Complainant

Respondent

Parties

Victoria  Purtill

Aer Lingus Limited

Representatives

Claire Bruton BL, instructed by   Holmes O'Malley Sexton Solicitors LLP

Tom Mallon BL, instructed by Arthur Cox

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-00047770-001

21/12/2021

The Complainant commenced her employment with the Respondent on 26 March 1999 as a Flight Attendant. Her employment terminated on 8 October 2021.

The Complainant referred her complaint to the Director General of the WRC on 21 December 2021 alleging that she was discriminated against by reason of her disability.

A further complaint bearing reference number ADJ-00037716 was referred to the Director General of the WRC on 8 March 2022. This complaint was heard in conjunction with that of ADJ-00037716 and this decision should be read in conjunction with that bearing reference ADJ-00037716.

The Respondent rejects the claims.

Ms Bruton BL, on behalf of the Complainant, submits as follows.

Introduction

This claim concerns the following:

·        The Respondent’s refusal to provide the same “Enhanced Severance” terms (i.e., an additional ex gratia payment due to redundancy of the Complainant’s position) which the Complainant’s colleagues received unless she waived and discontinued her ongoing personal injuries claim against the Respondent in respect of a workplace injury and or refusing to carve out these proceedings from the terms of acceptance for the enhanced redundancy terms.

The Complainant claims that:

·        She was directly discriminated against on the grounds of disability in breach of the Employment Equality Act 1998, as amended;

·        She was indirectly discriminated against on the grounds of disability and victimised in breach of the Employment Equality Act 1998, as amended (EEA);

Background

The Complainant commenced her employment with the Respondent as a cabin crew member on 25 March 1999. At all times she was based at the in-flight services department based at Shannon airport. Her salary was €883 gross per fortnight. From March 2013 onwards she worked on a part-time basis. A copy of the Complainant’s contract of employment was exhibited at the adjudication hearing.

On 28 June 2019, during the course of her employment, the Complainant suffered an occupational injury, when there was a hard landing of the aircraft on which she was working. As a result of this incident, the Complainant suffered an orthopaedic condition and has been unfit to work since the date of the incident. She suffers from pins and needles and has undergone surgery for her condition.

As a result of the injuries suffered by the Complainant, High Court personal injuries proceedings were issued on her behalf in August 2020. These proceedings allege unsafe and negligent work practices arising from the hard landing which arose on 28 June 2019. A copy was exhibited at the adjudication hearing.

The Complainant was on illness benefit 2021 of €203 per week from the 29 June 2019 to the 24 December due to injuries sustained during the course of her employment on the 28 June 2019. The Complainant was receiving sick pay from the Respondent of approximately €400 per fortnight. The Complainant did not receive any sick pay from the Respondent during the temporary lay-off periods in June 2020 and March 2021. Relevant documents were exhibited at the adjudication hearing.

No flights were operated by the Respondent to or from Shannon from 5 April 2020. On 18 May 2021, the Respondent decided to close its cabin crew base in Shannon and three options were offered to all affected staff, including the Complainant:

·        Redeployment to Cork;

·        Redeployment to Dublin;

·        An enhanced severance package in return for staff leaving their employment.

Due to the personal circumstances of the Complainant, which meant she could not relocate to Dublin or Cork (when medically fit to do so), she elected for the enhanced severance programme. On 2 September 2021, the Complainant was informed that her application was successful. This package was as follows:

·        Statutory redundancy of €21,737.38

·        Enhanced redundancy/ex gratia payment of €67,578.29 (inclusive of €5,000 - a recommendation of the Labour Court LCR22433).

A copy of this correspondence was exhibited at the adjudication hearing.

However, in order to accept the enhanced redundancy lump sum and agreed termination of employment, the Complainant was required to execute a full waiver and settlement agreement entitled Form of Acceptance encompassing any personal injuries claim she had or may have arising from her employment with the Respondent, including her High Court proceedings.  Clause 3 of this form provided as follows:

“Without prejudice to the generality of the foregoing, I hereby acknowledge and agree that the provisions in the Enhanced Severance Letter and the Form of Acceptance constitute a full and final settlement of all claims and demands made and/or which may be made by me against the Company, its parent, subsidiaries and associated companies (and each and all of their respective officers, directors, employees and agents) whether such claims arise under contract and/or in equity and/or in tort (expressly including any claim for personal injuries that I have made or may make)…”

The form of acceptance also advised the Complainant to take legal advice and by executing the agreement, she would be confirming she had the opportunity to take legal advice. The Complainant could not continue her personal injuries proceedings as these proceedings were encompassed within the terms of the terms of agreement.

The Complainant sought clarity regarding the enhanced severance terms, in particular the pre-condition that the payment was in full and final settlement of all matters relating to her employment (including her extant personal injuries proceedings). She was informed by the Employment Relations Manager, that:

“Aer Linguswas not willing to modify the Enhanced Severance documentation or to change the conditions of acceptance for you to enable you to maintain your case against Aer Lingus… If you are unwilling then that is your personal decision and the enhanced severance offer will therefore be withdrawn. In this event, you will have the option of a) redundancy with your statutory redundancy entitlements and any outstanding monies due to you in terms of accrued annual leave etc or b) seeking to be considered for redeployment to Cork/Dublin per the terms of the options letter. Such a request is subject to a redeployment opportunity being available in either base.”

A copy of this email was exhibited at the hearing.

Due to the adverse consequence for the Complainant (discontinuing and or resolving her personal injuries proceedings), as a pre-condition of accepting the enhanced ex gratia payment, her solicitors wrote to the Respondent on 10 September 2021 setting out their concerns with the requirement to cease her High Court proceedings in order to accept the enhanced redundancy terms. The Respondent denied any discrimination or victimisation of the Complainant and stated it was a “standard approach for an employer to take and one which is consistent with other similar voluntary/enhanced severance schemes offered in Aet Lingus.” It was made clear to the Respondent that the denial of the enhanced redundancy terms to the Complainant constitutes penalisation and victimisation as a result of having made a personal injury claim in breach of the Safety, Health and Welfare at Work Act 2005 and discrimination on ground of disability. The Respondent did not accept this position and argued that the Complainant was treated equally with her peers and colleagues. A copy all correspondence was exhibited at the adjudication hearing.

As a result of the unlawful conditionality of the enhanced redundancy terms, the Complainant was not in a position to execute the Form of Agreement as same would prevent her from litigating her High Court proceedings. She was advised by the Respondent that her employment would terminate by reason of redundancy with effect from 8 October 2021 and she received statutory redundancy only in the sum of €21,737.38. By contrast, her colleagues without disabilities received statutory redundancy and enhanced redundancy terms.

Insofar as the Respondent contends the Complainant applied for the voluntary severance terms, in reality she had little choice as her position was redundant with the closure of flight operations from the Shannon base and the alternative positions in Cork or Dublin not being suitable for her.

On 16 December 2021, the Complainant was informed that as she did not avail of the voluntary severance, she was not eligible for staff travel concession benefit (entitling the Complainant and her family to 18 family tickets over a period of 12 years). The Complainant was informed that as she “did not accept the enhanced severance offered, the benefits of that severance, including the enhanced severance terms and staff travel concessions fell away”. A copy of same was exhibited at the hearing.

In December 2021 and March 2022, complaint forms were lodged against the Respondent alleging the following:

·        Discrimination on grounds of disability and victimisation arising from the conditionality of the discontinuance of the Complainant’s personal injuries proceedings in return for receiving the enhanced ex gratia sum;

·        Discrimination on grounds of disability and victimisation arising from the exclusion of the Complainant from the staff travel concession benefit post her refusal to execute the form of acceptance;

·        Penalisation in breach of the Safety, Health and Welfare at Work Act 2005 arising from the refusal of the Respondent to allow the Complainant to carve out, and exclude, her personal injuries proceedings from the acceptance terms for the enhanced redundancy ex gratia sum.

Legal submissions

Employment Equality Act 1998, as amended

The protected ground of disability

Section 2(1) of the Employment Equality Acts 1998-2021 defines the protected ground of disability as including, inter alia:

“(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,

(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.”

It is clear that the Complainant falls within this definition as her orthopaedic condition constitutes a malfunction of her neck, back and right shoulder.  The Respondent has been aware of the Complainant’s disability since she suffered her injury during a hard landing; she was taken to A & E along with several other colleagues and was certified as unfit to work from June 2019, including by the Respondent. 

Direct discrimination on grounds of disability

The treatment of the Respondent in refusing to carve out and or exclude the Complainant’s personal injuries proceedings from the terms of agreement for the enhanced redundancy terms constitutes direct discrimination on grounds of disability in breach of s. 6(2)(g). She was disentitled to the enhanced redundancy terms. A person without a disability would have been able to execute the agreement in a conditional manner and avail of the considerable enhanced ex gratia redundancy payment.  The Respondent’s practice of requiring all employees to sign a waiver of all future claims was directly discriminatory against employees who had sustained injury resulting in disability while working for the Respondent. This was an absolute rule. It required such employees with disabilities to sacrifice their right to compensation for their injury to access the ex gratia payment, whereas for employees who had not been so injured and had no disability, signing the waiver did not require them to give up any real entitlement.

In An Employee v A Broadcasting Company[2012] 23 E.L.R. 88 the Equality Tribunal found that there had been direct discrimination on grounds of disability where the same practice was applied to the complainant as colleagues without a disability, as the same rule was applied to different circumstances having regard to the disability of the complainant.

Similarly, in Hannon v First Direct Logistics Ltd [2011] E.L.R. 215 it was found that if a different rule is applied to a disabled employee as compared to the treatment of non-disabled employees, there should be strong non-discriminatory reasons such as a genuine business need in place which justify the decision to treat the disabled employee less favourably.

Insofar as the Respondent will argue that the appropriate comparator is a person who was unable to accept the enhanced terms but did not have a disability (such as having a statutory claim such as under Payment of Wages Act 1991 where disability was not the reason for the treatment, or breach of contract proceedings arising from unpaid bonuses, etc.) who equally may not be able to execute the agreement this is not a correct comparator. A person without a disability would have been able to execute the agreement in a conditional manner and avail of the considerable enhanced ex gratia redundancy payment as they would have no proceedings to resolve as a condition of acceptance of the enhanced terms.  This is the appropriate comparator.

