Complainant

Respondent

Parties

Michael  Neary

Duffy Coachbodies Dundalk Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

James McCourt & Son Solicitors

 Frankie Watters, HR Consultant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00053061-001

30/09/2022

The Complainant commenced his employment as a Painter with the Respondent on 5 January 2017 and was paid €630 per week. He stated that he was discriminated against by the Respondent in the first instance by way of promotion and in respect of his disability after he indicated that he was fit to return to work in June 2022.

The Complainant stated in evidence that the position of supervisor in the body shop area was given to him in December 2019 and he had three employees reporting into him. Further to the lockdown caused by the COVID pandemic, he returned to work on 20th July 2020 and highlighted that some colleagues returned before him while others came back at the same time. He also stated that, following his return to work, he was given the task of polishing cars and was informed on 21 July 2021, during a meeting with the Managing Director, that his supervisory role was being removed from him. He stated that he subsequently acquired “tennis elbow” because of polishing cars and went off work on sick leave from 15 September 2021.  He alleged that he sent his sick certs to the Respondent on an ongoing basis and had originally been promised by the Respondent that they would make a sick pay contribution to him while he was off but this never materialised.

On 3rd June 2022, he had an appointment with his GP who informed him that he was fit to return to work but that he would have to do other tasks and not the duties he was previously doing. After this appointment, he telephoned the office and informed the Operations Manager that he was fit to return to work. The Operations Manager told him however that he (the Operations Manager) would have to contact the insurance company before he could allow the Complainant return to work. The Complainant’s solicitor subsequently contacted the Respondent on 22 June 2022 and again on 5 July 2022 regarding his return to work but did not receive any reply.

The Complainant stated that in the meantime he met with the Managing Director of the Respondent on 30 June 2022 and alleged that the Managing Director told him that he didn’t believe that he had an injury and informed him that he wanted to send him to the company doctor. He subsequently met with the company doctor on 12 September 2022 and was informed in writing on 26 September 2022 both that he needed to do a grip test and that a further consultation with an orthopaedic specialist was required. 

The Complainant stated that the doctor was taking too long to communicate back to him and he had to start applying for other work.

In cross examination, the Complainant accepted that the Managing Director of the Respondent had not disputed that he had an injury but did not believe that it was an occupational injury. The Complainant also accepted himself that it was difficult to know if the tennis elbow was caused by the work he was doing at the time. In addition, he accepted that he informed the Managing Director of the Respondent that he did not know what tasks he could do and agreed at the meeting on 30 June 2022 that the best way forward was to seek independent medical advice to assess what he was capable of doing. The Complainant also accepted that it was reasonable for the Respondent to accept their doctor’s recommendations and recognised that appointments with medical professionals often took some time to be arranged. He stated however that the appointments were not arranged quickly enough and that the Respondent could have been more proactive in making these arrangements.

The Complainant commenced employment with the Respondent as a Spray Painter, a role which includes an ongoing process split between inspection, rectification work (Filler & Sanding), coatings & paint refinishing (including Polishing).

Subsequently he was promoted in December 2019 to the position of Supervisor. This was an internally advertised position and involved an increase in pay of circa €100 a week. The position did not materialize in the way originally envisaged and issues arose regarding the remit of the role and the interaction between the Complainant and other employees.

Following the Covid lockdown in March 2020, the Respondent began a graduated return to full operations in May 2020 when a Fitter returned to work. Subsequently three Fitters and one Painter returned to work in May. Another Fitter returned to work on 25th May and subsequently four Welders returned on 1st June. A Painter returned on 8th June prior to another Welder and a Fitter returning on 15th June. Two Painters, including the Complainant returned on 20th July 2020. The return to work was based on available work, operational considerations and ensuring compliance with Covid-19 requirements in the workplace. Upon his return to work, the Complainant was re-assigned to his original role. 

In September 2021, the Complainant submitted a medical certificate from his doctor covering the period from 14th to 27th September 2021 stating that he was unfit to work because of an injury to an “exterior muscle and tendon at forearm level.” The Managing Director stated in evidence that it wasn’t clear from the medical certificate if the Complainant’s injury was occupational or not. Thereafter, from September 2021 to June 2022, the Complainant continued to submit medical certificates to the Respondent in similar terms to the original certificate.

In June 2022, the Complainant indicated his wish to return to work and provided a medical certificate which stated “Ideally he would be perform (sic) alternative tasks to his previous work which would be less likely to exaserbate (sic) his injuries”. As a result of the lack of clarity in this certificate, regarding either his injuries or the tasks he could do, the Respondent asserted that it was prudent to access the capacity of the Complainant to return to his employment and the type of work that he would be capable of performing. Accordingly, they wrote to him on 24 June 2022 seeking to meet with him to discuss these issues. This meeting took place on Thursday 30th June 2022 at the company premises and the Complainant suggested that he could do electrical work or welding but the Respondent stated that he was not certified or qualified in either of these areas. As the Complainant also stated that he was incapable of lifting heavy items, he ultimately agreed to attend a medical doctor appointed by the Respondent who could assess his injuries and establish exactly what tasks he could perform.

By letter dated 15th July 2022, the Respondent wrote to the Complainant and made him aware that the company doctor had requested, prior to making an appointment to meet with him, to visit the company premises to see "firsthand" the working practices and the type of work the Complainant would be expected to carry out. The Respondent also highlighted in this correspondence that they would endeavour to keep the entire process moving as quickly as possible, but that the company doctor would dictate the timescale in the immediate future.

