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-00049064-001

08/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00049064-002

08/03/2022

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. This claim bears reference number ADJ-00036651.

The within complaint bearing reference number ADJ-00037716 was referred to the Director General of the WRC on 8 March 2022. This complaint ADJ-00037716 was heard in conjunction with that of ADJ-00036651 and this decision should be read in conjunction with that bearing reference ADJ-00036651.

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 Respondent’s decision, communicated via email of 16 December 2021, to refuse to provide the Complainant with a free staff travel concession where the Complainant’s entitlement to this arose from the terms and conditions of her employment and not on her accepting the Enhanced Severance terms including the waiver of her claim against the Respondent.

The Complainant claims that with regard to these matters:

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

·       She was victimised in breach of the Employment Equality Act 1998, as amended (EEA);

·       She was penalised under the Safety, Health and Welfare at Work Act 2005

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 on 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 from the 29 June 2019 to the 24 December 2021 of €203 per week 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 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 Complainant alleges discrimination on grounds of disability arising from the exclusion of the Complainant from the staff travel concession benefit post her refusal to execute the form of acceptance.

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.”

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 that withholding 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;

·       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 case and Arthurs Valpeters v Melbury Development Limited EDA0917, where the Labour Court examined the circumstances in which the probative burden pf 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 medial 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 affect 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 an exhaustive and evasive 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, (Consultant Orthopaedic Surgeon) 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 and, 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 EE Acts 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 has many similarities to the within 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 Complainant referred to the WRC decision Colin McArdle v Adapt Engineering LimitedADJ- 00028684 which 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 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 by 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 below 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.

Penalisation

The Complainant relies on Section 27 of the Safety, Health and Welfare at Work Act, 2005  which details penalisation and prescribes the circumstances in which penalisation is rendered unlawful under the Act.

While the Act is silent on the question of to whom the burden of proof rests with, the court in Department of Justice, Equality and Law Reform v Kirwan, (HSD/082) held:

“It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true."

The provision for "penalisation" under the Act must be a matter connected with safety, health and welfare at work. Furthermore, the act of penalisation must arise from a retaliation to an employee who has made a complaint to his employer. The Labour Court has stated that the concept of penalisation should, similar to victimisation, be construed as widely and literally as can be fairly done. The Complainant suffered injuries during a plane landing on 28 June 2019, she then initiated personal injuries proceedings. While these proceedings were in being she was offered voluntary redundancy on condition that she withdrew all legal proceedings in order to avail of the enhanced redundancy which would have adversely affected her.

It is submitted that the Respondent’s demand and refusal to carve out new terms to allow the Complainant to avail of the enhanced redundancy amounted to victimisation and penalisation.

In Oglaigh Naisiunta na hEireann v McCormack (HSD/115), the Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission." The Complainant has suffered detriment by being excluded from the enhanced redundancy due to discrimination on the grounds of disability by the Respondent.

In considering the question of whether or not the Complainant was penalised for having taken personal injury proceedings and submitting complaints to the WRC in December 2021 and March 2022 regarding safety, health and welfare, the Labour Court has provided clear guidance as to the nature of the test for establishing a causal nexus for penalisation claims under the Safety Health and Welfare at Work Act 2005. The Complainant relies upon the determination of the Labour Court in the context of the 2005 Act in O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1, imposing a “but for" test for considering whether the detriment in question was imposed for having committed the protected act.

In StJohns NS v Akduman(HSD102) the Labour Court also determined that:

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of and the respondent’s treatment of the claimant.”

Applying this test to the present facts, it is abundantly clear that the detriment suffered by the Complainant was connected to her having initiated legal proceedings and refusing to sign the waiver as demanded by the Respondent. The changed terms of the enhanced redundancy conditions and the withdrawal of travel concessions previously available in the Complainant’s employment contract, were not for bona fide reasons connected with the Complainant’s poor performance, attendance and behaviour and meet the stringent requirements of the “but for" test laid down in Toni & Guy.

The penalisation suffered by the Complainant was therefore as a result of taking legal proceedings against the Respondent and her unwillingness to sign a waiver to avail of the travel concessions.

The above is evidenced by the email correspondence sent by the Respondent’s Employee Relations Manager on the following dates.

On 4 November 2021, the Complainant wrote to the Respondent seeking her travel concessions included in the enhanced redundancy, "To whom it may concern. Please find attached my staff travel details for my book. Apologies for the delay as I was not aware it had to be returned in order to receive my book.” The Employee Relations Manager responded by email on the same day stating, "Vicki. That is no problem, we will forward to the team for processing.”