In A Government Department v A Worker EDA0612, the Labour Court held that refusal to defer an interview for promotion until the employee was physically able to attend constituted discrimination on grounds of disability. The appropriate comparator was not a person who was unable to attend the interview for any reason (such as a bereavement) and rather was a person who was able to attend the interview. The Court held:

“Further, and for the sake of completeness, the Court is satisfied that such a result reflects the plain intention of the Oireachtas as ascertained from the Act as a whole. In including disability amongst the discriminatory grounds, the Oireachtas clearly intended that persons with a disability would have a right to equal treatment in employment and the opportunity to fully participate in and advance in employment within the limits of their individual capacity. That right can only be vindicated if employers have a concomitant duty to afford employees with a disability an equal opportunity to advance in employment as that afforded to others. That duty could not be fulfilled by offering a disabled employee an opportunity which is illusory in the circumstances of their disability when a reasonable alternative would be of real utility.”

Indirect discrimination on the grounds of disability

Furthermore, or in the alternative, it is submitted that the Respondent’s practice of requiring employees to sign a waiver of all claims, including personal injuries claims, before granting the ex gratia payment, is indirectly discriminatory against employees with disabilities such as the Complainant, contrary to section 31 of the EEA.

It is submitted that such a practice, applied in a blanket manner without any consideration of specific situations like the Complainant’s, will evidently cause more problems for employees with injuries which constitute disabilities. They are more likely to have outstanding proceedings against the Respondent such as claims under the EEA or personal injuries where their injuries were caused by workplace treatment/accidents. Thus, persons with disabilities are more likely to be presented with the dilemma faced by the Complainant of either sacrificing any chance of a full hearing for a fully assessed and argued claim for compensation or losing out on the ex gratia payment at a financially difficult time.

Although it was a case taken under the Equal Status Acts, the issue of indirect discrimination on the grounds of disability was addressed in Sinnott v Iarnrod EireannDEC-S2018-007 which provides some useful guidance. There, the complainant was found to have met the burden of proof in showing indirect disability discrimination where the Respondent’s audio announcement system failed occasionally, which had a much more serious impact on visually impaired passengers like the complainant. It is submitted that as the Equality Officer in that case could easily infer that failures in audio announcements have a disproportionate negative impact on certain people with disabilities (i.e. the visually impaired), it can be inferred that requiring a waiver of all legal claims against the Respondent will disproportionately place certain employees with disabilities (i.e. those whose disabilities are caused by incidents in the workplace) such as the Complainant in an invidious situation which is not faced by employees without disabilities, which amounts to indirect disability discrimination.

The burden of establishing indirect discrimination is not overly burdensome.  Article 2(2)(b)(ii) of the Framework Directive provides as follows:

“indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i)               that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

(ii)              as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.”

The Court of Justice had held that any apparently neutral criterion which places a person with a disability at a disadvantage and exposes a person with a disability at an additional risk, as compared to non-disabled persons, is indirectly discriminatory on grounds of disability. In DW v Nobel Plastiques Iberica SA [2019] IRLR 1104 selection criteria in a redundancy process - being a high rate of absenteeism - was found to constitute indirect discrimination on grounds of disability as it places disabled workers at a disadvantage as their absences from work are connected with a disability.  This equally applies to persons who have personal injuries claims - who are more likely to have a disability and be more likely to be unable to execute an agreement extinguishing their personal injuries claim. This different of treatment is indirectly based on their disability - having suffered an injury at work.

Insofar as indirect discrimination arises, the onus of proof rests on the Respondent to demonstrate that it is objectively justified as per section 22(1)(b) of the EEA:-

“the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

The only reason provided by the Respondent for their entrenched position that they would not carve out the personal injuries proceedings of the Complainant was that it is standard practice in return for an employee achieving access to enhanced termination or ex gratia terms is generalised and unspecific such as not to amount to objective justification. Further in considering the proportionality of the discriminatory treatment, there was no reason why the impugned clause could only have applied to claims of any nature arising from the termination of employment of the employee. Its application to all claims arising from the employment of the Complainant (as was made clear in correspondence post the Complainant’s concerns being raised) is unduly wide. This would protect an employer from any claims arising from the termination of employment.

Further or the alternative, as per Article 2(2)(b)(ii) of the Framework Directive, the Respondent failed to provide reasonable accommodation to the Complainant - in the form of carving out her personal injuries claim from the form of agreement-and this constitutes a further non justification of indirect discrimination on grounds of disability.

Victimisation

On 16 December 2021, the Complainant was informed that, as she did not avail of the voluntary severance, she was not eligible for the staff travel concession benefit (entitling the Complainant and her family to 18 family tickets over a period of 12 years). The Complainant was informed that, as she did not accept the enhanced severance offered, the benefits of that severance, including the enhanced severance terms and staff travel concessions fell away. The foregoing is not mentioned in the letter of acceptance of 2 September 2021 as being captured by the form of acceptance and captured by the agreement. It was only after the termination of the Complainant’s employment that she was informed of this further loss of benefit arising from her employment.

It is submitted that the foregoing constitutes victimisation as no reason was provided by the Respondent for the Complainant’s loss of this valuable benefit in December 2021 and there is no semblance of it being provided as an additional benefit of the enhanced ex gratia payment and only provided if the form of agreement waiving all rights to claims was executed. For persons such at the Complainant, who asserted their equality rights and could not execute the waiver required in order to receive the enhanced payment, the underhand exclusion of the travel benefit, constitutes penalisation as per s. 74 of the EEA. Section 74(2) provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,”

The key elements of victimisation provided for in section 74(2) of the EEA are as follows (Department of Defence v. Barrett, EDA1019):

·        The employee had taken action of a type referred to at section 74(2) of the Acts (a protected act),

·        The employee was subjected to adverse treatment by the respondent, and,

·        The adverse treatment was in reaction to the protected action having been taken by the employee .

The Complainant took the protected act in the correspondence issued from her solicitors on 10 September 2021 and 24 September 2021 wherein it was made clear that the refusal to carve out her personal injuries claim from the terms of the enhanced severance package constituted discrimination on grounds of disability. The non reference to the loss of the staff travel concession benefit as being lost if the enhanced terms were not executed demonstrates the absence of good faith on the part of the Respondent and the only reason the Complainant lost this valuable benefit (for a reason only provided after the event and in a less than transparent manner) was due to her having raised equality issues.

Penalisation

It is also submitted that the Complainant was subjected to penalisation by the Respondent in breach of the Safety, Health and Welfare at Work Act 2005. This arises as an additional claim and is not barred under the 2005 Act. There is no election between a claim on the same facts being required under the EEA/2005 Act.

When the Complainant made inquiries about her flight concessions, she was told these would be denied because she had not signed the Enhanced Severance terms including the waiver. She had never been previously informed that her entitlement to this benefit would be affected and indeed her application for the concession book had initially been accepted and processed without this being raised as an issue.

Further, the refusal to allow her to exclude her personal injuries claim from the terms of agreement constitutes penalisation as a result of having taken a protected act alleging health and safety breaches (and breach of the 2005 Act) by the Respondent in her personal injuries proceedings issued in August 2020.

In a recent decision of the WRC, Farrell v Modus Link KildareADJ-00032100, it was found thatwithholding a redundancy ex gratia payment due to failure to execute a waiver document constituted penalisation under the Safety, Health and Welfare at Work Act 2005.

Conclusions

The following is submitted:

·        The Complainant was discriminated against on grounds of disability in breach of the EEA;

·        Alternatively, the Respondent is guilty of indirect discrimination which cannot be objectively justified / no form of reasonable accommodation was provided;

·        The treatment of the Complainant constitutes victimisation in breach of the EEA;

·        The Complainant was penalised in breach of the 2005 Act.

The Complainant seeks compensation for the effects of the discrimination, together with an order pursuant to s. 82 of the EEA that the Respondent issue the enhanced severance programme terms to her carving out/excluding her personal injuries proceedings bearing the record number 2020/6087P.

The Complainant seeks compensation for the breach of the 2005 Act.

In a supplemental submission Ms Bruton BL submits as follows.

Burden of proof

Under section 6 of the EEA, discrimination is defined as occurring “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 … discriminatory grounds.”

The Complainant accepts that she must establish that she has been treated less favourably than another person in comparable circumstances on one or more of the discriminatory grounds in order to raise a prima facie case of discrimination. It is submitted that the Complainant can clearly establish the requisite legal nexus between the dismissal and her gender, civil status and family status. The Complainant relies on Southern Healthboard v Mitchell [2002] ELR 201 where the Labour Court considered the requirements of a case of prima facie evidence and Arthurs Valpeters v Melbury Development Limited EDA0917 where the Labour Court examined the circumstances in which the probative burden of proof operates.

The Complainant submits that the facts of this case amply discharge the evidential burden necessary to establish a prima facie case of discrimination in the grounds of disability, penalisation and victimisation.

Amongst the key factual premises relied upon by the Complainant for meeting this legal test are:

The injuries sustained by the Complainant to her right shoulder and neck and the medical sequelae that followed after the hard landing on a flight on 28 June 2019 which meet the legal criteria of a disability under section 2 of the EEA.

The Respondent’s demand that the Complainant discontinue and or resolve her personal injuries proceedings (which would have adverse consequences for the Complainant) as a pre-condition of accepting the enhanced ex gratia payment.

The Respondent denied any discrimination or victimisation of the Complainant and stated that it was a “standard approach for an employer to take and one which is consistent with other similar voluntary / enhanced severance schemes offered in Aer Lingus.” It was made clear to the Respondent that the denial of the enhanced redundancy terms to the Complainant constitutes penalisation and victimisation as a result of having made a personal injury claim in breach of Safety, Health and Welfare at Work Act 2005 and discrimination on ground of disability. The general nature of this observation detracts from the ability of the Respondent to rely on any objective justification of indirect discrimination.

The Respondent did not accept this position and argued that the Complainant was treated equally with her peers and colleagues.

The Complainant accordingly submits that this initial burden of proof should clearly be found to be discharged and that the Adjudication Officer should be satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination. In that instance, it is clear that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent.

Medical and Occupational Reports (copies exhibited at the adjudication hearing)

Following the hard landing on 28 June 2019, a referral was made on 12 July 2019 on behalf of the Respondent by Dr Bohane (Medmark Occupational Healthcare Providers) for the Complainant to be assessed by Dr Habib Rahman (Consultant Neurologist). The referral letter stated that the Complainant had presented with: “right sided neck and shoulder pain following an alleged hard landing into Boston Airport on 26 June 2019. Abduction limited and intermittent paraesthesia”.

In a letter dated 7 August 2019, Dr Bohane indicated that he had reviewed the Complainant on 11 July 2019.

