all its recommendations were accepted by the respondent.

In June 2022, the complainant took up a new role as Environmental Compliance Officer. The complainant did not request any accommodations to enable her to carry out this role.

In her complaint form, the complainant states that the respondent discriminated against her on the grounds of her disability byfailing to provide her with reasonable accommodation; and victimising her but she fails to specify how it has done so.

By email dated August 10th, 2022, the complainant   states as follows:

“Bord na Mona insisted I visit a medical professional regarding my ADHD. My communications had been continually criticised since my disclosing my disability. The report from the medical assessment however, contradicted this however and commended my interpersonal skills. I felt very targeted by this move which I was forced into. Unlike drivers with heart disease for example, it was not acceptable for Bord na Mona to correlate my disability with my ability to undertake my work, especially as I had done so without issue previous to my disclosure.”

Respectfully, what constitutes the complaint is entirely unclear from this. It seems to be the fact that her employer sought expert advice on what accommodations she might require as soon as she disclosed her condition.

Section 85A (1) of the EEA provides as follows:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

The legal burden of proof is on the complainant   in the first instance to establish a prima facie case of discrimination or victimisation on the ground of disability. It is onlyif she establishes this prima facie claim that the legal burden of proof shifts to the respondent.

The complainant has failed to make out a prima facie case of discrimination. In Dr Teresa Mitchell v The Southern Health Board (Cork University Hospital) [2001] ELR 201 the Equality Tribunal considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out. It stated that the complainant 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 a presumption of unlawful discrimination. 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 Minaguchi v Mr. Ray Byrne, t/a Wineport Lakeshore Restaurant DEC-E/2002/20

the Equality Officer stated:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

- 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 Mitchell, the Labour Court went on to say that:

“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 Melbury Developments Ltd v Valpeters EDA0917 the Labour Court, in considering allegations of discrimination on the ground of race, held as follows:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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 rule.”

In the case of Graham Anthony & Co Limited v Margetts [2003] EDA038 the Labour Court stated:

“…the mere fact that the complainant   falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant   must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In the recent WRC case of Nikki Spillane v Jazz Pharmaceuticals Ireland Ltd ADJ- 00031356 wherein the complainant contended that she had been discriminated against on the ground of gender, the Adjudication Officer noted:

“In order to demonstrate that the complainant has received less favourable treatment and that the less favourable treatment arouse from her age, gender, civil status religion and/or race, the complainant must first establish a prima facie case of discrimination. Prima facia has been held in the Labour Court in Rotunda Hospital v Gleeson [DDE003/200] to be “Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred””

The respondent does not dispute that the complainant has a disability for the purposes of the EEA. However, it is necessary for the complainant to provide evidence of the employer’s failure to provide her with reasonable accommodations and/or of victimisation (as complained of by her).

It seems her complaint is that her employer sought advice and provided reasonable accommodations in line with that advice. No other complaint is disclosed by the complainant.

The complainant cannot discharge the evidential burden of proof necessary to succeed in her complaint and has only made assertions unsupported by evidence.

The complainant was referred to Medmark when she disclosed her disability during an interview process and provided extensive information on supports that might be appropriate. She was referred for an expert assessment for the purposes of determining what specific accommodations the respondent should provide to her during the process – in discharge of the respondent’s legal obligations.

She has not provided any details of a comparator that would allow an assessment as to whether the test in Minaguchi is met.

Without prejudice to the foregoing, the respondent has not discriminated against the complainant   on the ground of her disability or at all and has not treated the complainant less favourably than an employee who does not have a disability. The complainant presents no evidence whatsoever of victimisation.

In A Worker v Mid-Western Health Board 1996 ELR 1, the Labour Court determined that to establish discrimination, a complainant must show both less favourable treatment and that such treatment arises from the sex (or, in this case, the disability) of the complainant.

Without prejudice to the respondent’s submissions above, even if the Adjudication Officer accepts that there is a prima facie case of discrimination, the complainant   has adduced no evidence of any relationship or link between her disability and any actions by the respondent or its employees in relation to her.

The respondent has also not provided any information regarding a comparator.

Regarding the complaint of penalisation, in the case of A Complainant v A Department Store DEC-E2002-017 the Equality Officer held that in a claim of victimisation, a complainant,

“Must demonstrate both that the behaviour complainant of is capable of constituting victimisation and also that it arose as a consequence of her having done one or more of the things envisaged in section 74(2).”

The onus is on the complainant   to show that firstly she has been subjected to behaviour, which is capable of constituting victimisation, and secondly that this behaviour resulted from her having done one or more of the actions envisaged in section 74(2).