On 7 December 2021, the Complainant wrote again to the Employee Relations Manager enquiring about her travel concessions, “Hi Sharon. I am writing as I still have not yet received my travel concession book. I have spoken to Ask HR on three occasions, and I was told that it would be posted last week 30th November. On Friday I spoke again to Anthony in Ask HR who assured me that someone would contact me and unfortunately I am still waiting. It would be great if I could let me know what’s happening.”

The Respondent only responded to the Complainant 16 December 2021 and by email from the Employee Relations Manager stating, “Dear Vicki, 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. Trusting ibis clarifies the position " A copy of all email correspondence was exhibited at the hearing.

It is submitted that the withdrawal and denial of the Complainant's travel concessions because she had not signed the Enhanced Severance terms including the waiver amounts to penalisation. 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 that withholding 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. In Farrell v Modus Link Kildare, the Tribunal also considered the issue of causation as previously done by the Labour Court in Toni &Guy that held,

“This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for" the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

The Complainant therefore through a chain of events that included injury sustained during her employment, disability, redundancy, discrimination on the ground of disability, in the alternative indirect discrimination, victimisation and penalisation suffered detriment due to the motives and reasons impugned by the Respondent.

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 bearing the record number 2020/6087P.

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 voluntary severance 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.

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 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 steroid injections. 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 forms regarding 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’d 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 travel concession book 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 Trade Union. She was aware that her Union negotiated the severance package, which was subject of the negotiating process under the auspices of the WRC and the Labour Court. The proposed package was considered by the Court which recommended an additional €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 whether 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 46 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 travel 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. AER/8/69/KK/BB) 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.

In Southern Health Board v Mitchell [2001] DEE 011, 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. It provided, inter alia as follows:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment.”

In Minaguchi v Wineport Lakeshore RestaurantDEC-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.

THE SAFETY, HEALTH AND WELFARE AT WORK ACT COMPLAINT

The law relating to the burden of proof in penalisation cases has emerged from a number of Labour Court cases dealing with claims for penalisation under various pieces of legislation. The legal tests set out below are applicable to the claim for penalisation under the 2005 Act.

The definition of “penalisation” under s27 of the 2005 Act states as follows:

27(1) “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

…

27(3) An employer shall not penalise or threaten penalisation against an employee for—

…

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

Under the statutory definition of penalisation set out above, penalisation can occur only when detriment has been suffered by the complainant, and when if detriment is deemed to have occurred, that detriment arises as a result of the complaint made by the employee relating to the safety, health and welfare at work.

In order for the Complainant to advance her claim for alleged penalisation under the 2005 Act, she must demonstrate that she “[made] a complaint or representation to his or her safety representative or employer… as regards any matter relating to safety, health or welfare at work.”

In Patrick Kelly T/A Western Insulation and Girzdzius HSD081, which dealt with a penalisation claim under the 2005 Act, the Labour Court in considering a claim of penalisation under the 2005 Act stated:

“It is clear from a plain reading of Subsection (3) of this Section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the Acts referred to in the succeeding paragraphs of that subsection. Thus, it is perfectly plain that in order to succeed in a cause of action grounded on the section, a Claimant must establish not only that he/she suffered a detriment of the type referred to at Subsection (2) but that the detriment was imposed because, or was in retaliation for the employee having acted in a manner referred to at Subsection (3).”

A recent 2020 case (A Supervising Pharmacist v A Retail Pharmacy Chain, ADJ-00013264) quoted the above passage with approval.

Farrell Case

The Respondent is aware of the recent decision in Robert Farrell v Modus Link Kildare Unlimited CompanyADJ-00032100, however the Respondent submits that this case must be confined to its facts and is therefore not applicable to the Complainant’s claim.

In the Farrell case, the complainant was made compulsorily redundant by the respondent employer. The complainant had a personal injuries claim in being at the time. The respondent insisted that the Discharge Agreement be “full and final” and cover all outstanding legal issues including the personal injuries claim. This complainant alleged that the insistence on including the personal injuries claim was in effect penalisation by the respondent, in effect a retaliatory action, because he had lodged a personal injury action. As a consequence, the complainant did not receive the ex gratia element of his redundancy payment. The complainant brought a claim of penalisation under section 27 of the Act to the WRC, arguing that withholding the ex gratia payment due to his refusal to sign the discharge agreement was a breach of section 27 of the Act. In particular, the complainant sought to rely on section 27(3)(c) which provides that:

“An employer shall not penalise or threaten penalisation against an employee for

…

—(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”

The complainant argued that the letter from his solicitors in June 2019 constituted a “representation” for the purposes of section 27(3)(c), and that making the ex gratia payment conditional on him signing the discharge agreement constituted penalisation.