“She had had GP review and been proscribed diclofenac, stomach protectant and topical treatment. She had been engaged with physiotherapy. She described increasing pain and forearm numbness. Abduction to 90 degrees elicited discomfort and she had discomfort at the end of the cervical range of movement.

I reviewed Ms. Purtill again on 31 July 2019. She described some improvement in her shoulder pain but ongoing numb sensation in her forearm as well as sensation of reduced power in her hand. She described intermittent paraesthesia in her forearm from her elbow to all fingers excluding her thumb.

I am unable to provide Ms. Purtill with a medical explanation for her symptoms particularly in light of her reassuring MRI results. I would appreciate your opinion with respect of diagnosis and prognosis and further investigation if necessary. Her employer has agreed to facilitate same.”

Dr Rahman (Consultant Neurologist) assessed the Complainant and in the report dated 22 October 2019 he noted that the Complainant had been diagnosed with “soft tissue injury due to severe whiplash type force” by the doctor who attended her on the day of the incident.

The medical report further noted that since the incident, the Complainant had begun to suffer from many problems, “numbness on her right hand, decreased grip, decreased force, unable to open a jar, unable to fill a cup for her children even and there is severe pain in the neck, the right shoulder and arms. It awakes her  from the sleep. She is shaking the hands, difficulty in driving and difficulty holding the steering. Even it affects her day to day life activity. Not only physically is she unable to do that, but very mentally she is under distress and difficulty to sleep due to pain and due to her day to day life activity.”

Furthermore, the Complainant was noted to still have tenderness with extension and lateral rotation, tenderness in the right shoulder and decreased power in the right hand. Dr Rahman assessed that the Complainant had “severe Tinel sign positive with tapping of the right wrist electric shooting pain goes to all the fingers especially the median nerve distribution. That she still had swollen, tender and bruises to her elbow joint and tender to touch.” The Complainant was diagnosed as suffering from “post-traumatic complex regional paid syndrome” and further tests were to be conducted to rule out double crush syndrome and carpal tunnel syndrome.

The Complainant was found to be unfit for duty, prescribed a higher dose of medication, extensive physiotherapy, cognitive behaviour therapy and counselling. At all times to the date of termination of her employment, in October 2021 she was unfit to work and provided certificates to the Respondent in this regard.

On 11 May 2020, Dr Rahman wrote to Dr Bohane after reviewing the Complainant with a diagnosis of “post-traumatic complex regional pain syndrome on the right side after sustaining an injury in the plane landing on 28 June 2019.” The Complainant continued to be on prescribed medication, was “still complaining of pins and needles on the right side of the neck and arms, a little bit weakness but overall examination was normal, she has post traumatic complex regional pain syndrome which usually takes a couple of years to improve.”

The Complainant was first seen by Mr Kingston, Consultant Orthopaedic Surgeon at the request of her GP, Dr Joyce on 1 July 2021. The Complainant informed Dr Kingston that she had right arm difficulty dating from an injury at work which occurred on 28 June 2019. The Complainant underwent exhaustive and invasive treatment which was unsuccessful. The Complainant underwent a right shoulder arthroscopy under the care of Mr Kingston in October 2021. Mr Kingston did a subacromial decompression and bursectomy, removing inflamed tissue from the subacromial bursa and levelling the acromion, the bone over the supraspinatus, to increase clearance and prevent further impingement. Mr Kingston prepared a report dated 31 January 2022 outlining the above.

It is submitted that the continuum of symptoms arising from the hard landing plane incident as evidenced by the medical reports all clearly show that the Complainant had an injury that had left her with a disability as per section 2 of the EEA.

By further letter dated 24 September 2020, addressed to Dr Bohane, Dr Helen and Dr Joyce, Dr Rahman indicated that he had reviewed the Complainant again and that she was suffering from “post-traumatic complex regional pain syndrome on the right side after sustaining an injury in the plane landing on 20 June 2019” (correct date is 28 June 2019). Dr Rahman further noted that the Complainant was still in pain and a treatment plan for “Botox injection to the right trapezius, paraspinous muscle and deltoid muscle and see how things are going.”

Furthermore, as a result of the injuries sustained during the course of her employment, the Complainant had a right shoulder arthroscopy, subacromial decompression, and bursectomy on 13 October 2021. The foregoing is a surgical procedure to treat shoulder impingement, a condition that causes shoulder weakness and pain when an injured person raises their arm above their head. Due to ongoing discomfort, the Complainant had to attend Mr Kingston on 5 November 2021 for a steroid injection in the shoulder.

The Complainant further attended Mr Kingston on 28 November 2021 where her condition was not improving and was aggravated by cold weather. Although she was on pain and anti-inflammation medicine, numbness and occasional swollen feeling in her right hand persisted.

The Complainant continues to a suffer a disability and ongoing symptoms particularly in cold weather.

It is clear that the Complainant’s conditions falls within the definition of the EEA as her orthopaedic condition diagnosed in October 2019 remained unresolved on 11 May 2020 with post traumatic complex regional pain syndrome on the right side. The Respondent has been aware of the Complainant’s disability since she suffered her injury during a hard landing; she was taken to A&E in Boston along with several other colleagues and passengers and was certified as unfit to work from June 2019, including by the Respondent.

Legal Submissions

Definition of Disability as per the Employment Equality Acts

Employment Equality Act 1998, as amended

Section 2(1) of the Employment Equality Acts 1998-2021 defines the protected ground of disability as including, inter alia:

"(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,..,

(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."

In A Government Department v A WorkerEDA094 the Labour Court held that the definition of disability in the Employment Equality Act 1998 (as amended) does not refer to the extent to which the manifestation or symptoms must be present. The Court acknowledged that symptoms which are present to an 'insignificant degree" could be disregarded in determining whether the condition amounts to a disability. The Court held as follows:

“It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it-"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 Court also stated that: "The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR327)."

More recently in the decision of Shop Assistant v Discount Store ADJ-00037724, the WRC held that a disability was established by reason of the complainant being unfit to work for a period of one month and receiving treatment.

The recent WRC decision in Brian Kiernan v Annix Software Limited trading as Quest Systems ADJ-00029174 is similar in many ways. In this case, the employee had been part of an incident that caused him whiplash injuries causing him to fall with the legal definition of disability, in this case back pain, and he had furnished medical certificates in this regard to his employer. The Respondent in Kiernan had discriminated against him on the grounds of disability forcing him to resign. The WRC held that:

”I am absolutely satisfied that the Employer put the Complainant into an impossible position. The Employer forced a finding of fact concerning a disability which, even ifthe Complainant had any such disability, is and was irrelevant to the functions and roles he performed in the workplace. This was a peculiarly clumsy attempt to prevent the Complainant from returning to the workplace and forcing him to retire by reason of ill-health. The motivation was presumably because his job had already been absorbed by others in the workplace. I am satisfied that the Complainant’s resignation was grounded in the unreasonable position and positioning adopted by the Employer. I am further satisfied he was left with no alternative other than to tender his resignation."

The Complainant suffered from a disability and was discriminated against by the Respondent on the ground of disability. She was unable to meet the conditions set for redundancy by the Respondent and the terms to avail of the enhanced redundancy were not altered for her.

In Stobart (Ireland) Limited v. RichardBeashellADE/13/35 the Labour Court determined that depression was a "disability". The employer had sought to argue that depression was not long term and thus could not come within the meaning of "disability". The Court dispelled any notion that Irish law requires an impairment to be long-term in order to constitute a ‘'disability”. The Court further noted:

“The main point in the Respondent's submission related to the requirement set out in that decision, that in order to come within the scope of the Directive a disability must be long term in nature. It argued that the Complainant in this case suffered a bout of depression and had no further contact with the medical profession on this matter. The Court does not accept this interpretation of the CJEU Decision. The Court takes the view that the Complainant was diagnosed as suffering from depression, a disability for the purposes of the Act. The Court accepts the Complainant’s contention that depression is a long-term condition that may not be ever present but may affect a person from time to time. In this case the Respondent made no medical enquiries as to the nature of the Complainant’s depression or as to the frequency with which or extent to which it might impair his capacity to work. Nor did it engage with the Complainant to determine the reasonable accommodation he might require when suffering bouts of depression. Having failed to establish the nature or extent of the Complainant's depression the Respondent cannot seek to rely on an assertion that it was of a short-term nature only when it has no medical evidence to this effect and more importantly had no such evidence when it took its decision to dismiss him.”

In the case of A Technology Company v A WorkerEDA0714 the Labour Court clearly outlined the fact that there must be a connection between the disability and the alleged discriminatory act. In this case, the Complainant’s case is clearly that the alleged acts (such as the unilateral removal of her duties) clearly show a causal connection with her disability. Crucially important for the within consideration, is the fact that the causal connection that this Adjudication Officer must consider is not necessarily born out of motive or intention to discriminate, but rather from the facts before the WRC which will allow the Adjudication Officer to infer discrimination. In the words of the Labour Court in A Technology Company:

“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 that a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution, [emphasis added].

In the case of An Employee v A Broadcasting Company [2012] 23 E.L.R. 88, the Equality Tribunal dealt with a case that is similar to this case. The similarities on the facts were that the worker in A Broadcasting Company was placed on leave and her return to the workplace was delayed. In the circumstances it was held that placing the employee on leave and delaying her return to the workplace constituted direct discrimination on the ground of disability. The Equality Tribunal clearly held that:

“the respondent discriminated against the complainant on grounds of disability in terms of s 6(2) of the Employment Equality Acts 1998-2007 and contrary to s.8 of those Acts when it placed her on leave and delayed her return to work until February 2009.”

It is therefore submitted that the Complainant suffered a disability diagnosed as post traumatic complex regional pain syndrome on her right side after sustaining an injury in a plane landing on 28 June 2019. The Complainant could not perform her duties as a result of her injury, her movement of her shoulder being painful and the Respondent imputed a disability to her, which led her to be unfit to work. She received treatment including a right shoulder arthroscopy, subacromial decompression and a bursectomy, followed by an injection to ameliorate the discomfort in her right shoulder. Therefore, she meets the definition of disability as per s. 2(1)(a) and (c) of the EEA, by reason of her right shoulder not functioning correctly and or malfunctioning as a result of the incident of June 2019.

The recent WRC decision Colin McArdle v Adapt Engineering LimitedADJ- 00028684 concerned complaints by an organ transplant recipient of alleged unfair (constructive) dismissal, penalisation under the Safety, Health & Welfare at Work Act, 2005 and complaints of discrimination on grounds of a disability under the Employment Equality Act, 1998, and victimisation as a failure of the employer to provide reasonable accommodation during Covid due to their disability.