The complainant has not demonstrated that she has been victimised. While she has identified her concerns as being of an interpersonal and/or bullying nature, it is submitted that if any adverse treatment was suffered by her (which is denied), this could not fall within the definition of victimisation in section 74(2) of the EEA.

The complaint form does not specify how she alleges the respondent failed to provide her with reasonable accommodation.

In Mr. D v A Government Department DEC-E2008-011 the Equality Tribunal held that where an employee requests a reasonable accommodation, the onus is on them to support their application for reasonable accommodation with medical or other appropriate evidence and must:

“…support [their] application for reasonable accommodation with medical or other appropriate evidence outlining the reason for the request for the accommodation and the nature of the accommodation required to enable the complainant to be fully competent and capable of undertaking the duties of the position.”

In Humphries v Westwood Fitness Club 2004 15 ELR 296 the Labour Court examined the nature and extent of the enquiries which an employer should take with reference to its obligations relating to reasonable accommodation under the EEA. In that case, the Labour Court stated:

“At a minimum……an employer should ensure that she/she is in full possession of all the material facts concerning the employee’s condition. In practical terms, this will normally require a two stage enquiry which looks firstly at the factual position concerning the employee’s capability including a degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer from either the employee’s doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the [Employment Equality] Act requires the employer to consider what, if any, special treatment, or facilities may be available whereby the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered…”

The respondent submits that it at all times fulfilled its duties in this regard.

On May 13th, 2022,thecomplainant requested reasonable accommodations be made for her with respect to the interview process for the role of Depot Manager.

In order to determine what reasonable accommodations would be required, the respondent referred the complainant   to Medmark for an occupational health assessment. The occupational health assessment issued by Medmark listed certain accommodations that would benefit the complainant in the interview process. The respondent provided this accommodation.

The complainant   has not adduced any medical evidence to show that she required any measures beyond those provided during the interview process (which she has not contested were provided to her) to perform her duties. The occupational health assessment issued by Medmark stated that “Anne is fit to continue working her normal duties.”

The respondent submits that it at all times sought to provide the complainant   with reasonable accommodation in accordance with the medical evidence available to the respondent at the relevant time. In seeking to reasonably accommodate the complainant ’s disability, the respondent has made full and adequate enquiries as to the nature and extent of the complainant’s disability in accordance with Humphries.

The complainant has not discharged the burden that falls on her under the EEA to adduce prima facie facts in relation to her complainant.

The facts that have been provided suggest that there has been no discrimination against the complainant   on the ground of disability or on any other ground protected under the EEA. The complainant   has also failed to demonstrate that she has been victimised under the EEA or that the respondent failed to provide reasonable accommodation. For the reasons set out above, the respondent respectfully requests that the Adjudication Officer reject the complainant ’s claim.

The facts of this case have been set out above.

The respondent has submitted that the complainant has not made out a prima facie case and by way of a preliminary matter I turn to that first, noting the extensive submissions on the applicable authorities set out in the respondent’s submission.

I take into account also that events which occurred after the date of the referral to the WRC may not be considered as part of the complaint, for obvious reasons and specifically on the basis of the authority in National Gallery of Ireland v Frances Donnelly EDA1312 and A School v A Worker ED122/2012, which are referred to in the respondent’s submission.

The complainant confirmed in her evidence on affirmation that the primary incident in respect of which she alleges a breach of the Act; the communication of her disability, took place in August 2021 some three months after the incident giving rise to the complainant.

She also failed to identify another incident of an alleged breach of the Act; answering a question put to her in cross examination as to whether this was the only alleged breach in the affirmative.

The complainant raised a series of separate complaints (referred to in passing above in the respondent‘s submission as ‘employee relations matters’) which are the subject of a separate referral, and which may have resulted in this complaint being ‘tagged on’ to add weight to those complaints.

Whatever the explanation, that is not how things work and each complaint will have to meet the legal tests, initially as to whether a prima facie case has been made out and whether time limits related to jurisdiction have been complied with, before moving on to consider whether the complainant is well-founded.

In this case the complainant has entirely failed to pass those preliminary tests and neither in the course of her submissions nor in her direct evidence has she made out a prima facie case in relation to either of her complaints.

As required by the authority in Mitchell v Southern Health Board, referred to above there is no primary, nor indeed any fact from which it might be inferred that a case of discrimination might have taken place and the complaints cannot be upheld.

For the reasons set out above Complaint CA-00050719-002 is not well-founded and it is not upheld.

Equality, prima facie case, time limits.