The WRC found in favour of the complainant. In reaching its decision, the WRC relied on the test in Toni & Guy Blackrock v Paul O’NeillHSD095 as follows:

“It is clear from the language of this Section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed ‘for’ having committed one of the acts protected by sub-section 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the Claimant having committed the protected act he or she would not have suffered the detriment. This involves consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The WRC stated, in relation to the above test, as follows:

“This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

Aer Lingus submits that the Farrell case must be confined to its facts as in the Farrell case, the respondent informed the complainant that he, along with 13 other permanent employees plus some temporary staff, were being made compulsorily redundant. No alternatives to redundancy were offered and therefore, the complainant had no choice in being made redundant. The “but for” test was applicable in the Farrell case as there were no alternatives to redundancy. However, in this claim before the WRC, the Complainant and her colleagues were provided with a suite of options following the statutory consultation process with union representatives. She had the choice of redeployment to Dublin, or Cork which would have enabled her to continue in employment with the Respondent and/or the option of an enhanced severance package on favourable terms and the Complainant chose to take the latter option which was her personal decision. When she decided that she would not accept the terms of the enhanced severance she did not seek to pursue the redeployment opportunity but instead received her statutory and contractual entitlements on termination.

Causative Link

The Respondentsubmits that the causal link required under Section 27(c) of the SHWA is broken by the actions of the Complainant, in that she opted for the redundancy option with full knowledge of its implications as opposed to choosing redeployment. The employee must be able to demonstrate that the detriment suffered was as a result of the protected act, and not some other reason. That is, a clear causal chain between the protected act occurring and any resulting detriment taking place must be established. The Labour Court have discussed this in many cases, sometimes referring to it as the “but for” test. It is clear that an employee must establish not only that he or she suffered a detriment, but that the detriment was imposed because of, or was in retaliation for, the employee having made a health and safety related complaint.

In Toni & Guy, the seminal case on penalisation under the SHWA, the Labour Court stated: “in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

In St Johns NS v AkdumanHSD102, the Labour Court addressed causation as follows:

“it is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of.”

Therefore, any subsequent action taken by an employer that is adverse to an employee who has made a complaint needs to be capable of being divorced from the complaint to ensure no liability arises.

The Complainant’s claim fails the “but for” test as it is clear that the causative link required to be successful in such a claim is broken by the fact this was not a compulsory redundancy. The Complainant had the option to remain in employment with the respondent and chose to avail of the enhanced severance package. Therefore, the Complainant cannot demonstrate that “but for” her having committed the protected act she would not have suffered the detriment.

Alternative to Alleged Penalisation

The WRC have considered a number of cases where penalisation is alleged but alternative options were offered. In Unit Manager v A Catering CompanyADJ-00001715, a complainant submitted she suffered penalisation following making allegations of being bullied, harassed and intimidated at work. The complainant was offered a transfer to another site, but turned this down as she viewed this as a demotion. In finding that section 27 of the SHWA was not breached and the complaint was not well founded, the WRC stated

“I accept that the complainant was feeling vulnerable both as a Manager and an employee as a consequence of the aftermath of the first investigation of complaints of bullying during autumn and winter 2015/2016. However I cannot identify a detriment in the claimant’s terms and conditions of employment during this period. I find that the company genuinely wished to assist in a resolution as evidenced by a letter from the Director of Human Resources dated 15 March 2016. I am also guided in my findings by the repeated affirmation that the respondent was prepared to attempt mediation under the WRC. I note that the complainant’s line manager proposed relocation to the complainant; this was not advanced once the complainant turned down the offer.”

It is therefore relevant to note that the Respondent made attempts to resolve the matter without disadvantage to the Complainant in firstly offering her an alternative to redundancy in so far as she could have stayed in employment and redeployed to another base as some of her colleagues chose to do. In addition, the Respondent attended a mediation with the Complainant facilitated by the WRC in February 2022.