Similar to the present case, where an issue is raised as to the existence of a disability as a result of the injuries sustained, the WRC held:

“There is substantial Labour Court precedent in the definition of a Disability. Bolger, Bruton and Kimber in Employment Equality Law 2012 Edition Round Hail refer at Section 7-46 to the purpose of the Acts is to “prohibit discrimination” and not “whether or not a person comes withing the terms of a particular definition".

“Accordingly, and following the extensive chain of precedents quoted by the authors it is accepted that being an Organ Donor Recipient an ODR is a Disability."

It is submitted that the Complainant continues to suffer a disability which is aggravated by certain conditions, herein cold weather. In McArdle it was held being an ODR is a disability. Therefore, the Respondent's withdrawal of the enhanced redundancy travel concessions she was entitled to before she suffered Injuries amounts to direct discrimination on the grounds of disability.

Section 6(2)(g) of the EEA provides that one employee shall not be treated in a less favourable manner than another in circumstances where:

... 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")

The discrimination suffered by the Complainant has been outlined within these submissions and will be the subject of direct evidence.

Definition of Disability Within EU Law

Article 2 of the Framework Directive 2000/78/EC

Concept of discrimination

1.      For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2.      For the purposes of paragraph 1:

a)     direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

b)     indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

i)                 that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

ii)                as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation., to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

Article 2 of the Framework Directive sets out the concept of discrimination both direct and indirect. Direct discrimination is prohibited where “one person is treated less favourably than another is, has been or would be treated in a comparable situation.' It is submitted that the Complainant in this case was treated less favourably as a result of her disability in regard to the terms and conditions of her ex gratia enhanced redundancy.

Although the EEA do not expressly implement art.2(2)(b)(ii) of the Directive and provide that an employer's liability for indirect discrimination on grounds of disability can be avoided where the reasonable accommodation requirement is adhered to by an employer in order to eliminate the disadvantages caused, previous decisions by the Workplace Relations Commission and the Labour Court, have had regard to their obligations to apply EU law In Fag og Arbejde (FOA) v Kommunernes LandsforeningC-354/13,the case related to an individual who was suffering from obesity.

The Court stated at paragraph 53 that:-

"theCourt held that the concept of "disability" must be understood as referring to a limitation which results in particular from long-term 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."

At paragraph 59 the CJEU stated that obesity could, in fact, constitute disability if it met that definition.

In Arbejde (FOA) v Kommunernes Landsforening it is clear that the definition specifically related to Council Decision concerning the conclusion by the EC of the United Nations Convention on the Rights of Persons with Disabilities (2010/48/EC) which does not define "disability". In the Irish context, Section 2 of the Acts sets out a comprehensive definition of "disability" and it is submitted that "disability" can only be assessed on the basis of that detailed definition.

In addition, it is specifically stated at paragraph 28 of the decision that:

"The Directive lays down minimum requirements, thus giving Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State."

The Respondent might argue that broadening the definition of disability as defined by the Directive could somehow justify the regression of the protection afforded to the Complainant in Section 2 of the Acts. This is an incorrect argument as a matter of law.

It is submitted that the 1998 Act came into existence before Council Directive 2000/78, therefore the Respondent should not be permitted to use this CJEU Decision to narrow the protection afforded to the Complainant,

Without prejudice to the position of the Complainant that her condition of right pain in her shoulder (together with some limited functioning), with post traumatic complex regional pain syndrome on the right side, meets the definition of disability as a matter of Irish law, her condition also meets the definition as a matter of EU law. Her condition is long lasting in nature (from June 2019-to date), she was unfit to work from June 2019 to her termination of employment in October 2021 (and was so found by the Respondent's occupational doctors) and was unable to participate in her working life as a result.

In addition to the complaint that the Complainant was directly discriminated against by the Respondent, and without prejudice to the claim relating to penalisation, it is submitted that the Complainant has suffered indirect discrimination as a result of her disability. The EEA makes it clear that where a policy is practiced within a workplace, and that policy places a group (which is covered by a particular ground of disability) at a particular disadvantage, that policy is discriminatory. The policy in the instant case is the assessment used by the Respondent in withdrawing the entitlement to the enhanced redundancy.

Conclusions

The following is submitted:

The Complainant was discriminated against on grounds of disability in breach of the EEA,

The treatment of the Complainant constitutes victimisation in breach of the EEA:

The Complainant was penalised in breach of the 2005 Act

The Complainant seeks compensation for the effects of the discrimination, together with an order pursuant to s. 82 of the EEA that the Respondent issue the enhanced severance program terms to her carving out/excluding her personal injuries proceedings.

The Complainant seeks compensation for the breach of the 2005 Act.

At the adjudication hearing, Ms Bruton BL submitted that, regarding penalisation and the application of the “but for” test, the Complainant could not take the severance voluntary payment because she had a PI claim, and in the PI claim she alleges breached of the Safety, Welfare and Health at Work Act.

Regarding the complaint under the Employment Equality Acts, Ms Bruton BL submitted that people with a disability would be more affected by the Respondent’s rule. Oblique reference to two other people has no probative value. There was no objective justification for the rule.

Summary of direct evidence and cross examination of the Complainant

The Complainant outlined her career with the Respondent and her family circumstances. She said that she has four children.

The Complainant said that on 28 June 2019, when the plane was coming to landing, she was strapped for landing which was bumpy. The captain checked that they were ok and initially she said ‘yes’. She then said that she did something to her shoulder. The Complainant said that when she was taking off her uniform, her shoulder was at her. She was told to fill out the form and ring the medical service provider. She went to A&E and was certified unfit for work.

The Complainant outlined her medical treatment. She said that she went to her own GP and was prescribed medications and physio was suggested. She then went to Dr Bohane and Dr Rahman. In February 2020, Dr Rahman administered botox injections to her spine to numb the pain.

The Complainant then saw Mr Kingston in July 2021 on the recommendation of her own GP. A course of injections was suggested. The Complainant’s nerve pain and numbness of fingers were treated. The Complainant was also referred for an MRI.

In November 2021, the Complainant underwent a surgery to remove a piece of bone from her shoulder and soft tissue but it did not really help. She was given a steroid injection. The Complainant said that after the surgery she was still in pain, her grip was not great, she had only restricted movement. The Complainant said that she was still doing physio and took medications. She also suffers from anxiety; she is waiting to see a counsellor.

The Complainant said that she was in receipt of the occupational sick pay for six months after the incident, she then received illness benefit from the State. In February 2021 she received the forms regarding an invalidity and disability benefit.

The Complainant said that she was always based in Shannon. In May 2021 the Respondent decided to close the Shannon base. The Complainant said that she put her application in for the severance package, she received confirmation from the Respondent that it was prepared to accept her application. The Complainant said that she took legal advice on the acceptance. She said that initially she did not see anything on the final settlement conditions. She referred to the correspondence between her solicitor and the Respondent. She said that she did not take the enhanced redundancy. She still had to have surgery, she is still in pain, she thought it was unfair. She decided to take the statutory payment.

The Complainant said that she thought about a move to Cork or Dublin but her husband travels a bit for work and it would be two hours’ drive one way.

The Complainant said that she then queried the matter of a staff travel concession book. She was informed that she was not eligible as she did not avail of the voluntary severance. The Complainant said that she did not see any reference to the staff concessions as part of the enhanced redundancy.

The Complainant said that she worked for the Respondent for 22.5 years. She believes that she was discriminated against and that she should be entitled to the same as the rest.

In cross-examination the Complainant was asked who she thought was treated more favourably than she was, and she replied that people who got the package. The Complainant was not aware if any of these people had a disability or a personal injuries claim. She confirmed that she was given the same terms and the same three offers as the other staff. The Complainant confirmed that she was told that, if she opted for a transfer, the part-time arrangements would transfer, and she was not treated differently in that regard.

The Complainant confirmed that she did not know the reasons why people opted to move. It was put to her that some could have had a PI claim and did not get the package but opted for the move. The Complainant confirmed that she did not know that.

It was put to the Complainant that she could not describe a colleague who she was treated less favourably than. She said that all staff who got the package were treated more favourably and all 46 are her comparators.

It was put to the Complainant that there was at least one person who had a PI claim.

The Complainant confirmed that she received the voluntary severance pack and that she was asked to waive a wider selection of claims listed in the Form of Acceptance.

The Complainant agreed that she was a member of a trade union. She was aware that her union negotiated the severance package, which was dealt with under the auspices of the WRC and the Labour Court. The package was considered by the Court which recommended an extra €5,000 payment, no other changes were recommended.

It was put to the Complainant that from the beginning she was told that it was a full and final settlement. The Complainant said that she did not understand what it meant; she did not ask her trade union to explain.

The Complainant confirmed that she expressed her interest. She ticked all three boxes with the enhanced redundancy package as her first choice.

The Complainant confirmed that she read the documentation but did not understand it, she did not get the seriousness of it. She did not attend a 1:1 meeting. She said that she got the letter in relation to her PI claim and spoke with her solicitor, so she did not ask for a 1:1 meeting at the time. She asked for a 1:1 and spoke with HR in September 2021. She was told that, if she signed the agreement, she would not be able to pursue her PI claim. The Complainant confirmed that her solicitor did not suggest a 1:1 meeting. She agreed that before 9 September 2021 she glanced through the documentation but after 9 September 2021 she fully understood it.

She said that she went to her solicitor to check if she could continue with her PI claim if she signed the agreement and it was confirmed to her that she could not.

The Complainant was asked if she understood that the signing of the document would lock her out from e.g., suing over annual leave, she confirmed she did. She did not dispute that the same conditions, the same form was given to all 47 people. She did not dispute that a person without a disability, a person with a PI claim or a person who sued over annual leave entitlements would have received the same form. The Complainant agreed that a person who sued for a personal injury but had no disability (recovered) or someone who had a grievance or claimed outstanding wages, or rights under maternity legislation, or someone who had no claim at all would have had to sign the same form.

The Complainant said that she did not know if there was anyone else with a disability or a PI claim.

The Complainant accepted that when an employee leaves the Respondent, they do not get the staff travel concession book, but they might in the case of retirement. She agreed that there is no agreement that anyone who is made redundant is entitled to the staff travel concession book. The Complainant said that the Respondent always gives concessions as part of voluntary severance. It was put to her that the staff travel concession book is treated in exactly the same fashion as the enhanced package.