Further to the company visit by the doctor on 22 July 2022, an appointment was subsequently arranged for the Complainant on 12th September 2022 and his report was received by the company on 21st September 2022, wherein he recommended further assessment and testing, namely re-testing of the "grip strength" on the Complainant’s right arm and hand as well as an orthopedic opinion in respect of his elbows and the ongoing epicondylitis condition.

Further to this, on 16th December 2022, the Medical Assessor wrote to the Complainant to inform him that he had referred him to a Consultant Orthopedic Surgeon and that his secretary would be in touch with an appointment to consult with him.

On Monday 30th January 2023, the Respondent stated that they received an email from the Complainant indicating that he was resigning from his position and highlighted that he had never at any stage prior to then indicated any displeasure around the timing of his medical appointments or made a request that these be accelerated.

Discrimination in relation to promotion

The Complainant stated in the first instance that he was discriminated against by the Respondent in relation to his promotion. The Respondent highlighted however that as they promoted the Complainant in 2019 and the complaint was referred to the WRC on 30 September 2022 that it was out of time.

In order to determine whether this complaint is out of time and therefore statute-barred, it is necessary to firstly set out the relevant statutory provisions as follows: 

“Section 79(5) of the Employment Equality Act 1998 provides as follows:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b)  On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c)  This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6)  Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A) For the purposes of this section- (a) discrimination or victimisation occurs- (i) if the act constituting it extends over a period, at the end of the period, (ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and (iii) if it arises by virtue of a provision which operates over a period, throughout the period,

(b)  a deliberate omission by a person to do something occurs when the person decides not to do it, and

(c)  a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either- (i) does an act inconsistent with doing it, or (ii) the period expires during which the respondent might reasonably have been expected to do it.”

As the Complainant was promoted in December 2019 and the complaint was not referred to the WRC until 30 September 2022, it falls outside of both the 6 month time limit in the first instance as well as the 12 month time limit for considering whether there is reasonable cause for extending time. Accordingly, I find that I do not have jurisdiction to hear this aspect of the complaint.

Discrimination by reason of his disability

The Complainant also stated that that he was discriminated against when the Respondent was not pro-active enough around arranging a return to work for him even though he had been certified as fit to do so by his GP.

Section 16 of the Employment Equality Act 1998 provides as follows:

(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he has been discriminated against because of his disability. 

The Respondent, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

I note that having received his medical certificate dated 3 June 2022, indicating that he was fit to return to work, the Respondent wrote to the Complainant on 24 June 2022 to arrange a meeting with the Managing Director which took place on 30 June 2022. At that meeting, the Complainant’s medical certificate of 3 June 2022, wherein it was stated,

“Ideally he would be perform (sic) alternative tasks to his previous work which would be less likely to exaserbate (sic) his injuries”

was discussed.

Given the lack of clarity in the medical certificate around what the Complainant’s injuries were, as well as the suggestion therein that he be allowed to perform alternative tasks, which were not stated, I note that the Respondent quite reasonably proposed at the meeting that the Complainant attend their nominated doctor and he agreed to this request.  The Complainant was subsequently informed on 15th July 2022 of the appointment of the company doctor and was notified that the doctor would be carrying out an inspection visit to the Respondent’s premises on Friday 22nd July 2022 with a view to assessing what “alternative tasks” the Complainant would be capable of doing as suggested in his medical certificate of 3 June 2022

Further to the visit by the company doctor to the Respondent’s premises, I note that on 19 August 2022 the Respondent wrote once again to the Complainant and he subsequently met with the company doctor on 12 September 2022. Following on from the assessment, the company doctor, via letter on 26 September 2022, recommended further assessment and testing, namely the re-testing of the "grip strength" on his right arm and hand as well as an orthopedic opinion in respect of the Complainant’s elbows and his ongoing epicondylitis condition.

The Complainant was informed that these assessments would be arranged as soon as possible and that he would be contacted regarding suitable appointment times and dates. Notwithstanding this correspondence however, I note that the Complainant decided to refer the instant complaint to the WRC on 30 September 2022.

While I recognize that the medical appointments with both the Respondent’s doctor as well as the orthopedic surgeon were not scheduled as expeditiously as the Complainant may have wanted or expected, I note in the first instance that the Respondent had little choice but to engage their own medical experts given the very vague nature of the Complainant’s medical certificate of 3 June 2022. Specifically, this medical certificate contained only one line, as highlighted above, and did not outline either the Complainant’s injuries or elaborate on what tasks the Complainant could do. In addition, I find the Respondent’s suggestion that there was a significant backlog in the arrangement of medical appointments because of the pandemic to be credible and I accept that any delay in the scheduling of the medical appointments was outside of their control.

Overall, I find that as the Respondent was attempting, in seeking medical advice, to assess both the extent of the Complainant’s injuries and what tasks he could do, there was little more that could have been done to facilitate his return to work in the period prior to 30 September 2022, the day on which he referred his complaint to the WRC. Considering the foregoing, I find that he has not established a prima facie case of discrimination.  

As the aspect of this complaint in relation to the Complainant’s promotion was out of time, I do not have jurisdiction to hear it.

As the Complainant failed to establish a prima facie case of discrimination in respect of the second aspect of his complaint, namely that he was discriminated against on the grounds of his disability, I find that he was not discriminated against.