In A Healthcare Worker v A Healthcare ProviderADJ-00005119, the complainant made a claim of bullying and harassment against her manager. In attempting to resolve the complaint, her employer proposed three temporary transfers in order to protect the complainant from an environment of bullying or harassment. The complainant refused those options. In finding that there was no penalisation under the SHWA, the WRC stated:

“I am satisfied that none of the three posts are ideal given that the complainant wants to return to work in audiology but I am mindful that she was offered a possible compromise to return to work in audiology, away from her previous line manager and she refused to take up that offer. An offer that would appear at face value was made in good faith. Notwithstanding, I am not convinced, which I believe I need to be, that the transfer of duty derives from penalisation as provided for under Section 27 of the Act.”

In ALaboratory Manager v A Consulting CompanyADJ-00009855, the complainant alleged he was unfairly dismissed and a contrived redundancy was manufactured in his case. He claimed that the redundancy was penalisation. In coming to its decision, the WRC noted that the complainant was given opportunities for other roles to consider but chose not to apply or pursue them. The WRC ultimately held that his claim was not well founded.

Furthermore, in Outreach Officer vs Non-Governmental OrganisationADJ-00014450, the WRC stated that “for a claim of penalisation under the Act to succeed I need to be satisfied that the Respondent acted in a manner of bad faith because the Complainant raised a complaint.” In this case, the complainant raised concerns regarding working alone on Fridays. The complainant was subsequently dismissed due to unrelated matters, but the complainant alleged penalisation under the SHWA. However, the WRC found that the Respondent had offered the Complainant the option of working from home on Fridays or meeting clients off the premises. The WRC dismissed the complainant’s claim as he had not established any causal link between the alleged protected act and the alleged penalisation.

In A Material Handler/Operative v A ManufacturerADJ-00015349, the WRC held that, when relying on section 27 of the SHWA, “complainants have an obligation to consider the reasonableness of their employers’ actions in handling their concerns.” In this case, the complainant alleged that she was penalised following an encounter with her manager. However, the employer had provided to the complainant both an apology and an option to mediate the matter, but the complainant had refused these reasonable means of resolution. The WRC decided that there was therefore no detriment to the claimant and the unpleasant and inappropriate behaviour of the complainant’s manager was therefore not found to be an act of penalisation.

The Respondent submits that the case law demonstrates that the motivation for the action of the employer is a key factor in determining whether penalisation has occurred. The “but for” test applies when considering whether the employee’s conduct (in this case, the Complainant initiating a personal injuries claim) led to the action complained of (in this case, the Complainant not receiving the ex gratia  payment as part of the enhanced redundancy terms). However, the Complainant was not obliged to choose the redundancy option. The Complainant was offered the opportunity to be redeployed Dublin or Cork but refused those options in favour of choosing the enhanced redundancy scheme with full knowledge of its conditions. The Respondent submits that taking the above case law into account, and the fact the Complainant had options other than redundancy, the Farrell case should be confined to its facts and is not relevant to the Complainant’s claim.

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 was clearly related to the voluntary severance payment. The Complainant accepted that there was no contractual entitlement to the staff 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 8 March 2022 alleging that she was discriminated against by the Respondent by reason of her disability and that she was victimised. The most recent date of discrimination was stated as 16 December 2021. In that regard, the Complainant alleged that the Respondent’s decisions that the Complainant was not eligible for the staff travel concession book was an incident of discrimination and victimisation.

The Complainant further alleged that she was penalised by the Respondent in terms of the exclusion from the enhanced redundancy severance terms in response to the Complainant having made a complaint to her employer regarding a health and safety matter at work.

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.

CA-00049064-001 under section 77 of the Employment Equality Act, 1998 as amended

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 him/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 in cross-examination, the Complainant asserted 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 alleges that the Respondent’s decision that she was not eligible for a staff travel concession book was an incident of discrimination.

The Respondent rejected the claim and argued that the Complainant did not have contractual entitlement to a staff travel concession book and, as she did not opt for the enhanced voluntary severance scheme, she was not entitled to same.