It was put to the Complainant that the payment was not in terms of the recognition for her service, it was ‘we give you something, you give us something in return”.  It was also put to the Complainant that she had the option of staying, she could have opted for Dublin or Cork.

In re-examination, the Complainant confirmed that the documentation pack did not refer to the staff travel concession book. Her understanding was that she would get concessions. The Complainant said that she was not aware of anyone who had a PI claim or a disability.

Mr Mallon BL, on behalf of the Respondent, submits as follows.

By Workplace Relations Complaint form submitted to the Workplace Relations, the Complainant makes various allegations of unlawful treatment by the Respondent of her under:

(a) section 77 of the Employment Equality Acts 1998 – 2015 (the “EEAs”); and

(b) section 28 of the Safety, Health and Welfare at Work Act, 2005 (the “2005 Act”).

The Respondent categorically rejects all and any allegations made by The Complainant, for the reasons set out below, requests that the Adjudication Officer reject the complaints in their entirety.

BACKGROUND AND CHRONOLOGY OF EVENTS

The Complainant commenced employment with the Respondent on 25 March 1999. She was employed by the Respondent as a Cabin Crew Member in the cabin crew base in Shannon. Her latest contract of employment was exhibited at the hearing.

As a consequence of the Covid-19 pandemic, the Respondent ceased flying activity to/from Shannon in April 2020. During the pandemic, cabin crew in Shannon were placed on reduced hours and pay, then temporary lay-off and some availed of extended career breaks. On 18 May 2021, the Respondent announced the decision to close the Shannon Cabin Crew base and on the same day met with the representative trade unions for Cabin Crew and wrote to the Minister of Enterprise, Trade & Employment, Leo Varadkar to advise him of the potential redundancies arising from this decision. A collective redundancy consultation process was commenced.

The Respondent informed Shannon based Cabin Crew, to include the Complainant of the proposed closure of the Shannon cabin crew base, affecting 81 staff. The Respondent engaged in extensive consultation process, meetings (on 18, 25 May, 1, 11, 18 and 24 June 2021), dialogue and correspondence with Forsa, the representative trade union for cabin crew in Shannon on the options for cabin crew which consultation process concluded on 30 June 2021.

Arising from this process of consultation, the Complainant and her Shannon-based cabin crew colleagues were afforded three options as follows: (a) Redeployment to Cork; (b) Redeployment to Dublin; or (c) An enhanced ex gratia severance package to leave employment on agreed terms.

Each crew member received an options document setting out these options and separately a FAQ document was published to address common queries that crew may have had.

Of the 81 people affected: (a) 6 sought redeployment to Cork; (b) 28 sought redeployment to Dublin; and (c) 47 sought enhanced severance.

The Complainant applied for enhanced severance with the enhanced ex gratia severance package.

On 24 August 2021, the Respondent wrote to the Complainant, outlining the terms of the enhanced severance programme (exhibited at the hearing). Extracts from the letter are as follows:

“The Company is prepared to accept your application for Voluntary Severance subject to your acceptance of the ex gratia severance terms on offer to you and your completion of the Form of Acceptance attached to this letter.

The ex gratia severance payment on offer to you under the Programme is €84,315.67 gross, which is inclusive of your statutory redundancy entitlement of €21,737.38, and/or any other statutory or contractual entitlements (if any). This offer is also inclusive of a payment of €5,000 as recommended by the Labour Court in LCR 22433. Your entitlement to accrued, but untaken annual leave will be determined with reference to your Termination Date and where applicable you will be paid in lieu of any outstanding entitlements.

Your voluntary redundancy will take effect on 08 October 2021 (“Termination Date”) on which date your employment with The Respondent will terminate by mutual agreement without further obligation on the part of the Company, save as set out in this letter.”

On 10 September 2020, the Complainant filed a High Court Personal Injuries Summons against the Respondent (“PI Claim”). The claim arises from a flight to Boston from Shannon in June 2019 where the Complainant was operating as cabin crew. She alleges that the aircraft landing was “abrupt or hard” and as a result she asserts that she sustained significant personal injuries.

The Respondent notes that this claim is subject to a set of separate proceedings, it is the only claim of its type from this particular flight, the issue of liability is in dispute and the proceedings are being fully defended by the Respondent.

On 10 September 2021, solicitors for the Complainant, wrote to Ms Mettler, Employment Counsel at the Respondent (exhibited at the hearing). Extracts from the letter are as follows:

“I understand that she has been informed that unlike her colleagues she is not entitled to the enhanced severance package if she continues her High Court personal injuries claim against Aer Lingus in respect of an accident at work which occurred on 28th June 2019.

Please clarify why our client is not entitled to the same package as her colleagues where Aer Lingus have created a custom and practice that this is an option for employees like our client.

Please note that Aer Lingus has been on notice of our client’s personal injuries claim since our letter dated 14th August 2019. I have copied in Mr Brick, Solicitor (ref: [redacted]) who is defending the High Court proceedings as we await the Defence of Aer Lingus in order to proceed with the claim. Indeed, I was required to issue a Motion to seek Judgment in default of Defence which is returnable on 6th December 2021. An Appearance was entered on behalf of Aer Lingus on 19th March 2021 and no further pleadings have been delivered. The delay in bringing our client’s claim to an end is delay on the part of Aer Lingus.

Please also note that our client’s reserves the right to bring an employment claim should she be victimised by not being offered the enhanced severance package by virtue of having had an accident at work thereby necessitating an employer’s liability claim which has in fact been delayed by her employer.”

On 13 September 2022, Ms Mettler wrote to the Complainant’s solicitor (exhibited at the hearing). Extracts from the letter are as follows:

“Aer Lingus does not accept that your client has in any way been treated less favourably than her colleagues and/or in a manner which could reasonably be regarded as victimisatory by her employer in the context of the conditionality attached to an ex gratia lump sum severance opportunity.

To the extent that your correspondence references your client’s personal injuries litigation, our instructed Solicitors Flynn O’Driscoll have replied separately. For the avoidance of doubt and with respect to the matter referenced in your letter, the issue of liability is in dispute and the proceedings are being fully defended for and on behalf of Aer Lingus.

As a consequence of the decision to close our cabin crew base in Shannon,  and following a process of consultation with the representative trade union for cabin crew, your client and her colleagues were afforded three options – redeployment to Cork, redeployment to Dublin or an enhanced severance package to leave employment.

As with all enhanced severance schemes where ex gratia terms are offered to staff over and above their statutory entitlements and on a discretionary basis, the offer is made subject to certain conditions one of which is that the terms are accepted in full and final of all matters relating to the employment and the termination thereof, to expressly include all claims pending and/or in contemplation. This is, with respect, a standard approach for an employer to take and one which is consistent with other similar voluntary/enhanced severance schemes offered in Aer Lingus. We will not be making any amendments to the enhanced severance documentation to carve out or exclude the litigation being pursued by your client as she has requested.

Your client has opted for the enhanced severance opportunity to receive an ex gratia payment offered at the discretion of her employer and has declined the opportunity to redeploy to another base.

If she decides to accept the enhanced severance terms on offer to her then she must attend a 1:1 meeting and sign the Form of Acceptance documentation as is, without any modification or further amendment and discontinue her litigation.

If she does not wish to accept the enhanced severance offer on these terms, then that is her personal decision. In this event, she will be afforded her statutory and contractual entitlements on termination of her employment.” (Emphasis added).

On 24 September 2021, the Complainant’s wrote to Ms Mettler (exhibited at the hearing). Extracts from the letter are as follows:

“We take great exception to our client being denied the opportunity to accept an enhanced redundancy package being offered to all employees by her employer at this time.

Our client’s right is being so denied after over 22 years of faithful service with Aer Lingus, unless she is willing to forgo her constitutional right to litigate before the courts in respect of a serious personal injury requiring surgery, arising out of an accident at work which occurred over two years ago. The said accident occurred during the course of her employment as an employee when she was under the care, protection, direction, and/or control of her employer, its servants or agents or contractor and carried out her work at all material times at work under its direction, care, protection and/or control.

It is quite apparent from our instructions that:

(a)   Our client is being victimised and penalised because she has made a personal injury claim against her employer arising, inter alia, out of unsafe and negligent safety practices. Such victimisation and penalisation is in contravention of the Protected Disclosures Act 2014, the Safety, Health and Welfare at Work Act 2005, the Employment Equality Acts and statutory provisions and regulations thereunder.

(b)   Our client is being discriminated against under the Employment Equality Acts as due to her disability caused by an accident at work, she is placed in a different position than other colleagues without a disability. The precondition you require her to comply with in order to accept the opportunity to avail of the enhanced severance package – namely to withdraw proceedings in being to obtain compensation for a physical injury caused at work which is preventing her from working and may continue to prevent her from work into the future - is one which places her at a particular disadvantage. Please note that this letter is a formal complaint of discrimination to you in respect thereof.

(c)    There has been a breach of statutory duty to include but not limited to:

(i)               A breach of the provisions of the Safety Health and Welfare at Work Act 2005 and/or of the Statutory Instruments enacted thereunder.

(ii)              A breach of the provisions of the Safety, Health and Welfare at Work (General Applications) Regulations 2007;

(iii)            A breach of the provisions of the Safety in Industry Acts and/or of the Statutory Instruments enacted thereunder;

(iv)            A breach of the provisions of the Protected Disclosures Act 2014.

(d)   There has been a breach of contract to include but not limited to a breach of the implied equality clause in her contract of employment.

(e)    There has been a breach of legitimate expectations.

(f)     There has been a breach of our client’s constitutional rights where she does not yet know the extent of her personal injury.

We confirm that our client is willing to sign the enclosed amended Form of Acceptance precluding her from pursuing any other potential legal actions with the exclusion of the ongoing personal injury action bearing High Court Record No. 2020/ 6087P.

We call upon you to confirm within 7 days from the date hereof that the attached Form of Acceptance to include the exclusion of her ongoing personal injury.”

On 27 September 2022, Ms Mettler wrote to the Complainant’s solicitor (exhibited at the hearing). Extracts from the letter are as follows:

“As previously advised Aer Lingus does not accept that your client has in any way been treated less favourably than her colleagues and/or in a manner which could reasonably be regarded as victimisatory by her employer in the context of the conditionality attached to an ex gratia lump sum severance opportunity.

In requiring her to sign standard waiver documentation your client is being treated consistently and equally with her peers and colleagues.

The position stands as per our previous correspondence. To confirm once again, with respect to the litigation referenced in your letter, the matters raised by your client and the issue of liability is in dispute and the proceedings are being fully defended for and on behalf of Aer Lingus.

In summary, your proposed amendments to the Form of Acceptance documentation are not acceptable to Aer Lingus.

To avail of the enhanced severance terms, your client must sign the original Form of Acceptance documentation that was issued to her within the timeframe previously advised.”

The Complainant did not sign the required documentation nor did she seek to explore the alternative redeployment options.

On 6 October 2021, Employee Relations Manager, wrote to the Complainant to confirm her redundancy (exhibited at the hearing). Extracts from the letter are as follows:

“As you are aware, a decision was taken by Aer Lingus to close the Shannon cabin crew base.

As a member of Shannon-based crew, you were afforded three options following a process of consultation with employee representatives – i) an enhanced severance opportunity; ii) redeployment to our Dublin base or iii) redeployment to our Cork base.

You opted to be considered for an enhanced severance opportunity and the enhanced severance offer details and acceptance documentation were prepared for you and you were offered a 1:1 meeting with the VS project team, which you declined. As part of the enhanced severance process, you were advised that the enhanced severance terms were conditional on your acceptance in full and final settlement of all matters relating to your employment and the termination thereof, to expressly include any claims pending or in contemplation against the Company. We have subsequently reiterated this position to your legal representatives and have declined their requests to have our standard documentation amended to expressly exclude your current High Court litigation.

We have previously and repeatedly advised you and your representative that in default of an acceptance of the enhanced severance terms and conditions, you would receive your statutory and contractual entitlements only. It is noted that you have not accepted the enhanced severance terms on offer to you within the timeframe advised.

As such therefore I can confirm that your employment with Aer Lingus Limited will terminate by reason of redundancy on 8 October 2021 and you will receive your statutory redundancy entitlement of €21,737.38 and you will be paid in lieu of your notice entitlement. Any accrued but untaken annual leave will be paid to you.

As part of the leaver requirements and in order to receive your final payment, you are required to return your Aer Lingus ID, your AIC and all uniform items to [named employee], I will ask her to reach out to you to make arrangement to same.

We would like to thank you for your service to Aer Lingus and we wish you well for the future.” (Emphasis added)

The Complainant’s employment with the Respondent terminated by reason of redundancy on 8 October 2021. As the Complainant did not sign the necessary severance documentation, she was paid her statutory redundancy and contractual entitlements only.

On 4 November and 7 December 2021, the Complainant emailed the Respondent requesting a staff travel concession book. On 16 December 2021, the Respondent responded to the Complainant as follows:

“I regret to advise that you are not eligible for a staff travel concession book as you did not avail of the voluntary severance. The staff travel concession is only provided, where applicable, to eligible employees who avail of voluntary severance/enhanced severance where staff travel concessions is a feature of the relevant scheme. In your case as you did not accept the enhanced severance offered, the benefits of that severance, including the enhanced severance terms and staff travel concessions fell away.”

THE EMPLOYMENT EQUALITY COMPLAINTS – REQUIREMENT TO RAISE A PRIMA FACIE CASE

Without prejudice to the following submissions, the Complainant is put on proof that she suffered a disability within the meaning of the legislation.

The Complainant has alleged that she was discriminated against by the Respondent by reason of her gender, age and disability, contrary to section 6 of the Equality Acts.

The Respondent entirely refutes this assertion. The Complainant’s contract of employment makes no reference to a staff travel concession book. The Respondent Staff Travel is a discretionary privilege which is afforded to eligible employees during their employment with the Respondent. The privileges afforded depend on an employee’s length of service and role/grade and can be withdrawn or varied at any time. Unless otherwise agreed, staff travel concessions will cease when employment ends. It is the case that as part of voluntary service (‘VS’) programmes, the Respondent has offered certain staff travel concessions to staff who are leaving employment as part of a VS scheme which concessions must be used within a specified timeframe or may vary depending on the length of accrued service. These types of staff travel concessions are conditional on the employee accepting all of the terms applicable to the VS and signing the required severance paperwork.

As part of the enhanced severance terms on offer to those Shannon-based cabin crew who opted for this option, the Respondent offered the following staff travel concessions:

The offer of these continuing staff travel privileges was entirely conditional on the enhanced severance terms being accepted in full and final settlement. To the extent that the Complainant chose not to sign and accept the conditions attached to this offer, the staff travel concessions offer was withdrawn and not available to the Complainant. This is entirely in keeping with this discretionary privilege, which is only ever provided, where applicable, to eligible employees who avail of voluntary severance/enhanced severance where staff travel concessions is a feature of the relevant scheme and where all required severance paperwork is signed. This was never a term of the Complainant’s employment and is not mentioned or referenced in her last or indeed any contract of employment.

The Law

Section 6(1) of the Acts provides:

“…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 (in this Act referred to as the “discriminatory grounds”)”.

Section 6(2)(g) provides that:

“As between any two persons, the discriminatory grounds are, inter alia, 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”)”.

The first question before the WRC is whether the Complainant has a disability as defined by the Acts and the second is whether the Complainant has established a presumption that the Respondent has treated the Complainant less favourably than an employee who does not have a disability. In this regard, the onus is on the Complainant to establish a prima facie case of treatment contrary to the Acts on the grounds of disability under Section 85A(1) of the Acts.

The Respondent relies on Southern Health Board v Mitchell [2001] DEE 011, where the Labour Court considered the extent of the evidential burden, which the Complainant, under the Acts, must discharge before a prima facie case can be made out.

In Minaguchi v Wineport Lakeshore Restaurant DEC-E/2002/20, the primary facts were defined by the Equality Officer as follows:

“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:

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

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

(3) 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 Department of Defence v Tom Barrett EET 081, the Labour Court opined as follows:

“A person can only have a cause of action under the Act if she or he is treated less favourably in respect of their access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading, or classification of posts, on one of the discriminatory grounds that another person is, has been or would be treated”. (Emphasis added)

In Graham Anthony & Co Limited v Margetts EDA 038, 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 Minister for Education and Science v A Worker EDA 087, the Labour Court made clear that, in order to establish less favourable treatment, the complainant must show that an able-bodied comparator or a comparator with a different disability was treated more favourably to him/her. If the complainant is not able to show the comparable situation, then he/she cannot claim discrimination on grounds of disability.

In this case, the Complainant has not provided an appropriate comparator. The payment of the enhanced ex gratia amount was conditional on signing the waiver for all employees similarly impacted by the base closure in Shannon. In addition, the same enhanced severance terms were applicable to all cabin crew in Shannon (and all other the Respondent employees opting for voluntary severance at the relevant time) regardless of whether they were party to internal or external processes at the relevant time with the Respondent to include third party claims, and regardless of their type. There were several other cabin crew in Shannon and staff in other bases in the same or similar position as the Complainant, all of whom accepted the severance terms as presented. There was no penalisation and/or less favourable treatment of her in this regard.

At the adjudication hearing, Mr Mallon BL submitted that the matter was not rushed and the Respondent engaged with the unions. The proposal ended up in the Labour Court where a recommendation of an extra €5,000 payment was made. However, there were no complaints about the full and final settlement aspect. He said that the package was designed in negotiations with the trade unions to facilitate peaceful termination. He said that the Complainant accepted that early in September 2021 she fully understood what her options were. Mr Mallon BL further submitted that the concession book was clearly related to the voluntary severance payment. The Complainant accepted that there was no contractual entitlement to the travel concession book and it was part of the voluntary severance payment.

Mr Mallon BL said that the denial of the staff travel concession book was not because the Complainant took PI proceedings but because she did not accept the full and final settlement. This was a “take it or leave it” situation and the Complainant was not treated differently to anyone else. The Respondent did not say that those with PI claims cannot apply for the enhanced severance payment.

At the adjudication hearing, Mr Mallon BL contended that being unfit for work and a disability are not equal. A person can be unfit for work and not have a disability. Equally, a person can be fit for work and have a disability. Mr Mallon BL submitted that there is a statement that the Complainant has a problem with her shoulder, which medics have difficulty to explain, she underwent a surgery, like a lot of people do. However, these do not mean that she suffers from a disability.

Mr Mallon BL said that the Complainant was not taken to A&E, neither were any passengers. The Respondent has a system in place and the Complainant was advised to contact its international medical service provider, she was advised to go to A&E and was declared unfit to fly back. Mr Mallon BL said that the Complainant did not have a disability, and if she did a) the Respondent did not know about it, b) the Respondent did not discriminate against her. 

Mr Mallon BL further contended that the Complainant had not referred a claim regarding reasonable accommodation other than in respect of “carving out” the personal injuries claim from the form of agreement.

Mr Mallon BL said that the Complainant said that 46 people are comparators. There were some 80 people affected, some might have decided not to take the package because they had a PI claim, or a disability, or no disability, or had “any claim” internally or externally.

Mr Mallon BL said that the “rule” is a provision in a voluntary agreement which the parties accept or reject. The reason why the Complainant did not accept the agreement was her PI claim, which she did not want to waive. She made the decision, she was not prohibited.

Mr Mallon BL note that Farrell relied upon by the Complainant dealt with compulsory redundancy, the complainant in that case had no other alternatives.

Mr Mallon BL said that Ms Mettler gave evidence that there could be people who did not have a disability but had PI claims. The Complainant’s doctor said that she would recover. Even then, she would still have her PI claim.

Regarding alleged indirect discrimination, Mr Mallon said that there was no evidence as to how many people that take PUI claims suffer from a disability or do not have a disability, it is entirely subjective.

Mr Mallon BL also said that the Complainant did not meet the “but for” test.

Summary of direct evidence and cross-examination of Ms Mettler, Employment Law Manager

Ms Mettler outlined her experience and her career with the Respondent.

Ms Mettler said that she was involved in the designing of the redundancy proposal, she was involved with trade unions, the Minister, engaged with the staff, supported the project team, etc.

She said that, at the time, there was significant restructuring going on. 170 employees were affected by the closure. She said that there was quite a number of voluntary redundancies in 2011, 2015 and then due to Covid. Ms Mettler said that there is standard, consistent format of voluntary redundancies. It entails the application form, the information pack prepared by HR with options, employees are given time to consider their options, a 1:1 meeting is offered, a FAQ document is prepared. Ms Mettler said that the organisation is heavily unionised, Forsa would have gathered questions and the Respondent would have prepared a FAQs document. She said that usually 7 days is given to take any advice employees needed, albeit it is flexible. If an employee is availing of the voluntary severance programme, then concession paperwork is prepared.

Ms Mettler said that there was collective consultation process with the Labour Court recommending an additional €5,000 payment.