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 staff travel concession book. Finally, 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 Complainant confirmed at the adjudication hearing that there was no contractual entitlement to the travel concession book. I note that the letter dated 6 July 2021 issued by the Respondent to the affected staff outlined the three options available to staff following a detailed consultation process with the trade unions. I note that under the heading: “Option 1: Enhanced Severance Terms”,  the Respondent informed the affected staff in relevant parts:

·       Staff Travel concession will be offered as outlined below…

While the Complainant stated in her WRC complaint form that the entitlement to the staff travel concessions book was a term and condition of her contract of employment and was not linked to the enhanced redundancy package or signing the waiver, there does not seem to be any reference to same in the copy of the Complainant’s contract which was exhibited at the hearing. The Complainant said in her evidence at the adjudication hearing that that she did not see any reference to the staff concessions book as part of the enhanced package. However, she agreed in cross-examination that the termination of employment does not attract the staff travel concessions. She had clear understanding that an employee of the Respondent would not be entitled to same when leaving their employment. The Complainant confirmed that there was no agreement in place that would entitle an employee who is made redundant to a travel concessions book, albeit she said that the Respondent always issues the staff travel concession book as part of the voluntary severance package. There was no dispute that the arrangement regarding the closure of the Shannon base was negotiated with the representative trade unions. There was also no disagreement that the letter issued on 6 July 2021 outlined the agreement reached and the options available to the Complainant. Option 1 clearly states that the Enhanced Severance Terms includes the staff travel concessions.

I find that the staff travel concession book was part of the Enhanced Severance Terms. The Complainant did not accept the terms and did not execute the Form of Acceptance. She, therefore, was not entitled to a staff travel concession book.

Having carefully considered the submissions of the parties and the evidence before me, I cannot conclude that the Respondent’s decision that the Complainant was not eligible for the staff travel concession book was directly discriminatory against 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. 

Victimisation

In her WRC complaint form, the Complainant alleged that the Respondent’s decision that she was not eligible for the staff travel concession book was also an incident of victimisation for having made a complaint of discrimination by letter dated 24 September 2021.

The Respondent rejects the Complainant’s claim of victimisation

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.

The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

The Complainant alleged that the Respondent’s decision to refuse her the staff travel concession book was an incident of victimisation. it was 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 communicated to the Respondent that the refusal to carve out her personal injuries claim from the terms of the enhanced severance package constituted discrimination on grounds of disability.

I note that in the letter of 10 September 2021, the Complainant’s solicitor stated that the Complainant “reserves the right to bring an employment claim should she be victimised by not being offered the enhanced severance package by virtue if having had an accident at work thereby necessitating an employer’s liability claim…”

In the letter of 24 September 2021, in the Complainant’s solicitor’s letter to the Respondent they stated:

“It is quite apparent from our instructions that:

(g)    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.

(h)    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.

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

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

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

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

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

(j)      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.

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

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

I find that the Complainant made a protected act within the meaning of section 74(2).

In considering whether the Complainant has satisfied parts (2) and (3) of the test outlined above, I have taken cognisance of the case of Roy Mackarel v Monaghan County Council EDA1213 where the Labour Court held that:

“Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

The detriment complained of by the Complainant relates to the adverse and discriminatory treatment which she claims to have been subjected by the Respondent in the context of the refusal to issue the Complainant with the staff travel concession book. In that regard, I note that the staff travel concession book was not an automatic entitlement. Rather, it was a benefit that was linked to the Enhanced Severance Terms, as negotiated with the trade unions and as outlined to the Complainant in the Respondent’s letter dated 6 July 2021.

It is, therefore, evident that the decision regarding any entitlement to the staff concessions was made in the consultation process between the Respondent and the representative trade union. Thus, it predated the protected act undertaken on behalf of the Complainant.

Insofar as the Complainant’s assertion that the decision was made or communicated to her on 16 December 2021, I find that following the Complainant’s request on 4 November 2021, she received a response that “That is no problem, we will forward to the team for processing”.  I do not accept the Complainant’s assertion that this correspondence confirms the Complainant’s entitlement to the travel concessions. Subsequently, on 16 December 2021, the Complainant received further clarification explaining that she was not eligible to the staff travel concession book as she did not avail of the voluntary severance, which is consistent with the correspondence of 6 July 2021. 

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 instant case.

CA-00049064-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant alleges that her exclusion from the enhanced redundancy severance terms and the refusal of the staff travel concession book constituted penalisation under the Act as it was adverse treatment in response to the Complainant having made a complaint regarding a health and safety matter at work by way of initiating a personal injuries claim and submitting complaints to the WRC in December 2021 and March 2022 regarding safety, health and welfare.