Ms Mettler confirmed that the Agreement always refers to a full and final settlement, definitely since 2016 when she became in house counsel. She said that, from her experience it is not unusual.

Ms Mettler said that, as a lot of staff wanted to stay in Dublin/Cork, there was surplus of cabin crew. In December 2020 cabin crew were offered voluntary severance pay. There was lots of interest in Dublin, if vacancies were identified in Dublin, then Shannon staff could move. Ms Mettler said that higher number than 81 (Shannon) was affected as Dublin and Cork were included. She said that she was aware of people who had PI claims, one person accepted the agreement, another did not.

Ms Mettler said that the Respondent has policies in place to deal with people who cannot fly but have no disability. Depending on the role, the Respondent deals with reasonable accommodation, phased roster arrangements, the Respondent follows recommendations from Medmark. It is not always possible given the nature of the job but the Respondent is flexible. There might be people with a condition that does not constitute a disability, if they are fit to fly, they are ok. Ms Mettler confirmed that if someone has ill health, requires reasonable accommodation or has a disability, they are still entitled to the voluntary package.

Ms Mettler said that if someone had a claim regarding maternity leave, payment of wages, etc. internally or externally with the WRC they would have to withdraw it.

In cross-examination, it was put to Ms Mettler that there is no reference to the travel concession in the pack given to the Complainant. She said that it was contained in the letter dated 6 July 2021 which was part of the pack in 1:1 meeting. It was put to Ms Mettler that the Complainant’s email regarding concessions was acknowledged and forwarded to the team. Ms Mettler said that some of the issues would have been explained at a 1:1.

MS Mettler was asked if there were any exceptions made for PI claims, she said that not that she was aware of. Ms Mettler was asked what was the Respondent’s justification for this. She said that the conditions of the voluntary severance payment included a very generous ex gratia payment, it is not unusual to have conditionality attached in consideration. Ms Mettler was asked if she was aware that some employers make exceptions for PI, she replied that maybe.

Ms Mettler said that the approach is the same beyond the Complainant, beyond Shannon, it was not a compulsory situation.

Ms Mettler said that it is standard practice in the context of ex gratia payment that conditionality is attached. She said that people with different PIs would be affected. She said that, as the Complainant was unwilling to accept the conditions, she did not get the ex gratia payment.

Regarding reasonable accommodation, Ms Mettler said that the Complainant was unfit for work. There was nothing ever put to the Respondent to say that the Complainant was fit for work. If she was deemed fit, discussions in relation to reasonable accommodation would have ensued. If the Complainant accepted Cork or Dublin roles that were offered, the Respondent would have managed reasonable accommodation. The Respondent could not compel the Complainant to come back to work, her GP said that she was unfit.

In re-examination, Mr Mallon BL noted that there is no claim regarding reasonable accommodation before the Adjudication Officer other than in respect of the “carving out” aspect. It was further asserted by the Respondent that the fact that a person suffers from a disability does not necessarily entail a PI claim. People with no disability can have a PI claim and vice versa. It was stressed that the full and final settlement was in the context of the enhanced severance package, not the statutory redundancy.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

The Complainant referred the within complaint to the Director General of the WRC on 21 December 2021 alleging that she was discriminated against by the Respondent by reason of her disability. The most recent date of discrimination was stated as 8 October 2021. For the avoidance of doubt, while both parties in their respective submissions refer to gender, civil status and family status (the Complainant) and gender, age and disability (the Respondent), the claim has been referred and is considered only in the context of the disability ground.

In the WRC complaint form of 21 December 2021, the Complainant alleged that she was accepted into the Respondent’s enhanced severance package in September 2021 but was required to execute a full and final settlement agreement in return for accepting the enhanced redundancy terms, including waiving and/or settling her extant personal injuries proceedings. The Complainant alleged that, as a result she was refused the enhanced terms of severance package, as she was expected to expressly execute a form of acceptance which prevented her from continuing with her personal injury proceedings as the enhanced terms included a full and final settlement clause. The Complainant alleged that, in spite of requesting that this alleged discriminatory treatment cease and the personal injuries proceedings be excluded from the terms of the settlement agreement, this was denied by the Respondent and the Complainant was victimised. The Complainant alleges that the aforesaid treatment constitutes direct and or indirect discrimination on grounds of disability and victimisation. The Complainant asserted that the requisite clause within the terms of agreement caused a particular disadvantage for persons with disabilities who are more likely to have claims against their employer and lose out on those claims as a result of executing the agreement. Further, the Complainant's disability has caused her to be excluded from the enhanced severance package and constitutes direct discrimination on ground of disability.

In the written submissions, the Complainant alleged that she was directly and indirectly discriminated against by reason of her disability and victimised due to the conditionality of the discontinuance of the Complainant’s personal injuries proceedings in return for receiving the enhanced ex gratia payment. The Complainant further or in the alternative alleged that the Respondent failed to provide reasonable accommodation to the Complainant in the form of carving out her personal injuries claim from the form of agreement.

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it 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. 

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. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917 where it held that Section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. 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 Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“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.”

Jurisdictional matter – existence of disability

The Respondent raised a jurisdictional issue as to whether the Complainant had a disability at the relevant time.

The Complainant submitted that she suffered from orthopaedic conditions which constitutes a malfunction of her neck, back and right shoulder, and post traumatic complex regional pain syndrome. The Complainant asserted that the Respondent has been aware of her disability since she suffered her injury during a hard landing. The Complainant attended a medical service provider after the incident and was certified as unfit to work from June 2019.

The Respondent asserted that, while the Complainant was unfit to work, this does not constitute a disability. The Respondent further asserted that, if the Complainant suffered from a disability, a) the Respondent did not know about it, b) the Respondent did not discriminate against her. 

The definition of disability in Section 2(1) of the Acts 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).

The issue concerning whether or not an illness or sickness can constitute a disability within the meaning of Section 2(1) of the Acts has been the subject of much consideration by both the WRC/Equality Tribunal and the Labour Court in recent years. The Labour Court held in the case of Cregg Labour Solutions Limited t/a Cregg Group v Gerard Cahil EDA1634 that: 

“the definition of “disability” in Irish law, which preceded the Directive is sufficiently broad to cover certain types of illness although clearly it would be absurd to suggest that all forms of sickness could properly be classified as a ‘disability’. “ 

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 Boligselskab C-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.”

In Customer Perception v Gemma Leydon [2004] 15 ELR 101 (Determination EED037), the Labour Court considered the meaning to be ascribed to the term 'disability' in light of the statutory definition and said: -

“It is settled law that where a statue defines its own terms and makes what has been called its own dictionary, a Court or Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used”.

In referring to par (c) of the statutory definition, the Court then continued: -

“Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition”.

The Complainant adduced evidence that, following the incident on 28 June 2019, she was referred by the Respondent to Medmark Occupational Healthcare Providers who subsequently referred her to Dr Rahman, Consultant Neurologist. The Complainant relied on a report from Dr Rahman dated 22 October 2019 wherein he stated, inter alia, that the Complainant “has still tenderness with extension and lateral rotation, tenderness in the right shoulder and decreased power in the right hand. She has severe Tinel sign positive with tapping of the right wrist electric shooting pain goes to all the fingers especially the median nerve distribution. She has still the swollen, tender and bruises on the elbow joint and tender to touch.” Dr Rahman further stated that the Complainant “has post traumatic complex regional pain syndrome” and declared her “not still fit to do her duty”.

Dr Rahman’s letter of 24 September 2020 confirms that the Complainant has “post traumatic complex regional pain syndrome”.

The Complainant remained under medical care and Mr Kingston’s report dated 31 January 2022 confirms that she was under his care from 1 July 2021. Mr Kingston conducted a right shoulder arthroscopy, a subacromial decompression and bursectomy on 13 October 2021. Mr Kingston confirmed that, as of 5 November 2021, the Complainant still had some ongoing pain.

I note that in O’Shea v HSE EDA2227 it was not disputed that the complainant who suffered complex regional pain syndrome as a result of a serious injury to her right wrist suffered from a disability.  The Labour Court had no difficulty with determining that an injury to Ms O’Shea’s wrist and the complex pain syndrome she experienced after the cast had been removed constituted a disability for the purposes of the Acts.

In applying this test in the context of the present case, I am satisfied that the Complainant has demonstrated that the medical condition affecting her at the material time relevant to the within complaint and the manifestations of which were confirmed in a report from her doctor which was put in evidence, was of such a nature to constitute a disability within the meaning of section 2(1) of the Acts. Furthermore, having regard to the evidence adduced, it is clear that the Complainant’s medical conditions have had a significant impact on her ability to fully participate in her professional life over a number of years. In the circumstances, I find that the Complainant’s medical condition constitutes a disability within the meaning of Section 2(1)(c) of the Acts.

Comparator

Section 28 of the Acts in relevant parts provides that:

“28. The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;”

It is clear from section 6(2)(g) and section 28(1)(f) that the very first requirement for a complaint of discrimination to be established is that a complainant must show that a comparator without a disability or with a different disability was treated more favourably.

The Complainant asserted that the appropriate comparator is not a person who did not have a disability but was unable to accept the enhanced terms due to e.g., a statutory claim. Rather, it was argued the appropriate comparator is a person without a disability who would have been able to execute the agreement in a conditional manner and avail of the considerable enhanced ex gratia redundancy payment as they would have no proceedings to resolve as a condition of acceptance of the enhanced terms. 

The Respondent argued that, in order to establish less favourable treatment, the Complainant must show that a comparator with no disability or a comparator with a different disability was treated more favourably to her. The Respondent contended that the payment of the enhanced ex gratia redundancy was subject to the signing of the waiver for all employees regardless of whether they were party to internal or external processes at the relevant time with the Respondent to include third party claims, and regardless of their type.

In this case, the Complainant asserted in cross-examination that all 46 people who executed the agreement were the appropriate comparators.

Direct discrimination

Section 6(1) of the Employment Equality Acts 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 Acts 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 Complainant alleged that the requirement to discontinue personal injuries proceedings in return for receiving the enhanced ex gratia payment amounts to less favourable as compared to those who were able to execute the agreement.

The Respondent rejected the claim and argued that the payment of the enhanced ex gratia amount was conditional on signing the waiver for all employees similarly impacted by the base closure in Shannon.

To determine whether the Complainant has established a prima facie case a three-tier test is employed:

·        First, the Complainant must establish that she is covered by the relevant discriminatory ground;

·        Second, she must establish that the specific treatment alleged on balance occurred; and

·        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.

As per my findings above, the Complainant has a disability and, therefore, meets the first requirement. There was no dispute that the alleged treatment occurred, the Complainant did not receive the voluntary severance payment. Lastly, 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. In that regard, I note that the Form of Acceptance stipulates as follows:

2. In consideration of the Voluntary Severance terms and conditions set out in the Voluntary Severance Letter, including the ex gratia voluntary severance payment, I hereby irrevocably and unconditionally agree to accept those terms and agree that same are in full and final settlement of all claims of whatsoever nature, made and/or which may be made by me in Ireland and/or in any other jurisdiction against the Company, its parent and associated companies and all other companies in the International Consolidated Airlines Group of companies and/or each and all of their respective officers, directors, employees and agents in connection with and/or arising out of and/or relating to and/or concerning my employment with the Company, its parent and associated companies and all other companies in the International Consolidated Airlines Group of companies and/or the termination of such employment.

3. Without prejudice to the generality of the foregoing, I hereby acknowledge and agree that the provisions in the Voluntary Severance Letter and the Form of Acceptance constitute a full and final settlement of all claims and demands made and/or which may be made by me against the Company, its parent, subsidiaries and associated companies (and each and all of their respective officers, directors, employees and agents), whether such claims arise under contract and/or in equity and/or in tort (expressly including any claim for personal injuries that I have made or may make) and/or otherwise at common law and/or pursuant to statute including, but not limited to, claims which may be made pursuant to the Industrial Relations Acts 1946 to 2015, the Redundancy Payments Acts 1967 to 2015, the Minimum Notice and Terms of Employment Acts 1973 to 2005, the Unfair Dismissals Acts 1977 to 2015, the Protection of Employment Acts 1977 to 2014, the Data Protection Act 2018, the Pensions Acts 1990 to 2014, the Payment of Wages Act 1991, the Terms of Employment (Information) Acts 1994 to 2018, the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the Protection of Young Persons (Employment) Act 1996, the Organisation of Working Time Act 1997, the Parental Leave Acts 1998 and 2019, the Employment Equality Acts 1998 to 2015, the National Minimum Wage Act 2000 as amended, the Carer’s Leave Act 2001, the Protection of Employees (Part-Time Work) Act 2001, the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, the Protection of Employees (Fixed-Term Work) Act 2003, the Protection of Employees (Temporary Agency Work) Act 2012, the Employment (Miscellaneous Provisions) Act 2018, the Parent's Leave and Benefits Act 2019, the Protected Disclosures Act 2014 and the Safety, Health and Welfare at Work Acts 2005 to 2014, or pursuant to any amendment of any of the foregoing statutory provisions or otherwise howsoever arising.

4. I understand that on signing this Form of Acceptance my employment with the Company will terminate on the date advised to me in the Voluntary Severance Letter and that this decision is irrevocable. I further acknowledge and agree that on signing this Form of Acceptance I am hereby waiving any entitlement to receive and/or obligation to provide notice of the termination of my employment which shall end by mutual agreement on the Termination Date.”

Having carefully considered the matter, I cannot accept the Complainant’s proposition that unlike her, her colleagues without disabilities received statutory redundancy and enhanced redundancy terms or that a person without a disability would have been able to execute the agreement in a conditional manner and avail of the considerable enhanced ex gratia redundancy payment.  Firstly, I note that the Form of Acceptance refers, inter alia, to claims for personal injuries. In that regard, I accept the Respondent’s assertion that having a disability does not necessarily entail a personal injuries claim and vice versa, having a personal injuries claim does not necessarily entail having a disability. Therefore, I cannot accept that the insertion of the personal injuries claims in the Form of Acceptance could be consistent with the exclusion of a person with a disability from executing the Form of Acceptance. Furthermore, the Form, as quoted above lists a plethora of claims and demands against the Respondent that could not be pursued should an employee, with or without a disability, chose to execute the agreement.

Having carefully considered the submissions of the parties and the evidence before me, I cannot conclude that the Respondent’s practice of requiring all employees to sign a waiver of all future claims was directly discriminatory against employees who had sustained injury resulting in disability while working for the Respondent. I also cannot accept that the practice required such employees with disabilities to sacrifice their right to compensation for their injury to access the ex gratia payment, whereas for employees who had not been so injured and had no disability, signing the waiver did not require them to give up any real entitlement, as alleged by the Complainant.

Having considered the evidence, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons without a disability or a different disability, or indeed a hypothetical comparator, would have been treated more favourably than her in relation to the matters which she has sought to rely upon in the context of the instant complaint. Accordingly, I find that the Complainant has failed to establish a prima facie case of direct discriminatory treatment on the grounds of disability. 

Indirect discrimination

Indirect discrimination is defined as occurring where an apparently neutral provision puts a person who is a member of one of the nine groups at a particular disadvantage due to being a member of that group, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Indirect discrimination requires a claimant to demonstrate that an apparently neutral provision places them at a particular disadvantage to others. The first criterion which the Complainant must satisfy in terms of establishing a case of indirect discrimination is that the contended apparently neutral provision i.e., the requirement for the employees to sign a waiver of all claims puts her at “a particular disadvantage” within the meaning of the legislation.  The Complainant must show that the provision has a detrimental effect on them on the ground advanced.

The Supreme Court in the case of Nathan v Bailey Gibson & Others [1996] ELR 7 set out the tests to be applied in considering cases of indirect discrimination. This was a case under the Employment Equality Act, 1977 concerning indirect discrimination on the grounds of sex and marital status. The Supreme Court stated the following principle which were followed by the High Court in the case of Conlon v University of Limerick [1999] ELR 10 where it was held that:

“In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.”

The Complainant contented that the Respondent’s practice of requiring employees to sign a waiver of all claims, including personal injuries claims, before granting the ex gratia payment, is indirectly discriminatory against employees with disabilities such as the Complainant, contrary to section 31 of the EEA. The Complainant asserted that such a practice “will evidently cause more problems for employees with injuries which constitute disabilities”. The Complainant asserted that such employees are more likely to have outstanding proceedings against the Respondent such as claims under the Employment Equality Acts or personal injuries claims where their injuries were caused by workplace treatment / accidents. Therefore, it was asserted, that persons with disabilities are more likely to be presented with the dilemma of either sacrificing any chance of a full hearing for a fully assessed and argued claim for compensation or losing out on the ex gratia payment.

The Respondent disputed the contention that the Complainant was put at any disadvantage and contended that the Complainant’s assertion is subjective as there was no evidence to demonstrate how many people that take personal injury claims suffer from a disability or how many do not have a disability. 

I find that the Complainant has failed to adduce any compelling evidence from which it could be reasonably concluded that, on the balance of probabilities, the Complainant as a person with a disability or other persons with disabilities would be disadvantaged by the requirement to sign the Form of Acceptance but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of her claim in this regard.

Provision of reasonable accommodation

The next element of the complaint that I must consider relates to the Complainant’s claim that the Respondent failed to provide her with reasonable accommodation as a person with a disability contrary to its obligations under Section 16 of the Acts.

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking his/her duties.

The Complainant contends that the Respondent’s failure to provide her with reasonable accommodation “in the form of carving out her personal injuries claim from the form of agreement”.

The purpose of Section 16 in its very broadest terms is to require an employer to adapt or at least examine the adaptations necessary to enable a person with a disability perform their role in the workplace when they could not do so without those adaptations to accommodate their disability.

In the case of Nano Nagle School v Daly [2019] IESC 63 the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of Section 16 of the Acts. In this judgement MacMenamin J. held at paragraph 84 that: 

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

In relation to the Complainant’s assertion that the Respondent was required to provide her with reasonable accommodation “in the form of carving out her personal injuries claim from the form of agreement”, I find that the scope of the Act, in my view, does not extend the employers’ obligation beyond the requirement to take appropriate measures to enable a person with a disability have access to, participate in or advance in employment.

For the sake of completeness, the evidence before me shows that the Complainant was not fit to return to work in any capacity from June 2019 to the date of the termination of her employment. I note that none of the specialists who examined the Complainant made any recommendation in relation to the provision of reasonable accommodation for the Complainant’s disability. There was no suggestion that there were measures or facilities that could have been put in place to accommodate the Complainant’s return to work. Having regard to the ongoing nature of the Complainant’s medical condition and in the absence of any confirmation from her doctors as to when she would be deemed fit to return to work, I am satisfied that it was not possible for the Respondent to put any special measures or facilities in place which would have rendered her capable of performing her duties or a modified variation thereof.

Accordingly, I find that the Respondent did not fail in its obligation to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts.

Claim of Victimisation

The final element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

a)     a complaint of discrimination made by the employee to the employer,

b)     any proceedings by a complainant,

c)      an employee having represented or otherwise supported a complainant,

d)     the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

e)     an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

f)       an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

g)      an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Section 2 of the Act defines the terms “proceedings” as:

(a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and

(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference,

but does not include proceedings for an offence under this Act;

In the case of Tom Barrett v Department of Defence EDA1017the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out.  It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

The Complainant alleged “victimisation arising from the conditionality of the discontinuance of the Complainant’s personal injuries proceedings in return for receiving the enhanced ex gratia sum.”

Elsewhere in the Complainant’s submissions, albeit addressing the matter of the staff travel concession book, which is the subject of the decision in ADJ-00037716, it is alleged that the Complainant took the protected act in the correspondence issued from her solicitors on 10 September 2021 and 24 September 2021 wherein it was made clear that the refusal to carve out her personal injuries claim from the terms of the enhanced severance package constituted discrimination on grounds of disability

The Respondent disputes the Complainant’s claim of victimisation.

I find that the personal injuries claim does not fall within the definitions of “proceedings” under the Acts.

Insofar as the Complainant’s assertion that her solicitor’s correspondence of 10 September 2021 and 24 September 2021 wherein it was asserted that the Respondent’s refusal to carve out the Complainant’s personal injuries claim from the terms of the enhanced severance package constituted discrimination on grounds of disability, I find that both letters were issued in response to the Form of Acceptance being issued to the Complainant. Therefore, it cannot be alleged that the conditionality of the enhanced severance package occurred as a reaction to the Complainant making a complaint of discrimination to her employer.

For the avoidance of doubt, there was no evidence proffered to suggest that the Complainant made a protected act within the meaning of section 74(2) prior to the commencement of the voluntary severance package process. 

In the circumstances, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that she has been subjected to victimisation within the meaning of the Acts in relation to the alleged adverse treatment claimed. 

Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that she was subjected to victimisation within the meaning of Section 74(2) of the Acts in the within case.  

I declare this complaint to be not well founded.

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