Section 27 of the Act stipulates as follows:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

a)      suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

b)      demotion or loss of opportunity for promotion,

c)       transfer of duties, change of location of place of work, reduction in wages or change in working hours,

d)      imposition of any discipline, reprimand or other penalty (including a financial penalty), and

e)       coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

a)      acting in compliance with the relevant statutory provisions,

b)      performing any duty or exercising any right under the relevant statutory provisions,

c)       making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

d)      giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

e)       being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

f)        subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

The Act is silent on the question of who the burden of proof should be allocated to as between the parties. In the case of Toni & Guy Blackrock Limited v Paul O’Neill HSD095 the Labour Court held that: 

“it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

I am satisfied that the aforementioned test as outlined by the Labour Court in relation to the shifting of the burden of proof is applicable to the present case.

It was not disputed that in or around August 2021 the Complainant initiated a personal injury claim. It was also not disputed that the Complainant referred two complaints to the Director General of the WRC on 21 December 2021 and 8 March 2022.

Having considered the matter, I find that the personal injuries claim wherein she raised health and safety matters constituted a protected act.  With regard to the Complainant’s claim dated 21 December 2021, it was referred under the Employment Equality Act, 1998 and the Complainant made no reference to the Safety, Health and Welfare Act or safety, health or welfare at workmatters within her complaint. It, therefore, cannot not constitute a protected act.

With regard to the Complainant’s contention in her submission, as outlined above, that she was penalised for submitting her claim to the WRC on 8th March 2022, I find that, as this alleged penalisation would have occurred after the submission of this complaint to the WRC, the Complainant is not entitled to seek to obtain compensation or other relief arising out of events post-dating the complaint form.

I find that the Complainant did, in accordance with the provisions of Section 27(3) of the Act make a representation to her employer as regards matters relating to safety, health or welfare at work. Accordingly, I find that the Complainant’s actions in this regard constitute a protected act within the meaning of Section 27(3) of the Act.

The Labour Court in Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095  further held that: 

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish not only that she suffered a detriment of a type referred to at subsection (1) but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

The Complainant contends that, having made a protected act, she was subjected to a detriment of being excluded from the enhanced redundancy severance terms and the refusal by the Respondent to carve out new terms to allow the Complainant to avail of the enhanced redundancy, and the refusal of the staff travel concession book.

The Respondent does not dispute that the Complainant did not receive the enhanced severance package and the staff travel concession book but denies that this was in any way linked to the fact of her having made a representation about health and safety in the workplace. The Respondent disputes the Complainant’s claim that she was subjected to any act of penalisation contrary to the Act. 

In considering this issue, I note the Complainant’s submission that she initiated a personal injuries claim in or around August 2020. I further note that on 10 September 2020, the Complainant filed a High Court Personal Injuries Summons against the Respondent.

In considering the question as to whether there was a causal link between the alleged detriment and the fact that the Complainant had committed a protected act, I have carefully considered the evidence of both parties and the submissions in relation to the manner in which enhanced redundancy terms and the staff travel concession book were executed.

There was no dispute between the parties that the Respondent informed Shannon based staff of the proposed closure of the Shannon cabin crew base and consultation between the Respondent and the representative trade unions took place between 18 May and 30 June 2021. As a result of the consultation process, three proposals were put to the staff and a letter outlining the agreed arrangements issued on 6 July 2021. The Complainant, similarly to some 80 other staff members, was invited to indicate her preference. The Complainant chose the Enhanced Severance 2021 package. The Respondent did not apply any discretion to the arrangements with individual employees, they were all subject to the same terms of the enhanced redundancy package.

I have found above that the staff travel concession book formed part of the enhanced voluntary severance package. The Complainant chose not to execute the Form of Acceptance. She also chose not to opt for either of the deployment opportunities.

Having regard to the totality of the evidence adduced, I am unable to find a causal connection between the alleged detriment complained of and the fact that the Complainant had committed a protected act within the meaning of the Act. While the Complainant might not have been satisfied with the terms of the enhanced redundancy package, I cannot conclude that the detriment she alleges to have suffered has been incurred because of, or in retaliation for, the Complainant having committed a protected act.

Accordingly, I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

In all of the circumstances, therefore, I find that the Complainant’s complaint of penalisation within the meaning of section 27 (3) of the Act has not been made out.

I find that the Complainant was not discriminated against and/or victimised within the meaning of the Act. I declare this complaint to be not well founded.

I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act. Accordingly, I declare the complaint to be not well founded.

Direct discrimination-victimisation-disability- penalisation